Cleaning Services Award Division 2B Employers (New South Wales)

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1 Cleaning Services Award Division 2B Employers (New South Wales) In late 2009 New South Wales (NSW) formally transferred its industrial relations powers to the Commonwealth. As a result, a number of employers (sole traders, partnerships and other unincorporated entities) who were not covered by the federal industrial relations system because they weren t a national system employer, will now be covered by the federal industrial relations system. Note:- A national system employer is an employer who is a constitutional corporation. A constitutional corporation includes a foreign corporation, a trading corporation and a financial corporation. The referral took effect from 1 January From 1 January 2010, the employers (sole traders, partnerships and other unincorporated entities) who were a part of the referral were covered be a Division 2B State Award this was in effect the Cleaning and Building Contractors (State) Award () From 1 January 2011, the Cleaning Award will start to apply. However, due to Schedule A.7.2 of the Cleaning Award, the conditions of employment and the rates of pay in the Division 2B State Award effectively continue to operate until the end of the first pay period which commenced before 1 February The savings provisions and the transitional provisions that exist in the Cleaning Award with respect to New South Wales will apply to employers in the same way as they apply to other national system employers. This means two things:- firstly, where the rate in the as at 31 December 2009, was higher than the rate contained in the Cleaning Award then the higher rate was saved it was included in Schedule A Savings Provisions of the Cleaning Award. Schedule A Savings provisions only apply to employees entitled to that rate of pay as at 31 December 2009; or secondly, where the rate in the Cleaning Award was higher than that contained in the then the lower rate was transitioned it was included in Schedule B Transitional Provisions of the Cleaning Award. The transitional provisions were subject to two (2) rules, if the increase was less than $2.00 per hour, then the rate was increased by $0.40 per hour, until the difference had been exhausted, or, if the increase was more than $2.00 per hour, then the rate was increased by 20% per hour, until the difference was exhausted. In their 5 November 2010 decision, which dealt with Division 2B Awards, Fair Work Australia (FWA) stated that:- the phasing schedule should apply to employers covered by Division 2B State awards in the same way as it applies to other national system employers. The effect will be that the phasing schedule will apply to employers covered by Division 2B State awards on 31 December 2010 as if they had been national system employers immediately prior to 1 January Division 2B employers will...be subject to the same transitional arrangements as employers covered by NAPSAs prior 1 January From the first pay period on or after 1 February 2011, the Cleaning Award will apply to sole traders, partnerships and other unincorporated entities in New South Wales instead of the Division 2B State Award. As a result two(2) things occur the first is that certain provisions that existed in the no longer operate and the second is that certain provisions that existed in the have been changed with the introduction of the Cleaning Award. The following table sets out the provisions that have ceased to operate and the provisions that have seen changed:- 1

2 New South Wales Government Sites Cleaning Contracts Throughout the, particular clauses provide different terms and conditions and rates of pay for employees who are employed subject to a NSW Government Sites Cleaning Contract. Generally speaking, they are not reproduced in the Cleaning Award. Clause 2 Contract of Employment Clause 2(ii)(a) Determines that the probationary period of employment for a full time and/or part time employee may be for up to one (1) month. No equivalent provision. However, Schedule A Savings Provisions and Schedule B Transitional Provisions may contain rates of pay that come from the NSW Government Sites Cleaning Contracts provisions. For Schedule A Savings Provisions, they exist until the Cleaning Award meets and/or exceeds the saved rate. For Schedule B Transitional Provisions, they exist until the transition to the Cleaning Award has been completed. No equivalent provision in the Cleaning Award or the Fair Work Act 2009 Clause 2(iii) Provides that a premium of twenty five percent (25%) is payable if the employer changes an employee s roster and such change is for one(1) week or less and requires the employee to work other than their regular hours. Clause 2(iv) Termination of employment for full time employee and/or part time employee one (1) week s notice. Termination of Employment (NES) Notice required to be given depends upon years of service:- An employee who has been employed for less than one (1) year one week s notice; An employee who has been employed for more than one(1) year, but less than three(3) years two (2) weeks notice; An employee who has been employed for more than three(3) years, but less than five(5) years three(3) week s notice; and An employee who has been employed for more than five (5) years four week s notice. An employee who is at least forty five (45) years of age and has been employed for a period of at least two(2) years is entitled to an additional on (1) week s notice. This additional notice only applies to the employer. Clause 13.2 Notice of Termination by an Employee An employee is required to give the same amount of notice as that of the employer. Clause 2(vii) Upon termination of employment, an employee may request the employer to provide a statement detailing the period of employment, the class of work employed in and when the employment terminated. No equivalent comparison 2

3 Clause 2(viii) An employee who has been employed for the preceding twelve (12) months shall, in the event of being made redundant as a result of mechanisation or technological change be given three (3) months notice Clause 2 (ix) An employer and an employee who works in an independent school/college, university or factory, may agree to provide the employee with unpaid leave for up to four(4) weeks in any twelve (12) month period. The notice period required of an employer and an employee is detailed above. There are no additional obligations. No equivalent comparison Clause 3 Definitions The positions titled Building Supervisor/Manager, Commissionaire, Lift Attendant, Part time Weekend Employee, Relief Cleaner or Table Busser are not replicated in the Cleaning Award. The contains many provisions that provide specifically for employees employed subject to a New South Wales Government Sites Cleaning Contracts. Clause 3 Definitions (cont) The times specified in the as being Afternoon Shift, Early Morning Shift or Night Shift have been altered by the Cleaning Award Clause 16 Minimum Wages and Schedule D Classifications All persons employed under the Cleaning Award are designated as either a Cleaning Service Employee Level 1, a Cleaning Service Employee Level 2 or a Cleaning Service Employee Level 3. The differing provisions for employees employed subject to a New South Wales Government Sites Cleaning Contract; Property Services Employees (includes a Table Busser); Event services Employees and Public Hospital Cleaners are contained in Schedule A Savings Provisions or Schedule B Transitional Provisions, but not in the main body of the Cleaning Award. 27 Penalty Rates An Early Morning Shift is any shift that starts before 6.00am Monday to Friday. An Afternoon Shift means any shift that finishes after 6.00pm Monday to Friday. A Night Shift means any shift that finishes after midnight and at or before 8.00am Monday to Friday. A Permanent Night Shift is where the Night Shift does not rotate between Day Shift or any other shift. A Saturday is any shift between midnight on Friday and midnight on Saturday. A Sunday is any shift between midnight Saturday and midnight Sunday. A Public Holiday is midnight till midnight on that particular day. Schedule A Savings Provisions and Schedule B Transitional Provisions An employee who was employed as at 31 December 2009 and working the shift/s referred to an Afternoon Shift, a Broken Shift, an Early Morning Shift or a Night Shift, is entitled to the saved rates in Schedule A Savings Provisions. 3

4 Clause 3 Definitions (Cont) Schedule A Savings Provisions and Schedule B Transitional Provisions (cont) An employee who work an Afternoon Shift, a Broken Shift, an Early Morning Shift or a Night Shift may be paid the transitional rates in Schedule B Transitional Provisions 27 Penalty Rates Transitional Provisions Clause 4 Classification Structure Clause 16 Minimum Wages and Schedule D Classifications The positions of Building Services Employee Grade 1, Building Services Employee Grade 2, Cleaner, Event Services Employee Grade 1, Event Services Employee Grade 2, Event Services Employee Grade 3, Hospital Cleaners, Property Services Employee Level 1, Property Services Employee Level 1A, Property Services Employee Level 2, Property Cleaning Contract are contained in Schedule A All persons employed under the Cleaning Award are designated as either a Cleaning Service Employee Level 1, a Cleaning Service Employee Level 2 or a Cleaning Service Employee Level 3. The differing provisions for employees employed subject to a New South Wales Government Sites Cleaning Contract are contained in Schedule A Savings Provisions or Schedule B Transitional Provisions Clause 4 Classification Structure (Cont) Clause 16 Minimum Wages and Schedule D Classifications (cont) Services Employees Level 2A, Property Services Employee Level 3, Property Services Employee Level 4 and Property Services Employee Level 5 have all been abolished. Provisions, but not in the main body of the Cleaning Award. Clause 5 Hours Clause 24 Ordinary Hours of Work and Clause 27 Penalty Rates The ordinary hours for a Broken Shift Worker are the same as the ordinary hours for all employees. Clause 7A Union Dues Ordinary hours are worked between 6.00am and 6.00pm Monday to Friday. Ordinary hours (not subject to overtime payment) may also be worked outside of these hours, but they are paid at the applicable penalty rate. Requires the employer to deduct the appropriate union dues from an employees pay provided that the employee has authorised such payment. Clause 8 Additional Rates and Allowances The contained a variety of allowances payable to an employee in certain circumstances. Not all of the allowances are contained in the Cleaning Award. As a result, an employer is not required to pay those allowances; such allowances include:- Leading hand (Qualified) Allowance; Qualification Allowance; Hygiene Maintenance Allowance No equivalent provision. Section 324 of the Fair Work Act 2009, requires an employer to deduct from an employee s pay an amount that is authorised in writing by the employee this could include union dues. Clause 17 Allowances The Cleaning Award prescribes that in certain circumstances various allowances are payable to an employee. 4

5 Clause 8 Additional Rates and Allowances (Cont) Broken Hill Remote Area Allowance; Pool/Spa Allowance; Hospital Cleaners; Infection Allowance; Forklift Driving Allowance; and Offensive Cleaning Clause 10 Overtime and Meal Allowances If an employee is required to work for two hours or more after completing their normal hours that employee is entitled to a twenty minute paid crib break. If overtime extends beyond four, than an additional crib break shall be granted. Clause 26.3 Breaks If an employee works overtime for four hours, then that employee is entitled to a paid crib break of twenty minutes. This entitlement occurs whether the employee undertake the overtime after their employees normal hours or as a separate engagement. Clause 11 Call Back and Rest Break An employee who is recalled to duty is to be paid a minimum of four hours for each such attendance. An employee after having worked overtime, must have a break of ten hours. If they do not have a break of ten hours then the employee is to be paid overtime until they have a ten hour break. Clause 28 Overtime An employee who is recalled to duty is to be paid a minimum of two hours for each such attendance. Clause 24.4 Hours of Work and Related Matters Minimum break between shifts (including shifts where overtime has been worked)- eight hours. Clause 12(ii)(b) Part Time Employees A part time employee employed to work broken shifts are required to be paid a minimum of twenty hours per week. Clause 12(v) - Second Engagement Full Time Employee A full time employee, who agrees with their employer, to work a second engagement, may be engaged to work, after the cessation of their ordinary hours (i.e. thirty eight hours per week), as a part time employee. Part Time Employee A part time employee, who agrees with their employer, to work a second engagement, may be engaged to work, after the cessation of their ordinary hours, as a casual employee. Clause 16 Relieving on Other Positions or Classifications An employee required to work in another position/ classification for fifty percent(50%) or more of the ordinary hours rostered for the day/shift, on duties carrying a higher rate of pay, will be paid the higher rate for the whole of the day. If the duration is for less than fifty percent(50%) then the employee is paid for the time worked at the higher rate. Maximum weekly hours (NES) and Clause 28 Overtime A full time employee engaged to work additional hours would be paid at the appropriate overtime rates. Clause 12.4(b)(iii) - Part time Employment A part time employee is paid a fifteen percent (15%) part time loading. The part time loading allows the employer to roster a part time employee to work up to 7.6 hours, five days per week or up to thirty eight hours per week without the payment of overtime. There is no second engagement provision. Clause 19 Higher Duties An employee who is required to do work carrying a higher rate will be paid for the whole day, if the duration exceeds four hours. If the duration is less than four hours, then the employee is paid for the time worked at the higher rate. 5

6 Clause 18 Public Holidays The LHMU s Picnic Day is one of the designated public holidays. If a full time, or part time, employee is terminated ten days before a public holiday, then the employee is to be paid for the public holiday/s. Clause 20 Annual Leave Loading Annual leave is payable upon the termination of an employee s employment, unless the employee has been terminated for misconduct, or the employee has resigned, and the employee has not taken the whole of an annual holiday then an employee is paid the annual leave loading of seventeen and one half percent(17.5%). Public Holidays (NES) Clause 29.7 Annual Leave Annual leave is payable upon the termination of an employee s employment. If an employee was entitled to receive annual leave loading when they went on paid annual leave under their modern award agreement or contract then annual leave loading must also be included with their outstanding annual leave payment on termination. The NES, at s.90(2), provides that a terminated employee will receive payment for outstanding annual leave at an amount that would have been payable to the employee had the employee taken that period of leave. This amount will include any entitlement to annual leave loading. Clause 21 Sick Leave Paid sick leave is not available within the first three months of the employees employment. An employee is limited to five days of sick leave in their first year of employment. Personal/Carer s (Sick) Leave An employee s entitlement to personal/carer s (sick) leave accrues progressively. An employee is entitled to seventy six hours or ten days personal/carer s (sick) leave per annum. A statutory declaration shall be deemed to be satisfactory evidence for the first three single day absences in any one sick leave year. Clause 25 Repatriation Leave Ex service personnel entitled to take paid leave whilst attending repatriation centres for examination and/or treatment. Employee needs to provide evidence that would satisfy a reasonable person that they were absent because of their own personal illness/injury or to provide care and support to a member of the employee s immediate family or household. Clause 39 Sub Contracting If the principle contractor sub-contracts any parts of the work to another employer, the principle contractor is required to ensure that they comply with the terms and condition contained in the. Take Home Pay Orders If an employee suffers from a reduction in their pay, as a result of the introduction of a modern award, that employee may apply to FWA for a take home pay order. If the employee can prove that they have suffered a reduction in their pay, which is as a direct result of the introduction of a modern award, FWA may make an order (a take home pay order) that restores the employees pay to the level that was paid immediately before the modern award commenced operation. If the modern award contains lower base rates of pay, loadings and/or penalties, an employer may choose to keep paying the higher pre-modern award entitlements to ensure that existing employees do not suffer a reduction in take home pay. However, base rates of pay, loadings and penalty rates entitlements are phased separately and care needs to be taken to ensure that the employees are paid their minimum entitlement under each. 6

7 Because things are new, employers and employees who were covered by the Division 2B State Award should ensure that they fully understand the entitlements and obligations under the Cleaning Award. Continued operation of various State based laws A number of state based laws will continue to operate. Those laws include, but are not limited to:- long service leave; accident compensation/workers compensation; occupational health and safety; child labour; etc. Further contact For further information or assistance please contact:- Acknowledgement BSCAA National Office on or national@bscaa.com or Fair Work Info line on which is open from 8.00am till 6.00pm Monday to Friday The Information Sheets have been prepared by the Building Service Contractors Association of Australia as a result of funding by the Fair Work Ombudsman s Shared Industry Assistance Project. The information contained in the Information Sheet is current as at 1 March Disclaimer The Fair Work Ombudsman is committed to providing useful, reliable information to help you understand your rights and obligations under workplace laws. The information contained in this publication is: general in nature and may not deal with all aspects of the law that are relevant to your specific situation; and not legal advice.. Therefore, you may wish to seek independent professional advice to ensure all factors relevant to your circumstances have been properly considered. This information was published on 1 March The Fair Work Ombudsman does not accept legal liability arising from or connected to the accuracy, reliability, currency or completeness of this information. 7