INDUSTRIAL RELATIONS LEGISLATION AMENDMENT ACT 2021 (NO. 30 OF 2021) - SECT 86
INDUSTRIAL RELATIONS LEGISLATION AMENDMENT ACT 2021 (NO. 30 OF 2021) - SECT 86
86 . Section 7 replaced
Delete section 7
and insert:
(1) Except as provided
in subsection (4), an employee’s ordinary pay is the
employee’s remuneration for the employee’s normal weekly number of
hours of work calculated on the ordinary time rate of pay applicable to the
employee as at the time when any period of long service leave granted to the
employee under this Act commences, or is taken to commence.
(2) For the purposes
of subsection (1), the normal weekly number of hours of work of an
employee whose hours have varied during a period of employment is the average
weekly hours worked by the employee during the period, calculated by reference
to ascertainable hours worked by the employee during the period, excluding any
period referred to in section 6A(2).
(3) For the purposes
of subsection (1), the rate of pay of an employee whose leave, or any
portion of it, is postponed to meet the convenience of the employee by
agreement between the employer and employee is the rate of pay applicable to
the employee —
(a) on
the day on which the leave accrues; or
(b) if
the employer and employee agree — on the day on which the employee
commences the leave.
(4) The ordinary pay
of an employee employed on piecework, commission, bonus work, percentage
reward, or any other system of payment, wholly or partly by results, is the
employee’s average weekly rate of pay earned over a period totalling
365 days ending on —
(a) if
the employee is in employment and —
(i)
takes long service leave — the day immediately
before the day on which the employee commences the long service leave; or
(ii)
takes payment instead of long service leave under
section 5 — the day immediately before the day on which an
agreement under section 5 is reached in relation to the payment;
or
(b) if
the employee is not in employment — the day immediately before the
day on which the employee was last in employment; or
(c) if
the employee is dead — the day immediately before the day on which
the employee died.
(5) For the purposes
of subsection (4), the following periods must be disregarded —
(a) any
period of unpaid leave;
(b) any
period during which there is a standing-down of the employee in accordance
with the provisions of —
(i)
an award, agreement, order or determination in force
under the IR Act; or
(ii)
the Fair Work Act 2009 (Commonwealth) or an
enterprise agreement under that Act; or
(iii)
any other enactment.
7A. Ordinary pay: shift premiums, overtime,
penalty rates or allowances
Except as provided in
section 7B, an employee’s ordinary pay does not include shift
premiums, overtime, penalty rates, allowances or any similar payments.
7B. Ordinary pay: casual employees’ loading
A casual
employee’s ordinary pay includes any casual loading payable under any of
the following —
(a) an
award, industrial agreement, employer-employee agreement or order of the
Commission;
(b) a
modern award, enterprise agreement or national minimum wage order made by the
Fair Work Commission under the Fair Work Act 2009 (Commonwealth);
(c) a
contract of employment;
(d) an
enactment.
7C. Ordinary pay: board and lodging
(1) An
employee’s ordinary pay includes the cash value of board and lodging
during a period of long service leave if the board and lodging —
(a) is
provided to the employee by the employer; but
(b) is
not provided to, and taken by, the employee during the period of long service
leave.
(2) For the purposes
of subsection (1), the cash value of board and lodging provided to an
employee is —
(a) if
the value is fixed by or under the conditions of the employee’s
employment — that value; or
(b) if
the value is not fixed by or under the conditions of the employee’s
employment — a value calculated by reference to a rate prescribed
in the regulations.