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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:



7.         Ordinary pay: general

        (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.