Commonwealth Consolidated Acts Commonwealth Consolidated Acts
1 Subsection 189(1)
Repeal the subsection, substitute:
APCS applies and contains frequency of payment provisions
(1) If:
(a) the employment of an employee is covered by an APCS; and
(b) the APCS contains frequency of payment provisions that apply in relation to the employee's employment;
then:
(c) if a workplace agreement that covers the employment of the employee contains frequency of payment provisions:
(i) that apply in relation to the employee's employment; and
(ii) that provide for payments in respect of periods of one month or less;
the employer must comply with those provisions in relation to the employee; or
(d) if paragraph (c) does not apply, and the employee's contract of employment contains frequency of payment provisions:
(i) that apply in relation to the employee's employment; and
(ii) that provide for payments in respect of periods of one month or less;
the employer must comply with those provisions in relation to the employee; or
(e) if neither paragraph (c) nor (d) applies--the employer must comply with the frequency of payment provisions of the APCS in relation to the employee.
2 After subsection 226(1)
Insert:
(1A) An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours.
3 Section 228
Before "In", insert "(1)".
4 Section 228 (at the end of the definition of shift worker )
Add:
Note: Subsection (2) enables regulations to be made providing that an employee belonging to a specified class is not a shift worker.
5 At the end of section 228
Add:
(2) The regulations may provide that an employee:
(a) who is covered by paragraph (a) or (b) of the definition of shift worker in subsection (1); and
(b) who belongs to a class specified in the regulations;
is not a shift worker for the purposes of this Division.
(3) Without limiting the way in which a class of employees may be described for the purposes of regulations made under subsection (2), the class may be described by reference to one or more of the following:
(a) a particular industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular type of shift work (whether described by reference to the organisation or allocation of shifts or otherwise).
6 Paragraph 229(1)(a)
Repeal the paragraph, substitute:
(a) start with:
(i) the specified number of hours; or
(ii) if the specified number of hours is more than 38 hours--38 hours;
7 After subsection 229(4)
Insert:
Certain types of leave not to count as service
(4A) For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except:
(a) as expressly provided by:
(i) a term or condition of the employee's employment; or
(ii) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or
(b) as prescribed by the regulations.
Note: For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer's leave) and 316(2) (parental leave).
8 Subsection 229(5) (note 3)
Repeal the note.
9 Paragraph 233(1)(c)
Omit all the words after "no less than", substitute "the rate that, at the time the election is made, is the employee's basic periodic rate of pay (expressed as an hourly rate); and".
10 Subsection 235(1)
Omit all the words after "a period,", substitute "the employee must be paid a rate for each hour (pro - rated for part hours) of annual leave taken that is no less than the rate that, immediately before the period begins, is the employee's basic periodic rate of pay (expressed as an hourly rate).".
11 Subsection 235(2)
Omit all the words after "a particular time,", substitute "the employee must be paid a rate for each hour (pro - rated for part hours) of the employee's untaken accrued annual leave that is no less than the rate that, immediately before that time, is the employee's basic periodic rate of pay (expressed as an hourly rate).".
12 At the end of section 236
Add:
Entitlement to leave for all nominal hours in a day also extends to other hours on that day
(7) If:
(a) an employee to whom subparagraph 229(1)(a)(ii) applies is entitled to take annual leave on a particular day; and
(b) the entitlement covers all the hours (or part hours) on that day that would count towards the nominal hours worked by the employee in the week that includes that day;
the employer is taken to have authorised the employee to be absent from work for any other hours (or part hours) on that day that the employee would otherwise have worked.
Example: Bianca is employed by BBB Bakers Pty Ltd. She works 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours).
Under subsection 232(2), Bianca is entitled to accrue paid annual leave of 1/13 of her nominal hours worked for each completed 4 week period of continuous service with BBB Bakers. Because of subparagraph 229(1)(a)(ii), Bianca's nominal hours worked in a week are capped at 38 hours. If Bianca works her normal hours for a 12 month period, she will accrue 152 hours of paid annual leave.
The above subsection ensures that Bianca will be able to be absent from work for 4 full 40 hour weeks. Bianca's absence for the additional 8 hours will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (8)).
(8) An absence that is taken by subsection (7) to have been authorised:
(a) is not annual leave; and
(b) does not break the employee's continuity of service; and
(c) does not otherwise count as service.
(9) For the purposes of subsection (7), if a shift (or other period of work) occurs partly on 1 day and partly on the next day, the shift (or other period of work) is taken to be a day and the remaining parts of the days are taken not to be part of the day.
(10) For the purposes of subsection (7), the regulations may make provision for either or both of the following:
(a) determining what hours (or part hours) on a particular day would count towards the nominal hours worked by an employee in a week;
(b) determining what other hours (or part hours) on a particular day would be hours (or part hours) that an employee would otherwise have worked.
13 Section 240
Insert:
"basic periodic rate of pay" has the meaning given by section 178.
Note: See also section 243.
14 Paragraph 241(1)(a)
Repeal the paragraph, substitute:
(a) start with:
(i) the specified number of hours; or
(ii) if the specified number of hours is more than 38 hours--38 hours;
15 After subsection 241(4)
Insert:
Certain types of leave not to count as service
(4A) For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except:
(a) as expressly provided by:
(i) a term or condition of the employee's employment; or
(ii) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or
(b) as prescribed by the regulations.
Note: For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer's leave) and 316(2) (parental leave).
16 Subsection 241(5) (note 3)
Repeal the note.
17 Section 243
Repeal the section, substitute:
243 Regulations may prescribe different definitions for piece rate employees
The regulations may prescribe:
(a) a different definition of basic periodic rate of pay for the purposes of the application of this Division in relation to piece rate employees; and
(b) a different definition of nominal hours worked for the purposes of the application of this Division in relation to piece rate employees.
18 After section 245
Insert:
245A Entitlement to cash out an amount of paid personal/carer's leave
(1) This section applies to an employee if more than the protected amount of paid personal/carer's leave is credited to the employee.
(2) The employee is entitled to forgo an entitlement to take any or all of the amount of paid personal/carer's leave credited to the employee that exceeds the protected amount of paid personal/carer's leave if:
(a) a provision in a workplace agreement binding the employee and the employer entitles the employee to forgo the entitlement to the amount of paid personal/carer's leave; and
(b) the employee gives the employer a written election to forgo the amount of paid personal/carer's leave; and
(c) a provision in a workplace agreement binding the employee and the employer entitles the employee to receive pay in lieu of the amount of paid personal/carer's leave at a rate that is no less than the rate that, at the time the election is made, is the employee's basic periodic rate of pay (expressed as an hourly rate); and
(d) the employer authorises the employee to forgo the amount of paid personal/carer's leave.
Note: If, under this section, an employee forgoes an entitlement to take an amount of paid personal/carer's leave, the employee's employer may deduct that amount from the amount of accrued paid personal/carer's leave credited to the employee.
(3) For the purposes of subsections (1) and (2), the protected amount of paid personal/carer's leave for the employee is 3 / 52 of the number of nominal hours worked by the employee for the employer during:
(a) a continuous period of 12 months of service with the employer ending immediately before the day on which the employee makes an election under paragraph (2)(b); or
(b) a sequence of periods totalling 12 months of service with the employer, the last of which ends immediately before the day on which the employee makes an election under paragraph (2)(b).
Note: The protected amount of paid personal/carer's leave for an employee whose nominal hours worked for an employer each week over a continuous period of 12 months service with the employer are 38 hours would be 114 hours (which would be equivalent to 15 days of paid personal/carer's leave for that employee).
(4) An employer must not:
(a) require an employee to forgo an entitlement to take an amount of paid personal/carer's leave; or
(b) exert undue influence or undue pressure on an employee in relation to the making of a decision by the employee whether or not to forgo an entitlement to take an amount of paid personal/carer's leave.
(5) If, under this section, an employee forgoes an entitlement to take an amount of paid personal/carer's leave, the employer must, within a reasonable period, give the employee the amount of pay that the employee is entitled to receive in lieu of the amount of paid personal/carer's leave.
19 Section 247
Omit all the words after "a period,", substitute "the employee must be paid a rate for each hour (pro - rated for part hours) of paid personal/carer's leave taken that is no less than the rate that, immediately before the period begins, is the employee's basic periodic rate of pay (expressed as an hourly rate).".
20 After section 247
Insert:
247A Entitlement to leave for all nominal hours in a day also extends to other hours on that day
(1) If:
(a) an employee to whom subparagraph 241(1)(a)(ii) applies is entitled to take paid personal/carer's leave on a particular day; and
(b) the entitlement covers all the hours (or part hours) on that day that would count towards the nominal hours worked by the employee in the week that includes that day;
the employer is taken to have authorised the employee to be absent from work for any other hours (or part hours) on that day that the employee would otherwise have worked.
Example: Tina is employed by Terrific Videos Pty Ltd. She works 8 hours a day for 5 days a week, giving a weekly total of 40 hours per week (consisting of 38 hours plus 2 reasonable additional hours).
Under subsection 246(2), Tina is entitled to accrue paid personal/carer's leave of 1 / 26 of her nominal hours worked for each completed 4 week period of continuous service with Terrific Videos. Because of subparagraph 241(1)(a)(ii), Tina's nominal hours worked in a week are capped at 38 hours. If Tina works her normal hours for a 12 month period, she will accrue 76 hours of paid personal/carer's leave.
The above subsection ensures that Tina will be able (subject to the requirements of this Division relating to entitlement to paid personal/carer's leave) to be absent from work for 10 full 8 hour days. Tina's absence for the additional 4 hours over those 10 days will not be paid leave, and will not count as service, but it will not break her continuity of service (see subsection (2)).
(2) An absence that is taken by subsection (1) to have been authorised:
(a) is not paid personal/carer's leave; and
(b) does not break the employee's continuity of service; and
(c) does not otherwise count as service.
(3) For the purposes of subsection (1), if a shift (or other period of work) occurs partly on 1 day and partly on the next day, the shift (or other period of work) is taken to be a day and the remaining parts of the days are taken not to be part of the day.
(4) For the purposes of subsection (1), the regulations may make provision for either or both of the following:
(a) determining what hours (or part hours) on a particular day would count towards the nominal hours worked by an employee in a week;
(b) determining what other hours (or part hours) on a particular day would be hours (or part hours) that an employee would otherwise have worked.
21 Section 259
Omit all the words after "a period,", substitute "the employee must be paid a rate for each hour (pro - rated for part hours) of compassionate leave taken that is no less than the rate that, immediately before the period begins, is the employee's basic periodic rate of pay (expressed as an hourly rate).".
22 Section 262
Before "This", insert "(1)".
23 At the end of section 262
Add:
(2) This Division establishes minimum entitlements and so is intended to supplement, and not to override, entitlements under other Commonwealth legislation.
24 Section 263
Insert:
"basic periodic rate of pay" has the meaning given by section 178.
Note: See also section 264A.
25 Section 263 (definition of employee )
Omit "section 262", substitute "subsection 262(1)".
26 Section 263
Insert:
"piece rate employee" means an employee who is paid a piece rate of pay within the meaning of section 178.
27 At the end of Subdivision A of Division 6 of Part 7
Add:
264A Regulations may prescribe different definition for piece rate employees
The regulations may prescribe a different definition of basic periodic rate of pay for the purposes of the application of this Division in relation to piece rate employees.
28 At the end of subsection 268(2)
Add:
Note: An employer may ask an employee to give the employer a statement from a medical practitioner as to the employee's fitness to work (see subsections 274(2) and (2A)).
29 Subsection 268(3)
Omit all the words after "a period,", substitute "the employee must be paid a rate for each hour (pro - rated for part hours) of paid leave taken that is no less than the rate that, immediately before the period begins, is the employee's basic periodic rate of pay (expressed as an hourly rate).".
30 After subsection 274(2)
Insert:
(2A) If the employee takes paid leave under subparagraph 268(2)(b)(i) or (ii) during the period of 6 weeks before the expected date of birth, the employer may, at any time during the period of leave, ask the employee to give the employer a medical certificate from a medical practitioner containing a statement of the medical practitioner's opinion of whether the employee is fit to work.
31 At the end of subsection 318(3)
Add:
Note: For the purposes of subsection (3), employer , employee and employment have their ordinary meaning. See sections 5, 6 and 7 and Schedule 2.
32 After paragraph 2(1)(g) of Schedule 2
Insert:
(ga) a reference in Division 7 of Part 7 so far as the reference relates to Division 6 of Part 7 as applied by section 689.
33 After paragraph 3(1)(c) of Schedule 2
Insert:
(ca) a reference in Division 7 of Part 7 so far as the reference relates to Division 6 of Part 7 as applied by section 689.
34 After paragraph 4(1)(c) of Schedule 2
Insert:
(ca) a reference in Division 7 of Part 7 so far as the reference relates to Division 6 of Part 7 as applied by section 689.
35 Saving provision--annual leave
The amendment of the Workplace Relations Act 1996 made by item 6 does not affect any entitlement to annual leave that an employee had accrued before the commencement of that item.
36 Saving provision--paid personal/carer's leave
The amendment of the Workplace Relations Act 1996 made by item 14 does not affect any entitlement to paid personal/carer's leave that an employee had accrued before the commencement of that item.