Loaded Rates Agreements
[2018] FWCFB 3610
•28 JUNE 2018
| [2018] FWCFB 3610 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Loaded Rates Agreements
(AG2017/1925 AG2017/1943 AG2017/3865 AG2017/4096 AG2017/4671)
VICE PRESIDENT HATCHER | SYDNEY, 28 JUNE 2018 |
Introduction and statutory framework
[1] This decision concerns five applications for the approval of enterprise agreements which share a common feature, namely they provide for “loaded” or higher rates of pay which are intended to incorporate, in part or whole, penalty rates and other monetary benefits for which separate provision is made in the applicable modern awards. The applications were referred to this Full Bench by the President, Justice Ross, for consideration as to how the better off overall test (BOOT), the satisfaction of which is a requirement for approval of an enterprise agreement under s 186(2)(d) of the Fair Work Act 2009 (FW Act) (subject to ss 189 and 190), is properly to be applied to agreements containing loaded rates. This issue has become particularly pertinent since the Full Bench decision in Hart v Coles Supermarkets Australia Pty Ltd, 1 (Hart) in which a first instance decision to approve an agreement applying to a major Australian retailer and its employees was quashed on appeal. The agreement in question provided for loaded ordinary hourly rates which were higher than those in the relevant modern award and were intended to compensate for lower penalty rates for evenings, weekends and public holidays.2 The Full Bench found that the agreement did not pass the BOOT because the loaded rates in the agreement disadvantaged those employees who worked primarily at times which attracted lower penalty rates under the agreement as compared to the award.3 We discuss Hart in greater detail later in this decision.
[2] Originally a total of eight agreement approval applications were referred to us, but three of the applications were discontinued after the applicants were informed of the Full Bench referral. The remaining agreements for which approval was sought were as follows:
(1) Allied Security Management Enterprise Agreement 2017 (Allied Agreement) 4
(2) JWT Group Services Enterprise Agreement 2017 (JWT Agreement) 5
(3) PSA Security Pty Ltd Enterprise Agreement 2017 (PSA Agreement) 6
(4) ALDI Prestons Agreement 2017 (Aldi Prestons Agreement) 7
(5) ALDI Stapylton Agreement 2017 (Aldi Stapylton Agreement). 8
[3] Enterprise bargaining is a central feature of the FW Act. The object of the FW Act set out in s 3 identifies a number of matters (in paragraphs (a)-(g)) which are intended to “provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians”, one of which (in paragraph (f)) is “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action”. However, significantly, another matter (in paragraph (b)) is “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders”.
[4] The legislative scheme for enterprise bargaining is contained in Pt 2-4 of the FW Act. The objects of Pt 2-4 are set out in s 171 as follows:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.
[5] Division 4 Subdiv B of Pt 2-4 deals with the approval of enterprise agreements by the Commission. Section 186 sets out the general requirements for when the Commission must approve an enterprise agreement. The “basic rule” in this respect is set out in s 186(1) as follows:
Basic rule
(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
[6] Section 186(2) relevantly provides:
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) …
(b) …
(c) …; and
(d) the agreement passes the better off overall test.
…
Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
…
[7] The requirements for passing the BOOT referred to in s 186(2)(d) are set out in s 193, which provides:
193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee .
FWC must disregard individual flexibility arrangement
(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.
When a greenfields agreement passes the better off overall test
(3) A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
[8] Section 189 identifies the circumstances in which the Commission may approve an enterprise agreement that does not pass the BOOT:
189 FWC may approve an enterprise agreement that does not pass better off overall test--public interest test
Application of this section
(1) This section applies if:
(a) the FWC is not required to approve an enterprise agreement under section 186; and
(b) the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test.
Approval of agreement if not contrary to the public interest
(2) The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
(3) An example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.
Nominal expiry date
(4) The nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following:
(a) the date specified in the agreement as the nominal expiry date of the agreement;
(b) 2 years after the day on which the FWC approved the agreement.
[9] Section 190 sets out the circumstances in which an enterprise agreement may be approved with undertakings:
190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.
Allied Agreement
[10] The Allied Agreement covers Allied Security Management Pty Ltd (Allied), a contract security business, and its employees in Australia. The relevant modern award is the Security Services Industry Award 2010 (Security Award). Clause 3.2.1 provides for the classifications and hourly base pay rates for employees under the Allied Agreement as at the date of approval as follows:
“3.2.1 What are the base rates of pay for the Job Levels set out in part 3.1 above?
(a) The Base Rate of Pay to be paid to all Employees will be as set out below:
FULL-TIME AND PART-TIME EMPLOYEES HOURLY BASE RATES OF PAY* FROM THE DATE OF APPROVAL OF THE AGREEMENT BY FWC:
JOB LEVEL | NON-ROTATING DAY WORKER | ROTATING WEEKDAY/ WEEKNIGHT WORKER | NON-ROTATING WEEKNIGHT SHIFT WORKER | ROTATING WEEKDAY/ WEEKNIGHT / WEEKEND WORKER | ROTATING WEEKNIGHT/WEEKEND WORKER |
ASM Employee LEVEL 1 | 20.89 | 23.07 | 27.02 | 27.84 | 31.79 |
ASM Employee LEVEL 2 | 21.50 | 23.77 | 27.79 | 28.17 | 32.13 |
ASM Employee LEVEL 3 | 23.24 | 25.77 | 30.22 | 30.73 | 34.50 |
SECURITY MANAGER | 26.05 | 28.22 | 31.80 | 32.56 | 35.90 |
*Note that the above Adult base rates of pay must always be equal to or above the modern award rate as determined by FWC from time to time.”
[11] The working patterns referred to in the above table are defined in clause 3.2.1 as follows:
“WORK PATTERN DEFINITIONS – hours averaged over up to 8 weeks cycle -
- Non-Rotating Day Worker - works between 0600 hrs to 1800 hrs, Monday to Friday.
- Rotating Weekday / Weeknight Worker - works Monday to Friday with less than half ordinary hours worked outside day worker hours.
- Non-Rotating Weeknight Shift Worker - works Monday to Friday, outside 0600 hrs to 1800 hrs only.
- Rotating Weekday / Weeknight / Weekend Worker – works weekdays, weeknights and weekends, but with at least a third of hours worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
- Rotating Weeknight / Weekend Worker - works weeknights and weekends, but with no more than 35% of hours worked on weekends.”
[12] Clause 3.2.1(b) provides that casual employees receive a 25% loading in addition to the above hourly rates, and clause 3.2.1(c) provides that the rates are to be increased by 2.5% from the first full pay period commencing on 1 July each year until the expiry of the agreement. Clause 3.2.2 provides that “The base rates of pay set out in part 3.2.1 of this Agreement compensate the Employee for all financial entitlements arising under this Agreement, except as specifically provided elsewhere in the Agreement.”
[13] Clauses 4.1.1, 4.1.2 and 4.1.3 relevantly provide that:
• full-time employees may be rostered for an average of 38 hours per week over an averaging period of up to 8 weeks, with a minimum of 7.6 hours per shift and a maximum of 12 hours per shift;
• for part-time employees, the arrangement of hours of work will be agreed in writing on commencement and implemented on the basis of a minimum of 4 hours per week and a maximum of 37 hours per week over an averaging period of up to 8 weeks, with a minimum of 4 hours per shift and a maximum of 12 hours per shift;
• casual employees may work a minimum of 4 hours per shift and a maximum of 10 hours per shift, which may be increased to 12 hours per shift in accordance with clause 21.2(b)-(d) of the Security Award.
[14] The Allied Agreement does not make provision for the payment of penalty rates for working on evenings or weekends, but clause 5.6.1 does provide for a loading of 250% of the non-rotating day workers hourly rate for permanent employees and 275% of the non-rotating day workers hourly rate for casual employees when working on public holidays.
[15] Clause 4.2.2 requires employees to work reasonable additional hours (that is, hours in addition to the hours specified in clauses 4.1.1, 4.1.2 and 4.1.3) upon the provision of 24 hours’ notice (unless a lesser period of notice is mutually agreed), and clause 4.2.3 provides:
“4.2.3 Are Employees paid an additional payment for working reasonable overtime hours?
All Employees who work overtime hours will be paid 50% in addition to the non-rotating day worker hourly rate for the first 2 hours of overtime and 100% in addition to their non-rotating day worker hourly rate for all hours worked thereafter. All overtime hours on a Sunday will be paid 100% in addition to their non-rotating day worker hourly rate. All overtime hours on a public holiday will be paid 150% in addition to their non-rotating day worker hourly rate.”
[16] The application for approval of the Allied Agreement was accompanied by a statutory declaration in the prescribed form (Form F17) made by Amer Awad dated 20 August 2017. The declaration disclosed that there are 41 employees covered by the agreement, including three females, 18 from non-English speaking backgrounds, one Aboriginal or Torres Strait Islander, 12 part-time employees, 8 casual employees, five employees under 21 years of age and 15 employees over 45 years of age. In answer to a question concerning the translation of classifications, the declaration stated that the ASM Employee Level 1 related to the classification of Security Officer Level 1 in the Security Award, Level 2 related to Security Officer Level 2, Level 3 related to Security Officer Level 3 & 4, and Security Manager to Security Officer Level 5.
[17] In response to the question whether the agreement contained any terms or conditions of employment that were more beneficial than the equivalent terms and conditions in the reference instrument (the Security Award), the declaration identified the following as more beneficial:
“1. The basic hourly rate for Monday to Friday day time work is higher and more beneficial than the reference instrument which applies to all employees.
Job Level | Agreement | Reference Instrument |
1 | 20.89 | 20.55 |
2 | 21.50 | 21.13 |
3 | 23.24 | 21.85 |
5 | 26.05 | 22.56 |
2. The agreement has a guaranteed 2.5% wage increase on 1 July each year for the life of the agreement which applies to all employees and is more beneficial than a potential wage increase.
3. Casual Loading (which applies to casual [sic] employees) is calculated on the higher agreement rates rather than the reference instrument basic hourly rate.
4. Annual leave loading of 17.5% is based on the non-rotating day worker rate, which is higher than the reference instrument.”
[18] In response to a question about whether the agreement contained any less beneficial terms and conditions than the equivalent in the reference instrument, the declaration answered:
“1. The agreement does not confer the same specific percentage penalty rates for Saturday, Sunday, Night shift, and Public holiday that are provided in the reference instrument. Instead “work pattern” rates are applicable. These apply to all employees.
2. The agreement allows a uniform deposit to be deducted from the employee’s salary, to be refunded on return of the uniform, which is not conferred in the reference instrument. This applies to all employees.”
[19] A preliminary analysis as to whether the Allied Agreement satisfied the BOOT was undertaken by the Commission’s staff under the supervision of Commissioner Lee. The contents of that analysis were communicated to the applicant in correspondence from the presiding member’s chambers dated 24 October 2017. The correspondence relevantly stated:
“Specifically in relation to your application, the Agreement provides loaded rates of pay for different roster cycles which are intended to compensate employees for shift penalties, weekend penalties, annual leave loading, allowances and other Award entitlements not provided for in the Agreement.
The relevant roster cycles for which loaded rates are provided contain rostering restrictions at clause 3.2.1(a) of the agreement and are as follows:
• Non-Rotating Day Worker Roster – works between 0600hrs to 1800hrs, Monday to Friday;
• Rotating Weekday/Weeknight Worker Roster – works Monday to Friday with less than half ordinary hours worked outside day worker hours;
• Non-Rotating Weeknight Shift Worker Roster – works Monday to Friday, outside 0600hrs to 1800hrs only; and
• Rotating Weekday/Weeknight/Weekend Worker Roster – works weekdays, weeknights and weekends, but with at least a third of hours worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
• Rotating Weeknight/Weekend Worker Roster – works weeknights and weekends, but with no more than 35% of hours worked on weekends.
The loaded rates of pay under the agreement range from 1.68% to 59.15% above the applicable base rate of pay in the Security Services Industry Award 2010 (‘the Award’), depending on the roster pattern which the employee is working on. The Commission makes the following comments with respect to the BOOT.
If there is strict compliance with the rostering restrictions in the agreement, the Commission notes that employees under the agreement are marginally better off overall when considering only the absence of shift and weekend penalties from their loaded rates. This is illustrated by the model below for permanent Level 1 employees working a 38 hour week on the ‘Non-Rotating Day Worker Roster’:
Agreement Ordinary Rate | $20.89 | Award Ordinary Rate | $20.54 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
NRDWR Rate | 38 | 100% | $793.82 | Ordinary Time | 38 | 100% | $780.52 |
Annual Leave | Yes | $61.06 | Annual Leave | Yes | $60.04 | ||
Leave Loading | Yes | $10.69 | Leave Loading | Yes | $10.51 | ||
Totals | 38.00 | Hrs | $865.57 | Totals | 38.00 | Hrs | $851.07 |
However, the Commission is concerned that the better off overall assessment for these employees may be affected by the following reductions in entitlements under the agreement when compared with the Award:
• Part time provisions at clause 4.1.2 of the agreement appear to be less beneficial than their entitlements under clause 10.4 of the Award with respect to the setting of regular hours and the ability to vary the regular hours for part time employees. Additionally, part time employees do not appear to be entitled to overtime for work in excess of agreed hours.
• Rosters are provided 3 days in advance where practicable whereas the Award requires 7 days’ notice of roster.
• No job search entitlements on termination and redundancy
• Employees do not always appear to get paid rest breaks consistently with the Award under clause 4.4.3 of the agreement.
• Direction of annual leave provisions at clause 5.1.5 of the agreement are less beneficial than the provisions in the Award
• No maximum weekly hours for casuals in clause 4.1.3 of the agreement. As such casuals are not entitled to overtime for work in excess of 38 hours per week.
• Broken shift allowance under the agreement is a 2.5% loading on hours in the second part of the broken shift rather than the flat $13.23 allowance under the Award. This may be less beneficial to employees depending on the structuring of the broken shifts. Additionally, it is unclear whether casual employees are entitled to broken shift allowance under the agreement.
• No 3 hour minimum payment for each part of the split shift.
• Clause 6.2 requires an employee to pay an unspecified uniform deposit which may be refunded on termination of employment. Under the Award an employer is to provide uniforms to employees or reimburse the employees for the cost of their uniform.
• Agreement does not provide that ordinary time shifts must be separated by a minimum break of not less than 8 hours or that there must be a minimum of 8 hours break after overtime work.
• Casuals do not appear to be entitled to the long break provisions at clause 21.4 of the Award.
• No call-back entitlement under the agreement.
Additionally, the Commission is concerned about the application of the rostering provisions in clause 3.2.1(a) of the agreement for casual employees given the interaction between clauses 3.2.1(a) and 4.1.3 of the agreement. This is of particular concern for casual employees given the nature of their employment is different to permanent employment whereby they are not provided with any fixed entitlement to hours of work. This could affect a casual employee’s ability to work to a roster and thus fall neatly into one of the loaded rates under the agreement. For example if casuals only worked on weekends there would be no adequate loaded rate to compensate a casual employee for the absence of weekend penalties under the agreement.
Finally the Commission notes the following other concerns with the agreement which may impact on the BOOT:
• Clause 4.2.1 and 4.2.2 has inconsistent terminology with some provisions referring to “reasonable additional hours” and other provisions referring to “reasonable overtime hours”
• Clause 5.1.7(b) makes reference to a ‘salaried rate.’ However the agreement does not otherwise reference or provide for a salaried rate.”
[20] The correspondence ended with a direction that any submissions about whether the Agreement passed the BOOT, and any undertaking that was proposed to address the identified concerns, be filed by a specified date
[21] In response to this correspondence, and in accordance with the directions of the Commission, Allied lodged a written submission and undertakings on 12 November 2017 addressing the identified issues. In summary, Allied submitted:
• in relation to the concerns about part-time employees, Allied had established client relationships that provided for reasonably predictable hours of work; any roster changes had to be agreed in writing (clause 4.1.2(b)); rosters once posted could only be changed by mutual agreement (clause 4.3.4); and any variation to the agreed hours not made in advance of the release of the roster would be subject to overtime penalties (clause 4.1.2(c));
• in relation to the display of the roster and notice of a change to the roster, the Security Award only provided that once a roster was notified, it could not be changed without the payment of overtime or by giving seven days’ notice;
• in respect of casual employees, an undertaking was proposed that casual employees would be paid the Non-Rotating Day Worker rates and applicable penalty rates under clause 22.3 of the Security Award; and
• in relation to the concern about the provision for an unspecified deposit to be paid for the issue of uniforms (clause 6.2), its purpose was to encourage the return of uniforms once employment ended, and an undertaking was proposed that would set an amount for the deposit.
[22] The text of the proposed undertakings was as follows:
“I, Amer Awad, hereby give an undertaking that the following clauses with respect to Allied Security Management Enterprise Agreement 2017 shall be read and applied as follows:
1.3.3 Does this Agreement exclude or modify Award conditions?
Whilst it remains in force, this Agreement shall operate to the exclusion of any other
Agreement or Award that may have application to the Employees’ employment now or in the future unless stated otherwise in the Agreement.
2.5.10 Job Search Entitlement
A job search entitlement shall be in accordance with clauses 11.3 and 12.4 of the Security Services Industry Award 2010.
3.2 WAGES
WORK PATTERN DEFINITIONS – hours averaged over up to 8 weeks cycle -
- Non-Rotating Day Worker - works between 0600 hrs to 1800 hrs, Monday to Friday.
- Rotating Weekday / Weeknight Worker - works Monday to Friday with less than half ordinary hours worked outside day worker hours.
- Non-Rotating Weeknight Shift Worker - works Monday to Friday, outside 0600 hrs to 1800 hrs only.
- Rotating Weekday / Weeknight / Weekend Worker – works weekdays, weeknights and weekends, but with at least a third of hours worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
- Rotating Weeknight / Weekend Worker - works weeknights and weekends, but with no more than 35% of hours worked on weekends.
*Note that where a casual Employee does not fall within the above work pattern definitions, they will be paid the Non-Rotating Day Worker rates and relevant penalty rates under clause 22.3 of the Security Services Industry Award 2010.
4.1.1 What are the hours of work for a full-time Employee?
(a) The arrangement of hours of work for a full-time Employee will be implemented as follows:
- An average of 38 hours per week over an averaging period of up to 8 weeks;
- Other than for unpaid breaks, a minimum of 7.6 hours per shift and a maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- 8 rostered days off per 4 week cycle;
- A maximum of 10 consecutive days may be worked with up to 4 rostered days off; and
- Broken shifts may be worked with a maximum of one break of more than 1 hour between work periods per day, in which case an additional $13.23 loading will be paid on the hours worked after the break. A minimum payment of three hours for each period of duty shall apply.
4.1.2 What are the hours of work for a part-time Employee?
(a) The arrangement of hours of work for part-time Employees will be agreed in writing on commencement and implemented as follows:
- A minimum of 4 hours per week and a maximum of 37 hours per week over an averaging period of up to 8 weeks;
- Has reasonably predictable hours of work;
- Other than for unpaid breaks, a minimum of four (4) hours per shift and a maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- A maximum of 10 consecutive days may be worked with four (4) non-working days; and
- Broken shifts may be worked with a maximum of one break of more than 1 hour between work periods per day, in which case an additional $13.23 loading will be paid on the hours worked after the break. A minimum payment of three hours for each period of duty shall apply.
(b) Any agreed variation to the hours of work for a part time Employee will be recorded in writing and is subject to the minimum and maximum hours limitations in (a) above.
(c) Any variation to the agreed hours in writing under part (a) & (b) not made in advance of the release of the roster will be subject to overtime penalties provided in part 4.2.3.
4.1.3 What are the hours of work for a casual Employee?
Other than for unpaid breaks, Casual Employees may work a minimum of four (4) hours per shift and a maximum of 10 hours per shift. The maximum of 10 hours per shift can be increased to 12 hours per shift if the provisions of 21.2(b)-(d) of the Security Services Industry Award 2010 are followed.
Broken shifts may be worked with a maximum of one break of more than 1 hour between work periods per day, in which case an additional $13.23 loading will be paid on the hours worked after the break. A minimum payment of three hours for each period of duty shall apply.
4.2 OVERTIME
4.2.1 What are overtime hours?
Overtime hours are hours in excess of parts 4.1.1, 4.1.2, or 4.1.3 of this Agreement.
4.2.3 Are Employees paid an additional payment for working overtime hours?
All Employees who work overtime hours will be paid 50% in addition to the non-rotating day worker hourly rate for the first 2 hours of overtime and 100% in addition to their non-rotating day worker hourly rate for all hours worked thereafter. All overtime hours on a Sunday will be paid 100% in addition to their non-rotating day worker hourly rate. All overtime hours on a public holiday will be paid 150% in addition to their non-rotating day worker hourly rate.
4.2.2 Are Employees required to work overtime?
All Employees will be given at least 24 hours’ notice of the Employer’s requirement to work overtime unless both parties otherwise mutually agree to a lesser period of notice.
4.3.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by a minimum break of not less than eight (8) hours.
4.3.6 Long breaks
Regardless of the roster cycle, any Employee on a roster cycle must not be required to work more than a total of 48 hours of ordinary time without a long break of at least 48 continuous hours.
4.4.3 Are Employees entitled to Rest Breaks?
A paid rest break (or breaks) must be allowed on shifts of more than 4 hours. A rest break of not less than 10 minutes on a shift of more than four hours, a rest time of not less than 20 minutes on an 8 hour shift and not less than 30 minutes on a 12 hour shift must be provided. The time must be allowed not earlier than four hours nor later than five hours after the time of commencement of each shift where it is reasonably practicable to do so.
4.4.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by a minimum break of not less than eight hours.
4.4.6 Call back
Call back provisions are in accordance with clause 21.5 of the Security Services Industry Award 2010.
5.1.5 Can the Employer make a full-time/part-time Employee take accumulated
annual leave?
Yes. Taking accumulated annual leave will be in accordance with clause 24.5 of the Security Services and Industry Award 2010.
5.1.7 Can accrued annual leave be cashed out?
All full-time/part-time Employees can forego an entitlement to annual leave credited to them during each 12 month period provided that:
(a) The full-time/part-time Employee gives the Employer a written election to forgo the amount of annual leave on each occasion; and
(b) The amount of annual leave forgone is paid at the full-time/part-time Employee’s base rate of pay for the period forgone at the time the election is made; and
(c) The Employer authorises the full-time/part-time Employee to forgo the amount of annual leave; and
(d) That the Employee is not entitled to forego an amount of annual leave credited to the Employee that would result in the employee's remaining accrued entitlement to paid annual leave being less than 4 weeks.
6.2.3 Can Allied Security Management request a deposit if you are provided a uniform?
Yes, the Employer may deduct a deposit from your wage a sum up to the value of $150, provided that the deposit may by agreement between you and the Employer be paid by you over an agreed number of pay periods.
6.2.5 What will happen if you do not return the uniform?
Allied Security Management may keep the deposit or deduct from any monies owed to you, an amount up to the dollar value for the uniform provided, if the uniform is not returned or not returned in good condition. Fair wear and tear is excepted.”
JWT Agreement
[23] The JWT Agreement covers JWT Group Services Pty Ltd (JWT), a security industry contract business, and its employees in Australia. The relevant modern award is the Security Award. It is apparent that the JWT Agreement was drafted using the same template as the Allied Agreement, since the two agreements are in all respects relevant to the BOOT, virtually identical. Clause 3.2.1(a) contains the same classification structure (except the classifications are described as “JWT Group Services Level 1” etc.) and the same rates of pay apply for the working patterns. Clause 3.2.1(b) provides for the same 25% casual loading, clause 3.2.1(c) provides for the same pay increases until the expiry of the agreement, and clause 3.2.2 is the same as clause 3.2.2 of the Allied Agreement as earlier set out. Clauses 4.1.1, 4.2.2 and 4.2.3 are to the same effect as the equivalent clauses in the Allied Agreement, as earlier summarised. The JWT Agreement likewise does not make any provision for the payment of penalty rates on evenings or weekends, but provides for public holiday penalty rates in clause 5.6 in the same way as clause 5.6 of the Allied Agreement. Clause 4.2.3 provides for overtime penalty rates in the same terms as clause 4.2.3 of the Allied Agreement, as earlier set out.
[24] The application for approval of the JWT Agreement was accompanied by a statutory declaration in the prescribed form made by Ihab Al Arnaout dated 6 September 2017. The declaration disclosed that the business had three employees, one of whom was part-time and none of whom was casual. The answer given to the questions on the prescribed form concerning the translation of classifications as between the JWT Agreement and the Security Award, and whether the agreement contained any terms or conditions of employment that were more or less beneficial than the equivalent terms and conditions in the reference instrument,were the same in substance as that given in respect of the Allied Agreement.
[25] A preliminary analysis as to whether the JWT Agreement satisfied the BOOT was undertaken by the Commission’s staff under the supervision of Commissioner Lee. The contents of that analysis were communicated to the applicant in correspondence from the presiding member’s chambers dated 24 October 2017. It is not necessary to reproduce the correspondence, since it raised the same concerns as the correspondence sent to Allied which we have earlier set out. JWT lodged a written submission and proposed undertakings on 12 November 2017 in response to this correspondence. The submission was in the same terms as the Allied submission which we have summarised above. The proposed undertakings were the same as for Allied, but for completeness we set them out in full below:
“I, Ihab Al Arnaout, hereby give an undertaking that the following clauses with respect to JWT Group Services Enterprise Agreement 2017 shall be read and applied as follows:
1.3.3 Does this Agreement exclude or modify Award conditions?
Whilst it remains in force, this Agreement shall operate to the exclusion of any other
Agreement or Award that may have application to the Employees’ employment now or in the future unless stated otherwise in the Agreement.
2.5.10 Job Search Entitlement
A job search entitlement shall be in accordance with clauses 11.3 and 12.4 of the Security Services Industry Award 2010.
3.2 WAGES
WORK PATTERN DEFINITIONS – hours averaged over up to 8 weeks cycle -
- Non-Rotating Day Worker - works between 0600 hrs to 1800 hrs, Monday to Friday.
- Rotating Weekday / Weeknight Worker - works Monday to Friday with less than half ordinary hours worked outside day worker hours.
- Non-Rotating Weeknight Shift Worker - works Monday to Friday, outside 0600 hrs to 1800 hrs only.
- Rotating Weekday / Weeknight / Weekend Worker – works weekdays, weeknights and weekends, but with at least a third of hours worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
- Rotating Weeknight / Weekend Worker - works weeknights and weekends, but with no more than 35% of hours worked on weekends.
*Note that where a casual Employee does not fall within the above work pattern definitions, they will be paid the Non-Rotating Day Worker rates and relevant penalty rates under clause 22.3 of the Security Services Industry Award 2010.
4.1.1 What are the hours of work for a full-time Employee?
(a) The arrangement of hours of work for a full-time Employee will be implemented as follows:
- An average of 38 hours per week over an averaging period of up to 8 weeks;
- Other than for unpaid breaks, a minimum of 7.6 hours per shift and a maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- 8 rostered days off per 4 week cycle;
- A maximum of 10 consecutive days may be worked with up to 4 rostered days off; and
- Broken shifts may be worked with a maximum of one break of more than 1 hour between work periods per day, in which case an additional $13.23 loading will be paid on the hours worked after the break. A minimum payment of three hours for each period of duty shall apply.
4.1.2 What are the hours of work for a part-time Employee?
(a) The arrangement of hours of work for part-time Employees will be agreed in writing on commencement and implemented as follows:
- A minimum of 4 hours per week and a maximum of 37 hours per week over an averaging period of up to 8 weeks;
- Has reasonably predictable hours of work;
- Other than for unpaid breaks, a minimum of four (4) hours per shift and a maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- A maximum of 10 consecutive days may be worked with four (4) non-working days; and
- Broken shifts may be worked with a maximum of one break of more than 1 hour between work periods per day, in which case an additional $13.23 loading will be paid on the hours worked after the break. A minimum payment of three hours for each period of duty shall apply.
(b) Any agreed variation to the hours of work for a part time Employee will be recorded in writing and is subject to the minimum and maximum hours limitations in (a) above.
(c) Any variation to the agreed hours in writing under part (a) & (b) not made in advance of the release of the roster will be subject to overtime penalties provided in part 4.2.3.
4.1.3 What are the hours of work for a casual Employee?
Other than for unpaid breaks, Casual Employees may work a minimum of four (4) hours per shift and a maximum of 10 hours per shift. The maximum of 10 hours per shift can be increased to 12 hours per shift if the provisions of 21.2(b)-(d) of the Security Services Industry Award 2010 are followed.
Broken shifts may be worked with a maximum of one break of more than 1 hour between work periods per day, in which case an additional $13.23 loading will be paid on the hours worked after the break. A minimum payment of three hours for each period of duty shall apply.
4.2 OVERTIME
4.2.1 What are overtime hours?
Overtime hours are hours in excess of parts 4.1.1, 4.1.2, or 4.1.3 of this Agreement.
4.2.3 Are Employees paid an additional payment for working overtime hours?
All Employees who work overtime hours will be paid 50% in addition to the non-rotating day worker hourly rate for the first 2 hours of overtime and 100% in addition to their non-rotating day worker hourly rate for all hours worked thereafter. All overtime hours on a Sunday will be paid 100% in addition to their non-rotating day worker hourly rate. All overtime hours on a public holiday will be paid 150% in addition to their non-rotating day worker hourly rate.
4.2.2 Are Employees required to work overtime?
All Employees will be given at least 24 hours’ notice of the Employer’s requirement to work overtime unless both parties otherwise mutually agree to a lesser period of notice.
4.3.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by a minimum break of not less than eight (8) hours.
4.3.6 Long breaks
Regardless of the roster cycle, any Employee on a roster cycle must not be required to work more than a total of 48 hours of ordinary time without a long break of at least 48 continuous hours.
4.4.3 Are Employees entitled to Rest Breaks?
A paid rest break (or breaks) must be allowed on shifts of more than 4 hours. A rest break of not less than 10 minutes on a shift of more than four hours, a rest time of not less than 20 minutes on an 8 hour shift and not less than 30 minutes on a 12 hour shift must be provided. The time must be allowed not earlier than four hours nor later than five hours after the time of commencement of each shift where it is reasonably practicable to do so.
4.4.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by a minimum break of not less than eight hours.
4.4.6 Call back
Call back provisions are in accordance with clause 21.5 of the Security Services Industry Award 2010.
5.1.5 Can the Employer make a full-time/part-time Employee take accumulated
annual leave?
Yes. Taking accumulated annual leave will be in accordance with clause 24.5 of the Security Services and Industry Award 2010.
5.1.7 Can accrued annual leave be cashed out?
All full-time/part-time Employees can forego an entitlement to annual leave credited to them during each 12 month period provided that:
(a) The full-time/part-time Employee gives the Employer a written election to forgo the amount of annual leave on each occasion; and
(b) The amount of annual leave forgone is paid at the full-time/part-time Employee’s base rate of pay for the period forgone at the time the election is made; and
(c) The Employer authorises the full-time/part-time Employee to forgo the amount of annual leave; and
(d) That the Employee is not entitled to forego an amount of annual leave credited to the Employee that would result in the employee's remaining accrued entitlement to paid annual leave being less than 4 weeks.
6.2.3 Can JWT Group Services request a deposit if you are provided a uniform?
Yes, the Employer may deduct a deposit from your wage a sum up to the value of $150, provided that the deposit may by agreement between you and the Employer be paid by you over an agreed number of pay periods.
6.2.5 What will happen if you do not return the uniform?
JWT Group Services may keep the deposit or deduct from any monies owed to you, an
amount up to the dollar value for the uniform provided, if the uniform is not returned or not returned in good condition. Fair wear and tear is excepted.”
PSA Agreement
[26] The PSA Agreement covers all employees of PSA Security Pty Ltd (PSA), a contract security business, in Australia who are classified under the agreement. The relevant modern award is the Security Award. The PSA Agreement is the same in most relevant respects to the Allied Agreement and the JWT Agreement, but does have some differences. Clause 3.2.1 sets out the classifications and wage rates as follows:
“3.2.1 What are the base rates of pay for the Job Levels set out in part 3.1 above?
(a) The Base Rate of Pay to be paid to all Employees will be as set out below:
FULL-TIME AND PART-TIME EMPLOYEES HOURLY BASE RATES OF PAY* FROM THE DATE OF APPROVAL OF THE AGREEMENT BY FWC:
JOB LEVEL | NON-ROTATING DAY WORKER | ROTATING WEEKDAY / WEEKNIGHT WORKER | NON-ROTATING WEEKNIGHT SHIFT WORKER | ROTATING WEEKDAY / WEEKNIGHT / WEEKEND WORKER | ROTATING WEEKNIGHT / WEEKEND WORKER |
PSA Level 1 | 20.82 | 22.98 | 26.91 | 27.72 | 31.63 |
PSA Level 2 | 21.43 | 23.68 | 27.67 | 28.05 | 31.97 |
PSA Level 3/4 | 22.92 | 24.87 | 28.63 | 30.04 | 32.90 |
PSA Level 5 | 25.95 | 28.10 | 31.64 | 32.40 | 34.54 |
*Note that the above Adult base rates of pay must always be equal to or above the modern award rate as determined by FWC from time to time.”
[27] The wage rate structure in the above table, which is based on identified work patterns, is the same as in the Allied Agreement and the JWT Agreement, but the rates of pay are slightly lower. The work patterns are subsequently defined in clause 3.2.1 in the same way as in the Allied Agreement and the JWT Agreement.
[28] The following provisions are the same as the equivalent provisions in the Allied Agreement and the JWT Agreement:
• clause 3.2.1(b) – casual loading;
• clauses 3.2.1(c) – wage increases;
• clause 3.2.2 – base rates compensate for all financial entitlements except as specifically provided for in the agreement;
• clauses 4.1.1, 4.1.2 and 4.1.3 – hours of work for full-time, part-time and casual employees respectively;
• clause 4.2.2 – requirement for employees to work reasonable additional hours;
• clause 4.2.3 – overtime penalty rates; and
• clause 5.6.1 – penalty rates for public holidays (with the agreement otherwise making no provision for penalty rates for work on evenings or weekends).
[29] The application for approval of the PSA Agreement was accompanied by a statutory declaration in the prescribed form made by Prabhjot Sawhney dated 3 October 2017. In his declaration Mr Sawhney disclosed that the primary activity of PSA Security was security services and that the business currently had three employees consisting of one part-time employee and two casual employees. In response to the question of what states and territories the agreement would be operating in, Mr Sawhney indicated all of the State and territories of Australia.
[30] Mr Sawhney stated that there was no difference in any of the classifications between the Security Award and PSA Agreement. In response to a question about whether the agreement contained any more beneficial terms and conditions than the equivalent in the reference instrument, the declaration answered that “rates of pay are higher than the award rates”and the application stated that there were no terms and conditions that were less beneficial than the equivalent in the reference instrument.
[31] A preliminary analysis as to whether the PSA Agreement satisfied the BOOT was undertaken by the Commission’s staff under the supervision of Commissioner Lee. The contents of that analysis were communicated to the applicant in correspondence from the presiding member’s chambers dated 24 October 2017. The correspondence relevantly stated:
“Specifically in relation to your application, the Agreement provides loaded rates of pay for different roster cycles which are intended to compensate employees for shift penalties, weekend penalties, annual leave loading, allowances and other Award entitlements not provided for in the Agreement.
The relevant roster cycles for which loaded rates are provided contain rostering restrictions at clause 3.2.1(a) of the agreement and are as follows:
• Non-Rotating Day Worker Roster –works between 0600hrs to 1800hrs, Monday to Friday
• Rotating Weekday/Weeknight Worker Roster – works Monday to Friday with less than half ordinary hours worked outside day worker hours
• Non-Rotating Weeknight Shift Worker Roster – works Monday to Friday, outside 0600hrs to 1800hrs only
• Rotating Weekday/Weeknight/Weekend Worker Roster – works weekdays, weeknights and weekends, but with at least a third of hours worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
• Rotating Weeknight/Weekend Worker Roster – works weeknights and weekends, but with no more than 35% of hours worked on weekends.
The loaded rates of pay under the agreement range from 1.34% to 53.96% above the applicable base rate of pay in the Security Services Industry Award 2010 (‘the Award’), depending on the roster pattern which the employee is working on. The Commission makes the following comments with respect to the BOOT.
If there is strict compliance with the rostering restrictions in the agreement, the Commission notes that employees under the agreement are marginally better off overall when considering only the absence of shift and weekend penalties from their loaded rates. This is illustrated by the model below for permanent Level 1 employees working a 38 hour week on the ‘Non-Rotating Day Worker Roster’:
Agreement Ordinary Rate | $20.82 | Award Ordinary Rate | $20.54 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
NRDWR Rate | 38 | 100% | $791.16 | Ordinary Time | 38 | 100% | $780.52 |
Annual Leave | Yes | $60.86 | Annual Leave | Yes | $60.04 | ||
Leave Loading | Yes | $10.65 | Leave Loading | Yes | $10.51 | ||
Totals | 38.00 | Hrs | $862.67 | Totals | 38.00 | Hrs | $851.07 |
However, the Commission is concerned that the better off overall assessment for these employees may be affected by the following reductions in entitlements under the agreement when compared with the Award:
• Part time provisions at clause 4.1.2 of the agreement appear to be less beneficial than their entitlements under clause 10.4 of the Award with respect to the setting of regular hours and the ability to vary the regular hours for part time employees. Additionally, part time employees do not appear to be entitled to overtime for work in excess of agreed hours.
• Rosters are provided 3 days in advance where practicable whereas the Award requires 7 days’ notice of roster.
• No job search entitlements on termination and redundancy
• Employees do not always appear to get paid rest breaks consistently with the Award under clause 4.4.3 of the agreement.
• Direction of annual leave provisions at clause 5.1.5 of the agreement are less beneficial than the provisions in the Award
• No maximum weekly hours for casuals in clause 4.1.3 of the agreement. As such casuals are not entitled to overtime for work in excess of 38 hours per week.
• Unclear whether casual employees are entitled to broken shift allowance under the agreement.
• No 3 hour minimum payment for each part of the split shift.
• Clause 6.2 requires an employee to pay an unspecified uniform deposit which may be refunded on termination of employment. Under the Award an employer is to provide uniforms to employees or reimburse the employees for the cost of their uniform.
• Agreement does not provide that ordinary time shifts must be separated by a minimum break of not less than 8 hours or that there must be a minimum of 8 hours break after overtime work.
• Casuals do not appear to be entitled to the long break provisions at clause 21.4 of the Award.
• No call-back entitlement under the agreement.
Additionally, the Commission is concerned about the application of the rostering provisions in clause 3.2.1(a) of the agreement for casual employees given the interaction between clauses 3.2.1(a) and 4.1.3 of the agreement. This is of particular concern for casual employees given the nature of their employment is different to permanent employment whereby they are not provided with any fixed entitlement to hours of work. This could affect a casual employee’s ability to work to a roster and thus fall neatly into one of the loaded rates under the agreement. For example if casuals only worked on weekends there would be no adequate loaded rate to compensate a casual employee for the absence of weekend penalties under the agreement.
Finally the Commission notes the following other concerns with the agreement which may impact on the BOOT:
• Clause 4.2.1 and 4.2.2 has inconsistent terminology with some provisions referring to “reasonable additional hours” and other provisions referring to “reasonable overtime hours”
• Clause 5.1.7(b) makes reference to a ‘salaried rate’. However the agreement does not otherwise reference or provide for a salaried rate.”
[32] The correspondence went on to direct that any submissions about whether the Agreement passed the BOOT, and any undertaking that was proposed to address the identified concerns, be filed by a specified date.
[33] In response to this correspondence, and in accordance with the directions of the Commission, PSA lodged a written submission on 2 November 2017 which stated as follows (formal parts omitted):
“PSA Security would like to provide the following submission-
PSA Security EA was taken as a Reference from the following approved Agreements-
• Australian Protective Services Pty Ltd Enterprise Agreement 2017 (AG2017/622). Approved by Commissioner Lee on 04 August 2017
• Security Force One Enterprise Agreement 2015 (AG2015/3438). Approved by Commissioner Gregory on 06 November 2015.
• ASF Protective Services Enterprise Agreement 2013-2017 (AG2014/90). Approved by Commissioner Gregory on 11 March 2014.
PSA would like to request the Department to consider the PSA agreement based upon the above approved Agreements.”
Aldi Prestons Agreement and Aldi Stapylton Agreement
[34] The Aldi Prestons Agreement and the Aldi Stapylton Agreement (Aldi Agreements) cover identified employees of ALDI Stores, a Limited Partnership, in the Prestons Region and Stapylton Region respectively. Aldi operates in regions each consisting of a distribution centre and stores supplied from that distribution centre. The two agreements are largely identical apart from their coverage provisions and some other terms which are not relevant for the purpose of the BOOT. We will refer to the provisions of the Aldi Prestons Agreement for the purpose of describing the principal features of both agreements and for the purpose of the BOOT assessment except where there are differences between the two agreements. The relevant modern awards in relation to which the BOOT must be assessed are the General Retail Industry Award 2010 (Retail Award), the Storage Services and Wholesale Award 2010 (Storage Award), the Road Transport and Distribution Award 2010, the Manufacturing and Associated Industries and Occupations Award 2010 and the Miscellaneous Award 2010.
[35] Clause 6 of the Aldi Prestons Agreement provides that its coverage is as follows:
“This Agreement will cover ALDI’s employees engaged to work in the Prestons Region in the following classifications:
• Store Manager, Assistant Store Manager, Store Management Trainee, Store Assistant and Stock Replenisher;
• Warehouse Operator, Warehouse Mechanic, Warehouse Caretaker and Palletiser;
• Transport Operator;
• Any other employee engaged to work in the Prestons Region with the exception of Executive Managers, Directors and administration employees.”
[36] Clause 13, Hours of Work establishes four categories of employees: full-time, part-time, limited roster and casual. Clause 13 provides that full-time employees “may be engaged as either Salaried Employees or Hourly Rate Employees”. Clause 13 then provides:
“Full-time Employees will be required to work 38 hours per week plus reasonable additional hours, on any five (5) out of seven (7) days, Monday to Sunday.
Salaried Employees will not be entitled to overtime or penalty rates, and will be expected to work such hours as are necessary to meet the needs of the position, including work on Saturdays, Sundays and Public Holidays as required. No additional payments will be made for work performed on Saturdays, Sundays and Public Holidays. Each Employee’s salary will be set taking into account the average number of additional hours each Salaried Employee is expected to work.
Hourly Rate Employees will be entitled to overtime and penalty rates as set out in the Schedules to this Agreement. Leave will accrue and be taken as set out in the Schedules to this Agreement.
The reasonable additional hours to be worked by full-time employees over 38 per week are agreed with the Employee on commencement. It is ALDI’s policy to be flexible and receptive to requests from employees to reduce their working hours. Therefore, in accordance with the National Employment Standards, where an Employee wishes to reduce the hours they are required to work, the Employee will identify the basis on which the hours to be worked are unreasonable. ALDI will not unreasonably deny any Employee’s request to reduce their hours work. A pro rata salary will apply to Salaried Employees based on the proportion of a 50 hour week to the hours the Employee works. Hourly Rate Employees will receive the applicable hourly rate and overtime and penalty rates as set out in Schedules to this Agreement. If the Employee and ALDI cannot reach agreement on the hours of work to apply to the Employee’s position, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve this matter.”
[37] In respect of part-time employees, clause 13 provides:
“Part-time employees
Part-time Employees will work fewer than 38 hours per week on average and may be engaged as either Salaried Employees or Hourly Rate Employees, and will receive pro rata entitlements under this Agreement, including pro rata salary payments.
On commencement of employment, Hourly Rate Part-time Employees will be advised of their Contract Hours and the maximum number of hours which will be paid at the Bankable Hourly rate of pay for their classification. ALDI will vary these hours only by agreement with the Employee and will take effect from the first full pay period after agreement is reached.
It is ALDI’s policy to be flexible and receptive to requests from employees to reduce their working hours. Therefore, in accordance with the National Employment Standards, where an Employee wishes to reduce the hours they are required to work, the Employee will identify the basis on which the hours to be worked are unreasonable. ALDI will not unreasonably deny any Employee’s request to reduce their hours work.
If the Employee and ALDI cannot reach agreement on the hours of work to apply to the Employee’s position, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve this matter.”
[38] Full-time hourly rate employees and part-time employees may be engaged on the basis of “Bankable Hours Arrangements”. In this respect clause 13 provides:
“Bankable Hours Arrangements
Bankable Hours arrangements are available to be used by non-Casual Hourly Rate Employees.
Employees accrue towards their Contract Hours all hours actually worked, hours on authorised paid leave and unpaid leave, hours actually worked as overtime and on public holidays. Any hours in excess of the Contract Hours accrued in a pay period may be banked. Alternatively, the Employee may choose to have all Bankable Hours paid in each period.
Hours “banked” may be paid in subsequent pay periods if the Employee wishes, or may be used to reduce the number of Contract Hours worked in subsequent pay periods. Where the Employee works less than their Contract Hours, his/her “banked” hours will be used to pay the Employee the Contract Hours for the first pay period.
If the Employee does not accrue their full Contract Hours and does not have sufficient “banked” hours he/she will still be paid his/her Contract Hours. In this case the Employee’s “banked” hours will go into minus. All minus “banked” hours will need to be made up using the Employee’s future excess hours prior to these excess hours being “banked” or paid.
Overtime hours which attract an additional penalty payment and hours which attract a shift loading may be banked, however any additional overtime penalty payment or shift loading will be paid in the following pay period after the hours are worked. Banked Hours will be paid at the Employee’s Bankable Hourly Rate.”
[39] In respect of the third category of employees, namely those engaged on a “Limited Roster basis”, clause 13 provides:
“Limited Roster Arrangements
Part-time Employees may be engaged on a Limited Roster basis. Limited Roster Employees will be required to nominate the days on which they are available to be rostered at any time. The Employee may be requested by their Direct Leader to work additional shifts as Ordinary Hours on other days not nominated by the Employee, but may refuse this request. Employees engaged on a Limited Roster will be able to take paid leave and receive payment for not working on a public holiday only on the agreed days on which they are usually available to be rostered.”
[40] Finally, in relation to casual employees, clause 13 provides:
“Casual Employees
Casual Store Assistants are the only Casual Employees employed under this Agreement.
Casual Employees may be rostered to work ordinary hours in shifts of at least three (3) hours at any time, Monday to Sunday inclusive. By the 15th of every month, a Casual Employee must indicate their availability to work within the span over the following month. ALDI will use this information to roster the Employee as required to meet business needs. Repeated refusal of shifts offered may result in ALDI not offering further engagements to the Employee.
Casual Employees are not entitled to paid public holidays, annual, personal/carer’s, compassionate or jury service leave. Casual Employees are entitled to unpaid carer’s leave and unpaid compassionate leave in accordance with the National Employee Standards and may be entitled to long service leave depending on applicable state legislation.”
[41] Limited roster employees and casual employees under the two agreements are reasonably comparable to part-time employees and casual employees respectively under the five relevant awards. Full-time salaried employees are paid on the basis of what may be characterised as a loaded annualised salary which displaces the payment of penalty rates that would be payable under the relevant award. Full-time hourly rate employees and part-time employees engaged on a bankable hours arrangement are a unique category. We discuss their reference point for the purpose of the BOOT later in this decision.
[42] Clause 14 provides, among other things, that where an employee considers they are not better off overall under the agreement than under the relevant modern award, they can request a pay comparison over a nominated period of time, and “any shortfall in total remuneration which would otherwise be payable under the Modern Award will be paid to the Employee in the next pay period after the review is completed”. Any dispute about the amount to be paid is to be dealt with under the Resolution of Disputes provision of the agreement, with Aldi agreeing to arbitration by the Commission to resolve the matter if necessary.
[43] Clause 19 contains the following provision with respect to payment for leave entitlements:
“Employees will be entitled to all leave entitlements in accordance with the National Employment Standards set out in the Act, as a minimum. The payment to Employees taking leave will be at a rate of pay not less than that provided under the National Employment Standards.
Community Service Leave will be provided in accordance with the National Employment Standards, however the provisions of this Agreement in relation to attendance and payment for Jury Service will apply.”
[44] There are four separate schedules to the Aldi Prestons Agreement which establish hours of work and rates of pay for salaried store employees, hourly rate store employees, warehouse employees and transport and distribution employees respectively. Schedule 1, Salaried Store Employees, applies to Store Managers, Assistant Store Managers and Store Management Trainees. Part A of Schedule 1 provides, among other things, that such managerial employees are required to work:
• any five days out of seven, Monday to Sunday, as rostered;
• such hours as are necessary to meet the needs of the position, including work on Saturdays, Sundays and Public Holidays as required;
• 38 ordinary hours plus an average number of additional hours per week as agreed on the commencement of employment.
[45] Part B of Schedule 1 provides for the salaries for store management employees. The specified salaries are said to be minimum rates of pay for salaried employees “engaged to work 50, 45 or 40 hours per week”, but this is subject to the proviso that “Employees may be engaged to work a different number of hours per week, and would receive a pro rata payment of the 50 hour per week salary, based on the hours they are engaged to work”. The rates of pay for Store Managers are set out in Part B1.1 of Schedule 1 as follows:
“Rates prior to being allocated to a store to manage
Annual Salary (45 hours per week) | $80,736.10 |
Annual Salary (40 hours per week) | $71,745.73 |
Plus superannuation calculated in accordance with the requirements of Superannuation Legislation. No Business Review Payment is payable.
These rates are payable whilst the Employee completes initial training in the role of Store Manager. Employees will be allocated their own store within 6 months of commencing in the role of Store Manager, and will receive the following payments:
Takeover of own store
On takeover of own store | Year 2 | Year 3 | Year 4 | Year 7 | |
Annual Base Salary (50 hours per week) | $N/A | $72,302.88 | $79,419.20 | $86,535.53 | $93,651.86 |
Annual Base Salary (45 hours per week) | $58,728.68 | $65,085.25 | $71,441.83 | $77,823.73 | $84,180.30 |
Annual Base Salary (40 hours per week) | $52,194.83 | $57,918.28 | $63,565.75 | $69,263.88 | $74,911.35 |
Plus any Business Review Payment payable.
Plus superannuation calculated in accordance with the requirements of Superannuation Legislation.
Progression from one year to the next year occurs on the next full pay period after the anniversary of takeover of own store.”
[46] Part B1.2, Business Review Payment, provides for Store Managers to be paid a productivity bonus and a sales bonus calculated according to specified formulae. Relevantly to the application of the BOOT, it provides:
“The method used by ALDI to calculate the Business Review Payment may vary at ALDI's discretion, however for the purposes of the Better Off Overall Test, the Business Review Payment for Store Managers, upon placement in a home Store, will be a minimum of $570.00 per Fortnight based on Store Managers working a 50 hour week.”
[47] The salaries for Assistant Store Managers are set out in Part B2.1 of Schedule 1 as follows:
“Rates prior to being placed at a home store
Annual Salary (45 hours per week) | $66,022.28 |
Annual Salary (40 hours per week) | $58,703.35 |
Plus superannuation calculated in accordance with the requirements of Superannuation Legislation. No Business Review Payment is payable.
These rates are payable whilst the Employee completes initial training in the role of Assistant Store Manager. Employees will be placed in a home store within 6 months of commencing in the role of Assistant Store Manager, and will receive the following payments
Rates payable from being placed at a home store
On Placement | Year 2 | |
Annual Base Salary (50 hours per week) | N/A | $68,985.30 |
Annual Base Salary (45 hours per week) | $57,741.00 | $62,071.58 |
Annual Base Salary (40 hours per week) | $51,359.10 | $55,208.50 |
Plus any Business Review Payment payable
Plus superannuation calculated in accordance with the requirements of Superannuation Legislation.”
[48] The Business Review Payment Scheme for Assistant Store Managers in Part B2.2, which also consists of a productivity bonus and a sales bonus, provides for a minimum payment of $440 per fortnight based on a 50 hour week.
[49] The salary rates for Store Management Trainees are provided for in Part B.3.1 as follows:
“The following rates of pay are set for Store Management Trainees working 40 hours per week, including time spent in training.
Year 1 | Year 2 | Year 3 | |
Annual Salary | $53,050.00 | $55,450.00 | $59,450.00 |
…”
[50] Schedule 1 does not contain any provision requiring the payment of penalty rates for working on evenings, weekends or public holidays, or for overtime. Work on public holidays or in excess of the hours agreed on engagement are compensated for by time off in lieu (in addition to the normal salary payment). Where the employee works less than the agreed hours, this must be made up at a later time.
[51] Schedule 2 applies to Hourly Rate Store Employees. Part A establishes their span of ordinary hours as being 6.00am-11.00pm Monday to Friday and 6.00am-8.00pm on Saturday and Sunday, and provides that overtime will be paid for work in excess of 9 hours on any one day or 76 hours in a fortnight. Additionally, it provides that “Except for Stock Replenisher, Limited Roster or Casual employees, all work required to be performed by Hourly Rate Employees outside the span of hours set out in Ordinary Hours above will be paid at the rate of time and a half of the applicable Bankable Hourly Rate set out in Part B”. Part B of Schedule 2 sets out the hourly pay rates, which are said to be “... based on the requirement to work flexibly, and is inclusive of all allowances, including, but not limited to, laundry, meal, dairy-room and freezer-room allowances. Where applicable, the hourly rate also recognises the requirement to work on Saturdays and Sundays as needed”. The rates of remuneration in Part B are as follows:
“Remuneration
Bankable Rate Per Hour
18 Years and Over (Adult Rate) _(Adult Rate) | |
Store Assistant working any 5 out of 7 days at non-CBD Stores | $24.30 |
Store Assistant working any 5 out of 7 days at CBD Stores | $24.40 |
Limited Roster Store Assistant working at non-CBD Stores | 18 Years and Over (Adult Rate) |
7am-6pm Mon -Fri (Bankable Hourly Rate) | $20.30 |
6pm-11pm Mon- Fri; 7am-8pm Sat | $25.27 |
11pm-7am Mon- Sat; 8pm Sat-12am Sun;12am- 7am Mon | $30.25 |
All day Sunday (midnight to midnight) | $40.19 |
Public Holidays | $50.14 |
Limited Roster Store Assistant working at CBD Stores | 18 Years and Over (Adult Rate) |
7am-6pm Mon -Fri (Bankable Hourly_ Rate) | $20.50 |
6pm-11pm Mon- Fri;7am-8pm Sat | $25.27 |
11pm-7am Mon- Sat; 8pm Sat-12am Sun; 12am - 7am Mon | $30.25 |
All day Sunday (midnight to midnight) | $40.19 |
Public Holidays | $50.14 |
Stock Replenisher working at non-CBD Stores | 18 Years and Over |
(Adult Rate) | |
7am-6pm Mon -Fri(Bankable Hourly Rate) | $20.30 |
6pm-11pm Mon- Fri; 7am-8pm Sat | $25.27 |
11pm-7am Mon - Sat; 8pm Sat-12am Sun; 12am - 7am Mon | $30.25 |
All day Sunday (midnight to midnight) | $40.19 |
Public Holidays | $50.14 |
Stock Replenisher working at CBD Stores | 18 Years and Over (Adult Rate) |
7am-6pm Mon -Fri (Bankable Hourly Rate) | $20.50 |
6pm-11pm Mon- Fri; 7am-8pm Sat | $25.27 |
11pm-7am Mon - Sat; 8pm Sat-12am Sun; 12am - 7am Mon | $30.25 |
All day Sunday (midnight to midnight) | $40.19 |
Public Holidays | $50.14 |
Casual Store Assistant working at non-CBD Stores | 18 Years and Over (Adult Rate) |
7am - 11pm Mon- Fri (Bankable Hourly Rate) | $25.30 |
11pm - 7am Mon- Sat; 11pm Sat- 12am Sun;12am- 7am Mon | $34.65 |
7am - 6pm Sat | $27.12 |
6pm - 11pm Sat | $30.61 |
All day Sunday (midnight to midnight) | $40.08 |
Public Holidays | $54.24 |
Casual Store Assistant working at CBD Stores | 18 Years and Over (Adult Rate) |
7am - 11pm Mon- Fri (Bankable Hourly Rate) | $25.40 |
11pm - 7am Mon- Sat;11pm Sat - 12am Sun;12am- 7am Mon | $34.65 |
7am - 6pm Sat | $27.12 |
6pm - 11pm Sat | $30.61 |
All day Sunday (midnight to midnight) | $40.08 |
Public Holidays | $54.24 |
…”
[52] Part B goes on to provide that “Casual rates of pay are inclusive of casual loading and payment in lieu of annual leave”. Junior rates are as follows:
“Junior Employees
Junior Employees are aged under 19 years and will receive Junior rates of pay.
% of Adult Rate | |
Employees aged 16 years and under | 70% |
Employees aged 17 years | 80% |
Junior Employees will progress to the next pay rate in the next full pay period after their birthday.”
[53] Part B of Schedule 2 also provides for a $9.00 per hour allowance when a Store Assistant deputises for a Store Manager, and a $12.00 per hour Sunday Loading for employees who work on Sundays except for Stock Replenishers, Limited Roster and Casual employees.
[54] Schedule 2 does not otherwise make provision for the payment of penalty rates for working on evenings or weekends. In respect of public holidays, Part C provides:
“Except for Stock Replenisher, Limited Roster and Casual Employees, where Employees work on a public holiday, they will be paid at double the Bankable Hourly Rate set out in Part B. Stock Replenisher, Limited Roster and Casual Employees will receive the payment for Public Holidays set out in Part B. No overtime is separately payable on public holidays. If non-Casual Hourly Rate Store Employees do not work on a public holiday, the Employee will receive payment of their Notional Shift Hours at the Bankable Hourly Rate set out in Part B.”
[55] Schedule 3 applies to Warehouse Operators, Warehouse Mechanics, Warehouse Caretakers and Palletisers. Part A provides that such employees may be engaged as Hourly Rate Employees and may be required to work at any time on any day from Monday to Sunday, with their hours being averaged over a fortnight period. A shift worker under the Schedule is defined as being someone “who is required to work regularly outside the hours of 5.00am and 6.00pm - i.e. they are in receipt of a shift loading for all shifts worked on Monday-Friday”. Overtime is payable for all work in excess of 9 hours on any one day or 40 hours in one week, and “will be paid at the rate of time and a half of the Bankable Hourly Rate as set out in Part B”. Part B provides for the following rates of pay:
“Hourly Rate Warehouse Employees
These rates include all allowances such as but not limited to, chiller allowance, dairy allowance, first aid allowance, meal allowance and laundry allowance, except any Additional Allowances payable as detailed below.
Warehouse Operator available to work any 5 out of 7 days – Bankable Hourly Rate
Rate per hour | Year 1 | Year 2 | Year 3 | Year 4 |
Monday to Friday (5.00am-6.00pm) | N/A | $32.60 | $33.20 | $35.00 |
Warehouse Mechanic available to work any 5 out of 7 days – Bankable Hourly Rate
Rate per hour | Year 1 | Year 2 | Year 3 | Year 4 |
Monday to Friday (5.00am-6.00pm) | N/A | $32.60 | $33.20 | $35.00 |
Palletiser available to work any 5 out of 7 days – Bankable Hourly Rate
Rate per hour Monday to Friday (5.00am-6.00pm) | $28.60 |
Warehouse Caretaker available to work any 5 out of 7 days – Bankable Hourly Rate
Rate per hour Monday to Friday (5.00am-6.00pm) | $28.40 |
...”
[56] Part B also provides for additional allowances: Freezer Allowances ($2.95 per hour), Section Leader Allowance ($3.80 per hour), Assistant Section Leader Allowance ($1.80 per hour) and Forklift Allowance ($0.10 per hour). It also provides for shift loadings and penalty rates as follows:
“Shift loadings
Calculated based on Bankable Hourly Rate
Shift Loading – Monday to Friday (6.00pm – 12.00am) | +15% |
Shift Loading – Monday to Friday (12.00am – 5.00am) | +20% |
Shift Loading – all Saturday | +50% |
Shift Loading – all Sunday | +100% |
Penalty Rates
Calculated based on Bankable Hourly Rate
Penalty Rate – Public Holiday (excluding Good Friday and Christmas Day) | +100% |
Penalty Rate – Good Friday and Christmas Day | +200% |
...”
[57] Regarding public holidays, Schedule 3 states that where an Hourly Rate Warehouse Employee works on a public holiday they will be paid in accordance with Part B and that no overtime is separately payable on public holidays. It also states that if Hourly Rate Warehouse Employees do not work on a public holiday, the Employee will receive payment of their Notional Shift Hours, paid at the Bankable Hourly Rate and Employees who receive payment of a Section Leader allowance will receive those allowances.
[58] Schedule 4 applies to all employees “engaged to work in ALDI’s Transport and Distribution function”. Part A provides that “Employees engaged on an hourly basis (Hourly Rate Employees) may be required to work at any time on any day in a Week, Monday to Sunday. Hours of work will be averaged over a fortnightly period. Employees will work on average up to five (5) shifts in a week.” In respect of overtime, Part A provides:
“Overtime
All work performed in excess of:
10 ordinary hours in any one shift; or
50 ordinary hours in one week, will be Overtime and will be paid at the rate of time and a half of the Bankable Hourly Rate as set out in Part B.”
[59] Part B of Schedule 4 provides for the following rates of pay:
“Hourly Rate Employees
Transport Operator employed to drive a Heavy Rigid (HR) Vehicle – Bankable Hourly Rate
Rate per hour | |
Monday to Friday (5.00am-6.00pm) | $30.95 |
This rate includes all allowances such as but not limited to, chiller allowance, freezer allowance, dairy allowance, fork-lift allowance, tail-gate allowance, first aid allowance, meal allowances, and laundry allowances, except any Additional Allowances payable as detailed below.
Progression to Transport Operator employed to drive a Heavy Combination (HC) Vehicle is based on completion of qualifications and Aldi offering a role to the Employee.
Transport Operator employed to drive a Heavy Combination (HC) Vehicle – Bankable Hourly Rate
Rate per hour | |
Monday to Friday (5.00am-6.00pm) | $32.60 |
This rate includes all allowances such as but not limited to, chiller allowance, freezer allowance, dairy allowance, fork-lift allowance, tail-gate allowance, first aid allowance, meal allowances, and laundry allowance, except any Additional Allowances payable as detailed below.
This rate is payable even where the Transport Operator employed to drive a Heavy Combination Vehicle drives an HR vehicle.”
[60] Part B of Schedule 4 also provides for a B-Double Allowance ($1.35 per hour), a Section Leader Allowance ($3.80 per hour) and an Assistant Section Leader Allowance ($1.80 per hour). Shift loadings and penalty rates are provided for as follows:
“Shift loadings
Calculated based on Bankable Hourly Rate
Shift Loading – Monday to Friday (6.00pm – 12.00am) | +12.5 |
Shift Loading – Monday to Friday (12.00am – 5.00am) | +25 |
Shift Loading – all Saturday | +50% |
Shift Loading – all Sunday | +100% |
Penalty Rates
Calculated based on Bankable Hourly Rate
Penalty Rate – Public Holiday (excluding Good Friday and Christmas Day) | +100% |
Penalty Rate – Good Friday and Christmas Day | +200% |
...”
[61] Schedules 2, 3 and 4 provide, with respect to hourly rate employees, that they would be paid for each day of leave taken based on the “Employee’s Notional Shift Hours”. They each go on to provide in this respect:
“Employees taking Annual Leave or Personal/Carer's Leave may request additional leave hours to be paid on a Leave Day where the Employee has sufficient accrued leave and where the expected shift for which they will be absent is greater than their Notional Shift Hours. The maximum leave hours to be paid per shift will not exceed the total hours which otherwise would have been worked on that shift.”
[62] The expression “Notional Shift Hours” is defined in clause 33 as follows:
“Notional Shift Hours are assigned based on Contract Hours for the purposes of calculating public holiday and Leave Day payments. Hourly Rate Employees entitled to payment when absent from work on a public holiday or Leave Day will receive payment of their Notional Shift Hours for that day.
Contract Hours per Fortnight | Notional Shift Hours |
21 Contract Hours | 4.0 hours |
30 Contract Hours | 4.75 hours |
40 Contract Hours | 5.25 hours |
50 Contract Hours | 5.5 hours |
55 Contract Hours | 6.0 hours |
60 Contract Hours | 6.5 hours |
70 Contract Hours | 7.25 hours |
76 Contract Hours | 8.0 hours |
80 Contract Hours | 9.75 hours |
90 Contract Hours | 9.75 hours |
96 Contract Hours | 10.0 hours |
...”
[63] A preliminary analysis as to whether the Aldi Prestons Agreement and the Aldi Stapylton Agreement satisfied the BOOT was undertaken by the Commission’s staff under the supervision of Commissioner Lee. The contents of that analysis were communicated to Aldi in correspondence from the presiding member’s chambers dated 20 September 2017. The correspondence concerning the Aldi Prestons Agreement relevantly stated (formal parts omitted):
The loaded rate for each Security Award classification for a full-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 3 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 29% |
Level 1 | $21.26 | 808.00 | $1,027.28 | 29% | $27.43 |
Level 2 | $21.87 | 831.20 | $1,056.75 | 29% | $28.21 |
Level 3 | $22.24 | 845.30 | $1,074.64 | 29% | $28.69 |
Level 4 | $22.62 | 859.40 | $1,092.99 | 29% | $29.18 |
Level 5 | $23.35 | 887.20 | $1,128.27 | 29% | $30.12 |
* rounded up to nearest whole number
Scenario 4
A Level 1 permanent employee working a 38 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $30.40 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,155.20 | Mon- Fri Day | 0 | 100% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 121.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 29.52 | 130% | $815.87 | |||
$0.00 | Saturday | 3.8 | 150% | $121.18 | |||
$0.00 | Sunday | 3.8 | 200% | $161.58 | |||
$0.00 | Public Holiday | 0.88 | 250% | $46.77 | |||
Totals | 38.00 | Hrs | $1,155.20 | Totals | 38.00 | Hrs | $1,145.40 |
The loaded rate for each Security Award classification for a full-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 4 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 43% |
Level 1 | $21.26 | 808.00 | $1,145.40 | 43% | $30.40 |
Level 2 | $21.87 | 831.20 | $1,178.26 | 43% | $31.27 |
Level 3 | $22.24 | 845.30 | $1,198.20 | 43% | $31.80 |
Level 4 | $22.62 | 859.40 | $1,218.67 | 43% | $32.35 |
Level 5 | $23.35 | 887.20 | $1,258.01 | 43% | $33.39 |
* rounded up to nearest whole number
Scenario 5
A Level 1 permanent employee working a 38 hour week for each week of the year which comprises of the following:
• Employee works two 12 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 12 hours ÷ 4 weeks =6”
• Employee works two 12 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $31.68 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,203.84 | Mon- Fri Day | 0 | 100% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 121.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 25.12 | 130% | $694.27 | |||
$0.00 | Saturday | 6 | 150% | $191.34 | |||
$0.00 | Sunday | 6 | 200% | $255.12 | |||
$0.00 | Public Holiday | 0.88 | 250% | $46.77 | |||
Totals | 38.00 | Hrs | $1,203.84 | Totals | 38.00 | Hrs | $1,187.50 |
The loaded rate for each Security Award classification for a full-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 5 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 49% |
Level 1 | $21.26 | 808.00 | $1,187.50 | 49% | $31.68 |
Level 2 | $21.87 | 831.20 | $1,221.57 | 49% | $32.59 |
Level 3 | $22.24 | 845.30 | $1,242.24 | 49% | $33.14 |
Level 4 | $22.62 | 859.40 | $1,263.46 | 49% | $33.70 |
Level 5 | $23.35 | 887.20 | $1,303.24 | 49% | $34.79 |
* rounded up to nearest whole number
Modelling for Part-time Employees
Scenario 6
A Level 1 part-time employee working a 30 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on day shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 3 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “3 days x 7.6 hours ÷ 52 weeks = 0.44”.
Loaded Rate | $26.15 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 30 | 100% | $784.50 | Mon- Fri Day | 21.96 | 100% | $466.87 |
$0.00 | Mon-Fri Night | 0 | 121.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 0 | 130% | $0.00 | |||
$0.00 | Saturday | 3.8 | 150% | $121.18 | |||
$0.00 | Sunday | 3.8 | 200% | $161.58 | |||
$0.00 | Public Holiday | 0.44 | 250% | $23.39 | |||
Totals | 30.00 | Hrs | $784.50 | Totals | 30.00 | Hrs | $773.02 |
The loaded rate for each Security Award classification for a part-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum rate for 30 hours | Scenario 6 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 23% |
Level 1 | $21.26 | $637.80 | $773.02 | 23% | $26.15 |
Level 2 | $21.87 | $656.10 | $795.20 | 23% | $26.90 |
Level 3 | $22.24 | $667.20 | $808.64 | 23% | $27.36 |
Level 4 | $22.62 | $678.60 | $822.46 | 23% | $27.82 |
Level 5 | $23.35 | $700.50 | $849.02 | 23% | $28.72 |
* rounded up to nearest whole number
Scenario 7
A Level 1 permanent employee working a 30 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 3 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “3 days x 7.6 hours ÷ 52 weeks = 0.44.
Loaded Rate | $30.83 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 30 | 100% | $924.90 | Mon- Fri Day | 0 | 100% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 121.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 21.96 | 130% | $606.93 | |||
$0.00 | Saturday | 3.8 | 150% | $121.18 | |||
$0.00 | Sunday | 3.8 | 200% | $161.58 | |||
$0.00 | Public Holiday | 0.44 | 250% | $23.39 | |||
Totals | 30.00 | Hrs | $924.90 | Totals | 30.00 | Hrs | $913.08 |
The loaded rate for each Security Award classification for a part-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum rate for 30 hours | Scenario 7 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 45% |
Level 1 | $21.26 | $ 637.80 | $913.08 | 45% | $30.83 |
Level 2 | $21.87 | $ 656.10 | $939.27 | 45% | $31.71 |
Level 3 | $22.24 | $ 667.20 | $955.16 | 45% | $32.25 |
Level 4 | $22.62 | $ 678.60 | $971.48 | 45% | $32.80 |
Level 5 | $23.35 | $ 700.50 | $1,002.85 | 45% | $33.86 |
* rounded up to nearest whole number
Scenario 8
A Level 1 part-time employee working a 15 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on day shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 2 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “2 days x 7.6 hours ÷ 52 weeks = 0.29”.
Loaded Rate | $30.40 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 15 | 100% | $456.00 | Mon- Fri Day | 7.11 | 100% | $151.16 |
$0.00 | Mon-Fri Night | 0 | 121.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 0 | 130% | $0.00 | |||
$0.00 | Saturday | 3.8 | 150% | $121.18 | |||
$0.00 | Sunday | 3.8 | 200% | $161.58 | |||
$0.00 | Public Holiday | 0.29 | 250% | $15.41 | |||
Totals | 15.00 | Hrs | $456.00 | Totals | 15.00 | Hrs | $449.33 |
The loaded rate for each Security Award classification for a part-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum rate for 15 hours | Scenario 8 weekly rate | (Scenario weekly rate + $5 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 43% |
Level 1 | $21.26 | $ 318.90 | $449.33 | 43% | $30.40 |
Level 2 | $21.87 | $ 328.05 | $462.23 | 43% | $31.27 |
Level 3 | $22.24 | $ 333.60 | $470.04 | 43% | $31.80 |
Level 4 | $22.62 | $ 339.30 | $478.07 | 43% | $32.35 |
Level 5 | $23.35 | $ 350.25 | $493.51 | 43% | $33.39 |
* rounded up to nearest whole number
Scenario 9
A Level 1 permanent employee working a 15 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 2 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “2 days x 7.6 hours ÷ 52 weeks = 0.29”.
Loaded Rate | $33.38 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 15 | 100% | $500.70 | Mon- Fri Day | 0 | 100% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 121.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 7.11 | 130% | $196.51 | |||
$0.00 | Saturday | 3.8 | 150% | $121.18 | |||
$0.00 | Sunday | 3.8 | 200% | $161.58 | |||
$0.00 | Public Holiday | 0.29 | 250% | $15.41 | |||
Totals | 15.00 | Hrs | $500.70 | Totals | 15.00 | Hrs | $494.68 |
The loaded rate for each Security Award classification for a part-time employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum rate for 15 hours | Scenario 9 weekly rate | (Scenario weekly rate + $5 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 57% |
Level 1 | $21.26 | $ 318.90 | $494.68 | 57% | $33.38 |
Level 2 | $21.87 | $ 328.05 | $508.87 | 57% | $34.34 |
Level 3 | $22.24 | $ 333.60 | $517.47 | 57% | $34.92 |
Level 4 | $22.62 | $ 339.30 | $526.32 | 57% | $35.51 |
Level 5 | $23.35 | $ 350.25 | $543.31 | 57% | $36.66 |
* rounded up to nearest whole number
Modelling for Casual Employees
Scenario 10
A Level 1 casual employee working a 38 hour week for each week of the year which comprises of the following:
• 1/7 of their ordinary hours worked on each day of the week
• Mon-Fri hours are evenly split between day shift work and night shift work
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. The figure in a weekly model to proportion the public holidays to the weekly model would approximately be represented by “6 days x 7.6 hours ÷ 52 weeks = 0.88 hours.”
Loaded Rate | $33.80 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,284.40 | Mon- Fri Day | 13.13 | 125% | $348.93 |
$0.00 | Mon-Fri Night | 13.13 | 146.7% | $409.50 | |||
$0.00 | Mon-Fri Perm Night | 0 | 155% | $0.00 | |||
$0.00 | Saturday | 5.43 | 175% | $202.02 | |||
$0.00 | Sunday | 5.43 | 225% | $259.74 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 38.00 | Hrs | $1,284.40 | Totals | 38.00 | Hrs | $1,271.64 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 10 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 59% |
Level 1 | $21.26 | 808.00 | $1,271.64 | 59% | $33.80 |
Level 2 | $21.87 | 831.20 | $1308.14 | 59% | $34.77 |
Level 3 | $22.24 | 845.30 | $1,330.27 | 59% | $35.36 |
Level 4 | $22.62 | 859.40 | $1,353.00 | 59% | $35.97 |
Level 5 | $23.35 | 887.20 | $1,396.66 | 59% | $37.13 |
* rounded up to nearest whole number
Scenario 11
A Level 1 casual employee working a 38 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on day shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $30.83 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,171.54 | Mon- Fri Day | 29.52 | 125% | $784.49 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 0 | 155% | $0.00 | |||
$0.00 | Saturday | 3.8 | 175% | $141.38 | |||
$0.00 | Sunday | 3.8 | 225% | $181.77 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 38.00 | Hrs | $1,171.54 | Totals | 38.00 | Hrs | $1,159.09 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 11 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 45% |
Level 1 | $21.26 | 808.00 | $1,159.09 | 45% | $30.83 |
Level 2 | $21.87 | 831.20 | $1,192.36 | 45% | $31.71 |
Level 3 | $22.24 | 845.30 | $1,212.53 | 45% | $32.25 |
Level 4 | $22.62 | 859.40 | $1,233.24 | 45% | $32.80 |
Level 5 | $23.35 | 887.20 | $1,273.05 | 45% | $33.86 |
* rounded up to nearest whole number
Scenario 12
A Level 1 casual employee working a 38 hour week for each week of the year which comprises of the following:
• Employee works two 12 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
• Employee works two 12 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
• Other hours are worked by the employee on day shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $32.74 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,244.12 | Mon- Fri Day | 25.12 | 125% | $667.56 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 0 | 155% | $0.00 | |||
$0.00 | Saturday | 6 | 175% | $223.23 | |||
$0.00 | Sunday | 6 | 225% | $287.01 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 38.00 | Hrs | $1,244.12 | Totals | 38.00 | Hrs | $1,229.25 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 12 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 54% |
Level 1 | $21.26 | 808.00 | $1,229.25 | 54% | $32.74 |
Level 2 | $21.87 | 831.20 | $1,264.54 | 54% | $33.68 |
Level 3 | $22.24 | 845.30 | $1,285.92 | 54% | $34.25 |
Level 4 | $22.62 | 859.40 | $1,307.89 | 54% | $34.83 |
Level 5 | $23.35 | 887.20 | $1,350.11 | 54% | $35.96 |
* rounded up to nearest whole number
Scenario 13
A Level 1 casual employee working a 38 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $35.72 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,357.36 | Mon- Fri Day | 0 | 125% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 29.52 | 155% | $972.77 | |||
$0.00 | Saturday | 3.8 | 175% | $141.38 | |||
$0.00 | Sunday | 3.8 | 225% | $181.77 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 38.00 | Hrs | $1,357.36 | Totals | 38.00 | Hrs | $1,347.37 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 13 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 68% |
Level 1 | $21.26 | 808.00 | $1,347.37 | 68% | $35.72 |
Level 2 | $21.87 | 831.20 | $1386.04 | 68% | $36.74 |
Level 3 | $22.24 | 845.30 | $1,409.48 | 68% | $37.36 |
Level 4 | $22.62 | 859.40 | $1,433.56 | 68% | $38.00 |
Level 5 | $23.35 | 887.20 | $1479.83 | 68% | $39.23 |
* rounded up to nearest whole number
Scenario 14
A Level 1 casual employee working a 38 hour week for each week of the year which comprises of the following:
• Employee works two 12 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
• Employee works two 12 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $36.99 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 38 | 100% | $1,405.62 | Mon- Fri Day | 0 | 125% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 25.12 | 155% | $827.78 | |||
$0.00 | Saturday | 6 | 175% | $223.23 | |||
$0.00 | Sunday | 6 | 225% | $287.01 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 38.00 | Hrs | $1,405.62 | Totals | 38.00 | Hrs | $1,389.47 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 14 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 74% |
Level 1 | $21.26 | 808.00 | $1,389.47 | 74% | $36.99 |
Level 2 | $21.87 | 831.20 | $1429.35 | 74% | $38.05 |
Level 3 | $22.24 | 845.30 | $1,453.52 | 74% | $38.70 |
Level 4 | $22.62 | 859.40 | $1,478.35 | 74% | $39.36 |
Level 5 | $23.35 | 887.20 | $1,526.08 | 74% | $40.63 |
* rounded up to nearest whole number
Scenario 15
A Level 1 casual employee working a 30 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
• Other hours are worked by the employee on day shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $31.89 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 30 | 100% | $956.70 | Mon- Fri Day | 21.52 | 125% | $571.89 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 0 | 155% | $0.00 | |||
$0.00 | Saturday | 3.8 | 175% | $141.38 | |||
$0.00 | Sunday | 3.8 | 225% | $181.77 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 30.00 | Hrs | $956.70 | Totals | 30.00 | Hrs | $946.49 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 15 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 50% |
Level 1 | $21.26 | $ 637.80 | $946.49 | 50% | $31.89 |
Level 2 | $21.87 | $ 656.10 | $973.66 | 50% | $32.81 |
Level 3 | $22.24 | $ 667.20 | $990.13 | 50% | $33.36 |
Level 4 | $22.62 | $ 678.60 | $1,007.04 | 50% | $33.93 |
Level 5 | $23.35 | $ 700.50 | $1,039.55 | 50% | $35.03 |
* rounded up to nearest whole number
Scenario 16
A casual employee working a 30 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $36.57 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 30 | 100% | $1,097.10 | Mon- Fri Day | 0 | 125% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 21.52 | 155% | $709.15 | |||
$0.00 | Saturday | 3.8 | 175% | $141.38 | |||
$0.00 | Sunday | 3.8 | 225% | $181.77 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 30.00 | Hrs | $1,097.10 | Totals | 30.00 | Hrs | $1,083.75 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 16 weekly rate | (Scenario weekly rate + $10 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 72% |
Level 1 | $21.26 | $ 637.80 | $1,083.75 | 72% | $36.57 |
Level 2 | $21.87 | $ 656.10 | $1,114.86 | 72% | $37.62 |
Level 3 | $22.24 | $ 667.20 | $1,133.71 | 72% | $38.25 |
Level 4 | $22.62 | $ 678.60 | $1,153.07 | 72% | $38.91 |
Level 5 | $23.35 | $ 700.50 | $1,190.29 | 72% | $40.16 |
* rounded up to nearest whole number
Scenario 17
A Level 1 casual employee working a 15 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on day shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $36.99 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 15 | 100% | $554.85 | Mon- Fri Day | 6.52 | 125% | $173.27 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 0 | 155% | $0.00 | |||
$0.00 | Saturday | 3.8 | 175% | $141.38 | |||
$0.00 | Sunday | 3.8 | 225% | $181.77 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 15.00 | Hrs | $554.85 | Totals | 15.00 | Hrs | $547.87 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 17 weekly rate | (Scenario weekly rate + $5 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 74% |
Level 1 | $21.26 | $ 318.90 | $547.87 | 74% | $36.99 |
Level 2 | $21.87 | $ 328.05 | $536.60 | 74% | $38.05 |
Level 3 | $22.24 | $ 333.60 | $573.13 | 74% | $38.70 |
Level 4 | $22.62 | $ 339.30 | $582.91 | 74% | $39.36 |
Level 5 | $23.35 | $ 350.25 | $601.73 | 74% | $40.63 |
* rounded up to nearest whole number
Scenario 18
A Level 1 casual employee working a 15 hour week for each week of the year which comprises of the following:
• Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
• Other hours are worked by the employee on permanent night shift.
• Given public holidays are likely to be worked in the Security Industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate | $39.76 | Award Ordinary Rate | $21.26 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Time | 15 | 100% | $596.40 | Mon- Fri Day | 0 | 125% | $0.00 |
$0.00 | Mon-Fri Night | 0 | 146.7% | $0.00 | |||
$0.00 | Mon-Fri Perm Night | 6.52 | 155% | $214.85 | |||
$0.00 | Saturday | 3.8 | 175% | $141.38 | |||
$0.00 | Sunday | 3.8 | 225% | $181.77 | |||
$0.00 | Public Holiday | 0.88 | 275% | $51.45 | |||
Totals | 15.00 | Hrs | $596.40 | Totals | 15.00 | Hrs | $589.45 |
The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:
Classification | Award minimum hourly rate | Award minimum weekly rate | Scenario 18 weekly rate | (Scenario weekly rate + $5 – award weekly rate) / award weekly rate* | Loaded Rate = award rate + 87% |
Level 1 | $21.26 | $ 318.90 | $589.45 | 87% | $39.76 |
Level 2 | $21.87 | $ 328.05 | $606.38 | 87% | $40.90 |
Level 3 | $22.24 | $ 333.60 | $616.63 | 87% | $41.59 |
Level 4 | $22.62 | $ 339.30 | $627.16 | 87% | $42.30 |
Level 5 | $23.35 | $ 350.25 | $647.41 | 87% | $43.66 |
* rounded up to nearest whole number
SCHEDULE B
ALDI Prestons Agreement – BOOT Analysis for part-time employees under the unique “bankable hours arrangements” under the ALDI agreements based on comparison with casual employment under the Retail Award
Classification Description
The “Store Assistant working any 5 out of 7 days non-CBD Stores” classification may work within the following span of hours:
- 6.00am – 11.00pm Monday – Friday
- 6.00am – 8.00pm Saturday
- 6.00am – 8.00pm Sunday
Employees working these hours receive the following penalties and allowances:
- 200% loading on Public Holidays
- $12.00 per hour allowance for work performed on Sundays
Part-time v Casual Employment
As per ALDI’s submissions the Agreement rate for “Store Assistant working any 5 out of 7 days non-CBD Stores” has been compared against Level 1 of the General Retail Industry Award 2010 with casual loadings and penalties applied and no annual leave or leave loading.
As the Agreement was lodged on 29 May 2017 the pre-1 July 2017 Award rates and penalties have been used for the purpose of the below comparisons.
All scenarios modelled below appear to indicate a part-time employee under the Agreement is better off overall when compared to a casual employee under the Award. All models indicate an employee working a full 38 hour week.
Modelling
(1) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD Stores” employee working ordinary hours Monday – Friday between 7am and 9pm is better off under the Agreement than the Award.
Agreement Ordinary Rate | $24.30 | Award Ordinary Rate | $19.44 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Hours | 38 | 100% | $923.40 | Ordinary Hours | 38 | 125% | $923.40 |
Annual Leave | Yes | $71.03 | Annual Leave | No | $0.00 | ||
Leave Loading | Yes | $11.21 | Leave Loading | No | $0.00 | ||
Totals | 38.00 | Hrs | $1,005.64 | Totals | 38.00 | Hrs | $923.40 |
Agreement Total Weekly Rate | $1,005.64 | ||||||
Award Total Weekly Rate | $923.40 | ||||||
Dollar / | $82.24 | ||||||
8.91% | |||||||
(2) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD Stores” employee working 7.6 hours on four week days between 7am and 9pm and 7.6 hours on a Saturday between 7am and 6pm is better off under the Agreement than the Award.
Agreement Ordinary Rate | $24.30 | Award Ordinary Rate | $19.44 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Hours | 30.4 | 100% | $738.72 | Ordinary Hours | 30.4 | 125% | $738.72 |
Saturday | 7.6 | 100% | $184.68 | Saturday | 7.6 | 135% | $199.45 |
Annual Leave | Yes | $71.03 | Annual Leave | No | $0.00 | ||
Leave Loading | Yes | $11.21 | Leave Loading | No | $0.00 | ||
Totals | 38.00 | Hrs | $1,005.64 | Totals | 38.00 | Hrs | $938.17 |
Agreement Total Weekly Rate | $1,005.64 | ||||||
Award Total Weekly Rate | $938.17 | ||||||
Dollar / | $67.47 | ||||||
7.19% | |||||||
(3) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD Stores” employee working 7.6 hours on four week days between 7am and 9pm and 7.6 hours on a Sunday between 9am and 6pm is better off under the Agreement than the Award.
Agreement Ordinary Rate | $24.30 | Award Ordinary Rate | $19.44 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Hours | 30.4 | 100% | $738.72 | Ordinary Hours | 30.4 | 125% | $738.72 |
Sunday | 7.6 | 100% | $184.68 | Sunday | 7.6 | 200% | $295.49 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Sunday | 7.6 | $12.00 | $91.20 | Allowance | $0.00 | ||
Annual Leave | Yes | $71.03 | Annual Leave | No | $0.00 | ||
Leave Loading | Yes | $11.21 | Leave Loading | No | $0.00 | ||
Totals | 38.00 | Hrs | $1,096.84 | Totals | 38.00 | Hrs | $1,034.21 |
Agreement Total Weekly Rate | $1,096.84 | ||||||
Award Total Weekly Rate | $1,034.21 | ||||||
Dollar / | $62.63 | ||||||
6.06% | |||||||
(4) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD Stores” employee working 7.6 hours on three week days between 7am and 9pm as well as 7.6 hours on a Sunday between 9am and 6pm and 7.6 hours on a Saturday between 7am and 6pm is better off under the Agreement than the Award.
Agreement Ordinary Rate | $24.30 | Award Ordinary Rate | $19.44 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Hours | 22.8 | 100% | $554.04 | Ordinary Hours | 22.8 | 125% | $554.04 |
Saturday | 7.6 | 100% | $184.68 | Saturday | 7.6 | 135% | $199.45 |
Sunday | 7.6 | 100% | $184.68 | Sunday | 7.6 | 200% | $295.49 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Sunday | 7.6 | $12.00 | $91.20 | Allowance | $0.00 | ||
Annual Leave | Yes | $71.03 | Annual Leave | No | $0.00 | ||
Leave Loading | Yes | $11.21 | Leave Loading | No | $0.00 | ||
Totals | 38.00 | Hrs | $1,096.84 | Totals | 38.00 | Hrs | $1,048.98 |
Agreement Total Weekly Rate | $1,096.84 | ||||||
Award Total Weekly Rate | $1,048.98 | ||||||
Dollar / Actual Percentage Difference | $47.86 | ||||||
4.56% | |||||||
(5) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD Stores” employee working three week days, Sunday, Saturday and all Public Holidays is better off under the Agreement than the Award. This model below is based on the following assumptions:
• 13 public holidays are worked during the year on a weekday. This is represented in the model as 1.9 which averages the public holidays worked over a year to a weekly model. The 1.9 is calculated by “7.6 hours x 13 days ÷ 52 weeks”
• Employees work 7.6 hours on a Sunday between 9am and 6pm every week
• Employees work 7.6 hours on a Saturday between 7am and 6pm every week
• Employees work 7.6 hours on 3 weekdays each week between 7am and 9pm every week.
Agreement Ordinary Rate | $24.30 | Award Ordinary Rate | $19.44 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary Hours | 20.9 | 100% | $507.87 | Ordinary Hours | 20.9 | 125% | $507.87 |
Saturday | 7.6 | 100% | $184.68 | Saturday | 7.6 | 135% | $199.45 |
Sunday | 7.6 | 100% | $184.68 | Sunday | 7.6 | 200% | $295.49 |
Public Holidays | 1.9 | 200% | $92.34 | Public Holidays | 1.9 | 250% | $92.34 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Sunday | 7.6 | $12.00 | $91.20 | Allowance | $0.00 | ||
Annual Leave | Yes | $71.03 | Annual Leave | No | $0.00 | ||
Leave Loading | Yes | $11.21 | Leave Loading | No | $0.00 | ||
Totals | 38.00 | Hrs | $1,143.01 | Totals | 38.00 | Hrs | $1,095.15 |
Agreement Total Weekly Rate | $1,143.01 | ||||||
Award Total Weekly Rate | $1,095.15 | ||||||
Dollar / | $47.86 | ||||||
4.37% | |||||||
Further Issues
Under clause 29.1(a) of the Award at test time a casual employee is not entitled to overtime payments and under clause 30.1(a) a “Store Assistant working any 5 out of 7 days non-CBD Stores” would likely not be entitled to shift penalties as they are not specifically employed as a shift worker. Therefore it does not appear that casual employees would be entitled to any penalties for hours worked prior to 7.00am on any day and past 6.00pm on a Saturday. Due to these parameters it may not possible to adequately match all part-time roster patterns against a casual employee covered by the Award.
Modelling below indicates that an employee only working weekend shifts would be worse off when compared to a casual employee under the Award. Employees under this model work Saturdays between 7am to 6pm and Sundays between 9am to 6pm.
Agreement Ordinary Rate | $24.30 | Award Ordinary Rate | $19.44 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Saturday | 7.6 | 100% | $184.68 | Saturday | 7.6 | 135% | $199.45 |
Sunday | 7.6 | 100% | $184.68 | Sunday | 7.6 | 200% | $295.49 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Sunday | 7.6 | $12.00 | $91.20 | Allowance | $0.00 | ||
Annual Leave | Yes | $28.41 | Annual Leave | No | $0.00 | ||
Leave Loading | Yes | $4.48 | Leave Loading | No | $0.00 | ||
Totals | 15.20 | Hrs | $493.45 | Totals | 15.20 | Hrs | $494.94 |
Agreement Total Weekly Rate | $493.45 | ||||||
Award Total Weekly Rate | $494.94 | ||||||
Dollar / | -$1.49 | ||||||
0.30% | |||||||
1 [2016] FWCFB 2887
2 Ibid at [7]
3 Ibid at [33]
4 AG2017/3865
5 AG2017/4096
6 AG2017/4671
7 AG2017/1925
8 AG2017/1943
9 [2013] FWC 3495 at [56]
10 [2016] FWCFB 2887
11 [2017] FWCFB 1664 at [41]-[46]
12 See transcript 15 November 2017 at PNs 77-91
13 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery [2017] FWCFB 1664 at [11]
14 Macquarie Online Dictionary
15 [2016] FWCFB 3048 at [36]
16 [2015] FCAFC 16
17 [2017] HCA 53 at [84]
18 See the discussion in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [142]-[153]
19 Ibid at [34] – [35]
20 Ibid at [36]
21 National Tertiary Education Union v La Trobe University [2015] FCAFC 142 at [108] per White J
22 [2016] FWCFB 2887
23 ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 at [92]; Armacell Australia Pty Ltd [2010] FWAFB 9985 at [41]
24 [2011] FWAFB 5163
25 [2017] FWCFB 3541, 269 IR 125 at [85]
26 [2017] FWCFB 1664 at [39]-[43]
27 Canavan Building Pty Ltd [2014] FWCFB 3202 at [36]
28 Ibid
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