DETERMINATION

Fair Work Act 2009
s.157—Application to vary or revoke a modern award

Australian Hotels Association
(AM2021/73)

HOSPITALITY INDUSTRY (GENERAL) AWARD 2020
[MA000009]

Application to vary modern award – insertion of loaded rates schedule – provisional view confirmed – Hospitality Industry (General) Award 2020.

A. Further to the decision [[2021] FWCFB 5371] issued by the Full Bench of the Fair Work Commission on 3 September, 2021, the above award is varied as follows:

1. By inserting Schedule K—Loaded Rate Arrangements as follows:

Schedule K—Loaded Rate Arrangements

K.1 Preamble

K.1.1 Schedule K provides for the payment of a percentage amount above an employee’s ordinary hourly rate (Loaded Rate) in satisfaction of the requirement to pay overtime, penalty rates (except public holiday penalty rates) and the split shift allowance in clause 26.14(1)(b)(i). In particular:

(a) Schedule K provides for 6 different Loaded Rate percentages (see clause K.5.1).

(b) Clause K.4 sets out the Loaded Rate Parameters—that is, the pattern of hours that may be worked in respect of each of the Loaded Rate percentages.

(c) Loaded Rate Arrangements do not apply to certain categories of employees (see clause K.3).

(d) The creation, variation and termination of Loaded Rate Arrangements is set out in clause K.2.

(e) Disputes about the operation of a Loaded Rate Arrangement can be dealt with in accordance with clause K.8.

NOTE: Loaded Rate Arrangements under Schedule K only apply to full-time adult employees classified at Level 3 and above.

K.2 Loaded rate arrangement—creation and termination

K.2.1 Subject to the provisions of Schedule K, an employer may elect to pay a full-time employee classified at Level 3 or above, a Loaded Rate in satisfaction of the requirements of:

(a) clause 26.14(b)(i)—Split shift allowance;

(b) clause 28—Overtime but not clauses 28.2(d) to (f); and

(c) clause 29—Penalty rates, with the exception of penalty rates in relation to public holidays.

NOTE: An employee’s ordinary hourly rate is defined in clause 2—Definitions.

K.2.2 If an employer elects to pay an employee a Loaded Rate, the employer must provide the employee with a written loaded rate arrangement in accordance with the form set out in Schedule L—Loaded Rate Arrangement.

K.2.3 The employer must keep a copy of the Loaded Rate Arrangement and any document terminating that arrangement as a time and wages record.

K.2.4 Subject to clause 39—Consultation about changes to rosters or hours of work, an employer may vary the Loaded Rate Arrangement by giving 2 weeks’ written notice of the issuing a new Loaded Rate Arrangement.

K.2.5 A Loaded Rate Arrangement may be terminated:

(a) at any time by written agreement between the employee and the employer; or

(b) by the employer giving 2 weeks’ written notice.

K.2.6 A Loaded Rate Arrangement terminated in accordance with clause K.2.5(b) ceases to have effect at the end of the notice period.

K.3 Loaded rate arrangements not to be applied to certain employees

K.3.1 Schedule K does not apply to part-time or casual employees or to employees:

(a) classified at the introductory level, Level 1 or Level 2;

(b) paid in accordance with clause 18.4—Junior rates;

(c) paid in accordance with clause E.4—Supported wage rates;

(d) engaged in accordance with clause 15.3—Catering in remote locations; and

(e) rostered in accordance with clause 15.1(b)(vii) of this award.

K.4 Loaded rate parameters

K.4.1 A Loaded Rate is only in satisfaction of the payments set out at clause K.2.1 (a), (b) and (c) if all of the following rostering requirements are met (Loaded Rate Parameters):

(a) the roster cycle must operate weekly commencing on a Monday;

(b) Monday to Friday: a maximum of 11.5 hours (excluding meal breaks) per day / shift rostered between 7:00am and 12:00am (midnight);

(c) Saturday: a maximum of 10 hours (excluding meal breaks);

(d) Sunday: a maximum of 10 hours (excluding meal breaks); and

(e) if the period between shifts is 3 hours or less, a split shift allowance must be paid.

K.5 Loaded rates

K.5.1 The Loaded Rate Range of Days and Loaded Rate Maximum Weekly Hours applicable to the Loaded Rate Percentage as set out in the table below.

K.5.2 The Loaded Rate in dollar value based on the Loaded Rate Percentage is set out below:

NOTE: The rates in the tables below are based on the minimum hourly rates in accordance with clause 18—Minimum rates. All-purpose allowances need to be added to minimum rates before the Loaded Rate Percentage is applied.

K.5.3 The Loaded Rate for casino gaming classifications in dollar value based on the Loaded Rate for casino gaming classifications in dollar value based on the Loaded Rate Percentages is set out below:

NOTE: The rates in the tables below are based on the minimum hourly rates in accordance with clause 18—Minimum rates. All-purpose allowances need to be added to minimum rates before the Loaded Rate Percentage is applied.

K.5.4 Unless modified by clauses K.2, K.4, and subject to clause K.5.5 a Loaded Rate Arrangement does not vary the application of the other terms of this award.

K.5.5 The Loaded Rate Percentage will only apply to, and be in satisfaction of, work performed and the allowances specified within the Loaded Rate Parameters.

NOTE 1: An employee will be entitled to overtime in accordance with clause 28—Overtime for work which exceeds the daily and/or shift maximum hours, the Loaded Rate Range of Days or the Loaded Rate Maximum Weekly Hours each week.

NOTE 2: Under the NES (see section 62 of the Act) an employee may refuse to work additional hours if they are unreasonable. Section 62 sets out factors to be taken into account in determining whether the additional hours are reasonable or unreasonable.

NOTE 3: An employee will be entitled to the relevant penalty rates and applicable entitlements for work completed on, or other arrangements relating to a public holiday in accordance with clause 29—Penalty rates and clause 35—Public holidays.

NOTE 4: If an employee performs work beyond the scope of the Loaded Rates Parameters but does not exceed the daily and/or shift maximum hours, the Loaded Rate Range of Days or the Loaded Rate Maximum Weekly Hours each week, the employee will be entitled to the applicable penalty rate or allowance in accordance with this award.

EXAMPLE: If the employee starts work at 6:00am on a Tuesday, the employer must pay the employee an additional amount of $3.46 in accordance with clause 29.2. If the employee has a split shift where the period between shifts exceeds 3 hours, the additional payment is $1.49, being the difference between the split shift allowances in clause 26.14—Split shift allowance.

K.5.6 The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken. This record must be signed by the employee or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.

K. 6 Base rate of pay for employees on a loaded rate arrangement

K. 6 For the purposes of the NES, the base rate of pay of an employee receiving a Loaded Rate under Schedule K is the employee’s ordinary hourly rate and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.

K.7 Consultation

At least 7 days prior to initiating any of the provisions in Schedule K, the employer must consult with all employees affected by the proposed change and their representatives (if any).

K.8 Dispute settlement—consent arbitration

K.8.1 Any dispute regarding the operation of Schedule K may be referred to the Fair Work Commission in accordance with clause 40—Dispute resolution.

K.8.2 An employer who enters into a Loaded Rate Arrangement under Schedule K provides consent to a dispute arising from the arrangement being settled by the Fair Work Commission through arbitration in accordance with clause 40—Dispute resolution and section 739(4) of the Act.

K.8.3 In arbitrating a dispute the Fair Work Commission may:

(a) terminate an agreement made under Schedule K if it determines that the employer failed to consult as required by clause K.7;

(b) require an employer to pay an employee the difference between what they were paid under the Loaded Rate Arrangement and what they would otherwise have received under this Award if the Fair Work Commission determines that the arrangement entered into under Schedule K was unfair to the employee; and

(c) terminate a Loaded Rate Arrangement if the Fair Work Commission determines that the arrangement entered into under Schedule K is unfair to the employee.

2. By inserting Schedule L—Loaded Rate Arrangement Form as follows:

Schedule L—Loaded Rate Arrangement Form

Link to PDF copy of Loaded Rate Arrangement form.

Name of employer: _____________________________________________

Name of employee: _____________________________________________

Employee Classification/Wage Level: ______________________________________

Loaded Rate Range of Days: _____________________________________________

Loaded Rate Maximum Weekly Hours: __________

Loaded Rate Percentage: __________

Ordinary Hourly Rate: __________

Loaded Rate (ordinary hourly rate x loaded rates percentage): __________

Acknowledgement by Employer

The employer acknowledges that, by entering into this arrangement, the employee must be paid the employee Loaded Rate for all hours up to the Loaded Rate Maximum Weekly Hours each week.

The employer acknowledges and agrees to roster the Loaded Rate Maximum Weekly Hours in accordance with the Loaded Rate Parameters defined in clause K.6.

The employer acknowledges additional payments will apply to work performed on days, or at times, beyond the scope of the Loaded Rate Parameters, or for allowances not specified in the Loaded Rate Parameters.

By entering into this arrangement, the employer consents to any dispute arising from this arrangement being settled by the Fair Work Commission through arbitration in accordance with clause 40—Dispute resolution and section 739(4) of the Act.

Name of employer representative: ________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___

3. By updating the table of contents and cross-references accordingly.

4. This determination comes into operation on 3 September 2021. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 3 September 2021.

PRESIDENT

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