Western Australian Numbered Acts Western Australian Numbered Acts Delete section 18
and insert:
18. Rate of pay and average weekly hours for paid
leave
(1) An employee must
be paid for paid leave at the rate the employee would have received as payment
under an industrial instrument or contract of employment (whichever provides
for the higher rate) at the time the employee takes the leave.
(2) If the number of
hours an employee is entitled to be paid for a period of paid leave cannot be
determined, the hours are to be worked out by averaging, as hours worked each
week, the total number of hours the employee worked during the shorter of the
following periods —
(a) the
365 days immediately before the leave is taken;
(b) the
period of employment immediately before the leave is taken.
(3) The following
periods are not to be counted as part of a period referred to in
subsection (2)(a) or (b) —
(a) a
period of unpaid leave;
(b) a
period during which the employee is stood down in accordance with an
industrial instrument, contract of employment or written law;
(c) a
period during which the employee is or was a compensated employee.
(4) Payments for
overtime, penalty rates or any kind of allowance are not required to be
included in a rate of pay under subsection (1).
(5) Despite
subsection (4), casual loading payable under an industrial instrument or
contract of employment may be included in the rate of pay for bereavement
leave under section 27 or 27A.
(6) Matters in
relation to payment for leave under this Part or Part 5 may be prescribed
by the regulations.
(7) This section is
subject to sections 18A and 18B.
18A. Rate of pay for paid leave for employee paid
wholly by commission or percentage reward or at piece rates
(1) An employee paid
wholly by commission or percentage reward or at piece rates must be paid for
paid leave at the highest of the following rates —
(a) the
rate payable under an industrial instrument or contract of employment
(whichever provides for the higher rate);
(b) the
rate calculated according to the employee’s average weekly earnings
during the 365 days immediately before the leave is taken, not counting
any period referred to in section 18(3)(a) to (c);
(c) the
minimum rate of pay applicable to the employee under section 10.
(2) Payments for
overtime, penalty rates or any kind of allowance are not required to be
included in a rate of pay under subsection (1).
(3) Despite
subsection (2), casual loading payable under an industrial instrument or
contract of employment may be included in the rate of pay for bereavement
leave under section 27 or 27A.
18B. Rate of pay for paid leave for employee
entitled to receive income compensation
(1) For the purposes
of this Part —
(a) an
employee is entitled to receive income compensation if the employee is
entitled to be paid income compensation under the Workers Compensation and
Injury Management Act 2023 Part 2 Division 3; and
(b) an
employee who is entitled to receive income compensation is a compensated
employee , whether or not the employee also performs work for the
employee’s employer while entitled to receive income compensation.
(2) A compensated
employee must be paid for paid leave at the higher of the following rates (the
compensated employee rate for the leave) —
(a) the
compensated employee’s rate of pay at the time the leave is taken;
(b) the
compensated employee’s rate of pay immediately before the employee
became entitled to receive income compensation.
(3) For the purposes
of subsection (2), the employee’s rate of pay is the rate that the
employee would have been entitled to receive as payment under an industrial
instrument or contract of employment (whichever provides for the higher rate),
had the employee not become entitled to receive income compensation.
(4) A compensated
employee’s average weekly hours are the average hours the employee
worked each week during the shorter of the following periods —
(a) the
365 days immediately before the employee became entitled to receive
income compensation;
(b) the
period of employment immediately before the employee became entitled to
receive income compensation.
(5) A period referred
to in section 18(3) is not to be counted as part of a period referred to
in subsection (4)(a) or (b).