The NSW Industrial Relations Act 1996 requires an employer to exhibit a current copy of all relevant awards in the workplace. Copies of awards may be purchased from the Information Services Team of the Office of Industrial Relations. An electronic version is acceptable as long as it is accessible to all employees.
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Outlined below are some of the more common conditions found in NSW awards.
Terms of Engagement: full-time, part-time or casual
Full-time employees receive full weekly wages and conditions for working between 35 to 40 hours per week.
Part-time employees work a regular number of hours each week less than a full-time employee. The employee receives the flat hourly equivalent of the normal full-time rate (sometimes a little extra). A part-time employee generally receives all, or most of the benefits of a full-time employee but on a proportional or pro rata basis.
Casual employees are engaged to work on an hourly or daily basis. They receive an extra loading on top of the normal rate to compensate for not receiving benefits such as paid sick leave and paid public holidays. This loading is generally between 15 and 33.3% above the normal full-time hourly rate. Casual workers also usually receive an extra amount equal to a further 1/12th of the casual hourly rate to cover pro rata annual holiday pay.
Some awards specify that casual employees must be paid for a minimum number of hours per day. Other awards may allow employers to engage casual employees to work an indefinite number of hours. The employment of casuals may also be restricted to a specified number of occasions, for example, less than five days' duration. Since the definitions of part-time and casual employment vary between one award and another, it is essential to check the award for details when engaging a new employee.
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Wages
The wage clause in an award specifies the minimum wage that must be paid for each classification or grade of employee covered by the award. Each employee must receive this amount as a minimum.
Sometimes the actual minimum weekly pay consists of a normal award wage plus compulsory additional components such as industry allowances or tool allowances. There are often additional rates to be paid for very specific circumstances such as working in the wet or dealing with toxic substances. Some awards express the rate of pay as a margin which is added to the basic wage to determine the total award rate.
The wage clause in an award often specifies how casual or part-time rates should be calculated, that is, what additional loading they receive.
Junior employees are sometimes paid a percentage of the adult rate, depending on their age. Other awards set a specific rate of pay, depending on the age of the junior employee. In a few cases, awards set no special junior rates of pay – everybody covered by the award is paid full adult rates.
Wages should normally be paid on the same day each week. The NSW Industrial Relations Act 1996 requires employers to provide their employees with a pay advice slip detailing payments and deductions such as income tax, superannuation payments, union dues and health fund.
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Termination of Employment
Most awards state that the party wishing to terminate the employment should give the other party appropriate advance notice, usually one week. Where prescribed notice is not given, appropriate wages should be paid in lieu of notice.
Generally, if the employee leaves without giving proper notice, the employer may retain wages equivalent to the notice required. Some awards provide for a qualifying period during which no notice is required. Other awards need more than one week notice.
No other deduction can be made from other entitlements such as annual holiday pay. To avoid any misunderstanding, notice should be in writing or perhaps in front of a witness, even though this may not be a requirement of the relevant award.
The requirement for the employer to give notice is waived if there is a breach of contract in the form of misconduct by the employee. The employer may also have the right to pursue a civil claim for damages.
Except in special cases, an employer cannot legitimately stand-down an employee without pay. Special termination provisions apply to the employer's introduction of technological change to the industry.
Employers should be aware of unfair dismissal legislation that applies to their employees.
Federal legislation may require an employer to give extended notice periods to employees. For further information, please contact the Federal Department of Employment and Workplace Relations.
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Hours of Work
Each award states the maximum number of hours and days an employee can work without receiving any extra payment such as overtime. These hours are called ordinary hours. The award specifies the earliest starting time and the latest finishing time for ordinary hours. Hours worked outside these limits, or more than the maximum daily or weekly limits, must be paid as overtime.
Most awards provide for a five-day week with the maximum number of ordinary hours set between 35 and 40 hours. Awards where hours have been reduced to under 40 hours per week may provide for the operation of flexible rostering arrangements.
For example, instead of working 38 hours each week, extra ordinary hours may be accrued so that the employee can have a rostered day off every four weeks. Some awards provide for a compulsory 19 days - four week cycle.
Apart from normal Monday to Friday day work, many awards provide for employees to work their ordinary hours much earlier or later than usual, sometimes including weekends. These shift-workers are normally entitled to receive additional allowances and penalties on top of their normal rate of pay. For example:
Early Morning extra 10%
Afternoon extra 15%
Night Rotating extra 17.5%
Night - Non-Rotating extra 17.5%
Saturday time and one-half*
Sunday double time*
*NB: Awards often state that these shift penalties replace other penalty rates and are not cumulative. For example, an employee working from 3:00 am on a Saturday will only be paid time and one half for the shift. The employee would not receive the night shift penalty as well.
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Overtime
Employees who are required to work outside or more than their ordinary hours of work must be paid at overtime rates. The rate of pay for overtime is usually time and a half (an extra 50%) for the first two or three hours, then double-time (an extra 100%) after that.
A meal allowance is also payable if the employee is required to work more than one or two hours after their normal finishing time. The meal allowance may not be payable if advance notice is given the day before the overtime is worked or if the employer provides a suitable meal. Normally, employees should have a break of about ten hours after finishing overtime before being required to recommence ordinary hours.
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Award Superannuation
Many awards require employers to make superannuation contributions on behalf of their employees. These contributions are usually made to an approved fund prescribed by the relevant award.
Employers who fail to make superannuation contributions on behalf of their employees may be liable to prosecution under the NSW Industrial Relations Act 1996. An employer would also be liable for the payment of the unpaid contributions together with any interest that may have accrued.
Employers may offset their award superannuation contributions against the contributions due under the Commonwealth Superannuation Guarantee scheme. As from July 1992, the Superannuation Guarantee scheme required employers to pay superannuation contributions in addition to wages for their employees. The money is paid into a complying fund, and then preserved (invested) until the worker's retirement. The current minimum contribution employers must make is 9%.
Superannuation must be paid quarterly throughout each financial year. If payments are not made, the employer will need to pay a charge to the Tax Office (for more information contact the Australian Taxation Office Super Helpline).
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Meal-Breaks, Tea-Breaks, Crib-Breaks
Generally, there must be at least one meal break of between 30 minutes and one hour during each day. The meal break must be normally given five hours after the employee starts work.
Some awards state the exact time at which the meal break should be taken. Normally the main meal break is taken in the employee's own time. It is not a paid break. Shift-workers are usually entitled to a 20 minute paid crib break in each shift instead of the longer unpaid break.
Some awards provide for a ten minute rest period (tea break) either in the morning or afternoon, or both. In other cases, the award may not provide for any rest period at all in which case the granting of such breaks is largely at the employer's discretion. These rest periods or tea breaks normally count as time worked.
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Public Holidays
There are ten standard public holidays each year. In addition, the government may declare special public holidays from time to time. Most awards provide for a union picnic day or other additional holidays which are treated much the same as normal public holidays.
Work performed on public holidays is usually paid at double-time and one-half (an extra 150%) with a minimum payment for four hours' work. Employees engaged on a weekly basis whose ordinary hours of work coincide with a public holiday are entitled to the day off without loss of pay. Many awards provide that if employees are absent without reasonable cause, the day before or after a public holiday they forfeit payment for those days.
The major public holidays in New South Wales are:
New Year's Day
Australia Day
Good Friday
Easter Saturday
Easter Monday
Anzac Day
Queens Birthday
Labour Day
Christmas Day
Boxing Day
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Sick Leave
The minimum period for sick leave is five days during the first year and eight or ten days per year during subsequent years. Untaken sick leave can usually be carried forward cumulatively for a number of years. Often there is a qualifying or withholding period of three months in the first year before payment for sick leave becomes due. Payment within this qualifying or withholding period is normally required by awards when that period has expired.
In some awards the sick leave entitlement builds up on a pro rata basis of one day per month over a certain period during the first year. The payment for sick leave is normally subject to the production of a medical certificate or other satisfactory evidence that the employee was unable to attend work because of illness or injury. Sick leave entitlements are not used for illness or injury arising in the course of employment for which the employee is entitled to workers' compensation.
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Uniforms, Laundry, Fares, Travel and Expenses
Where uniforms or special clothing is required to be worn by employees, they should be provided and laundered at the employer's expense. Alternatively, employees may be paid an allowance to cover these expenses.
If employees are required to travel to a place other than their usual place of employment, they are normally entitled to be paid for any excess travelling time or expenses. Employees who are required to use their private motor vehicle in their employment are normally entitled to a weekly car allowance and/or a running rate per kilometre.
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Annual Leave Loading
Annual leave loading is an award provision - basic holiday pay is covered separately by the provisions of the Annual Holidays Act 1944. When annual leave is taken, leave loading of 17.5% is payable in addition to the basic holiday pay. Where annual leave is taken in advance, the payment of loading is deferred until the completion of the year of employment in which the leave was taken.
When an employee is paid proportionate holiday pay because of a compulsory annual close down, they are still entitled to be paid a proportionate amount of loading even though they have been employed for less than a full year. It should be noted that, generally, the 17.5% leave loading need only be calculated on the employee's basic weekly award rate of pay; additional allowances, penalties and above award payments are not included.
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Other Common Award Provisions
Other common award provisions include: first aid allowance, jury service, personal/carers leave and bereavement leave and study leave.
Phone: 131 628
| Award Enquiries
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Rights & Responsibilities
