Wages and Hours - employer questions about WorkChoices

Q&A

Wages and Hours - employer questions about WorkChoices

Questions about wages and hours of employment figure prominently as issues for employers attempting to understand their obligations under WorkChoices.

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Questions about wages and hours of employment figure prominently as issues for employers attempting to understand their obligations under WorkChoices.

This is another in a series of articles on the most commonly asked questions by employers on aspects of the WorkChoices legislation. It is intended that this series will assist employers in understanding the complex issues raised by the new legislation and, in some instances, highlight areas that may require further legislative amendment or may be potentially areas of future legal challenge.

As with all articles with respect to WorkChoices the commentary is based on the presumption that the employer is a constitutional corporation, unless otherwise specified.

Wage increases under NAPSAs

Q. We have some employees employed under a pre-reform Federal award and others under a State NAPSA. That depends.

If the future wage increases prescribed in a NAPSA (or pre-reform Federal award) have been deemed by the relevant industrial tribunal to be based on 'work-value' or 'pay equity', then the increases to the minimum award wage under that instrument will still apply. However, if the wage increases have been granted for any other reason (eg by consent of the parties to the award) then the increases are not enforceable.

Minimum wages preserved

Q. We have some employees employed under a pre-reform Federal award and others under a State NAPSA. If these persons are covered under the applicable pre-reform transport award or NAPSA, and are considered to be employees and not contractors (except in NSW), the 'per kilometre' wage rate would have been preserved by the WorkChoices legislation and would still legally apply.

The kilometre rates in the transport industry are usually dependent on the employee being paid, at the very least, the minimum award wage in circumstances where insufficient kilometres were travelled in a particular pay week.

Meal breaks and the Standard

Q. We have some employees employed under a pre-reform Federal award and others under a State NAPSA. Although the meal break provisions under WorkChoices must not require an employee to work for more than five hours continuously without an unpaid interval of 30 minutes, it does not apply where an industrial instrument covers the employee's employment. If these employees are covered by either a pre-reform Federal award, NAPSA, pre-reform Federal or State agreement, or a new workplace agreement, the extension to six hours will be subject to the appropriate meal break provision contained in the relevant industrial instrument.

The ability to extend the taking of a meal break to after six hours, by agreement, is a common provision in industrial instruments, although reference should be made to the applicable instrument to establish the legality of this arrangement.

Award-free employees, however, are subject to the meal break provisions under WorkChoices.

Overtime and the Standard

Q. We have some employees employed under a pre-reform Federal award and others under a State NAPSA. The answer is no.

Under a pre-reform award or NAPSA the provisions of the hours of work clause remain preserved for a period of up to three years and are exempt from coverage from the hours Standard under WorkChoices. The same situation applies to any pre-reform agreements, both Federal and State.

The hours Standard, however, applies to employees not covered by an industrial instrument.

Q. We have some employees employed under a pre-reform Federal award and others under a State NAPSA. WorkChoices does not refer to overtime as such but 'additional hours' worked beyond 38 in a week, which appears to be payable at ordinary time. Does this mean that we can pay our employees overtime at ordinary time?

A. In this case the answer is no.

Because the hours Standard does not apply to employees under a pre-reform industrial instrument (ie Federal award, NAPSA, or a pre-reform Federal or State agreement), overtime would be calculated using the appropriate penalty rate for any work in excess of the span of daily hours and/or maximum weekly hours prescribed by the applicable pre-reform award or NAPSA.

Related

WorkChoices updates - what you need to know - Minimum Conditions Standard

Doing nothing is a choice under WorkChoices for non-award employees

Doing nothing is a choice under WorkChoices for federal agreement employers



  

 

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