| Employer Information > Horse Training Industry Award (1998) - PRE 2010 > Guidance Note - Federal Awards (Read First) > Important Guidance Notice |
There are two different types of federal awards which continue to apply until 1 January 2010:
· Preserved awards - federal awards created before the Work Choices legislation came into operation and covering employers that are constitutional corporations (companies); and
· Transitional awards - federal awards created before the Work Choices legislation came into operation and covering employers that are not companies. Transitional Awards do not apply in the ACT and Northern Territory; employers in those territories are covered by pre-reform awards.
The Australian Fair Pay and Conditions Standard
The Workplace Relations Act 1996 incorporates a set of minimum employment conditions known as the Australian Fair Pay and Conditions Standard (the Standard). The Standard covers:
· basic rates of pay and casual loadings;
· maximum ordinary hours of work;
· annual leave;
· personal leave; and
· parental leave and related entitlements.
The Standard applies to various types of employers including companies, most Victorian employers, employers situated in the ACT and the Northern Territory and employers who were covered by a Federal Award before 27 March 2006, but aren’t companies. The main responsibility for setting and adjusting minimum rates of pay and casual loadings rests with the Australian Fair Pay Commission (Fair Pay Commission). After 1 January 2010, this role will be taken over by Fair Work Australia. Rates of pay and casual loadings are now contained within instruments called Australian Pay and Classification Scales. (Pay Scales) The Standard does not apply to employers who are covered by transitional awards. Those employers are bound by the terms of the transitional awards.
The Australian Industrial Relations Commission is responsible for maintaining wage rates in transitional awards only. After 1 January 2010 its role will be very limited.
What are the terms of a preserved award?
The information below mainly relates to employers covered by WorkChoices under awards now referred to as ‘Preserved’ awards.
Changes to allowable award matters
Under WorkChoices, until 1 January 2010, the following matters can be included in awards (known as allowable award matters):
Terms in awards that do not fall under this list will no longer be enforceable. This includes provisions that deal with entitlements covered by the Standard, with the exception of ordinary hours of work and Preserved Award Terms (see below). These are discussed in more detail below.
Under WorkChoices, a number of terms currently contained in some awards are non-allowable and are no longer enforceable. These include:
Wages and hours
Under WorkChoices, until 1 January 2010, minimum wages are no longer included in awards (other than transitional awards).
Classification-based wages and casual loadings are instead included in the Pay Scales. The Pay Scales are initially taken from federal and state awards. Wage rates will be set and adjusted by the Fair Pay Commission, and then by Fair Work Australia.
Provisions specifying hours of work remain in awards, but will be subject to the Standard after a transitional three-year period. The Standard guarantees that a person cannot be required or requested to work more than 38 ordinary hours of work per week, plus reasonable additional hours. If agreed in writing, the 38 ordinary hours per week may be averaged over a period of no more than 12 months.
Award provisions that require more than 38 ordinary hours of work per week must be varied to comply with the Standard within three years of WorkChoices commencing. This will occur with the introduction of the Modern Award under Fair Workon 1 January 2010, when the maximum ordinary hours of work will be 38 hours.
Until then, the 40 hours maximum ordinary hours as provided for in the transitional federal Award published in the ATA Racing Industry Diary or the ATA Website (the published Award) will continue to apply to all employers in the racing industry, except in very limited circumstances. Those circumstances arise if an employer became a company, or purchased the business of another employer, after 26 March 2006. If those circumstances apply to you, contact the ATA for further clarification. Preserved award terms
Under WorkChoices, until 1 January 2010, annual leave, personal/carer’s leave, parental leave, long service leave, jury service, notice of termination and superannuation provisions in awards are no longer allowable and can not be included in awards or varied. However, for current award provisions where an employee’s entitlements for annual leave, personal/carer’s leave and parental leave is more generous than the Standard, the preserved award term will apply.
Preserved terms will continue to apply in relation to long service leave, jury service and notice of termination.
Preserved terms about superannuation ceased to have effect on 30 June 2008, when specific superannuation legislation came into effect.
Preserved terms may be overridden by an Australian Workplace Agreement (AWA) or collective agreement.
TRANSITIONAL AWARDS
Employers in the racing industry who operate as a sole trader or partnership (ie, not as a company) are not covered by WorkChoices. They will still be subject to the published Award until 1 January 2010.
From that date, the modern Award referred to below will apply to virtually all employers in the industry.
What are the terms of a transitional award?
A transitional award may include allowable transitional award matters and other permitted terms.
· These reflect the matters allowed to be included in awards generally (with necessary changes – e.g. annual leave, personal/carer’s leave and parental leave are allowable, which reflects the fact that the Standard does not apply to transitional employees).
· As with awards generally, there are some changes to the pre-reform list of allowable matters. Terms in awards that are no longer covered by the list of allowable matters cease to be enforceable from commencement.
Allowable transitional award matters are matters about the following:
· classifications of transitional employees and skill-based career paths;
· ordinary time hours of work, rest breaks, notice periods and variations to working hours;
· rates of pay generally (such as hourly rates and annualised salaries), rates of pay for juniors and employees to whom training arrangements apply, and rates of pay for employees under the supported wage system;
· incentive based payments, piece rates and bonuses;
· annual leave and annual leave loadings;
· personal/carer’s leave;
· ceremonial leave;
· leave for the purpose of seeking other employment after notice of termination;
· parental leave, including maternity leave and adoption leave;
· state or territory public holidays, entitlements of employees to payment in respect of those days, and days to be substituted for public holidays;
· monetary allowances (for expenses, responsibilities or skills not included in rates of pay, or for the performance of particular tasks, or work under certain conditions or locations);
· loadings for working overtime or for shift work;
· penalty rates;
· redundancy pay by an employer of 15 or more employees;
· stand-down provisions;
· dispute settling procedures;
· type of employment, such as full-time employment, casual employment, regular part-time employment and shift work; and
· pay and conditions for outworkers to the extent necessary to ensure that their overall conditions of employment are fair and reasonable.
Other terms which may be permitted in a transitional award include:
· preserved transitional award terms;
· facilitative provisions;
· incidental and machinery provisions
· anti-discrimination clauses; and
· those providing for the appointment of boards of reference.
Preserved transitional award terms are those that relate to long service leave, notice of termination, jury service and superannuation. A preserved award term about superannuation ceased to have effect at the end of 30 June 2008 (when specific superannuation legislation commenced).
Incidental terms are those that are incidental to an allowable matter and essential for the practical operation of a particular term. Machinery provisions include matters dealing with (for example) the commencement, definitions, and arrangement of a transitional award.
What cannot be included in a transitional award?
Under WorkChoices the following are expressly not allowable transitional award matters:
· rights of an organisation to participate in a dispute settling procedure (unless the organisation is the representative of the employer’s or employee’s choice);
· conversion from casual employment to another type of employment;
· restrictions on the range or duration of training arrangements;
· union picnic days;
· tallies within the meat industry;
· dispute resolution training leave;
· trade union training leave.
Other terms that are taken not to be allowable transitional award matters are terms:
· involving discrimination and preference that would contravene the Freedom of Association provisions of the Act;
· that authorise an officer of an association to enter, inspect or interview employees on an employers premises; and
· about enterprise flexibility provisions.
A term about a non-allowable matter is unenforceable.
Modern Awards Commencing 1 January 2010
The rather confusing situation set out above is caused by the transition from WorkChoices to Fair Work. That situation will be greatly simplified when the Fair Work Act 2009 comes into full operation on 1 January 2010.
On 1 January 2010, the operation of the Horse and Greyhound Training Award 2010 (the modern Award) commences. The modern Award will replace the Horse Training Industry Award 1998 and the Horse Training Industry Award 1998 – Transitional. Some terms of employment which currently apply will change effective from 1 January 2010 as a result of the modern Award, which is governed by the Fair Work Act 2009. For example, as previously stated, from 1 January 2010, an employee’s maximum ordinary time hours of work will be 38 hours per week.
The modern Award will apply to all employers in the racing industry, except for some very limited examples. If you are at all concerned as to the coverage of the modern Award, please contact the ATA.
ATA MEMBERS WILL RECEIVE A FULL COPY OF THE NEW ‘HORSE AND GREYHOUND TRAINING AWARD 2010’ IN TIME FOR ITS 1 JANUARY 2010 IMPLEMENTATION
DEFINITIONS Horse Training Industry- for the purpose of this award the horse training industry is defined as the business, calling or occupation in or in connection with the training and preparation of horses for the Horse Racing Industry including the Trotting and Harness Racing Industries and covers the functions of pre-training, grooming, feeding, handling, stabling and exercising of horses and the cleaning, care and maintenance of stables and associated training equipment, and the caring of and leading in of horses at race meetings.
Stable foreman – shall mean a stablehand appointed to be in charge of or directing the work of not less than three stablehands.
Stablehand – shallmean a person (including a jockey) employed in or in connection with the training and preparation of horses for the Horse Racing Industry including the Trotting and Harness Racing Industries and covers the functions grooming, feeding, handling, stabling and exercising of horses and the cleaning, care and maintenance of stables and associated training equipment and the caring of and leading in of horses at race meetings.
Stablehand Grade 1 – is a stablehand who has been employed for at least three continuous months with the employer.
Stablehand Grade 2 – is a stablehand who has been employed for at least 2 continuous years with the employer and who has acquired and is utilising appropriate qualifications and where duties are above and beyond those required by a Grade 1 employee.
Track Rider – shall mean a person who is engaged to ride track work exclusively and may be a jockey or apprentice. This clause does not apply to a jockey or an apprentice who has a firm commitment with the employer as regards the race riding of the horses worked. Further this clause does not apply to an apprentice riding track work for his own master.
Union – shall mean The Australian Workers’ Union. Terms in the masculine gender include the feminine. |
In August 2009, the Australian Trainers Association (ATA) issued a notice to trainers in relation to ordinary hours of work for employees.