Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers & Ors [2002] QIRC 66 (2002) 170 QGIG 48

414 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 August, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application for amendment Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others AND Queensland Chamber of Commerce and Industry Limited, Union of Employers and Others (No. B920 of 2001) ENGINEERING AWARD – STATE COMMISSIONER FISHER 15 May 2002 COMMISSIONER THOMPSON COMMISSIONER BROWN AMENDMENT THIS matter coming on for hearing before the Commission at Brisbane on 19 June and 14 August 2001 and 4, 5, 6, 7 and 8 February 2002, this Commission orders that the Engineering Award – State be amended as follows from 5 August 2002: 1. By deleting from clause 2.1(2) the word and figures in brackets, “clause 3.4(3)” and replacing them with “Part 8”. 2. By deleting clause 3.4(3) and renumbering clause 3.4(4) as clause 3.4(3); -- 1 of 4 -- 2 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 415 3. By deleting from clause 4.2 the word and figures “clause 4.10” and replacing them with “clause 4.9”. 4. By deleting the existing clause 4.9 of the Award and renumbering clause 4.10 as clause 4.9 and clause 4.11 as clause 4.10. 5. By inserting a new Part 7: “PART 7 – PART–TIME EMPLOYMENT 7.1.1 An employee may be engaged to work on a part-time basis involving a regular pattern of hours which shall average less than 38 hours per week. 7.1.2(a) Before commencing part-time employment, the employee and employer must agree: (i) upon the hours to be worked by the employee, the days upon which they will be worked and the commencing and finishing times for the work; and (ii) upon the classification applying to the work to be performed in accordance with Part 3 of this Award. (b) Except as otherwise provided in this Award, a part-time employee is entitled to be paid for the hours agreed upon in accordance with 7.1.2(a). (c) The terms of this agreement may be varied by consent. (d) The terms of this Award or any amendment to it shall be in writing and retained by the employer. A copy of the Award and any amendment to it shall be provided to the employee by the employer. 7.1.3 The terms of this Award shall apply pro-rata to part-time employees on the basis that ordinary weekly hours for full-time employees are 38. 7.1.4 Overtime: A part-time employee who is required by the employer to work in excess of the hours agreed upon in accordance with clause 7.1.2(a) and (c) shall be paid overtime in accordance with clause 4.4 of this Award. 7.1.5 Public Holidays: Where the part-time employee’s normal paid hours fall on a public holiday prescribed in clause 5.3 and work is not performed by the employee, such employee shall not lose pay for the day. Where the employee works on the holiday, such employee shall be paid in accordance with clause 5.3 of this Award.”. 6. By inserting a new Part 8: “PART 8 CASUAL EMPLOYMENT 8.1.1(a) A casual employee is to be one engaged and paid as such. A casual employee, for working ordinary time, shall be paid an hourly rate calculated on the basis of one thirty-eighth of the relevant weekly wage for the level of work being performed plus a loading of 23%. This loading is not an all-purpose payment. 8.1.2(a) A casual employee, other than an irregular casual employee as defined in clause 8.1.5(a), who has been engaged by a particular employer on a regular and systematic basis and for several periods of employment under this Award during a period of six months shall thereafter have the right to elect to have his or her contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process. (b) Every employer of such an employee shall give the employee notice in writing of the provisions of this clause within four weeks of the employee having attained such period of six months. The employee retains his or her right of election under this clause if the employer fails to comply with this paragraph. (c) Any such casual employee who does not within four weeks of receiving written notice elect to convert his or her contract of employment to a full-time employment or a part-time employment will be deemed to have elected against any such conversion. (d) Any casual employee who has a right to elect under clause 8.1.2(a), upon receiving notice under clause 8.1.2(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that he or she seeks to elect to convert his or her contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer shall consent to or refuse the election but shall not unreasonably so refuse. Any dispute about a refusal of an election to convert a contract of employment shall be dealt with as far as practicable with expedition through the grievance procedure. (e) Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer. (f) If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with clause 8.1.2(d), the employer and employee in accordance with this clause shall discuss and agree upon: (i) which form of employment the employee will convert to, that is, full-time or part-time; and (ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 7.1.2: Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert his or her contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee. Following such agreement being reached, the employee shall convert to full-time or part-time employment. -- 2 of 4 -- 416 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 August, 2002 Where, in accordance with clause 8.1.2(d) an employer refuses an election to convert, the reasons for doing so shall be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement. Any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment shall be dealt with as far as practicable with expedition through the grievance procedure. (g) By agreement between the employer and the majority of the employees in the relevant workplace, or section of it, or with the casual employee concerned, the employer may apply 8.1.2(a) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement shall be recorded in the time and wages records. Any such agreement reached with an individual employee may only be reached within the two months prior to the end of the period of six months referred to in 8.1.2(a). 8.1.3(a) An employer when engaging a person for casual employment must inform the employee then and there that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed and the classification level, the actual or likely number of hours required, and the relevant rate of pay. (b) The employer shall give to a casual employee who has been engaged for one or more periods of employment extending over three or more weeks in any calendar month, and whose employment is or is likely to be ongoing, a notice in writing signed by or on behalf of the employer stating: (i) the name and address of the employer; (ii) if the employee has been engaged by the employer to perform work on hire to another person or company or is regularly engaged to perform work on hire to other persons or companies, a statement to that effect; (iii) the job to be performed and the classification level on which the employee has been or is likely to be engaged; (iv) as far as practicable, the terms of the current engagement, including the likely number and likely pattern of hours required to be worked, the base hourly rate upon which the casual loading is calculated, the casual loading and the total casual rate; and (v) the contingency on which the engagement expires, or the notice, if any, that will be given to terminate any ongoing employment. Appendix 2 to this Award provides a pro-forma letter for compliance with the requirements of this clause. (c) It shall be sufficient compliance with clause 8.1.3(b) if the employer gives such a note in writing upon or following the first occasion on which the casual employee has been so engaged for a period or periods extending over three or more weeks in any calendar month. (d) On each occasion a casual employee is required to attend work, the employee is entitled to payment for a minimum of three hours’ work. 8.1.4 An employee must not be engaged and re-engaged to avoid any obligation under this Award. 8.1.5(a) An “irregular casual employee” is one who has been engaged to perform work on an occasional or non-systematic or irregular basis. (b) The provisions of clause 8.1.2 do not apply to irregular casual employees.”. 7. By inserting a new Appendix 2 as follows: “APPENDIX 2 Appendix 2 to the Engineering Award – State provides a pro-forma letter which complies with the requirements of clause 8.1.3(b) of the Award. A letter in this form must be provided to all casual employees on the first occasion that they have been employed for three weeks or more in any calendar month and whose employment is likely to be ongoing. The employer must complete the details required and sign the letter. The letter should be provided on the employer’s letterhead. Employee Name:________________________ EMPLOYER DETAILS Employer’s Name Employer’s Address NATURE OF EMPLOYMENT Will the employee be engaged to perform work on hire to other persons or companies or is the employee regularly engaged to perform work on hire to other persons or companies? YES or NO What job is the employee to perform? (e.g. boilermaker, fitter, etc.) At what classification level is the employee engaged or is likely to be engaged? (e.g. C-10, C-12, C-8 etc.) -- 3 of 4 -- 2 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 417 CONDITIONS OF EMPLOYMENT What are the likely number and likely pattern of hours required? (e.g. 24 hours per week with 8 hours on Monday, Tuesday and Wednesday) A. What is the base rate of pay (including any overaward payment if applicable) upon which the casual loading is based? B. What is the amount of casual loading to be paid? (B = 23% of A) C. What is the total casual rate? ( A + B = C) A = $...................... per hour B = 23% of A = $.................... per hour C = A + B = $....................... per hour What could be the reason for the engagement to finish? Project finishes? o Shortage of Work? o Unsatisfactory Performance/ o Conduct Any other reason – List Below ......................................................................... ......................................................................... ......................................................................... ......................................................................... What notice will be given to terminate the employment? As much as possible under o the circumstances? A day? o At least an hour? o Signed:_________________________________ Position:___________________________________ Date:”. Dated 15 May 2002. By the Commission, Operative Date: 5 August 2002 [L.S.] E. EWALD, Amendment – Casual and Part-time Employees Industrial Registrar. Released: 19 July 2002 -- 4 of 4 --