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Annualised wage arrangements – a greater administrative burden is here

As of 1 March 2020, some employers will be faced with a number of new obligations in respect to annualised wage arrangements for award-covered employees. The changes, a result of the Fair Work Commission’s[1] 4-yearly review of modern awards, introduce model annualised wage clauses into 22 awards. The applicable awards are set out in this eAlert. You will see that common awards such as the Clerks – Private Sector Award, the Banking, Finance and Insurance Award and the Manufacturing and Associated Industries and Occupations Award, as well as the Local Government Industry Award, are all impacted. Historically used as a means of payroll convenience, the changes impose surprisingly onerous notification, record-keeping and auditing requirements, creating an administrative burden for employers.

What is an annualised salary (wage) arrangement?

An annualised salary (wage) arrangement is a mechanism that under the relevant award, allows an employer to pay an employee an annual salary (or annual wage) which satisfies award entitlements such as overtime, penalty rates and loadings – that is, an ‘all-inclusive’ annual rate instead of a rate that specifies all applicable award entitlements.

What are the changes?

Many awards already contain annualised wage arrangement clauses which are relatively straightforward to apply and administer. The new model clauses on the other hand, specifically set out a number of obligations. These include, relevantly:

  • notification requirements – the employer must notify the employee of the amount to be paid as an annualised salary, as well as how this was calculated, and the other entitlements the annualised salary is intended to satisfy
  • setting the ‘outer limit’ of hours worked which the salary will satisfy and ensuring payment of any hours which are worked exceeding this time
  • annual reconciliations/audits of the arrangement – this involves comparing the actual amount earned to the amount which would have been earned considering all of the hours worked
  • recording and keeping a record of each employee’s start and finish times, as well as any unpaid breaks taken, for the purpose of carrying out the above reconciliations – employers are also required to have employees sign this record (or acknowledge as correct in writing, electronically) each pay period or roster cycle.

If, as a result of the required reconciliation, a shortfall is identified between the amount that would have been payable under the award and the amount of the annualised salary actually paid, the employer is required to pay the employee this shortfall within 14 days. The comparative reconciliation is also to be conducted upon any termination of employment.

There are four model clauses, with one model clause not currently applicable. Model Clause 2 at this stage has not been included in any awards.

Model Clause 1 will be inserted into 11 awards which already have annualised wage arrangement provisions and this clause does not require employee agreement to the arrangement. Model Clause 3 and Model Clause 4, on the other hand, do require employee consent to enter into the annualised arrangement.

Annualised salary (wage) arrangements vs set-off clauses

In the decisions from the Commission, the Commission noted that annualised wage arrangements apply separately to contractual arrangements that include a ‘set-off’ arrangement. A set-off clause in an employment agreement expressly entitles an employer to set-off payments due under an industrial instrument (such as penalties and allowances), against the entitlements and benefits provided to the employee under their employment agreement.

Employers should seek advice about whether an annualised salary arrangement, a set-off clause or some other arrangement (such as an individual flexibility arrangement) is the most appropriate mechanism for their particular business. In particular, there are requirements in implementing any of the arrangements which need to be considered.

Likely impact of the changes

As you can see from the above, the changes will bring about a remarkable shift in the utility and workability of annualised salary arrangements. Extensive documentation will now be required, along with sophisticated auditing and time recording arrangements. In industries or workplaces that do not have fixed rosters, the requirement for employees to sign or acknowledge records of their start and finish times (as well as breaks) in each pay period can be practically difficult. The Commission has helpfully noted that this acknowledgement can be obtained by electronic means, however the changes have the potential to fundamentally change how employers adopt annualised salary arrangements for award-covered employees[2].

 Table of awards

  Relevant Award Which model clause is inserted Existing annualised salary provision? Is employee consent required? Comments
Coming into effect 1 March 2020
1.                  Banking, Finance and Insurance Award 2010 1 Yes No
2.                  Clerks – Private Sector Award 2010 1 Yes No
3.                  Contract Call Centres Award 2010 1 Yes No
4.                  Hydrocarbons Industry (Upstream) Award 2010 1 Yes No
5.                  Legal Services Award 2010 1 Yes No
6.                  Mining Industry Award 2010 1 Yes No
7.                  Oil Refining and Manufacturing Award 2010 1 Yes No This applies to clerical employees only.
3 Yes This applies to non-clerical employees only.
8.                  Salt Industry Award 2010 1 Yes No
9.                  Telecommunications Services Award 2010 1 Yes No
10.               Water Industry Award 2010 1 Yes No
11.               Wool Storage, Sampling and Testing Award 2010 1 Yes No
12.               Broadcasting and Recorded Entertainment Award 2010 3 Yes Yes
13.               Local Government Industry Award 2010 3 Yes Yes
14.               Manufacturing and Associated Industries and Occupations Award 2010 3 Yes Yes
15.               Pharmacy Industry Award 2010 3 Yes Yes
16.               Rail Industry Award 2010 3 Yes Yes
17.               Pastoral Award 2010 3 No Yes
18.               Horticulture Award 2010 3 No Yes
Coming into effect at a date yet to be determined by the Fair Work Commission
19.               Hospitality Industry (General) Award 2010

 

4 Yes Yes This is proposed to apply to employees classified as non-managerial staff only.
20.               Marine Towage Award 2010 4 Yes Yes This is proposed to apply to employees classified as non-managerial staff only.
21.               Restaurant Industry Award 2010 4 Yes Yes This is proposed to apply to employees classified as non-managerial staff only.
22.             Health Professionals and Support Services Award 2010

 

3 No Yes This is proposed to apply to employees who are supervisory/managerial staff only.

For more information about the changes, or how you can prepare for the introduction of the model clauses, please contact Michael Nicolazzo, Senior Associate, or a member of the Maddocks Employment, Safety and People team.

AUTHORS
Lindy Richardson | Partner
T +61 3 9258 3721
E Lindy.Richardson@maddocks.com.au
Michael Nicolazzo | Senior Associate
+61 3 9258 3306
Michael.Nicolazzo@maddocks.com.au
Elise Pascoe | Graduate Lawyer
+61 3 9258 3815
E
Elise.Pascoe@maddocks.com.au

[1] The Fair Work Commission is still setting the parameters for the application of the model clauses it proposes to be included in four of the 22 awards. These are the clauses it has proposed to place in the Hospitality Industry (General) Award 2010, the Marine Towage Award 2010, the Restaurant Award Industry Award 2010 and the Health Professionals and Support Services Award 2010. As it is still deliberating, the Commission has resolved that the clauses will not become operative on 1 March 2020, and that they will provide a new operation date in due course. This is set out in the table above.

[2] The Fair Work Commission has indicated that State reference public sector modern awards such as the Victorian State Government Agencies Award, Victorian Public Sector Award and the Victorian Local Government Award will be reviewed outside of the 4 yearly review process which resulted in the above changes. We will update you should that review result in the model clauses being inserted.

As of 1 March 2020, some employers will be faced with a number of new obligations in respect to annualised wage arrangements for award-covered employees. The changes, a result of the Fair Work Commission’s[1] 4-yearly review of modern awards, introduce model annualised wage clauses into 22 awards. The applicable awards are set out in this eAlert. You will see that common awards such as the Clerks – Private Sector Award, the Banking, Finance and Insurance Award and the Manufacturing and Associated Industries and Occupations Award, as well as the Local Government Industry Award, are all impacted. Historically used as a means of payroll convenience, the changes impose surprisingly onerous notification, record-keeping and auditing requirements, creating an administrative burden for employers.

What is an annualised salary (wage) arrangement?

An annualised salary (wage) arrangement is a mechanism that under the relevant award, allows an employer to pay an employee an annual salary (or annual wage) which satisfies award entitlements such as overtime, penalty rates and loadings – that is, an ‘all-inclusive’ annual rate instead of a rate that specifies all applicable award entitlements.

What are the changes?

Many awards already contain annualised wage arrangement clauses which are relatively straightforward to apply and administer. The new model clauses on the other hand, specifically set out a number of obligations. These include, relevantly:

  • notification requirements – the employer must notify the employee of the amount to be paid as an annualised salary, as well as how this was calculated, and the other entitlements the annualised salary is intended to satisfy
  • setting the ‘outer limit’ of hours worked which the salary will satisfy and ensuring payment of any hours which are worked exceeding this time
  • annual reconciliations/audits of the arrangement – this involves comparing the actual amount earned to the amount which would have been earned considering all of the hours worked
  • recording and keeping a record of each employee’s start and finish times, as well as any unpaid breaks taken, for the purpose of carrying out the above reconciliations – employers are also required to have employees sign this record (or acknowledge as correct in writing, electronically) each pay period or roster cycle.

If, as a result of the required reconciliation, a shortfall is identified between the amount that would have been payable under the award and the amount of the annualised salary actually paid, the employer is required to pay the employee this shortfall within 14 days. The comparative reconciliation is also to be conducted upon any termination of employment.

There are four model clauses, with one model clause not currently applicable. Model Clause 2 at this stage has not been included in any awards.

Model Clause 1 will be inserted into 11 awards which already have annualised wage arrangement provisions and this clause does not require employee agreement to the arrangement. Model Clause 3 and Model Clause 4, on the other hand, do require employee consent to enter into the annualised arrangement.

Annualised salary (wage) arrangements vs set-off clauses

In the decisions from the Commission, the Commission noted that annualised wage arrangements apply separately to contractual arrangements that include a ‘set-off’ arrangement. A set-off clause in an employment agreement expressly entitles an employer to set-off payments due under an industrial instrument (such as penalties and allowances), against the entitlements and benefits provided to the employee under their employment agreement.

Employers should seek advice about whether an annualised salary arrangement, a set-off clause or some other arrangement (such as an individual flexibility arrangement) is the most appropriate mechanism for their particular business. In particular, there are requirements in implementing any of the arrangements which need to be considered.

Likely impact of the changes

As you can see from the above, the changes will bring about a remarkable shift in the utility and workability of annualised salary arrangements. Extensive documentation will now be required, along with sophisticated auditing and time recording arrangements. In industries or workplaces that do not have fixed rosters, the requirement for employees to sign or acknowledge records of their start and finish times (as well as breaks) in each pay period can be practically difficult. The Commission has helpfully noted that this acknowledgement can be obtained by electronic means, however the changes have the potential to fundamentally change how employers adopt annualised salary arrangements for award-covered employees[2].

 Table of awards

  Relevant Award Which model clause is inserted Existing annualised salary provision? Is employee consent required? Comments
Coming into effect 1 March 2020
1.                  Banking, Finance and Insurance Award 2010 1 Yes No
2.                  Clerks – Private Sector Award 2010 1 Yes No
3.                  Contract Call Centres Award 2010 1 Yes No
4.                  Hydrocarbons Industry (Upstream) Award 2010 1 Yes No
5.                  Legal Services Award 2010 1 Yes No
6.                  Mining Industry Award 2010 1 Yes No
7.                  Oil Refining and Manufacturing Award 2010 1 Yes No This applies to clerical employees only.
3 Yes This applies to non-clerical employees only.
8.                  Salt Industry Award 2010 1 Yes No
9.                  Telecommunications Services Award 2010 1 Yes No
10.               Water Industry Award 2010 1 Yes No
11.               Wool Storage, Sampling and Testing Award 2010 1 Yes No
12.               Broadcasting and Recorded Entertainment Award 2010 3 Yes Yes
13.               Local Government Industry Award 2010 3 Yes Yes
14.               Manufacturing and Associated Industries and Occupations Award 2010 3 Yes Yes
15.               Pharmacy Industry Award 2010 3 Yes Yes
16.               Rail Industry Award 2010 3 Yes Yes
17.               Pastoral Award 2010 3 No Yes
18.               Horticulture Award 2010 3 No Yes
Coming into effect at a date yet to be determined by the Fair Work Commission
19.               Hospitality Industry (General) Award 2010

 

4 Yes Yes This is proposed to apply to employees classified as non-managerial staff only.
20.               Marine Towage Award 2010 4 Yes Yes This is proposed to apply to employees classified as non-managerial staff only.
21.               Restaurant Industry Award 2010 4 Yes Yes This is proposed to apply to employees classified as non-managerial staff only.
22.             Health Professionals and Support Services Award 2010

 

3 No Yes This is proposed to apply to employees who are supervisory/managerial staff only.

For more information about the changes, or how you can prepare for the introduction of the model clauses, please contact Michael Nicolazzo, Senior Associate, or a member of the Maddocks Employment, Safety and People team.

AUTHORS
Lindy Richardson | Partner
T +61 3 9258 3721
E Lindy.Richardson@maddocks.com.au
Michael Nicolazzo | Senior Associate
+61 3 9258 3306
Michael.Nicolazzo@maddocks.com.au
Elise Pascoe | Graduate Lawyer
+61 3 9258 3815
E
Elise.Pascoe@maddocks.com.au

[1] The Fair Work Commission is still setting the parameters for the application of the model clauses it proposes to be included in four of the 22 awards. These are the clauses it has proposed to place in the Hospitality Industry (General) Award 2010, the Marine Towage Award 2010, the Restaurant Award Industry Award 2010 and the Health Professionals and Support Services Award 2010. As it is still deliberating, the Commission has resolved that the clauses will not become operative on 1 March 2020, and that they will provide a new operation date in due course. This is set out in the table above.

[2] The Fair Work Commission has indicated that State reference public sector modern awards such as the Victorian State Government Agencies Award, Victorian Public Sector Award and the Victorian Local Government Award will be reviewed outside of the 4 yearly review process which resulted in the above changes. We will update you should that review result in the model clauses being inserted.