Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) For subsection 172 (4) of the Act, this regulation explains:
(a) what a particular respect is or is not for the purposes of subsection 172 (2) or (3) of the Act; and
(b) the circumstances in which the Australian Fair Pay and Conditions Standard provides or does not provide a more favourable outcome in the particular respect.
Note Under subsection 172 (2) of the Act, the Australian Fair Pay and Conditions Standard prevails over a workplace agreement or a contract of employment that operates in relation to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee. Subsection 172 (3) of the Act makes further provision in this matter.
Subsection 172 (4) of the Act authorises the regulations to explain:
(a) what a particular respect is or is not for the purposes of subsection (2) or (3); or
(b) the circumstances in which the Australian Fair Pay and Conditions Standard provides or does not provide a more favourable outcome in a particular respect.
Wages
(2) Each of the following is a particular respect:
(a) the guaranteed basic periodic rate of pay;
(b) the guaranteed basic piece rate of pay.
(3) The Standard does not provide a more favourable outcome in the respect mentioned in subregulation (2) if:
(a) a workplace agreement or a written contract of employment which binds the employee provides for a period within which the guarantee of basic rates of pay in Subdivision B of Division 2 of Part 7 of the Act may be satisfied; and
(b) the period does not exceed 12 months.
Note This regulation does not affect the operation of section 189 of the Act.
Example 1 -- seasonal employees
An employee works in an industry in which there are significant seasonal fluctuations in work demands. As a result, the employee is required to work more hours during peak season and fewer in the off season in a 12 month period. However, under the employee's workplace agreement the employee is paid the same amount each pay period despite the fluctuations.
If, over the 12 month period, the employee is paid on average at least the guaranteed basic rate of pay, and the employer and employee have agreed, in writing, that the wages guarantee will be complied with over a 12 month period, the Standard will not be more favourable.
Example 2 -- employees on commission
An employer and employee, a salesperson, agree that the employee will be paid by commission (eg percentage of sales), rather than by weekly pay, even though the employee is guaranteed a basic hourly rate of pay under the wage guarantee in section 182 of the Act.
They agree in writing that the employee's wage guarantee will be satisfied at the end of every quarter.
* If the employee's commission earnings over a particular quarter are greater than the guaranteed amount under the employee's wage guarantee for the same quarter, no further amount is payable. The Standard will not be more favourable.
* If the employee's commission earnings over a particular quarter fall below the amount guaranteed for the same quarter, the employer must make up any shortfall at the end of the quarter. Otherwise, the Standard will be more favourable and the employee's wage guarantee will not have been satisfied.
The agreement under subregulation 7.1 (3) does not change the obligation to pay the guaranteed basic rate of pay for each hour worked.
(4) The Standard does not provide a more favourable outcome in the respect mentioned in subregulation (2) if:
(a) a provision in a workplace agreement or written contract of employment binding the employee and the employer provides for the employer to pay an amount in respect of the employee under a salary sacrifice arrangement; and
(b) the employee gives the employer a written election, separate to the workplace agreement or contract of employment, for a salary sacrifice arrangement; and
(c) the guarantee of basic rates of pay in Subdivision B of Division 2 of Part 7 of the Act would be satisfied if the payment were instead paid to the employee.
(5) The Standard does not provide a more favourable outcome in the respect mentioned in subregulation (2) if:
(a) a law, or a workplace agreement or a written contract of employment which binds the employee, provides for the employer to make a deduction from the employee's remuneration for the purpose of recovering a previous overpayment of remuneration; and
(b) the guarantee of basic rates of pay in Subdivision B of Division 2 of Part 7 of the Act would be satisfied if the amount were instead paid to the employee.
(5A) The Standard provides a more favourable outcome in the respect mentioned in subregulation (2) if:
(a) a workplace agreement or contract of employment which binds the employee (whether the contract is in writing or not) allows for the imposition of a penalty on an employee; and
(b) a consequence of the imposition of the penalty is that the employee's guaranteed basic rates of pay in Subdivision B of Division 2 of Part 7 of the Act would not be satisfied.
Leave
(6) Each of the following is a particular respect:
(a) paid annual leave;
(b) paid sick leave;
(c) paid carer's leave;
(d) unpaid carer's leave;
(da) paid personal/carer's leave (but only to the extent to which it is a particular respect for the purposes of subregulations (11C) and (11G));
(e) paid compassionate leave;
(f) special maternity leave;
(g) ordinary maternity leave;
(h) the paid leave provided for in section 268 of the Act;
(i) long paternity leave;
(j) short paternity leave;
(k) pre‑adoption leave;
(l) short adoption leave;
(m) long adoption leave.
(7) Each of the matters mentioned in subregulation (6) has the same meaning as in Divisions 4 to 6 of Part 7.
(8) The Standard provides a more favourable outcome in any of the respects mentioned in subregulation (6) if it provides for a greater amount of one of these types of leave (for example, a greater number of days or hours).
Example
If a workplace agreement provides for 3 weeks paid annual leave and 8 weeks unpaid annual leave, this would be a less favourable outcome than the Standard in respect of paid annual leave because the Standard provides employees with 4 weeks of paid annual leave (but no equivalent unpaid leave entitlement). The employee would be entitled to 4 weeks paid annual leave and 8 weeks unpaid annual leave.
(9) The Standard does not provide a more favourable outcome in any of the respects mentioned in subregulation (6) if the amount of the entitlement to leave is expressed in a form that is different from, but equivalent to, the Standard.
Example
A workplace agreement which provides that a full‑time employee is entitled to 20 days of annual leave would not be less favourable than the Standard (as 20 days is the equivalent of 152 hours of annual leave for a full‑time employee working 38 hours per week).
(10) The Standard does not provide a more favourable outcome in respect of paid annual leave if a workplace agreement or contract of employment which binds the employee permits the employee to take an additional period of annual leave by forgoing an equivalent amount of pay.
Example
A provision permitting an employee to take 8 weeks of annual leave at half pay (where the available entitlement is 4 weeks of paid annual leave) would not be less favourable than the Standard.
(11) The Standard does not provide a more favourable outcome in respect of paid carer's leave if a workplace agreement or contract of employment which binds the employee provides that the employee is entitled to access a greater amount of paid personal leave as paid carer's leave annually than the annual cap provided for in the Standard.
Example
A provision which provides no cap on the amount of personal leave that may be taken as carer's leave taken by an employee in a 12 month period would be more favourable than the Standard.
(11C) The Standard does not provide a more favourable outcome in respect of paid personal/carer's leave if a workplace agreement or written contract of employment that binds the employee permits accumulated paid personal/carer's leave to be paid out on termination of employment.
(11D) The Standard provides a more favourable outcome in respect of paid compassionate leave if:
(a) for a workplace agreement or written contract of employment that binds the employee and that provides for an amount of paid compassionate leave per occasion that is not more than the amount per occasion provided by the Standard -- the employee is entitled to forgo any of that leave in return for an amount of pay or other benefit; or
(b) for a workplace agreement or written contract of employment that binds the employee and that provides for an amount of paid compassionate leave per occasion that is greater than the amount per occasion provided by the Standard -- the employee is entitled to forgo more than the amount per occasion by which that leave exceeds the amount per occasion provided by the Standard in return for an amount of pay or other benefit.
(11E) The Standard does not provide a more favourable outcome in respect of paid compassionate leave if, for a workplace agreement or written contract of employment that binds the employee and that provides for an amount of paid compassionate leave per occasion that is greater than the amount per occasion provided by the Standard, the employee is entitled to forgo the amount per occasion, or less than the amount per occasion, by which that leave exceeds the amount per occasion provided by the Standard in return for an amount of pay or other benefit.
Note For subregulations 7.1 (11D) and (11E), the Standard provides that full‑time employees are entitled to an amount of 2 days of paid compassionate leave per occasion (section 257 of the Act).
(11F) The Standard does not provide a more favourable outcome in respect of paid compassionate leave if:
(a) a provision in a workplace agreement or contract of employment binding the employee and the employer provides for leave of that type to be forgone in return for an amount of pay or other benefit in a manner that is consistent with these Regulations; and
(b) the employee gives the employer a written election, separate to the workplace agreement or contract of employment, to forgo leave in return for an amount of pay or other benefit.
(11G) The Standard does not provide a more favourable outcome in respect of paid personal/carer's leave if a workplace agreement or contract of employment that binds the employee permits the employee to take an additional period of personal/carer's leave by forgoing an equivalent amount of pay.
Example
A provision permitting an employee to take 20 days of personal/carer's leave at half pay (where the available entitlement is 10 days of paid personal/carer's leave) would not be less favourable than the Standard.
Accruing and crediting of leave
(12) Each of the following is a particular respect:
(a) accrual of the leave mentioned in subregulation (6);
(b) crediting of the leave mentioned in subregulation (6).
Example
A contract of employment provides that an employee is to be credited with annual leave every fortnight instead of every month (annual leave is credited every month under the Standard). This circumstance would not be less favourable than the Standard. However, crediting annually would be less favourable than the Standard.
Crediting of leave annually in arrears of service would be less favourable than the Standard, but crediting in advance of service would be more favourable.
Statutory declarations for parental leave
(13) The content of a statutory declaration is a particular respect.
(14) The Standard does not provide a more favourable outcome in the respect mentioned in subregulation (13) if a workplace agreement or contract of employment which binds the employee provides that a statutory declaration is required to include matters additional to those required by the Standard.
Notice periods and evidentiary requirements relating to leave
(15) Each of the following is a particular respect:
(a) the giving of notice in relation to a period of sick leave taken (or to be taken) by the employee;
(b) the giving of notice in relation to a period of carer's leave taken (or to be taken) by the employee;
(c) the giving of documentary evidence in relation to a period of sick leave taken (or to be taken) by the employee;
(d) the giving of documentary evidence in relation to a period of carer's leave taken (or to be taken) by the employee;
(e) the giving of evidence in relation to a period of compassionate leave taken (or to be taken) by the employee.
(16) The Standard provides a more favourable outcome in any of the respects mentioned in subregulation (15) if a workplace agreement or contract of employment which binds the employee (whether the contract is in writing or not) imposes obligations on the employee that are more onerous than the requirements in the Standard.
(17) The Standard provides a more favourable outcome in any of the respects mentioned in subregulation (15) if a workplace agreement or contract of employment which binds the employee (whether the contract is in writing or not) allows for the imposition of a penalty on an employee for a breach of a requirement or condition to give the notice or evidence.
(18) In subregulations (5A) and (17):
penalty :
(a) means any of the following:
(i) a deduction of an amount from an employee's remuneration;
(ii) a reduction of an employee's entitlements;
(iii) a requirement that an employee makes a payment to the employer; but
(b) does not include a deduction, reduction or requirement that is:
(i) for the benefit of the employee; or
(ii) authorised under a law; or
(iii) made or imposed because the employee was provided with an entitlement to which the employee was not entitled.