Award provisions a. Leave including shift workers Employees and shift workers within Australia are entitled to leaves, benefits and other allowances under the “Fair Work Act 2009.” Employees who are considered for permanent employment by organisations in terms of responsibilities and payroll procedures are allowed 5 weeks of paid leaves on a yearly basis (Fairwork.gov.au, 2020). The same stands true for shift workers as well as described under the provisions put forward by the NES or National Employment Standards. The terminology of shift worker also finds additional definitive explanations in the Section 87(1)(b) of the aforementioned statute and considers individual employees who are generally rostered to carry out their professional obligations on Sundays and other public holidays for seven days. In terms of a legal perspective, courts within Australia have rarely considered the working Sundays and public holidays to determine whether an employee could be classified as a shift worker. It must be stated that the decision passed in the matter of “O’Neill v Roy Hill Holdings Pty Ltd  FWC 2461” provided a certain degree of clarity in this context. The line of thought presented by the judgement relates to how shift workers would be considered for the 5 week annual leave provided they were rostered to work for 34 Sundays and the 6 public holidays in Australia (Fairwork.gov.au, 2020). b. Mandated breaks between shifts Breaks between shifts are mandated by the National Employment Standards to ensure a sound working environment within companies operating in Australia. Breaks are further classified into rest breaks that are short pauses in between shifts and meal breaks that a longer periods of rest that allow the individual to consume lunch or dinner. It must be stated that the provisions are different for particular industries based on the nature of the profession and the working hours involved. Typically, most of the provisions allow for employees to take the prolonged meal breaks post 5 hours of working (Fairwork.gov.au, 2020). Similarly, technical employees like draughts persons or tracers are allowed a 10 minute rest break every morning daily. The entitlement towards mandated breaks depends on a number of factors with the most prominent being the occurrence of overtime and the nature of the individual employee. Permanent employees are mandated a ten hour break in between the shifts while shift workers are allowed an eight hour break. However, mutual agreements between the employer and the employee could diminish the time between 8 and 10 hours (Fairwork.gov.au, 2020). NES provisions have also imposed penalties on the organisations that fail to provide the stipulated break hours. Double time for the next working hours is mandated and when the 10 or 8 hour break is provided, the time must be accounted for towards the monthly pay on the basis of the ordinary hourly pay rate. c. Maximum allowed shift hours The maximum allowed shift hours for employees and shift workers within Australia are provided for in Section 62 to 64 of the “Fair Work Act 2009.” The National Employment Standards mandate a maximum of 38 working hours in a weekly basis for full time and permanent employees (Fairwork.gov.au, 2020). Shift workers and part time or casual employees are mandated to similar provisions where the weekly hours are not allowed to exceed the 38 hour time frame. The application of modern awards and enterprise agreements are another important factor in terms of determining the maximum allowed shift hours. The clause within the agreement outlining the working hours would be deemed to be the allowed shift hours (Fairwork.gov.au, 2020). In situations where no enterprise of modern awards are applicable, a mutually agreed upon determination of the annual working hours and the shift hours would be held as legally valid. Certain situations may not include either an agreement or the application of an enterprise or award. The ordinary hours of work would be deemed to be held as the stipulated shift hours and annual working hours in the context of legal dispute. Additional hours within the shift are also mandated within the enactment along with the National Employment Standards. An individual could be requested to work for hours beyond the stipulated time frame provided the considerations are reasonable (Fairwork.gov.au, 2020). However, certain criteria are applicable in this regard including any additional risks, personal conditions of the employee, workplace needs and several others. Other factors include industrial work patterns, responsibilities and obligations of the employee and the provision of other notices by the employer or the employee. d. Standard, overtime and penalty pay rates The standard pay provision for employees working within Australia is provided for predominantly by the specific awards that govern the industry or the profession. In terms of classifications, standard pay rates are broken down into apprentice or trainee pay rates, junior pay rates and employees with disability pay rates. Other secondary pay rates are also mentioned within the National Employment Standards and include piece rates, commission payments and community service industry pay rates. Certain professions that are not covered under specific awards and agreements are mandated to the follow the National Minimum Wage notification that stipulates the amount at $19.49 on an hourly basis or $740.80 on a weekly basis as of 2019 (Fairwork.gov.au, 2020). Over time work as provided for within the National Employment Standards relates to the working hours spent by an employee beyond the ordinary hours listed on the award or the agreement. The provisions differ to some extent in terms of the industries, sectors and the specific professions. Manufacturing, for instance, allow for employees within the sector to take time off as opposed to additional payments for over time (Fairwork.gov.au, 2020). Organisations are also mandated to pay out employees for their accumulated over time, if any, when the employment comes to a termination. The standard rates for over time are primarily classified into three segments including time and a half, double time rate and double time and a half that applies to public holidays only. Penalty pay rates refer to the higher pay rates that employees obtain when working on certain occasions including weekends, public holidays, over time, late night shifts or early morning shifts. Moreover, additional payments are also made to employees who work within specialized fields, use their own equipments and tools or operate in particularly dangerous conditions. These allowances are comprised of but not limited to required uniforms and safety gear, travel and accommodation expenses, communication, first aid and several others.
Pay entitlement The scenario provided depicts that 3 chefs have been employed among which John is a casual employee; Jack is a part time employee and Chenelle is a permanent employee. A storm damages the power lining of the restaurant after 1 hour of the morning shift and the manager informs them that they could leave as the power would not be restored for over 48 hours. All the members leave the premises 1.5 hours post the manager’s intimation. Considering that the storm would be held as an emergency situation or a natural disaster, the pay entitlement for Jack and Chenelle would be considered as a full working day. Both the employees would be entitled to receive their pay for the day. However, considering how John is a casual employee, he would only be entitled to be paid for the 2.5 hours of the shift. The employment conditions during natural disasters and situations of emergency are laid down within the individual enterprise awards and agreements. In cases where no award is present, the provisions of the “Fair Work Act 2009” would be applicable. Stand down policies are also governed under the same provision where employers could call for a stoppage of work without pay (Fairwork.gov.au, 2020).
Leave provisions The provisions of leave for sick and carer’s predominantly refers to the leave allowances stipulated for taking time off due to illnesses or personal responsibilities. The needs of immediate household members are the most common cause for carer’s leave and the provisions are governed by Section 12 and Section 97 of the “Fair Work Act 2009.” Immediate family members include spouse or a former spouse, partners, children or parents, siblings and several others (Fairwork.gov.au, 2020). All employees except casual employees working within Australia are entitled to compassionate and bereavement leaves relating to paid leaves when a member of the employee’s family dies or develops a serious condition. The leave period can be taken as a single 2 day window, 2 separate periods of 1 day each or any other period not exceeding 48 hours as mutually agreed by the employer and the employee. This is governed under Section 12 and Section 104 to 106 of the “Fair Work Act 2009.” Leave provisions for illnesses and injuries involving the employee are also governed under the provisions of the sick and carer’s leave. While permanent and part time employees are entitled to paid sick and carer’s leave, casual employees are entitled to unpaid carer’s leave (Fairwork.gov.au, 2020). Jury duty within Australia is deemed to be a constituent of community service and employees working for Australian organisations are entitled to specific days off in this context. Casual employees are not entitled to receive any paid leaves for jury duty. Part time and full time employees, however, are entitled to paid leaves provided that they are able to provide evidence regarding the difference between the jury duty payment and the normal payment on the basis of the ordinary working hours. This is governed under Section 108 to 112 of the “Fair Work Act 2009.” Long service leaves are awarded to employees who have been associated with the same organisation for a prolonged period, typically considered around the 7 year mark (Fairwork.gov.au, 2020). However, Australia has a number of territorial laws and local provisions in this context that differ from region to region. The pre modern award provisions supersede the state and territorial laws in cases where the employer was covered prior to the date of January 1st 2010. Long leaves are also allowed in terms of portability for employees working in adverse or dangerous conditions. Maternity and parental love leaves are also mandated under the National Employment Standards when an employee undergoes child birth, an employee’s partner conceives or an employee engages in the process of adoption. Permanent and full time employees are entitled to 12 months of unpaid parental leave and may request another 12 months additionally at the discretion of the employer (Fairwork.gov.au, 2020). Casual employees may be entitled for the same provided they have worked with the organisation for a period of 12 months. This is governed under Section 67 to 70, 76 and 85 of the “Fair Work Act 2009.” Rehabilitation of injured workers is covered in the section of workers compensation. It typically includes wages that are to be paid to the employer when they are not fit to carry out their professional obligations and require medical expenditures for recovery and rehabilitation. The entitlement is predominantly governed by different states and territorial administrations and each state has their respective regulator and advisory body. .