The Fair Work Ombudsman provided a free webinar on the National Vehicle Repair and Maintenance Campaign on Wednesday 18 January 2012. The webinar targeted employers in the vehicle repair and maintenance industry. It provided an overview of the campaign and what employers could expect from it. It also provided an overview of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 and information about useful self-help tools designed to assist employers to comply with the award.
A video of the webinar and responses to the most frequently asked questions are available below.
Modern awards do not necessarily replace a pre-modern award. Whether a modern award applies will depend on the industry of the employer and the role and duties of the employee.
Award Finder provides two Modern Awards which cover employers and employees previously covered by Engineering Award - State 2002 (QLD) [AN140107] which may be relevant. They are:
The Fair Work Regulations 2009 prescribe the required content of a payslip, available on Fair Work online at Payslips. Separately identifiable penalty rates and allowances which an employee is entitled to must be included in the employee’s payslip. Modern awards may include further obligations in relation to pay slips.
The Vehicle Manufacturing, Repair, Services and Retail Award 2010 (and many other modern awards) contains individual ‘award flexibility’ provisions at clause 7 which provide that an employer and individual employee may agree to vary the application of the award concerning, amongst other things, penalty rates and allowances. An individual flexibility arrangement must be in writing and must ensure the employee is better off overall than the employee would have been if no agreement was in place. Fair Work online contains the Best Practice Guide Use of individual flexibility arrangements.
In addition to individual award flexibility arrangements, employers and employees may come to their own agreed arrangement for how entitlements will be paid (e.g. through a common law contract). How this should be arranged or managed is outside the scope of the advice we provide. We note, importantly, that the minimum entitlements in a modern award must still be paid.
A consultant bookkeeper’s professional responsibilities to its clients may be set by industry standards and other commercial and corporate laws and regulations. We are not able to advise you on these responsibilities.
Further to this, we note that s. 550 of the Fair Work Act 2009 provides that a person who is involved in a contravention of a civil remedy provision under the Act is taken to have contravened that provision. It is important to note that the meaning of ‘involved in a contravention’ under this provision is broad and therefore could potentially extend to activities undertaken by a consultant bookkeeper.
As a consultant bookkeeper who may be asked information about employer obligations we expect that you refer employers to their industry association (if they are a member) or legal representative, Fair Work online, or Fair Work Infoline unless you are confident the advice you are providing is completely accurate. We see this as demonstrating a professional duty of care to your clients.
As covered in question 3, clause 7 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 contains ‘award flexibility’ provisions. They provide an employer and an individual employee the opportunity to vary the application of the award. This may include varying the application of only penalty weekend rates, so that the employee will still be paid overtime as per the award provisions. The individual flexibility arrangement can also vary the application of overtime rates.
There are requirements for a valid individual flexibility arrangement and it is recommended you read our Best Practice Guide Use of individual flexibility arrangements.
It is important to note that an individual flexibility arrangement must be in writing and must ensure the employee is better off overall than the employee would have been if no agreement was in place.
The Fair Work Regulations 2009 prescribe the required content of a payslip, available on Fair Work online at Payslips
It is an employer’s responsibility to ensure that any payroll software they use produces payslips which satisfy the Fair Work Regulations 2009.
Under the modern award, the period of notice for transferring an employee to his original position may depend upon the nature of the arrangement at the time of the promotion.
Section 4 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 covers supervisory employees who are:
- (a) Responsible for the work of other employees and / or provision of on-the-job training including coordination and / or technical guidance;
- (b) Responsible for supervision and / or training of other supervisors or trainers.
Clause 62.4 of the award (in Section 4) indicates an employer should advise an employee in writing of the contract of employment as a supervisor / trainer / coordinator and whether the contract is on a weekly, fortnightly, bi-monthly or monthly basis. The period will then be the period of notice or payment instead of notice required to terminate the contract of employment as a supervisor / trainer / coordinator.
In addition to the modern award obligations, the National Employment Standards in the Fair Work Act 2009 contain obligations in relation to redundancy and termination of employment which may be relevant. There may also be contractual arrangements which are outside the scope of our advice.
We would recommend seeking independent legal advice in relation to this matter to consider the nature of the arrangement established upon the employee’s commencement of higher duties.