WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS APPLICANT -v- AMBERLEY ESTATE AND OTHERS RESPONDENTS CORAM COMMISSIONER S J KENNER DATE THURSDAY, 10 NOVEMBER 2005 FILE NO/S APPL 925 OF 2004 CITATION NO. 2005 WAIRC 03020 Result Award varied. Order issued Representation Applicant Mr G Trotter Respondent Mr J Uphill as agent 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3745 Order HAVING heard Mr G Trotter on behalf of the applicant and Mr J Uphill as agent on behalf of the respondents, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the Wineries Award 1969 No. 31 of 1969 be varied in accordance with the following schedule and that such variation shall have effect on and from 3 December 2005. (Sgd.) S J KENNER, [L.S.] Commissioner. SCHEDULE 1. Delete clauses 1 to 28 and appendices and insert the following in lieu thereof: PART 1 - AWARD STRUCTURE 1.1 –TITLE This award shall be known as the Wine Industry (WA) Award 2005. 1.2 - ARRANGEMENT 1. AWARD STRUCTURE 1.1 Title 1.2 Arrangement 1.3 Area and Scope 1.4 Term 1.5 Definitions 2. CONTRACT OF EMPLOYMENT 2.1 Contract of Service 2.2 Employment Categories 2.3 Introduction of Change 2.4 Redundancy 2.5 Junior Employees Certificate 3. HOURS OF WORK 3.1 Hours of Work 3.2 Over 38 Hours of Work 3.3 Overtime 3.4 Shift Work 3.5 Work Organisation 3.6 Standing Down 4. RATES OF PAY 4.1 Minimum Adult Award Wage 4.2 Wages 4.3 Classification Structures 4.4 Supported Wage 4.5 Payment of Wages 5. ALLOWANCES AND FACILITIES 5.1 Allowances 6. LEAVE 6.1 Annual Leave 6.2 Sick Leave 6.3 Carer’s Leave 6.4 Public Holidays 6.5 Bereavement Leave 6.6 Parental Leave 6.7 Long Service Leave 6.8 Jury Service 6.9 Absence from Duty 7. DISPUTE RESOLUTION PROCEDURE 7.1 Dispute Settlement Procedure 8. SAFETY AND TRAINING 3746 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. First Aid Kit 9. REGISTERED ORGANISATION 9.1 Right of Entry 9.2 Representative Interviewing Employees 9.3 Posting of Awards and Union Notices 10. KEEPING OF RECORDS 10.1 Employment Record 11. SUPERANNUATION 11.1 Superannuation 12. OTHER LAWS AFFECTING EMPLOYMENT 12.1 Industrial Relations Act 1979 (WA) 12.2 Minimum Conditions of Employment Act 1993 (WA) 12.3 Workplace Relations Act 1996 (Cth) 12.4 Superannuation Guarantee (Administration) Act 1992 (Cth) 12.5 Occupational Safety and Health Act 1984 (WA) 12.6 Equal Opportunity Act 1984 (WA) 13. APPENDICES 14. WHERE TO GO FOR FURTHER INFORMATION 15. RESPONDENTS 16. NAMED PARTIES 1.3 – AREA AND SCOPE OF AWARD This award shall have effect over the State of Western Australia and shall apply to all employees employed in any of the classifications contained at Clause 4.2 - Wages of this Award who are: (1) Employed in the industry of growing and/or harvesting wine grapes and who work in a vineyard which (either individually or as part of a group of associated companies) harvests wine grapes; or (2) Employed in the industry of producing and bottling wine or grape spirit and who work in a winery or wine distillery which (either individually or as part of a group of associated companies) processes wine grapes; or (3) Employed in the industry of packaging, storing and despatching wine or grape spirit from a warehouse attached to a winery or wine distillery which (either individually or as part of a group of associated companies) processes wine grapes. 1.4 - TERM This Award will operate for a period of six months from the date of hereof. 1.5 - DEFINITIONS For the purpose of this award: (1) “Wine distillery” means a place where wine, made from fresh and/or dried grapes, is distilled into spirits or brandy. (2) “Winery” means a place where fresh grapes are processed into wine and packaged for distribution. (3) “Union” means The Australian Workers’ Union, WA Branch, Industrial Union of Workers. (4) “Vineyard” means a place where grapes are grown for the manufacture of wine. (5) “Probationary employee” means any new employee employed pursuant to subclause (6) of Clause 2.2 – Employment Categories of this Award. (6) “Flat Rate employee” means any full-time, part-time or casual employee employed pursuant to subclause (9) of Clause 3.3 - Overtime of this Award. (7) “Piece worker” or “Piece-rate employee” means any full-time, part-time or casual employee employed pursuant to subclause (4) of Clause 2.2 - Employment Categories of this Award. PART 2 - CONTRACT OF EMPLOYMENT 2.1 – CONTRACT OF SERVICE (1) Notice of Termination By Employer (a) In order to terminate the employment of a full-time or regular part-time employee the employer shall give to the employee the period of notice specified in the table below: Period of continuous service Period of notice 1 year or less 1 week Over 1 year and up to the completion of 3 years 2 weeks Over 3 years and up to the completion of 5 years 3 weeks Over 5 years of completed service 4 weeks Provided a probationary employee may be terminated by the employer giving one-hour’s notice. In addition to this notice, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service are entitled to an additional week’s notice. 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3747 (b) An employer may give payment in lieu of the notice. Employment may be terminated by the employee working part of the required period of notice and by the employer making payment for the remainder of the period of notice. (c) In calculating any payment in lieu of notice, the employer must use the wages an employee would have received in respect of the ordinary time they would have worked during the notice period had their employment not been terminated and the total calculated on the basis of: (i) The employee’s ordinary hours of work (even if they are not standard hours); and (ii) The amount ordinarily payable to an employee in respect of those hours, including (for example) allowances, loadings and penalties; and (iii) Any other amounts payable under the employee’s contract of employment (d) In the case of full-time and part-time piece-work employees, the calculation of payment in lieu of notice shall be on the basis of the average actual remuneration received by the employee during the three months immediately before their termination (or such lesser period if the employee was employed for a period less than three months immediately before their termination). (e) The period of notice in this clause shall not apply in the case of dismissal for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices, or employees engaged for a specific period of time or for a specific task or tasks. (2) Notice of Termination by an Employee (a) The notice of termination required to be given by an employee is the same as that required of an employer, save and except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. (b) If an employee fails to give notice the employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice. (3) Time Off During Notice Period (a) Where an employer has given notice of termination to an employee, an employee shall be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off shall be taken at times that are convenient to the employee after consultation with the employer. (4) Statement of Employment An employer shall, in the event of termination of employment, provide upon request to the employee who has been terminated a written statement specifying the period of employment and the classification or type of work performed by the employee. 2.2 – EMPLOYMENT CATEGORIES (1) General (a) Employees under this award will be employed in one of the following categories: (i) Full-time employees; or (ii) Regular part time employees; or (iii) Casual employees; or (iv) Piece work employees. (b) At the time of engagement an employer will inform each employee of the terms of their engagement and in particular whether they are to be a full-time, regular part-time or casual employee and if the employment is to be at piecework rates. (c) All employees other than casual employees are engaged by the week. (2) Regular Part-Time Employees (a) An employer may employ regular part-time employees in any classification in this award. (b) A regular part-time employee is an employee who: (i) Regularly works less than full-time hours of 38 per week; and (ii) Has reasonably (week to week) predictable hours of work; and (iii) Receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work. (c) All time worked in excess of 38 hours per week by part-time employees or outside of the ordinary hours of work on any day will be overtime and paid for the rates prescribed in Clause 3.3 – Overtime. (d) A regular part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at least the rate of 1/38th of the weekly rate prescribed for the class of work performed. (3) Casual Employment (a) A casual employee means an employee engaged by the hour. (b) A casual employee must be paid an ordinary hourly rate of at least 1/38th of the weekly rate prescribed for the class of work performed plus 20%. (c) On each occasion a casual employee is required to attend work they are entitled to a minimum payment for four hours work unless the employer and employee agree to a lesser time period. (d) A casual employee shall be informed of these conditions before he/she is employed 3748 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. (4) Piece-Work Employment (a) A piece-work employee means any full-time, part-time or casual employee who is engaged on piece-work rates which enable an employee of average capacity working ordinary hours to earn at least 20% above the prescribed time rate. (b) Piece-work rates are paid instead of the wage rates specified in Clause 4.2 – Wages of this award. (c) The following clauses shall not apply to piece- work employees: (i) Clause 2.1 – Contract of Service (except where a piece-work employee was immediately before being employed on piece-work, employed on a full-time or part-time basis). (ii) Clause 3.1 – Hours of Work (iii) Clause 3.3 – Overtime (iv) Clause 3.4 – Shift Work (v) Clause 5.1 – Allowances subclause (1) Meal Allowance (d) Once piece-work rates are properly fixed in accordance with subclause (4) of this clause, nothing in this award guarantees a piece-work employee will earn at least the equivalent time rate of pay as piece-work earnings are contingent upon each employee’s individual productivity. (e) Full-time and part-time piece-work employees shall be paid time rates of pay for any day observed as a holiday pursuant to Clause 6.4 – Public Holidays, for any annual leave taken pursuant to Clause 6.1 – Annual Leave, for any absence through sickness taken pursuant to Clause 6.2 – Sick Leave, for any Long Service Leave taken pursuant to Clause 6.7 – Long Service Leave and any bereavement leave taken pursuant to Clause 6.5 – Bereavement Leave of this award. Casual piece-work employees shall be paid time rates of pay for bereavement leave. (5) Flat-Rate Employment A flat-rate employee is an employee who is employed on a single time rate of pay for a fixed period and agreed in writing with the employer in accordance with subclause (9) of Clause 3.3 - Overtime of this award. (6) Probationary employment A probationary employee is an employee who at the time of engagement is informed by the employer that they will initially be employed on a probationary basis not exceeding three months. 2.3 – INTRODUCTION OF CHANGE (1) Employer’s Duty to Notify (a) Where an employer decides to introduce changes in production, program, organisation, structure or technology, that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and, if an employee nominates a union to represent him or her, the union nominated by the employee. (b) “Significant effects” includes termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of a job opportunity, a promotion opportunity or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. (2) Employer’s Duty to Consult over Change (a) The employer shall consult the employees affected and, if an employee nominates a union to represent him or her, the union nominated by the employee, about the introduction of the changes, the effects the changes are likely to have on employees (including the number and categories of employees likely to be dismissed, and the time when, or the period over which, the employer intends to carry out the dismissals), and the ways to avoid or minimise the effects of the changes (e.g. by finding alternate employment). (b) The consultation shall commence as soon as practicable after making the decision referred to in the “Employer’s Duty to Notify” clause. (c) For the purpose of such consultation the employer shall provide in writing to the employees concerned and, if an employee nominates a union to represent him or her, the union nominated by the employee, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees, and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information, the disclosure of which would be adverse to the employer’s interests. 2.4 – REDUNDANCY PROVISIONS (1) Definition Business includes trade, process, business or occupation and includes part of any such business. Redundancy occurs where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone. Transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding meaning. Weeks’ pay means the ordinary time rate of pay for the employee concerned. Provided that such rate shall exclude: (a) Overtime; (b) Penalty rates; (c) Disability allowances; (d) Shift allowances; (e) Special rates; 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3749 (f) Fares and travelling time allowances; (g) Bonuses; and (h) Any other ancillary payments of a like nature. (2) Consultation Before Terminations (a) Where an employer decides that the employer no longer wishes the job the employee has been doing to be done by anyone and that decision may lead to termination of employment, the employer shall consult the employee directly affected and if an employee nominates a union to represent him or her, the union nominated by the employee. (b) The consultation shall take place as soon as is practicable after the employer has made a decision to which clause 2.3(2)(a) applies and shall cover the reasons for the proposed terminations, measures to avoid or minimise the terminations and/or their adverse affects on the employees concerned. (c) For the purpose of the consultation the employer shall, as soon as practicable, provide in writing to the employees concerned and if an employee nominates a union to represent them, the union nominated by the employee, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, the number of employees normally employed and the period over which the terminations are likely to be carried out. Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be adverse to the employer’s interests. (3) Transfer to Lower Paid Duties (a) Where an employee is transferred to lower paid duties by reason of redundancy the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee’s employment had been terminated. (b) The employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former amounts the employer would have been liable to pay and the new lower amount the employer is liable to pay the employee for the number of weeks of notice still owing. (c) The amounts must be worked out on the basis of the ordinary working hours to be worked by the employee; and (ii) The amounts payable to the employee for the hours including for example, allowances, loading and penalties; and (iii) Any other amounts payable under the employee’s contract of employment. (4) Severance Pay (a) In addition to the period of notice prescribed for ordinary termination, an employee whose employment is terminated by reason of redundancy must be paid, subject to further order of the Commission, the following amount of severance pay in respect of a continuous period of service: Provided that the entitlement of any employee whose employment terminates on or before 1 February 2006 shall not exceed 8 weeks’ pay. Period of Continuous Service Severance Pay Less than 1 year Nil 1 year and less than 2 years 4 weeks pay 2 years and less than 3 years 6 weeks pay 3 years and less than 4 years 7 weeks pay 4 years and less than 5 years 8 weeks pay 5 years and less than 6 years 10 weeks pay 6 years and less than 7 years 11 weeks pay 7 years and less than 8 years 13 weeks pay 8 years and less than 9 years 14 weeks pay 9 years and less than 10 years 16 weeks pay 10 years and over 12 weeks pay (b) Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee’s normal retirement date. (c) For the purpose of this clause continuity of service shall not be broken on account of - (i) Any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding the obligations of this clause in respect of leave of absence; (ii) Any absence from work on account of leave granted by the employer; or (iii) Any absence with reasonable cause, proof whereof shall be upon the employee; Provided that in the calculation of continuous service any time in respect of which any employee is absent from work except time for which an employee is entitled to claim paid leave shall not count as time worked. Service by the employee with a business which has been transmitted from one employer to another and the employee’s service has been deemed continuous in accordance with clause 2(3) or (4) of the Long Service Leave Provisions published in Part 1 (January) of each volume of the Western Australian Industrial Gazette shall also constitute continuous service for the purpose of this clause. 3750 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. (5) Employee Leaving During Notice Period An employee whose employment is terminated by reason of redundancy may terminate his/her employment during the period of notice and, if so, will be entitled to the same benefits and payments under this clause had they remained with the employer until the expiry of such notice. However, in this circumstance the employee will not be entitled to payment in lieu of notice. (6) Alternative Employment (a) An employer, in a particular redundancy case, may make application to the Commission to have the severance payment prescribed varied if the employer obtains acceptable alternative employment for an employee. (b) This subclause does not apply in circumstances involving transmission of business as set out in clause 2.3(7) (7) Transmission of Business (a) The provisions of clause 2.4 are not applicable where a business is before or after the date of this order, transmitted from an employer (in this subclause called “the transmittor”) to another employer (in this subclause called “the transmittee”), in any of the following circumstances: (i) Where the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service of the employee with the transmittee; or (ii) Where the employee rejects an offer of employment with the transmittee: (aa) In which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transmittor; and (bb) Which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service with the transmittee. (b) The Commission may vary clause 2.4(7)(a)(ii) if it is satisfied that this provision would operate unfairly in a particular case. (8) Notices to Centrelink Where a decision has been made to terminate employees in the circumstances outlined in the “Consultation Before Terminations” clause, the employer shall notify Centrelink as soon as possible giving all relevant information about the proposed terminations, including a written statement of the reasons for the terminations, the number and categories of the employees likely to be affected, the number of employees normally employed and the period over which the terminations are intended to be carried out. (9) Employees Exempted This clause does not apply: (a) Where employment is terminated as a consequence of serious misconduct that justifies dismissal without notice. (b) Except for clause 2.3(2), to employees with less than one year’s service. (c) Except for clause 2.3(2), to probationary employees. (d) To apprentices (e) To trainees. (f) Except for clause 2.3(2), to employees engaged for a specific period of time or for a specified task or tasks; or (g) To casual employees. (10) Employers Exempted Subject to an order of the Commission, in a particular redundancy case, subclause 2.3(4)shall not apply to employers who employ less than 15 employees. (11) Incapacity to Pay An employer or a group of employers, in a particular redundancy case, may make application to the Commission to have the severance payment prescribed varied on the basis of the employer’s incapacity to pay. 2.5 - JUNIOR EMPLOYEES CERTIFICATE (1) Junior employees upon being engaged shall upon request furnish the employer with a certificate containing the following details: (a) Name in full; and (b) Age and date of birth. (2) The certificate shall be available for inspection by an accredited representative of the union in the manner which the employment record is open for inspection. PART 3 - HOURS OF WORK 3.1 - HOURS (1) The ordinary hours of work shall be an average of 38 per week to be worked to suit the requirements of the enterprise. (2) The ordinary hours of work may be worked on any or all days of the week excluding Sunday, and except in the case of shift employees, shall be worked between the hours of 6.00am and 6.00pm. (a) The aforementioned spread of hours may be varied by mutual agreement between an employer and employees in the section or sections concerned provided further that the spread of ordinary hours shall not exceed 12 on any one day. (b) The employer shall fix starting times and different starting times may be applied to different employees or groups of employees. 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3751 (3) Except by mutual agreement between the employer and the employees concerned, the ordinary hours of work shall not exceed eight on any day. (4) The ordinary hours of work, once established in the enterprise may be changed by the employer provided a majority of affected employees agree to the change and provided the change complies with the other provisions of this clause. Employees shall not unreasonably withhold their consent to change the hours of work. (5) Make-up Time (a) An employee may elect with the consent of the employer, to work make-up time, under which the employee takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided for in this award. (b) On each occasion that the employee elects to work make-up time, the resulting agreement must be recorded in the employment record at the time when the agreement is made. (6) Breaks (a) Employees shall be entitled to an unpaid meal break of between 30 and 60 minutes each day (or such other period or periods as agreed between the employer and employee) to be taken between the fourth and sixth hour of work. (b) All time worked during the meal break shall be paid for at the rate of double time until a break of not less than the time usually allowed for meals is granted by the employer. (c) One rest break of ten minutes duration each day to be counted as time worked shall be allowed to employees. (d) Employees required to work three hours or more overtime following their ordinary work day or shift shall be allowed a 20-minute crib break (which may be taken in relays) prior to the commencement of such overtime and at intervals of every four hours thereafter provided the overtime continues following the crib break. Crib breaks shall be paid for at ordinary time rates. 3.2 – MORE THAN 38 HOURS OF WORK (1) Instead of the provisions of Clause 3.1 - Hours of Work above, the employer and employee may agree that there shall be no fixed hours of duty, however employees who work more than 38 hours per week shall be entitled to a loading of an additional 50% of the hourly rate prescribed for the relevant classification for all hours worked in excess of 38 per week up to 50 in a week and a loading of 100% of the hourly rate prescribed for the relevant classification for all hours worked in excess of 50 per week. (2) Where agreement is reached, the following clauses shall not apply: Clause 3.3 – Overtime Clause 3.4 – Shift work Clause 5.1 – Allowances, subclauses (1) and (2) (3) The agreement must be in writing and recorded in the employment record. 3.3 - OVERTIME (1) The provisions of this clause do not apply to pieceworkers. (2) All time worked by an employee before their ordinary starting time or after their ordinary finishing time shall be paid for at the rate of time and one half for the first two hours and double time thereafter. (3) All time worked by an employee on a Sunday shall be paid for at the rate of double time. (4) All time worked by an employee on a day prescribed by this award as a public holiday shall be paid for at the rate of double time and one-half. (5) Where at the direction of the employer an employee is recalled to work after leaving the job, they shall be paid for at least three hours at overtime rates provided that such minimum payment shall not be made where it is customary for the employee to return to perform a specific task outside of the ordinary working hours or where the overtime commences (subject to a reasonable meal break) at the completion or before the commencement of ordinary working time. (6) Overtime worked on any day stands alone. (7) Rest Period After Overtime (a) When overtime work is necessary after the completion of ordinary hours on any day, it shall, wherever reasonably practicable, be so arranged that employees have at least ten consecutive hours off duty between the work of successive days. (b) An employee who works so much overtime between the finish of their ordinary work on one day and the commencement of their ordinary work on the next day that they have not had at least ten consecutive hours off duty between those times and the provision of such a break is reasonably practicable, shall, subject to this subclause, be released after completion of such overtime until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. (c) If, on the instructions of the employer, such an employee resumes or continues work without having had at least ten consecutive hours off duty they shall be paid at double time rates until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. (d) Employees recalled to work not more than twice in any night and for not more than four hours in any night shall not be entitled to a ten-hour break from the completion of such call out or call outs. (8) Time Off Instead of Payment For Overtime (a) The employer and the employee may agree to take time off instead of payment for overtime at a time or times mutually agreed. The agreement must be in writing and recorded in the time and wages record at the time when the agreement is made. (b) If an employee takes time off instead of payment for overtime then one hour may be taken as time off for each hour of overtime worked. 3752 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. (9) Flat Rate Payments (a) An employer and employee may agree in writing to the payment of one single “flat hourly rate” for all hours worked. (b) Such hourly rate is to be at least 20% more than the minimum award rate applicable to the employee’s classification and the total payment made to an employee for all hours worked in each calendar month shall not be less than what the employee would have earned under this award including applicable penalty rates, loadings and allowances. (c) Where overtime is worked under these arrangements, employees shall be paid the flat hourly rate for all overtime hours worked in lieu of overtime penalties prescribed by this award. (d) On each occasion that an employer and employee agree to use this provision, the resulting agreement must be recorded in the employment record at the time when the agreement is made. 3.4 - SHIFT WORK (1) Employees may be worked on shifts that shall not exceed ten hours on any shift without payment of overtime. Provided that: (a) In any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any day, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees in the plant or section or sections concerned; (b) By arrangement between an employer and the majority of employees in the plant or section or sections concerned, ordinary working hours not exceeding 12 on any day may be worked. (2) Shift employees for all hours worked on afternoon or night shifts, shall be paid 15% more than the ordinary rates. (a) All time worked by an employee in excess of the ordinary hours for the shift shall be paid for as overtime at the rate of double time. Provided that all work performed on holidays shall be paid for at the rate of double time and one half. (b) Overtime and public holiday penalties paid under this subclause shall be paid in lieu of the applicable shift penalty. (3) Where shift work is adopted, shifts shall, as far as practicable, rotate regularly, and where two shifts are worked, one shall be regarded as the day shift, and the second, the afternoon or night shift. Where three shifts are worked they shall be divided into day, afternoon and night shifts. (4) (a) Where an employee is instructed by the employer to work on a night shift that does not rotate so that the employee does not work at least 50% of their time on another shift, the employee shall be paid a 30% shift loading for all night shift hours worked and such shift allowance shall be paid in lieu of the shift allowance prescribed at subclause (2) of this clause. (b) Where an employee works a night shift that does not rotate so that the employee does not work at least 50% of their time on another shift as a result of a preference by the employee to work a permanent night shift rather than a rotating night shift, the employee shall be paid a 15% shift loading for all night shift hours worked and such shift allowance shall be paid in lieu of the shift allowance prescribed at subclause (2) of this clause. (5) No employee shall work for more than four and a half hours without a break for a meal except in the following circumstances where up to six hours may be worked without a meal break by agreement with the employee concerned: (a) Where a casual employee or a part-time employee is engaged to work no more than six hours in any one day; (b) Where weekly employees are working their ordinary hours on the basis of a short day each week; (c) Thirty minutes shall be allowed to shift employees each shift for crib, and shall be counted as time worked. (6) Any shift that commences between the hours of 12.00 noon and 4.00pm and finishes at or before midnight shall be deemed an afternoon shift and any shift that commences after 4.00pm shall be deemed a night shift. (7) The employer shall, while shift work is being worked, exhibit and keep exhibited at the winery or place at which shifts are worked, in a place to which the employees have access, a notice specifying the times at which each shift shall commence and finish and which of the shifts is deemed to be the day shift. (8) The changing of shifts shall be by mutual arrangement between the employer and the employee. (9) Shift employees whose ordinary working hours include a Saturday, Sunday or public holiday shall be paid the following penalties in lieu of shift allowance prescribed by this clause; (a) Midnight Saturday to midnight Sunday – double time; (b) Public holidays – double time and one half. (10) Where a shift commences at or after 11.00pm on any day the whole shift shall be deemed for the purposes of this award to have been worked on the following day. (11) Where a shift commences before 11.00pm on any day the whole shift shall be deemed for the purposes of this award to have been worked on that day. (12) For the purposes of this award the sequence of work shall not be deemed to have been broken by reason of work not being carried out on a Saturday, Sunday, Public Holiday or on any other day that the employer observes a shut down for the purpose of allowing a 38 hour week. (13) Where any particular process is carried out on shifts other than day shift, and less than five consecutive afternoon or five consecutive night shifts are worked, or such lesser number as may be agreed by the majority of employees on a particular shift and the employer, then employees employed on such afternoon or night shifts shall be paid at overtime rates. (14) The period of five consecutive shifts worked shall not be deemed broken by reason of the employee not being required to work on a weekend, Public Holiday or Rostered Day Off. 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3753 3.5 - WORK ORGANISATION An employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure of this award provided that such duties are lawful and not designed to promote de-skilling. 3.6 - STANDING DOWN (1) The employer shall be entitled to deduct payment for any day or part of a day upon which the employee cannot be usefully employed because of any industrial action by the Union or unions affiliated with it, or by any other association or union, or through the breakdown of the employer’s machinery, or any stoppage of work by any cause which the employer cannot reasonably prevent. (2) Notwithstanding anything else within this award, if on any day, an employee presents for work without having been previously advised that they will be stood down, they shall be provided with work for at least two hours on that day or shall be paid two hours at their ordinary time rate. PART 4 – RATES OF PAY 4.1 - MINIMUM ADULT AWARD WAGE (1) No adult employee shall be paid less than the Minimum Adult Award Wage unless otherwise provided by this clause. (2) The Minimum Adult Award Wage for full time adult employees is $484.40 per week payable on and from 7th July 2005. (3) The Minimum Adult Award Wage of $484.40 per week is deemed to include all arbitrated safety net adjustments from State Wage Case decisions. (4) Unless otherwise provided in this clause adults employed as casuals, part time employees or pieceworkers or employees who are remunerated wholly on the basis of payment by result shall not be paid less than pro rata the Minimum Adult Award Wage according to the hours worked. (5) Juniors shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision in this award to the Minimum Adult Award Wage of $484.40 per week. (6) (a) The Minimum Adult Award Wage shall not apply to apprentices, employees engaged on traineeships or Jobskill placements or employed under the Commonwealth Government Supported Wage System or to other categories of employees who by prescription are paid less than the minimum award rate. (b) Liberty to apply is reserved in relation to any special categories of employees not included here or otherwise in relation to the application of the Minimum Adult Award Wage. (7) Subject to this clause the Minimum Adult Award Wage shall - (a) Apply to all work in ordinary hours. (b) Apply to the calculation of overtime and all other penalty rates, superannuation, payments during any period of paid leave and for all purposes of this award. (8) Minimum Adult Award Wage The rates of pay in this award include the minimum weekly wage for adult employees payable under the 2005 State Wage Case Decision. Any increase arising from the insertion of the minimum adult award wage will be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to enterprise agreements, consent awards or award variations to give effect to enterprise agreements and over award arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases under previous State Wage Case Principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset the minimum adult award wage. (9) Adult Apprentices (a) Notwithstanding the provisions of this clause, an apprentice, 21 years of age or over, shall not be paid less than $406.70 per week. (b) The rate paid in paragraph (a) above is payable on superannuation and during any period of paid leave prescribed by this Award. (c) Where in this award an additional rate is expressed as a percentage, fraction or multiple of the ordinary rate of pay, it shall be calculated upon the rate prescribed in this award for the actual year of apprenticeship. (d) Nothing in this clause shall operate to reduce the rate of pay fixed by this award for an adult apprentice in force immediately prior to 5th June 2003. 4.2 – WAGES (1) Adult Employees The weekly minimum rate of pay will be as follows: Grade Base Rate Relativity Safety Net Adjustment Supplementary Payment Total Weekly Rate $ % $ $ $ 1 284.80 78.0 159.00 40.60 484.40 2 299.50 82.0 159.00 83.70 542.20 3 319.20 87.4 159.00 94.00 572.20 4 337.40 92.4 161.00 97.80 596.20 5 365.20 100.0 159.00 99.30 623.50 3754 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. (2) Junior Employees (a) The minimum wage payable under this award to junior employees shall be the undermentioned percentage of the adult rate of the classification under which they are employed: Percentage of adult rate 16 years and under 17 years 80 17 years and under 18 years 90 18 years and over 100 (b) The total wage for junior employees shall, in the case of weekly employees, be calculated in multiples of five cents. Amounts of two cents or less being taken to the lower multiple and amounts in excess of two cents being taken to the higher multiple. (3) Arbitrated Safety Net Adjustments The rates of pay in this award include arbitrated safety net adjustments payable available since December 1993, under the Arbitrated Safety Net Adjustment Principle. These arbitrated safety net adjustments may be offset against any equivalent amount in rates of pay received by employees since 1 November 1991 above the wage rates prescribed in the award. For these purposes over award rates of pay in any industrial agreement affecting employees whose terms of employment are also regulated by the award shall likewise be liable to absorption unless contrary to the terms of the industrial agreement. Increases in rates of pay otherwise made under the State Wage Case Principles excepting those resulting from enterprise agreements are not to be used to offset arbitrated safety net adjustments. (4) Casual Employees A casual employee shall be paid 20% more than the ordinary rate for the calling in which they are employed. (5) Leading Hands Leading hands appointed by the employer in any department must be paid the allowances set out below in addition to the wage rate prescribed for their classification: Rate Per Week $ Up to and including four employees 13.50 More than four but less than 10 employees 21.70 More than 10 employees 33.50 4.3 – CLASSIFICATION STRUCTURES GRADE 1 – Trainee (Applies to all streams i.e. vineyard, cellar, bottling and packaging) An employee at this level is a trainee and shall demonstrate learning ability, sound communication skills and the ability to perform tasks in a safe and responsible manner to the level of their training and experience. Upon completion of a probationary period, employees at this level shall be given on the job training by the employer to qualify them for progression to Grade 2 within 12 months continuous service from the date of commencement of their employment. Appointment to Grade 2 shall be automatic upon passing an accredited assessment. VINEYARD STREAM GRADE 2 An employee at this level has passed an accredited assessment for progression from Grade 1 to Grade 2 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 2 and has been appointed by the employer to work as a Grade 2. Employees at this level shall perform any or all of the following tasks and shall have completed or shall be completing training and assessment in all of the following learning modules: • Pruning; • Vine Training; • Basic Machinery Training; • Irrigation; • Harvesting; • Safety (ongoing); • Chemical use and handling; and • Grafting. Employees shall work under general supervision to the limits of their skills, competence and training and in addition subject to receiving the appropriate training may be required to perform mechanical harvester operations and general vineyard machinery repair and maintenance. GRADE 3 An employee at this level has passed an accredited assessment for progression from Grade 2 to Grade 3 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 3 and has been appointed by the employer to work as a Grade 3. 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3755 Employees at this level shall perform any or all of the following tasks and shall have completed or shall be completing training and assessment in at least three of the following learning modules: • Mechanical Harvesting Operations; • Routine Repairs and Maintenance; • Pruning; • Vine Training; • Planting; • Trellising; • Irrigation; • Chemical use and handling; and • Grafting Employees shall work under limited supervision to the limits of their skills, competence and training and in addition subject to receiving the appropriate training may be required to perform duties applicable to the operation of all other equipment. GRADE 4 An employee at this level has been deemed by the employer to be competent at Grades 1 to 3 and has been appointed by the employer to work at a level above Grade 3. In addition to meeting the training requirements for Grades 1 to 3, employees at this level shall also have completed training in the operation of all equipment within the vineyard in which the employee is employed plus successful completion of training and assessment in the following: • Rural Studies Certificate or equivalent; and • Health, Safety and Welfare Course (external or internal – ongoing) Employees at this level shall be able to perform any task without supervision in the vineyard in which the employee is employed. Employees at this level may be required to undertake training to take on the responsibilities of leading a section or department within the vineyard in which the employee is employed necessary for promotion to Grade 5. GRADE 5 An employee at this level has been appointed by the employer to perform the following tasks: • Coordinate the work of employees within a section of the vineyard; and • Maintaining the employer’s standards relating to safety, quality and production volume; and • Instructing other employees in modules essential to the operations of the vineyard in which the workers are employed. Employees at this level are also expected to have successfully completed training in the following areas or otherwise be deemed competent by their employer by virtue of their skills and experience: • Supervision and instruction of other employees; and • Report Writing. Employees at this level may be required to undertake further training for the purpose of maintaining their skills and knowledge and keeping up to date with change. Employees may also be required to undertake further management training for promotion to salaried positions beyond the scope of this award. CELLAR STREAM GRADE 2 An employee at this level has passed an accredited assessment for progression from Grade 1 to Grade 2 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 2 and has been appointed by the employer to work as a Grade 2. Employees at this level shall perform any or all of the following tasks and shall have completed or shall be completing training and assessment in all of the following learning modules: • Cellar Hygiene • Transferring of Product including road tankers & racking if required; • Additions; • Wine blending; and • Safety regulations including confined space procedure & chemical handling. Employees shall work under general supervision to the limits of their skills, competence and training and in addition subject to receiving the appropriate training may be required to perform the following tasks: • Tank waxing; • Vintage operations such as; (a) Crushing; (b) Press house work; and (c) Tank cleaning – removing skins etc.; • Barrel washing • Forklift driving (certificate required); • Wood stacking and transferring product to/from wood. 3756 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. GRADE 3 An employee at this level has passed an accredited assessment for progression from Grade 2 to Grade 3 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 3 and has been appointed by the employer to work as a Grade 3. Employees at this level shall perform any or all of the following tasks and shall have successfully completed training and assessment the following learning modules: • Forklift driving (Certificated); • Filtration (a) Pad / Cartridge / Membrane; and / or (b) Earth; and / or (c) Lees; • Centrifugation • Fortification; • Ion exchange • De-sulphurising • Juice concentration; • Heat exchange; • Spirit bond; • Boiler attendant (Certificated); • Distiller (limited to equipment operation, including boiler); • Sparkling wine production. Employees shall work under limited supervision to the limits of their skills, competence and training and in addition subject to receiving the appropriate training may be required to perform duties applicable to the operation of all other equipment. An employee at this level may be required to undertake training in the operation of all other equipment in the winery in which the worker is employed (with the exception of Distillery and Boilers) for progression to Grade 4. GRADE 4 An employee at this level has been deemed by the employer to be competent at Grades 1 to 3 and has been appointed by the employer to work at a level above Grade 3. In addition to meeting the training requirements for Grades 1 to 3, employees at this level shall also have completed training in the operation of all equipment within the winery in which the employee is employed (except Distillery and Boiler equipment) plus successful completion of training and assessment in the following: • Cellar procedures course (external); and • Health, Safety and Welfare Course (external or internal – ongoing) Employees at this level shall be able to perform any task without supervision in the winery in which the employee is employed. Employees at this level may be required to undertake training to take on the responsibilities of leading a section or department within the winery in which the employee is employed necessary for promotion to Grade 5. GRADE 5 An employee at this level has been appointed by the employer to perform the following tasks: • Coordinate the work of employees within a section of the winery (eg. Output filtration, Distillery or Sparkling Wines); • Maintaining the employer’s standards relating to safety, quality and production volume; and • Instructing other employees in modules essential to the operations of the winery in which the workers are employed. Employees at this level are also expected to have successfully completed training in the following areas or otherwise be deemed competent by their employer by virtue of their skills and experience: • Supervision and instruction of other employees; and • Report Writing. Employees at this level may be required to undertake further training for the purpose of maintaining their skills and knowledge and keeping up to date with change. Employees may also be required to undertake further management training for promotion to salaried positions beyond the scope of this award. BOTTLING STREAM GRADE 2 An employee at this level has passed an accredited assessment for progression from Grade 1 to Grade 2 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 2 and has been appointed by the employer to work as a Grade 2. Employees at this level shall perform any or all of the following tasks and shall have completed training and assessment in all of the following learning modules: • Attending Packaging Equipment; • Performing repetitive tasks – for example: (a) binning / de-binning unlabelled wines (b) application of capsules 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3757 (c) hand labelling (d) carton making (e) packing wines (f) de-palletising / palletising; and • Bottling hygiene / housekeeping. Employees shall work under general supervision to the limits of their skills, competence and training. GRADE 3 An employee at this level has passed an accredited assessment for progression from Grade 2 to Grade 3 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 3 and has been appointed by the employer to work as a Grade 3. Employees at this level shall perform any or all of the following tasks and shall have successfully completed training and assessment the following learning modules: • Forklift driving (certificate required); • Set up and efficient operation of one or more machines in – (a) Set up for production; (b) Adjustments required during production; (d) Close down and clean at the end of production; (e) Change over of one or more machines (f) Operation of service equipment related to packaging lines; and (g) Boiler attendant (Certificated) Employees shall work under limited supervision to the limits of their skills, competence and training and in addition subject to receiving the appropriate training may be required to perform duties applicable to the operation of all other equipment. An employee at this level may be required to undertake training in the operation of all other equipment necessary for progression to Grade 4 and may be required to assist with the training of new employees. GRADE 4 An employee at this level has been deemed by the employer to be competent at Grades 1 to 3 and has been appointed by the employer to work at a level above Grade 3. In addition to meeting the training requirements for Grades 1 to 3, employees at this level shall also have completed training in the operation of all equipment including successful completion of training and assessment in the following: • Sterilisation and sanitation of filling machines; • Sterile wine filtration; and • Wine transfer. Employees at this level shall be able to work without supervision. Employees at this level may be required to undertake training to take on the responsibilities of leading a section or department within the winery in which the employee is employed necessary for promotion to Grade 5. GRADE 5 An employee at this level has been appointed by the employer to perform the following tasks: • Coordinate the work of employees within a department or packaging line; and • Maintaining the employer’s standards relating to safety, quality and production volume. Employees at this level are also expected to have successfully completed training in the following areas or otherwise be deemed competent by their employer by virtue of their skills and experience: • Supervision and instruction of other employees; • Maintaining production records; • Report Writing; and • Bottling Course (equivalent to TAFE 8 week course) Employees at this level may be required to undertake further training for the purpose of maintaining their skills and knowledge and keeping up to date with change. Employees may also be required to undertake further management training for promotion to salaried positions beyond the scope of this award. WAREHOUSE STREAM GRADE 2 An employee at this level has passed an accredited assessment for progression from Grade 1 to Grade 2 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 2 and has been appointed by the employer to work as a Grade 2. Employees at this level shall perform any or all of the following tasks and shall have completed training and assessment in all of the following learning modules: • Forklift operations (Certificate required); • Basic physical layout within locations; • Basic warehouse or supply procedures; • Basis warehouse or supply operations. 3758 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. In addition employees shall work under general supervision to the limits of their skills, competence and training and subject to receiving the appropriate training (and in addition to the above duties) may be required to perform the following tasks: • Bottle yard operation; • Scrap yard operation; • Order receipt; • Material issue; • Stock checks / control; • Truck driving (licensed); • Production line forklift duties; • Loading bay operations; and • Warehouse movements – as directed. GRADE 3 An employee at this level has passed an accredited assessment for progression from Grade 2 to Grade 3 or is deemed by the employer to have the necessary skills and competence to satisfactorily perform duties at this level and is required by the employer to perform the duties of a Grade 3 and has been appointed by the employer to work as a Grade 3. Employees at this level shall perform any or all of the following tasks and shall have successfully completed training and assessment in all of the learning modules relevant to Grade 2 and at least two of the following learning modules: • Bottle yard operation; • Scrap yard operation; • Order receipt; • Material issue; • Stock checks / control; • Truck driving (licensed); • Production line forklift duties; • Loading bay operations; • Warehouse movements – as directed; and • Competent in use of a VDU (or PC) and keyboard. Employees shall work under limited supervision to the limits of their skills, competence and training and in addition subject to receiving the appropriate training may be required to perform duties applicable to the operation of all other equipment. An employee at this level may be required to undertake training all other areas of the warehouse in which the employee is employed necessary for progression to Grade 4. GRADE 4 An employee at this level has been deemed by the employer to be competent at Grades 1 to 3 and has been appointed by the employer to work at a level above Grade 3. In addition to meeting the training requirements for Grades 1 to 3, employees at this level shall also have completed training in the operation of all equipment within the warehouse in which the employee is employed plus successful completion of training and assessment in the following: • Emergency Procedures (internal); and • Health, Safety and Welfare Course (external or internal – ongoing) Employees at this level shall be able to perform any task without supervision in the warehouse in which the employee is employed. Employees at this level may be required to undertake training to take on the responsibilities of leading a section or department within the warehouse in which the employee is employed necessary for promotion to Grade 5. GRADE 5 An employee at this level has been appointed by the employer to perform the following tasks: • Coordinate the work of employees within a section of the warehouse; • Maintaining the employer’s standards relating to safety, quality and production volume; and • Instructing other employees in modules essential to the operations of the warehouse in which the employees are employed. Employees at this level are also expected to have successfully completed training in the following areas or otherwise be deemed competent by their employer by virtue of their skills and experience: • Supervision and instruction of other employees; • Forklift operators examiners course; • Report Writing; and • Warehouse and supply office procedures. Employees at this level may be required to undertake further training for the purpose of maintaining their skills and knowledge and keeping up to date with change. Employees may also be required to undertake further management training for promotion to salaried positions beyond the scope of this award. 4.4 - SUPPORTED WAGE (1) This clause defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award. In the context of this clause, the following definitions will apply: 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3759 (a) ‘Supported Wage System’ means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability as documented in “[Supported Wages System: Guidelines and Assessment Process]”. (b) ‘Accredited Assessor’ means a person accredited by the management unit established by the Commonwealth under the Supported Wage System to perform assessments of an individual’s productive capacity within the Supported Wage System. (c) ‘Disability Support Pension’ means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, as amended from time to time, or any successor to that scheme. (d) ‘Assessment instrument’ means the form provided for under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System. (2) Eligibility Criteria Employees covered by this clause will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a Disability Support Pension. (The clause does not apply to any existing employee who has a claim against the employer that is subject to the provisions of workers’ compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their current employment). The clause also does not apply to employers in respect of their facility, programme, undertaking, services or the like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider and sheltered employer to people with disabilities who are in receipt of or are eligible for a disability support pension, except with respect to an organisation which has received recognition under s10 or s12A of the Act, or if a part has received recognition, that part. (3) Supported Wage Rates Employees to whom this clause applies shall be paid the applicable percentage of the minimum rate of pay prescribed by this award for the class of work which the person is performing according to the following schedule: Assessed Capacity (subclause 4) % of Prescribed Award Rate 10%* 10% 20% 20% 30% 30% 40% 40% 50% 50% 60% 60% 70% 70% 80% 80% 90% 90% (Provided that the minimum amount payable shall be not less than $60.00 per week). * Where a person’s assessed capacity is 10%, they shall receive a high degree of assistance and support. (4) Assessment of Capacity For the purpose of establishing the percentage of the award rate to be paid to an employee under this award, the productive capacity of the employee will be assessed in accordance with the Supported Wage System and documented in an assessment instrument by either: (a) The employer and the union in consultation with the employee or, if desired by any of these; or (b) The employer and an accredited Assessor from a panel agreed by the parties to the award and the employee. (5) Lodgement of Assessment Instrument (a) All assessment instruments under the conditions of this clause, including the appropriate percentage of the award wage to be paid to the employee, shall be lodged by the employer with the Registrar of the