01_QHA_August_Edition_for web_small_r1

Joanna Minchinton
EMPLOYMENT RELATIONS
THE MINIMUM TERMS AND CONDITIONS OF EMPLOYMENT FOR AN AWARD AND AGREEMENT
FREE EMPLOYEE ARE THE NATIONAL EMPLOYMENT STANDARDS (‘NES’).
PROVISO: Where an over-award payment is to be
made to an employee, it is possible to absorb other
conditions (or future conditions) of the Award where it
is clearly stipulated in writing.
For example, an employee is paid an additional $2.00
per hour, and as a Food and Beverage attendant
grade 3, the 1 July 2018 wage increase meant that
the employee’s minimum hourly rate Monday to
Friday increased from $20.21 to $20.91 per hour. The
employee’s contract clearly states (as a minimum):
• The position she works in
• That she is paid an over-award payment of
$2.00 per hour
• That the over-award payment can be used to
absorb future wage increases.
With the above being the case, the employer may
have decided in early June when the award increase
was announced to absorb the 3.5% increase into the
employee’s over-award payment. By doing so, and
communicating this with the employee, the employee’s
over-award amount post 1 July reduces to $1.30
per hour.
Offsetting is not possible unless it is clearly stated.
AWARD AND AGREEMENT FREE EMPLOYEES
A number of Awards cover hospitality employers and
employees including the Hair and Beauty Industry
Award 2010 and Joinery and Building Trades Award
2010, so it is important to check whether another
Award applies if the HIGA does not.
The QHA can assist you with this.
Where, after investigation, it is determined that no
Award or formal Agreement covers or applies to an
employee, it may be concluded that the employee is
award and agreement free. It is not a case of deciding
that it would be better to employ the employee as a
‘common law’ employee – if an Award applies, it will
always apply.
The minimum terms and conditions of employment
for an award and agreement free employee are the
National Employment Standards (‘NES’).
It is important to note that the 10 minimum terms and
conditions of employment contained in the NES, as
well as the federal minimum wage (currently $719.20
per week as at 1 July 2018) collectively represent base
level conditions that must be provided.
BEST PRACTICE – DOCUMENT, DOCUMENT,
DOCUMENT.
The QHA recommends every employee’s terms and
conditions of employment should be outlined in a
contract of employment, and issued to the employee
at the commencement of their employment.
In particular, the contract should stipulate, as a
minimum, the applicable industrial instrument (if any),
the employee’s rate of pay, the position’s classification
under the industrial instrument, and any over-award
payments provided to the employee.
FURTHER INFORMATION
Financial QHA members seeking more information or
wishing to discuss a specific matter related to how
the team can assist are encouraged to contact the
Employment Relations Department for a confidential
discussion.
Non QHA members can also obtain advice and
assistance from the team for a nominal consultancy
fee. Contact the Employment Relations Department
on telephone 07 3221 6999 or via email
er@qha.org.au.
QHA REVIEW | 43