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18 June 2010 1:18am
Take-home pay orders are not available where an employee receives less pay because a shorter minimum engagement period applies under a modern award, FWA has ruled.
A worker employed as a casual attendant at a regional Victorian harness racing club told FWA he had previously been paid about $116 for each "session" he worked, but that the amount had fallen to between $90 and $115 under the modern award.
The worker contended that before January 1 this year he was covered by the Entertainment and Broadcasting Industry (Recreational Grounds etc Victoria) Award 2000) and had been entitled under that instrument to a six-hour minimum engagement.
His employer said it believed he was award-free but that it had afforded him award conditions, including payment based on a six-hour minimum engagement.
Commissioner Michelle Bissett found that, whether the employee's wages were set by the award or the federal minimum wage, he was entitled to a higher hourly rate of pay under the modern Racing Clubs Events Award 2010.
However, while the employee under the old award had been entitled to a minimum six hour engagement and "was paid as such, regardless of actual hours worked", the modern award provided only for a four-hour minimum.
"Any reduction in the actual pay received by Mr Wright is as a consequence of this change in the minimum engagement period," she said.
Commissioner Bissett continued that it was lawful for the employer to engage the worker for a four-hour shift under the modern award, and that take-home pay orders were not intended to prevent it doing so.
The employee's take-home pay for working particular had not decreased -"rather the minimum payment period has changed and it is this that has affected Mr Wright’s take-home pay," she said.
As a result, she said, while "there is no question that, on the basis of his pay slips, the employee is taking home less pay now than he was prior to the operation of the [modern award]", the reduction was not attributable to the Part 10A award modernisation process.
Commissioner Bissett ruled the employee had not suffered a modernisation-related reduction in take-home pay and rejected his take-home pay application. |