ASPHALT AND BITUMEN INDUSTRY (STATE)
CONSOLIDATED
AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notice
of award review pursuant to section 19 of the Industrial Relations Act 1996.
(No. IRC 4620
of 1999)
Before The Honourable Justice Walton,
Vice-President
|
20 August 2001
|
Mr Deputy President Sams
|
|
Commissioner O'Neill
|
|
REVIEWED AWARD
1. ARRANGEMENT
Clause No.
|
Subject Matter
|
1.
|
Arrangement
|
2.
|
Contract of Employment
|
3.
|
Termination of Employment
|
4.
|
Allowances
|
5.
|
Hours of Work
|
6.
|
Overtime
|
7.
|
Recall to Work
|
8.
|
Public Holidays
|
9.
|
Payment of Wages
|
9A.
|
State Wage Case Adjustments
|
10.
|
Travelling to Country Work
|
11.
|
Country Work
|
12.
|
Tea Break
|
13.
|
Protective Clothing
|
14.
|
Occupational Health and Safety
|
15.
|
Mixed Functions
|
16.
|
Annual Leave
|
17.
|
Sick Leave
|
18.
|
Settlement of Disputes
|
19.
|
Reporting for duty
|
20.
|
Bereavement Leave
|
21.
|
Flexible Work Practices
|
22.
|
Consultation
|
23.
|
Enterprise Flexibility Processes
|
24.
|
Training
|
25.
|
Utilisation of Skills
|
26.
|
Introduction of Change
|
27.
|
Redundancy
|
28.
|
Personal/Carer’s Leave
|
29.
|
Anti Discrimination
|
30.
|
Long Service Leave
|
31.
|
Area, Incidence and Duration
|
PART B
MONETARY RATES
Table 1 - Rates of Pay
Table 2 - Other Rates and Allowances
2. CONTRACT OF
EMPLOYMENT
(a) Probation -
Employment for the first two weeks of service shall be from day to day at the
appropriate weekly rate; provided that any employee who has previously served a
probationary period of two weeks shall not be employed for a further
probationary period. An employee shall be paid for any holiday or holidays
which may occur during any period he or she is employed on probation.
(b) Weekly
Employment - Except as provided by subclauses (a) and (c) of this clause,
employment shall be by the week.
(c) Casual
Employment -
(i) A casual employee is a person who is engaged and paid as
such.
(ii) A
casual shall be paid a loading of 20 per cent in addition to the weekly rates
prescribed herein. Such loading shall form part of the casual’s ordinary rate
of pay.
(iii) The casual loading shall be in substitution for annual leave,
sick leave and payment for public holidays not worked.
(iv) A casual shall receive a minimum of four hours’ pay per day.
(d) Stand Down -
The employer may deduct payment for any time an employee cannot be usefully
employed because of any strike or any stoppage of work by any cause for which
the employer cannot reasonably be held responsible.
3. TERMINATION
OF EMPLOYMENT
(a) Notice of
Termination by Employer
(i) In
order to terminate the employment of an employee, the employer shall give to
the employee the following notice:
Period of
Continuous Service
|
Period of Notice
|
1 year or less
|
1 week
|
1 year and up to the completion of 3 years
|
2 weeks
|
3 years and up to the completion of 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
(ii) In
addition to the notice in paragraph (i) of this subclause, employees over 45
years of age at the time of the giving of the notice with not less than two
years’ continuous service, shall be entitled to an additional week’s notice.
(iii) Payment in lieu of the notice prescribed in paragraphs (i)
and/or (ii) of this subclause shall be made if the appropriate notice period is
not given. Provided that employment may be terminated by part of the period of
notice specified and part payment in lieu thereof.
(iv) In
calculating any payment in lieu of notice, the wages an employee would have
received in respect of the ordinary time he or she would have worked during the
period of notice had his or her employment not been terminated shall be used.
(v) 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 or employees engaged for
a specific period of time or for a specific task or tasks.
(b) Notice of
Termination by Employee - The notice of termination required to be given by an
employee shall be the same as that required of an employer, save and except
that there shall be no additional notice based on the age of the employee
concerned. If an employee fails to give notice, the employer shall have the
right to withhold moneys due to the employee, with a maximum amount equal to
the ordinary-time rate of pay for the period of notice.
(c) Time Off
During Notice Period - 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 at times
that are convenient to the employee after consultation with the employer.
(d) Statement of
Employment - The employer shall, upon receipt of a request from an employee
whose employment has been terminated, provide to the employee a written
statement specifying the period of his or her employment and the classification
of or the type of work performed by the employee.
(e) Summary
Dismissal - Notwithstanding the provisions of paragraph (i) of subclause (a) of
this clause, the employer shall have the right to dismiss any employee without
notice for conduct that justifies instant dismissal, including malingering,
inefficiency or neglect of duty and in such cases the wages shall be paid up to
the time of dismissal only.
(f) Unfair
Dismissals - Termination of employment by an employer shall not be harsh,
unjust or unreasonable.
For the purposes of this clause, termination of
employment shall include terminations with or without notice.
Without limiting the above, except where a distinction,
exclusion or preference is based on the inherent requirements of a particular
position, termination on the grounds of race, colour, sex, marital status,
family responsibilities, pregnancy, religion, political opinion, national
extraction and social origin shall constitute a harsh, unjust or unreasonable
termination of employment.
4. ALLOWANCES
(a) Industry
Allowance - Employees shall be paid an industry allowance as set out in Item 1
of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates. This
allowance shall be treated as part of the employee’s ordinary wage for all
purposes of this award. The allowance is intended to compensate employees for
all adverse conditions (excepting those in subclause (b) of this clause) and
for working with Tarmix.
(b) Inclement
Weather
(i) Employees
shall be paid an allowance as set out in Item 2 of the said Table 2. This
allowance shall be treated as part of the employee’s ordinary wage for all
purposes of this award.
(ii) This
allowance is intended to compensate employees for the additional disabilities
of being required to work when exposed to inclement weather and for working in
isolated and under-developed locations. For the purposes of this clause,
"inclement weather" means wet weather and/or abnormal climatic
conditions such as hail, cold, high winds, severe dust storms, extreme high
temperatures or any combination thereof.
(iii) Where
employees cannot be gainfully employed on their normal duties or on other
productive work because of wet weather, they will carry out alternative work
out of the rain, where available.
(iv) Alternative
arrangements may be mutually agreed with the employees concerned.
(c) In Charge of
Plant - An operator in charge of plant will be paid an allowance as set out in
Item 3 of Table 2, and such payment shall be regarded as part of an employee’s
ordinary wage for all purposes of this award. An employee shall be deemed to be
in charge of plant when employed on a unit of plant and is the operator
specifically entrusted with responsibility for such unit. This responsibility
shall include oiling, greasing, checking water levels, etc, carrying out
repairs within his or her level of skill and also assisting fitters when
required.
(d) First-aid
Attendant - An additional rate as set out in Item 4 of Table 2 shall be paid to
an employee who is a qualified first-aid person and is employed to carry out
the duties of a first-aid person.
(e) Leading Hand
Allowance- A Leading Hand Allowance as set out in Item 9 of Table 2 applies to
employees under this award.
5. HOURS OF WORK
(a) Except as
provided elsewhere in this award, the ordinary working hours shall be 38 per week
and shall be worked in accordance with the following provisions for a four-week
cycle:
(b) (i) The
ordinary working hours shall be worked as a 20-day, four-week cycle, Monday to
Sunday inclusive, with 19 working days
of eight hours each between the hours of 7.00
a.m. and 5.00 p.m., with 0.4 of one hour on each day worked accruing as an entitlement to take a
rostered day off in each cycle as a day
off paid for as though worked.
(ii) Provided that
where there is a mutual agreement between the employer and a majority of the
employees concerned, the span of hours referred to herein may be varied to
commence any time between 5.00 a.m. and 7.00 a.m. and finish any time between
5.00 p.m. and 6.00 p.m., subject to the limitation that there be no more than
nine hours of ordinary time worked in any one day and 76 ordinary hours each
fortnight.
(c) (i) A
schedule of rostered days off shall be determined and agreed between the
parties 15 months in advance.
(ii) Such
scheduled rostered days off may be deferred and accumulated up to a maximum of
four rostered days off, by agreement between the employer and any individual
employee concerned.
(iii) Where the
majority of employees in any particular section of work agree, and the employer
or employer’s representative agrees, an alternative day in the four-week cycle
may be substituted for the scheduled rostered day off and, where such agreement
is reached, all provisions of this award shall apply as if the substituted day
were the scheduled rostered day off.
Provided that a minimum of five days shall elapse
before such agreement is implemented, unless the parties agree otherwise.
(d) Each
day of paid leave taken, e.g., annual leave, and any public holidays occurring
during any cycle of four weeks, shall be regarded as a day worked for accrual
purposes (this does not include periods of long service leave).
(e) An employee
who has not worked, or is not regarded by reason of subclause (d) of this
clause as having worked, a complete four-week cycle, shall receive pro rata
accrued entitlements for each day worked (or each fraction of a day worked) or
regarded as having been worked in such cycle, payable for the rostered day off
or, in the case of termination of employment, on termination.
(f) The accrued
rostered day off prescribed in subclauses (b) and (c) of this clause shall be
taken as a paid day off, provided that the day may be worked where that is
required by the employer and such work is necessary to allow other employees to
be employed productively or to carry out maintenance outside ordinary working
hours or because of unforeseen delays to a particular project or a section of
it or for other reasons arising from unforeseen or emergency circumstances on a
project, in which case the employee shall take one paid day off before the end
of the succeeding work cycle, and the employee shall be paid for the day worked
at the rates prescribed for Saturday work in subclause (l) of this clause.
(g) Subject to
subclauses (h), (i) and (j) of this clause, the rosters for ordinary hours will
be one of the following:
(i) Monday to
Friday inclusive; or
(ii) Tuesday to
Saturday inclusive; or
(iii) Sunday to
Thursday inclusive, and employees will present for work in accordance with the
appropriate roster.
(h) Rosters in accordance
with subclause (g) of this clause will be posted at the employee’s usual
starting place by the close of normal business each Tuesday.
(i) When an
employer wishes to alter a roster set in accordance with subclause (h) of this
clause, to another such roster set in accordance with subclause (g) hereof,
such alteration can only be by consent of the employees directly affected by
such alteration.
(j) Employees
may, by agreement, exchange places on rosters with the employer’s consent. Such
consent shall not be unreasonably withheld.
(k) All overtime
worked subsequent to ordinary hours on a rostered day on a Saturday or Sunday
shall be at double the ordinary-time rate.
(l) Where a
person is rostered pursuant to this clause to work ordinary time on a Saturday,
the person shall be paid at the ordinary-time rate for their classification,
plus 87.5 per cent. Where a person is rostered pursuant to this clause to work
ordinary time on a Sunday, the person shall be paid at the ordinary-time rate
for that classification, plus 100 per cent.
(m) Afternoon and
Night Shifts
(i) Afternoon
and/or night shifts may be worked at the discretion of the employer to meet the
exigencies of the industry.
(ii) Employees working on shifts shall be paid at the rate of time
and a quarter.
(iii) When working shifts exceed four hours, crib time of 30 minutes
shall be allowed and shall be paid for on each shift, providing work continues
after such crib time.
(iv) An
employer may require a day worker to change to shift work, provided at least 24
hours’ notice is given of the change.
Overtime rates shall be paid
if the shifts do not continue for at least five consecutive afternoons or
nights.
(v) Notwithstanding
anything elsewhere contained in this subclause, where employees are required to
work on a shift not worked on a two-or three- shift system, which commences at
or after 8.00 p.m. and which finishes at or before 6.00 a.m., such shift shall
be of no longer duration than eight hours and shall be paid for at the rate of
time and a half.
In addition, all time worked
in excess of eight hours on such night shift shall be paid for at the rate of
double time. The calculation of such overtime shall be on the basis of each
completed unbroken period of overtime.
(vi) Shift
work hours shall be worked between Monday to Friday inclusive. Shift time
worked on a Saturday, Sunday or public holiday shall be paid for at overtime
rates; provided that an ordinary night shift commencing before and extending
beyond midnight Friday shall be regarded as a Friday shift.
(vii) Rest Period After Overtime - Refer to the provisions of
subclause (e) of clause 6, Overtime.
(viii) Employees engaged for work under the terms of this subclause
shall accrue 0.4 of one hour for each shift worked to allow one shift to be
taken off as a paid shift for every 20-shift cycle.
The 20th shift shall be paid for
at the shift rate(s) prescribed in paragraphs (ii), (iv) and (v) of this
subclause, provided that no employee shall be disadvantaged in the introduction
of this paragraph as to the receipt of appropriate shift rates in a cycle.
(ix) Each shift of
paid leave taken, e.g., annual leave, and any public holidays occurring during
any cycle of four weeks, shall be regarded as a shift worked for accrual purposes
(this does not include periods of long service leave).
(x) An employee
who has not worked, or is not regarded by reason of paragraph (ix) of this
subclause as having worked a complete four-week cycle, shall receive pro rata
accrued entitlements for each shift worked (or fraction of a shift worked) or
regarded as having been worked in such cycle, payable for the rostered day off
or, in the case of termination of employment, on termination.
(xi) The employer
and employees shall agree on arrangements for rostered paid days off during the
20-shift cycle or for accumulation of accrued days, provided that such
accumulation shall be limited to no more than five such accrued days before
they are taken as paid days off and, when taken, the days shall be regarded as
days worked for accrual purposes in the particular 20-shift cycle.
(xii) Once such
shifts have been rostered they shall be taken as paid shifts off, provided that
where an employer, for emergency reasons, requires an employee to work on
his/her rostered shift off, the provisions of subclause (f) of this clause
shall apply as if relating to shift work.
(n) General
Provisions
(i) Employees
shall not be required to work longer than six hours without a break for a meal.
(ii) Employees
shall report and finish at the depot at the usual starting and finishing time.
(iii) Employees
when camping or being otherwise accommodated by the company shall start and
finish on the job, provided that in such cases the company will provide the
employee with transport between the camp or accommodation and job free of
charge and will pay for all time so occupied in excess of 20 minutes each way
at ordinary rates.
6. OVERTIME
(a) Payment for Working
Overtime - All time worked in excess of eight hours per day (or the agreed
number as provided in paragraph (ii) of subclause (b) of clause 5, Hours of
Work) Monday to Friday inclusive, or outside the spread of hours specified in
subclause (b) of the said clause 5, shall be overtime and shall be paid at the
rate of time and one-half for the first two hours and double time thereafter.
In computing overtime, each day shall stand alone.
(b) Working During
Meal Breaks - Employees called to work during recognised meal hours shall be
paid at overtime rates for all time worked until they receive a meal break of
the usual period; provided that where it is necessary to alter the time of the
recognised meal hour, employees may be called upon to work for not more than
one hour beyond such recognised meal hour without additional rates of pay,
provided that they receive the equivalent meal time.
(c) Saturday Work
- All time worked on Saturdays, where there shall be a minimum payment of four
hours, shall be paid at the rate of time and a half for the first two hours and
double time thereafter; provided that all work performed after 12 noon shall be
paid for at double time. A crib time of 30 minutes shall be allowed without
deduction of pay between 12 noon and 1.00 p.m. if work is to continue after
such crib time.
(d) Sunday Work -
All time worked on Sundays shall be paid at the rate of double time. There
shall be a minimum payment of four hours at double time. A crib time of 30
minutes shall be allowed without deduction of pay between 12 noon and 1.00 p.m.
if work is to continue after such crib time.
(e) Rest Period
After Overtime - When overtime work is necessary it shall, wherever reasonably
practicable, be so arranged that employees have at least ten consecutive hours
off duty between the work of successive days.
An employee (other than a casual
employee) who works so much overtime between the termination of ordinary work
on one day and the commencement of his or her ordinary work on the next day
that he or she has not had at least ten consecutive hours off duty between
those times shall, subject to this subclause, be released after completion of
such overtime until he/she has had ten consecutive hours off duty, without loss
of pay, for ordinary working time occurring during such absence.
If, on the instructions of his/her
employer, such an employee resumes or continues work without having had such
ten consecutive hours off duty, he/she shall be paid at double rates until
released from duty for such period and shall then be entitled to be absent
until he/she has had ten consecutive hours off duty, without loss of pay, for
ordinary working time occurring during such absence.
The provisions of this subclause
shall apply in the case of shift workers as if eight hours were substituted for
ten hours where overtime is worked:
(i) for the purpose of changing shift rosters;
(ii) where a shift
worker does not report for duty and a day worker or a shift worker is required
to replace such shift worker; or
(iii) where a shift
is worked by arrangement between the employees themselves.
(f) Crib Time -
An employee shall be entitled to a 30-minute paid crib break after two hours of
work past the normal finishing time and after each additional four hours of
continuous overtime, provided that such work is to continue after the crib
break and further provided that, in respect of this condition, time worked
shall mean time worked on the job and excludes time spent travelling from the
job back to the depot.
(g) Meal
Allowance and Subsequent Cribs
(i) Any employee
required to work over more than one and one- half hours after the usual ceasing
time, without having been notified the previous day or earlier, shall be provided
with a meal or shall be paid as per Item 5 of Table 2 - Other Rates and
Allowances, of Part B, Monetary Rates, for such meal, and after each four hours
on continuous overtime shall be supplied either with a meal or shall be paid as
per Item 5 of the said Table 2 in addition to his/her overtime payment.
(ii) If an
employee, pursuant to notice, has provided a meal or meals and is not required
to work overtime or is required to work less than the amount advised, he/she
shall be paid as prescribed by paragraph (i) of this clause, for the meals
which he/she has provided but which are surplus.
7. RECALL TO
WORK
When an employee is recalled to work Monday to Friday after
leaving the job, he/she shall be paid for a minimum of three hours at overtime
rates, provided that overtime worked as provided herein shall not be regarded
as overtime for the purposes of subclause (e) of clause 6, Overtime, where the
actual time worked is less than three hours on such recall or on each of such
recalls.
8. PUBLIC HOLIDAYS
(a) Prescribed
Holidays - The following days or the days on which they are observed shall be
holidays and payment of the amount which ordinarily would have been paid had
the day been a working day shall be made for these days to employees other than
casuals:
New Year’s Day,
Australia Day,
Good Friday,
Easter Monday,
Anzac Day,
Queen’s Birthday,
Labour Day,
Christmas Day,
Boxing Day,
and any other gazetted holidays as may be proclaimed
throughout the State of New South Wales.
(b) Payment for
Holidays
(i) An employee
who, without reasonable cause, is absent on the working day before or the
working day after such public holiday shall not be entitled to payment for such
holiday.
(ii) Employees
required to work on a public holiday shall be paid at the rate of double time
and a half, with a minimum payment of four hours at such rate.
(c) Picnic Day
(i) Each year
there shall be an AWU picnic day holiday for employees in New South Wales on
the first Monday in December.
(ii) Employees (other
than casuals) who are not required to work on the said picnic day shall be paid
for the holiday at the ordinary rates of pay prescribed in clauses 9, Payment
of Wages, and 10, Travelling to Country Work.
(iii) Employees
required to work on the picnic day shall be paid at the rate of double time and
a half for a minimum of four hours.
(iv) Employers may
require from their employees the butt of the ticket as evidence of their
attendance at the picnic.
9. PAYMENT OF
WAGES
(a) Wages shall be
paid weekly in the employer’s time. Any employee required to wait for payment
of wages after the usual ceasing time shall be paid at ordinary rates for all
time until he/she receives such wages.
(b) The method of
payment of wages to employees working in country depots or jobs outside the
County of Cumberland shall be in accordance with the written arrangements with
individual employees.
9A. STATE WAGE CASE ADJUSTMENTS
The rates of pay in this award include the adjustments
payable under the State Wage Case 2001. These adjustments may be offset
against:
(a) any equivalent
overaward payments, and/or
(b) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustments.
10. TRAVELLING TO
COUNTRY WORK
(a) Fares - All
employees sent by the employer from the city to the country or from one country
centre to another country centre or from a country centre to the city shall
have their fares provided by the employer and, on remaining until the
completion of the job or until the special work on which they were sent to
perform is completed and no other work is provided by the employer, they shall
be entitled to fares back to the place of employment.
(b) Travelling
Time - Where an employee is sent from one centre to another and is required to
remain away from home while necessarily travelling between such centres, the
rate of pay for travelling time shall be at ordinary rates. The maximum time to
be paid for when travelling shall be eight hours per day in addition to wages
otherwise earned for work performed. Provided that this subclause shall not
alter any current practice.
(c) Travelling
Expenses - Employees while travelling shall be paid an amount as set out in
Item 6 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, with
a maximum of three meals per day and, if required to spend a night en route,
shall be paid an amount as set out in Item 6 of the said Table 2, provided that
where an employee is provided with meals and accommodation, he/she shall not be
entitled to the said allowance.
(d) Definition -
For the purpose of this clause, a day shall mean midnight to midnight.
11. COUNTRY WORK
(a) Entitlement -
Where an employee is required to work at such a distance from home that it is
impossible to return each night, the following shall apply:
(i) The employer
shall provide reasonable board and lodging or shall pay an allowance per week
of seven days, as set out in Item 7 of Table 2 - Other Rates and Allowances, of
Part B, Monetary Rates, but such allowance shall not be wages.
(ii) In the case
of broken parts of a week the allowance shall be all living expenses actually
and reasonably incurred but not exceeding the amount per week as set out in
Item 7 of the said Table 2. Provided that the foregoing allowance shall not be
paid by the employer where reasonable board and lodging is provided.
(iii) The employer
shall pay each employee an incidentals allowance per night as set out in Item 8
of Table 2.
(b) Weekend Return
Home - When a country work job continues for more than two months, an employee
on such job shall be entitled to be paid fares reasonably incurred in returning
home for a weekend, or shall be provided with normal transport at the
employer’s cost.
Such entitlement to fares shall accrue for only one
weekend every four weeks after the completion of two months’ continuous service
on such distant job. Provided that the fares shall not be payable by the
employer unless the employee works his or her full ordinary hours on the
ordinary working day before and the ordinary working day after such weekend.
Provided further that such fares shall not be payable unless the distant job
continues for at least two weeks after such weekend.
(c) Accrual of
Rostered Days Off - If an employer and employee engaged on country work agree,
the paid rostered day off prescribed in paragraph (iii) of subclause (c) of
clause 5, Hours of Work, may be taken and paid for at a time mutually agreed.
The agreement shall only provide for a paid day or days off work up to a
maximum accrual of five days.
12. TEA BREAK
(a) A tea break
during the morning period of not more than 15 minutes’ duration shall be
allowed to each individual employee, at a time to be arranged by the employer, without
deduction from the employee’s wages.
(b) The taking
of the morning tea break shall not involve a complete stoppage of work.
(c) The employer
shall provide the necessary facilities and the labour to brew tea for
employees.
13. PROTECTIVE
CLOTHING
(a) Employees
handling tar, bitumen or bituminous emulsions shall be supplied, on request,
with gloves.
(b) Employees
engaged in cleaning out sullage pits shall be supplied with suitable protective
boots when required to enter such pits.
14. OCCUPATIONAL
HEALTH AND SAFETY
The parties to this award are committed to achieving
healthier and safer jobs through workplace changes aimed at improved efficiency
and productivity. As such, the parties are committed to the relevant
occupational health and safety legislation and the relevant codes of practice.
15. MIXED
FUNCTIONS
An employee called upon to perform work for which a higher
rate is fixed shall be entitled to receive such higher rate whilst so employed.
16. ANNUAL LEAVE
(a) In addition to
the public holidays specified in this award, an employee shall be entitled to
leave of absence on full pay for a period equal to four working weeks for each
continuous 12 months’ service (less the period of annual leave) with the
employer.
Employees on shift work shall, on completion of each 12
months’ continuous service, be entitled to leave of absence on full pay for a
period equal to five working weeks, exclusive of public holidays.
Any day worker called upon to work shift work for short
periods during the year shall be entitled to annual leave for the total period
so worked, on the same basis as a shift worker, and shall be granted additional
leave of absence on full pay on a pro rata basis for time worked on shift work.
(b) An employee before
going on leave shall be paid the amount of wages he/she would have received in
respect of ordinary time he/she would have worked had he/she not been on leave
during the relevant period.
Each employee shall, where applicable, have the amount
of wages for annual leave calculated as follows:
(i) the
applicable rate prescribed by clauses 9, Payment of Wages, and 10, Travelling
to Country Work; and
(ii) any
additional rate applicable for work in ordinary time, including Saturday and
Sunday shifts as prescribed by paragraph (vi) of subclause (m) of clause 5,
Hours of Work;
(iii) any
additional rates to which the employee is otherwise entitled in accordance with
his/her contract of employment for ordinary hours of work; provided that this
provision shall not operate so as to include any payment which is of a similar
nature to or is paid for the same reason as or is paid in lieu of those
payments which might have become payable to an employee in reimbursement for
expenses incurred;
(iv) in the case of
an employee engaged on a mixed function, the rate payable pursuant to the said
clauses 9 and 10, calculated on a daily basis, which the employee would have
received for ordinary time during the relevant period whether on a shift roster
or otherwise;
(v) this subclause
shall not operate so as to entitle an employee, in respect of a public holiday
occurring during his/her period of annual leave, to any additional payment
calculated as though the employee had worked on that day.
(c) Continuous
employment, as specified in subclause (a) of this clause, means constant weekly
employment until the termination of an engagement. Absence of up to one month
owing to illness covered by a medical certificate after two days’ absence, or
an absence with a medical certificate extending beyond one month in the case of
an employee with an accumulation of sick leave to the extent of such
accumulation; three months owing to injury received in the course of his/her
employment; one month owing to other causes for which sick leave has been
granted by the employer concerned, shall not be deemed to break the continuity
of employment.
(d) Pro Rata
Leave
(i) Should an
employee not complete 12 months’ service he or she shall, on termination of
employment (provided that he/she has been employed continuously for one month
or more), be entitled to pay on a pro rata basis for each completed month of
service at the appropriate rate of wage prescribed by subclause (b) of this
clause in respect of leave which has not been granted under this clause.
(ii) In the
computation of pro rata leave, the period of any previous annual leave which
may be involved shall be computed as a period of service.
(e) Leave to be
Taken - Annual leave shall be taken at a time mutually agreed upon by the
employer and the employee and, in the absence of agreement, at a time fixed by
the employer, within a period not exceeding six months from the date when the
right to recreation leave accrued due and after not less than six weeks’ notice
to the employee.
Leave shall be taken in a continuous period or, in the
event of an agreement between an employer and the employee, in two separate
periods and not otherwise.
In cases where an employer and an employee have agreed on
two separate periods of leave, one of the periods shall be not less than two
consecutive weeks, exclusive of any public holiday or holidays which may occur
during such period of leave. Any such two periods of leave shall be granted to
an employee within six months from the date when the right to annual leave
occurred.
(f) Close-down -
Notwithstanding the provisions of subclause (e) of this clause, an employer
may, by one month’s notice in writing exhibited on a notice board in the
establishment, project or business, declare that the establishment, project or
business shall observe a complete Christmas/New Year "close-down"
period at the next following Christmas/New Year. In a case where an employee
has not completed 12 months’ service at the Christmas/New Year close-down such
employee shall, provided that he/she has been employed continuously for one
month or more, be entitled to leave on a pro rata basis for each month of
continuous service and such an employee may be stood off for the duration of
the close-down period, provided that any such employee shall be paid for all
public holidays occurring during the close-down period.
(g) An employer
may allow annual leave to an employee before the right thereto has accrued due
but, where leave is taken in such a case, a further period of annual leave
shall not commence to accrue until after the expiration of the 12 months in
respect of which annual leave had been taken before it accrued.
Where leave has been granted to an employee pursuant to
this subclause before the right thereto has accrued due and the employee
subsequently leaves or is discharged from the service of the employer before
completing the 12 months’ continuous service in respect of which the leave was
granted, the employer may, for each one complete month of the qualifying period
of 12 months not served by the employee, deduct from whatever remuneration is
payable upon the termination of the employment one-twelfth of the amount of
wage paid on account of the annual leave, which amount shall not include any
sums paid for any of the public holidays prescribed by this award.
(h) For the
purposes of subclause (f) of this clause, close-down shall be deemed to mean a
period of not less than three consecutive weeks, exclusive of public holidays,
commencing two clear working days before Christmas Day. Provided that the
close-down period may not extend for longer than two consecutive weeks,
exclusive of public holidays, where the employees agree with their employer
that annual leave may be taken in two periods.
An employer, in conjunction with an accredited
representative of the union, may seek such an agreement with his/her employees
on a particular project, establishment or business by means of a secret ballot.
In the event of a majority in favour of two periods of leave, that employer may
close down that project for a period of two consecutive weeks at Christmas/New
Year, exclusive of public holidays, and grant the remaining two weeks’ leave at
some other time of the year within six months from the date when the right to
annual leave first occurred.
(i) Payment in
Lieu - Payment in lieu of annual leave shall not be made by an employer nor
accepted by an employee except in accordance with all the requirements of this
clause. An employee shall not offer his/her services to any other employer
during the period of paid annual leave and an employer shall not engage an
employee who is on paid annual leave.
(j) Leave Record
- Every employer shall keep, or cause to be kept, an annual leave record
showing the date of commencement of employment, the date on which the last
leave became due and the date upon which the last leave was taken.
(k) Before
proceeding on annual leave an employee shall be paid any monies then due in
respect of the annual leave being taken, or which may accrue due to the
employee during the period of leave.
(l) Leave Loading
- During a period of annual leave an employee shall receive a 17.5 per cent
loading calculated on the rate of wage prescribed in subclause (b) of this
clause.
The loading shall be as follows:
(i) Day workers -
an employee who would have worked on day work only had he/she not been on leave
- a loading of 17.5 per cent.
(ii) Shift workers
- an employee who would have worked on shift work had he/she not been on leave
- a loading of 17.5 per cent.
Provided that where the employee would have received
shift loadings prescribed by subclause (m) of clause 5, Hours of Work, had
he/she not been on leave during the relevant period, and such loadings would
have entitled the employee to a greater amount than the loading of 17.5 per
cent, the shift loadings shall be added to the rate of wage prescribed by
paragraph (i) of subclause (b) of this clause in lieu of the 17.5 per cent
loading.
Provided further that if the shift loadings would have
entitled him/her to a lesser amount than the loading of 17.5 per cent, such
loading of 17.5 per cent shall be added to the rate of wage prescribed by
paragraph (ii) of subclause (b) of this clause in lieu of the shift loading.
For the purposes of this subclause, the ordinary time
an employee would have worked had he/she not been on leave during the relevant
period shall be determined by the roster which covers such period at a time
immediately prior to commencement of annual leave or the termination of
employment, as the case may be.
The loading prescribed by this subclause shall apply to
proportionate leave on termination of employment where the employment is
terminated by the employer, but it shall not apply where the reason for
termination is misconduct or wilful disobedience.
(m) The
provisions of this clause shall not apply to casual employees.
17. SICK LEAVE
An employee who, after not less than three months’
continuous service in his/her current employment, is unable to attend for duty
during ordinary working hours by reason of personal illness or personal
incapacity (excluding incapacity resulting from injury within the Workers’ Compensation Act 1987) not due
to his/her own serious and wilful misconduct, shall be entitled to be paid at
the ordinary-time rate of pay for the time of such non-attendance, subject to
the following:
(a) Payment in
connection with sick leave is to be made on the next regular pay day after the
employee reports sick and such payment shall continue on regular pay days until
the employee exhausts his/her sick leave or resumes duty.
(b) The employee
shall not be entitled to paid leave of absence for any period in respect of
which he/she is entitled to workers’ compensation. Where a claim for workers’
compensation is made by an employee, payment of such leave under this clause
shall not be payable.
(c) The employee
shall, within two hours of the commencement of such absence, where practical,
inform his/her employer or representative thereof of his/her inability to
attend for duty and, as far as possible, state the nature of the illness or
incapacity and the estimated duration of same.
(d) The employee
shall prove to the satisfaction of the employer (or, in the event of a dispute,
the Industrial Relations Commission of New South Wales), that he/she is or was
unable on account of such illness or incapacity to attend for duty on the day
or days for which payment under this clause is claimed.
(e) Subject
to the provisions of subclause (g) of this clause, the employee shall not be
entitled in any year of continuous employment to sick pay for more than ten
ordinary working days. Any period of paid sick leave allowed by the employer to
an employee in any such year shall be deducted from the period of sick leave,
which may be allowed or carried forward under this award, or in respect of such
year.
(f) Where an
employee is ill or incapacitated, within the meaning of this clause, on his/her
rostered day or shift off he/she shall not be entitled to sick pay on that day
nor shall his/her sick leave entitlement be reduced as a result of such illness
or incapacity.
(g) The right
under this clause shall accumulate from year to year to a maximum of 60 days
from the next sick leave entitlement date, so long as the employment continues
with the employer, whether under this or any other award or agreement, so that
any part of ten days which has not been allowed in any year may be claimed by
the employee and shall be allowed by the employer, subject to the conditions
prescribed by this clause, in a subsequent year of such continued employment.
(h) For the
purpose of this clause, "continuous service" shall be deemed not to
have been broken by:
(i) any absence
from work on leave granted by the employer; or
(ii) any absence
from work by reason of personal illness, injury or other reasonable cause
(proof whereof shall, in each case, be upon the employee);
provided that any time so lost shall not be taken into account
in computing the qualifying period of three months.
(i) Service with
an employer before the operative date of this award shall be counted as service
for the purpose of qualifying thereunder.
(j) The
provisions of this clause shall not apply to casuals.
18. DISPUTE
RESOLUTION PROCEDURE
(i) Industrial
Disputes
(a) Any disputes
arising out of employment shall be referred to the immediate supervisor by the
employee concerned.
(b) Failing
settlement at this level, the matter shall be referred to the accredited union
representative who will take up the matter with the nominated employer
representative within 48 hours.
(c) If resolution
is not achieved, the dispute will be referred to the respective union
organisers, who will meet the employer within 48 hours.
(d) Failing
settlement, the organiser will refer the dispute to the union Secretary and the
employer may refer the dispute to its employer association or representative.
(e) During
discussions, the work shall continue in the usual manner and, if the matter
cannot be settled by conference, the circumstances of the dispute shall be
notified to the Industrial Registrar with a view to a compulsory conference
being convened for the purpose of settling such dispute.
(f) Whilst these
procedures are continuing, the status quo shall remain and no stoppage of work
or any form of limitation of work shall be applied.
(ii) Safety
Disputes
(a) It is
recognised that problems related to safety and other hazardous situations may arise
from time to time, which require immediate attention and decision. An unsafe
and hazardous situation is a situation on a work site, which is considered by
employees to endanger their safety.
(b) Any safety or
health issue shall be reported to the employee's immediate supervisor for
immediate attention.
(c) Should the
problem be considered a safety or health issue, the company may refer the
dispute to the chairman of the plant's occupational health and safety committee
and the appointed company representative.
Work shall cease in the disputed area and the employees
are to be relocated to another safe working area while the inspections are
carried out and a final determination made.
(d) The committee,
in conjunction with management, shall inspect the area of the alleged unsafe
location or practice and shall determine whether the work in question will
proceed.
(e) Should the
parties not be able to reach agreement about the alleged unsafe working
environment, an inspector from the appropriate department shall be advised to
inspect the area as a matter of urgency. The determination of the inspector
shall be binding on all parties.
(f) Should the
work in dispute cease, the employer shall have the right to relocate the
employees to another workstation or to reallocate duties of the employees to
maintain production requirements.
19. REPORTING FOR
DUTY
Employees who are directed to report for work on a Saturday
or a Sunday and are not required shall be paid for three hours at overtime
rates.
20. BEREAVEMENT
LEAVE
(i) An employee
on weekly hiring shall be entitled to a maximum of two days’ leave without
deduction of pay on each occasion of the death within Australia of a person
prescribed in subclause (iii) of this clause. There shall be an additional entitlement
to a maximum of two days’ leave without pay on the same basis.
(ii) The employee
must notify the employer as soon as practicable of the intention to take
bereavement leave and will provide, to the satisfaction of the employer, proof
of death.
(iii) Bereavement
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of personal/carer’s leave as set out in
subparagraph (ii) of paragraph 28.1.3 of subclause 28.1 of clause 28,
Personal/Carer’s Leave, provided that, for the purpose of bereavement leave,
the employee need not have been responsible for the care of the person
concerned.
(iv) An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which the employee has been granted other leave.
(v) Bereavement
leave may be taken in conjunction with other leave available under subclauses
28.2, 28.3, 28.4, 28.5 and 28.6 of the said clause 28. In determining such a
request, the employer will give consideration to the circumstances of the
employee and the reasonable operational requirements of the business.
21. FLEXIBLE WORK
PRACTICES
(a) The parties
agree that an improvement in efficiency and productivity will be achieved by
improved training, interchange ability, and the flexibility to adapt to the
requirements of specific job circumstances.
(b) There shall be
complete interchange ability and flexibility of labour between various
classifications and between different unions, provided that the employees possess
the necessary certificates and skills to perform the work. There shall also be
flexibility in the use of non-award personnel from time to time. Employees will
normally be employed to do a particular job within a particular award or
agreement; however, the interchange ability and flexibility may be required in
the event of machinery breakdown, production problems, and continuity of
operations, absences and so forth.
(c) This clause
is dependent upon other unions agreeing to the same interchange- ability/flexibility.
22. CONSULTATION
(a) The parties to
this award are committed to co-operating positively to increase the efficiency,
productivity and competitiveness of the asphalt and bitumen industry and to
enhance the career opportunities and job security of employees in the industry.
(b) Consultative
mechanisms and procedures shall be established at each enterprise or workplace
by the employer, employees and the union. Such mechanism and procedures will be
dependent upon the size, structure and needs of both the employer and the
employees concerned.
(c) The
consultative mechanisms in subclause (b) of this clause shall examine matters
affecting the productivity, efficiency and competitiveness of the business,
which shall include flexible working arrangements, improvement in the quality
of working life, enhancement of skills, training and job satisfaction and
positive assistance in the re-structuring process.
(d) In the event
of a disagreement that cannot be resolved through the consultative mechanism, the
issue shall be resolved through the settlement of disputes procedure contained
in clause 18, Settlement of Disputes.
23. ENTERPRISE
FLEXIBILITY PROCESSES
Without limiting the rights of either employer or the union to
arbitration, any other measure designed to increase flexibility on a site or
within an enterprise sought by any party shall be implemented, subject to the
following requirements:
(i) the changes
sought shall not affect provisions reflecting national standards;
(ii) the majority
of employees affected by the change at the site or enterprise must genuinely
agree to the change;
(iii) no employee
shall lose income as a result of the change;
(iv) the union must
be party to the agreement;
(v) any agreement
shall be subject, where appropriate, to approval by the Industrial Relations
Commission of New South Wales and, if approved, shall operate as a schedule to
this award and take precedence over any provisions of this award to the extent
of any inconsistency.
24. TRAINING
(a) The parties to
this award recognise that in order to increase the efficiency, productivity and
competitiveness of the industry; a greater commitment to training and skill
development is required. Accordingly, the parties commit themselves to:
(i) developing a
more highly skilled and flexible workforce;
(ii) providing
employees with career opportunities through appropriate training to acquire
additional skills; and
(iii) removing
barriers to the utilisation of skills acquired.
(b) Following
proper consultation in accordance with clause 22, Consultation, an employer
shall develop a training program consistent with:
(i) the current
and future skill needs of the enterprise;
(ii) the size,
structure and nature of the operations of the enterprise;
(iii) the need to
develop vocational skills relevant to the site and the asphalt industry through
courses conducted by accredited educational institutions and providers and
through on-site courses.
25. UTILISATION OF
SKILLS
(a) Employees
shall be employed to carry out such duties as may be directed by an employer
from time to time, subject to the limits of their skill, competence and
training.
(b) Any employee
may, at any time, carry out such duties and use such tools and equipment as may
be directed by an employer, provided that the employee has been properly
trained in the use of such tools and equipment.
(c) Any direction
given by an employer in accordance with subclauses (a) and (b) of this clause
shall be consistent with the employer’s obligations under the relevant
occupational health and safety regulations.
(d) Disputes
arising in relation to the operation of this clause shall be dealt with in
accordance with clause 18, Settlement of Disputes, following prior consideration
of the issue in accordance with the consultative mechanism in clause 22,
Consultation.
26. INTRODUCTION
OF CHANGE
(a) Employer’s
Duty to Notify
(i) Where an
employer has made a definite decision to introduce major 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 the union.
(ii) "Significant
effects" include 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 job opportunities, promotion
opportunities 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.
(iii) Provided that
where this award makes provision for alteration of any of the matters referred
to herein, an alteration shall be deemed not to have significant effect.
(iv) Employer’s
Duty to Discuss Change
(v) (i) The
employer shall discuss with the employees affected and the union, inter alia,
the introduction of the changes referred to in subclause (a) of this clause,
the effects the changes are likely to have on employees, measures to avert or
mitigate the adverse effects of such changes on employees and shall give prompt
consideration to matters raised by the employees and/or the union in relation
to the changes.
(vi) The
discussions shall commence as early as practicable after a definite decision
has been made by the employer to make the changes referred to in subclause (a)
of this clause.
(vii) For the
purposes of such discussions, the employer shall provide in writing to the
employees concerned and the union 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 an employer shall not be required to disclose confidential information the
disclosure of which would be inimical to the employer’s interests.
27. REDUNDANCY
(A) Application
(i) This clause
shall apply in respect of full-time and part- time persons employed in the
classifications specified by Table 1 - Rates of Pay, of Part B, Monetary Rates.
(ii) In respect to
employers who employ more than 15 employees immediately prior to the
termination of employment of employees, in the terms of paragraph (i) of
subclause (D) of this clause.
(iii) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply to
employees with less than one year’s continuous service and the general
obligation on employers shall be not more than to give such employees an
indication of the impending redundancy at the first reasonable opportunity and
to take such steps as may be reasonable to facilitate the obtaining by the
employees of suitable alternative employment.
(iv) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply where
employment is terminated as a consequence of 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 specified task or tasks or where employment is terminated due
to the ordinary and customary turnover of labour.
(B) Introduction
of Change
(i) Employer’s
Duty to Notify
(a) Where an
employer has made a definite decision to introduce major changes in production,
program, organisation, structure or technology that are likely to have
significant effect on employees, the employer shall notify the employees who
may be affected by the proposed changes and the union to which they belong.
(b) "Significant
effects" include 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 job opportunities, promotion
opportunities 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.
Provided that where this award makes provision for
alteration of any of the matters referred to herein, an alteration shall be
deemed not to have significant effect.
(ii) Employer’s
Duty to Discuss Change
(a) The employer
shall discuss with the employees affected and the union to which they belong, inter
alia, the introduction of the changes referred to in paragraph (i) of this
subclause, the effects the changes are likely to have on employees and measures
to avert or mitigate the adverse effects of such changes on employees, and
shall give prompt consideration to matters raised by the employees and/or the
union in relation to the changes.
(b) The
discussions shall commence as early as practicable after a definite decision
has been made by the employer to make the changes referred to in the said paragraph
(i).
(c) For the
purposes of such discussions, the employer shall provide to the employees
concerned, and the union to which they belong, all relevant information about
the changes, including the nature of the changes proposed, the expected effects
of the changes on the 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 adversely affect the
employer.
(C) Redundancy
(i) Discussions
Before Terminations
(a) Where an
employer has made a definite decision that the employer no longer wishes the
job the employee has been doing to be done by anyone pursuant to subclause (B),
Introduction of Change, and that decision may lead to the termination of
employment, the employer shall hold discussions with the employees directly
affected and with the union to which they belong.
(b) The discussions
shall take place as soon as is practicable after the employer has made a
definite decision which will invoke the provisions of subparagraph (a) of this
paragraph and shall cover, inter alia, any reason for the proposed
terminations, measures to avoid or minimise the terminations and measures to
mitigate any adverse effects of any termination on the employees concerned.
(c) For the
purpose of the discussions the employer shall, as soon as is practicable,
provide to the employees concerned, and the union to which they belong, all
relevant information about the proposed terminations, including the reasons for
the proposed terminations, the number and categories of employees likely to be
affected and the number of employees normally employed and the period over
which the terminations are likely to be carried out. Provided that any employer
shall not be required to disclose confidential information the disclosure of
which would adversely affect the employer.
(D) Termination
of Employment
(i) Notice for
Changes in Production, Program, Organisation or Structure - This paragraph sets
out the notice provisions to be applied to terminations by the employer for
reasons arising from production, program, organisation or structure, in
accordance with subparagraph (a) of paragraph (i) of subclause (B) of this
clause.
(a) In order to
terminate the employment of an employee, the employer shall give to the
employee the following notice:
Period of
Continuous Service
|
Period of Notice
|
Less than 1 year
|
1 week
|
1 year and less than 3 years
|
2 weeks
|
3 years and less than 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
(b) In addition to
the notice above, employees over 45 years of age at the time of the giving of
the notice, with not less than two years’ continuous service, shall be entitled
to an additional week’s notice.
(c) Payment in
lieu of notice above shall be made if the appropriate notice period is not
given. Provided that employment may be terminated by part of the period of
notice specified and part payment in lieu thereof.
(ii) Notice for
Technological Change - This paragraph sets out the notice provision to be
applied to terminations by the employer for reasons arising from technology in
accordance with subparagraph (a) of paragraph (i) of subclause (B) of this
clause.
(a) In order to
terminate the employment of an employee, the employer shall give to the
employee three months’ notice of termination.
(b) Payment in lieu
of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be terminated by part of the period of
notice specified and part payment in lieu thereof.
(c) The period of
notice required by this subclause to be given shall be deemed to be service
with the employer for the purposes of the Long
Service Leave Act 1955, the Annual
Holidays Act 1944, or any Act amending or replacing either of these Acts.
(iii) Time Off
During the Notice Period
(a) During the
period of notice of termination given by the employer, an employee shall be
allowed up to one day s time off without loss of pay during each week of
notice, to a maximum of five weeks, for the purpose of seeking other
employment.
(b) If the
employee has been allowed paid leave for more than one day during the notice
period for the purpose of seeking other employment the employee shall, at the
request of the employer, be required to produce proof of attendance at an
interview or the employee shall not receive payment for the time absent.
(iv) Employee
Leaving During the Notice Period - If the employment of an employee is
terminated (other than for misconduct) before the notice period expires, the
employee shall be entitled to the same benefits and payments under this clause
had the employee remained with the employer until the expiry of such notice.
Provided that in such circumstances the employee shall not be entitled to
payment in lieu of notice.
(v) Statement of
Employment - The employer shall, upon receipt of a request from an employee
whose employment has been terminated, provide to the employee a written
statement specifying the period of the employee s employment and the
classification of or the type of work performed by the employee.
(vi) Notice to
Centrelink - Where a decision has been made to terminate employees, the
employer shall notify the Centrelink thereof as soon as possible, giving relevant
information, including the number and categories of employees likely to be
affected and the period over which the terminations are intended to be carried
out.
(vii) Centrelink
Employment Separation Certificate - The employer shall, upon receipt of a request
from an employee whose employment has been terminated, provide to the employee
an Employment Separation Certificate in the form required by the Centrelink.
(viii) Transfer to
Lower-paid Duties - Where an employee is transferred to lower-paid duties for
reasons set out in subparagraph (a) of paragraph (i) of subclause (B) of this
clause, 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 and the employer may, at the employer s option, make payment in
lieu thereof of an amount equal to the difference between the former
ordinary-time rate of pay and the new ordinary-time rate for the number of
weeks of notice still owing.
(E) Severance
Pay
(i) Where the
employment of an employee is to be terminated pursuant to subclause (D) of this
clause, subject to further order of the Industrial Relations Commission of New
South Wales, the employer shall pay the following severance pay in respect of a
continuous period of service:
(a) If an employee
is under 45 years of age, the employer shall pay in accordance with the
following scale:
Years of Service
|
Under 45 Years of Age Entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
4 weeks
|
2 years and less than 3 years
|
7 weeks
|
3 years and less than 4 years
|
10 weeks
|
4 years and less than 5 years
|
12 weeks
|
5 years and less than 6 years
|
14 weeks
|
6 years and over
|
16 weeks
|
(b) Where an employee
is 45 years of age or over, the entitlement shall be in accordance with the
following scale:
Years of Service
|
45 Years of Age and Over Entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
5 weeks
|
2 years and less than 3 years
|
8.75 weeks
|
3 years and less than 4 years
|
12.5 weeks
|
4 years and less than 5 years
|
15 weeks
|
5 years and less than 6 years
|
17.5 weeks
|
6 years and over
|
20 weeks
|
(c) "Week s
pay" means the all-purpose rate of pay for the employee concerned at the
date of termination and shall include, in addition to the ordinary rate of pay,
overaward payments, shift penalties and allowances paid in accordance with this
award.
(ii) Incapacity to
Pay - Subject to an application by the employer and further order of the
Industrial Relations Commission, an employer may pay a lesser amount (or no
amount) of severance pay than that contained in paragraph (i) of this
subclause.
The Commission shall have regard to such financial and
other resources of the employer concerned as the Commission thinks relevant,
and the probable effect paying the amount of severance pay in the said
paragraph (i) will have on the employer.
(iii) Alternative
Employment - Subject to an application by the employer and further order of the
Commission, an employer may pay a lesser amount (or no amount) of severance pay
than that contained in the said paragraph (i) if the employer obtains
acceptable alternative employment for an employee.
(F) Savings Clause
- Nothing in this clause shall be construed so as to require the reduction or
alteration of more advantageous benefits or conditions which an employee may be
entitled to under any existing redundancy agreement, taken as a whole, between
the union and any employer bound by this award.
28. PERSONAL/CARER
S LEAVE
28.1 Use of Sick
Leave
28.1.1 An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) of paragraph 28.1.3 of this subclause who
needs the employee s care and support, shall be entitled to use, in accordance
with this subclause, any current or accrued sick leave entitlement provided for
in clause 17, Sick Leave, for absences to provide care and support for such
persons when they are ill. Such leave may be taken for part of a single day.
28.1.2 The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person. In normal circumstances, an
employee must not take carer s leave under this subclause where another person
has taken leave to care for the same person.
28.1.3 The entitlement
to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
(a) a spouse of
the employee; or
(b) a de facto
spouse who, in relation to a person, is a person of the opposite sex to the
first mentioned person who lives with the first mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
(c) a child or an
adult child (including an adopted child, a step- child, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or spouse or de facto spouse
of the employee; or
(d) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(e) a relative of
the employee who is a member of the same household where, for the purposes of
this paragraph:
(1) "relative"
means a person related by blood, marriage or affinity;
(2) "affinity"
means a relationship that one spouse, because of marriage, has to blood
relatives of the other; and
(3) "household"
means a family group living in the same domestic dwelling.
28.1.4 An employee
shall, wherever practicable, give the employer notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person’s relationship to the employee, the reasons for taking such leave and
the estimated length of absence. If it is not practicable for the employee to
give prior notice of absence, the employee shall notify the employer by
telephone of such absence at the first opportunity on the day of absence.
28.2 Unpaid Leave
for Family Purpose
28.2.1 An employee may
elect, with the consent of the employer, to take unpaid leave for the purpose
of providing care and support to a member of a class of person set out in
subparagraph (ii) of paragraph 28.1.3 of subclause 28.1 of this clause who is
ill.
28.3 Annual Leave
28.3.1 An employee may
elect, with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five
days in single- day periods or part thereof, in any calendar year at a time or
times agreed by the parties.
28.3.2 Access to annual
leave, as prescribed in paragraph 28.3.1 above, shall be exclusive of any
shutdown period provided for elsewhere under this award.
28.3.3 An employee and
employer may agree to defer payment of the annual leave loading in respect of
single-day absences until at least five consecutive annual leave days are
taken.
28.4 Time Off in
Lieu of Payment for Overtime
28.4.1 An employee may
elect, with the consent of the employer, to take time off in lieu of payment
for overtime at a time or times agreed with the employer within 12 months of
the said election.
28.4.2 Overtime taken
as time off during ordinary-time hours shall be taken at the overtime rate,
that is, an hour for each hour worked.
28.4.3 If, having
elected to take time as leave in accordance with paragraph 28.4.1, the leave is
not taken for whatever reason, payment for time accrued at overtime rates shall
be made at the expiry of the 12-month period or on termination.
28.4.4 Where no
election is made in accordance with paragraph 28.4.1, the employee shall be
paid overtime rates in accordance with the award.
28.5 Make-up Time
28.5.1 An employee may
elect, with the consent of the employer, to work "make-up time",
under which the employee takes time off ordinary hours and works those hours at
a later time during the spread of ordinary hours provided in the award at the
ordinary rate of pay.
28.5.2 An employee on
shift work may elect, with the consent of the employer, to work make-up time
(under which the employee takes time off ordinary hours and works those hours
at a later time), at the shift work rate which would have been applicable to
the hours taken off.
28.6 Rostered Days
Off
28.6.1 An employee may
elect, with the consent of the employer, to take a rostered day off at any
time.
28.6.2 An employee may
elect, with the consent of the employer, to take rostered days off in part-day
amounts.
28.6.3 An employee may
elect, with the consent of the employer, to accrue some or all rostered days off
for the purpose of creating a bank to be drawn upon at a time mutually agreed
between the employer and employee, or subject to reasonable notice by the
employee or the employer.
28.6.4 This subclause
is subject to the employer informing each union, which is both party to the
award and which has members employed at the particular enterprise, of its
intention to introduce an enterprise system of RDO flexibility and providing a
reasonable opportunity for the union(s) to participate in negotiations.
29. ANTI-DISCRIMINATION
1. It is the
intention of the parties bound by this award to seek to achieve the object in
section 3(f) of the Industrial Relations
Act 1996 (NSW) to prevent and eliminate discrimination in the workplace on
the grounds of race, sex, marital status, disability, homosexuality,
transgender identity, age and responsibilities as a carer.
2. It follows
that in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent
with the fulfilment of these obligations for the parties to make application to
vary any provision of the award, which, by its terms or operation, has a direct
or indirect discriminatory effect.
3. Under the Anti-Discrimination Act, 1977 (NSW) it
is unlawful to victimise an employee because the employee has made or may make
or has been involved in a complaint of unlawful discrimination or harassment.
4. Nothing in
this clause is to be taken to affect:
(a) any
conduct or act which is specifically exempted from anti-discrimination
legislation.
(b) Offering
or providing junior rates of pay to persons under 21 years of age.
(c) Any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination
Act 1977 (NSW)
(d) A party to this
award from pursuing matters of unlawful discrimination in any state or federal
jurisdiction.
5. This clause
does not create legal rights or obligations in addition to those imposed upon
the parties by the legislation referred to in this clause.
Note:
1. Employers
and Employees may also be subject to commonwealth anti-discrimination
legislation.
2. Section
56(d) of the Anti - Discrimination Act
1977 provides:
"Nothing in the Act effects...any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
30. LONG SERVICE
LEAVE
See Long Service Leave
Act 1955.
31. AREA,
INCIDENCE AND DURATION
The award published on 6 February 1998 (303 I.G. 472)
rescinded and replaced the Asphalt Makers (State) Award published 1 April 1981
(221 I.G. 229), and all variations thereof, the Bituminous Materials Fixers,
&c. (State) Award published 26 May 1995 (285 I.G. 1356), and all variations
thereof, and the Bituminous Materials Manufacture, &c. (State) Award
published 16 June 1995 (286 I.G. 280), and all variations thereof.
The award published on 6 February 1998 took effect from the
beginning of the first pay period commencing on or after 29 April 1997.
The changes made to the award pursuant to the Award Review
pursuant to section 19 (6) of the Industrial
Relations Act 1996 and Principle 26 of the Principles for Review of Award
made by the Industrial Relations Commission of New South Wales on 18 December
1998 (308 IG 307) shall take effect on and from 20 August 2001.
This award remains in force until varied or rescinded for
the period for which it was made already having expired.
PART B
MONETARY RATES
Table 1 - Rates of Pay
Classification
|
Base Rate per week
$
|
SWC May
2001
$
|
Total Rate
$
|
(A) Manufacturing
plant employees
|
|
|
|
Plant Operator (mixing plant)
|
511.10
|
15.00
|
526.10
|
Front End Loader operator
|
503.10
|
15.00
|
518.10
|
General Hand
|
447.10
|
13.00
|
460.10
|
(B) Laying Crew
|
|
|
|
Asphalt paver operator
|
505.50
|
15.00
|
520.50
|
Paver Screed operator
|
505.50
|
15.00
|
520.50
|
Roller operator
|
489.10
|
13.00
|
502.10
|
Tack coat operator
|
487.30
|
13.00
|
500.30
|
Rotary broom operator
|
447.10
|
13.00
|
460.10
|
General Hand
|
447.10
|
13.00
|
460.10
|
(C) Other
Classifications
|
|
|
|
Senior Allocator (operating or allocating for more two or
more weighbridges)
|
522.30
|
15.00
|
537.30
|
Weighbridge operator and or/allocator
|
496.90
|
15.00
|
511.90
|
Storeperson (asphalt specialist)
|
496.90
|
15.00
|
511.90
|
Laboratory Assistant
|
462.80
|
13.00
|
475.80
|
Profiler operator (rate to be determined)
|
|
|
|
Ganger
|
539.80
|
15.00
|
554.80
|
Foreperson
|
528.70
|
15.00
|
543.70
|
Equipment Operator group 1 includes: Sprayer Operator over
7500 litres (including towing) leader operator (spray)
|
494.60
|
15.00
|
509.60
|
Equipment Operator group 2 includes: Sprayer Operator up to
7500 litres (including towing)
|
487.70
|
13.00
|
500.70
|
Equipment Operator group 3 includes: Roller Operator
(spray) Broom Operator Aggregate Spreader Operator (including towing) Spray
Operator (rear) Aggregate Spreader (rear) Kettle Hand
|
480.30
|
13.00
|
493.30
|
General Hand
|
447.10
|
13.00
|
460.10
|
(F) Other
Classifications
|
|
|
|
Weighbridge Operator and or allocator
|
496.90
|
15.00
|
511.90
|
Storeperson (spray specialist)
|
496.90
|
15.00
|
511.90
|
Laboratory assistant
|
462.80
|
13.00
|
475.80
|
Table 2 - Other Rates and Allowances
Item No
|
Clause No
|
Brief Description
|
Former Allowances
|
Total Amount
$
|
1
|
4(a)
|
Industry Allowance
|
$18.10 p/wk
|
$18.65 p/wk
|
2
|
4(b)
|
Inclement weather
|
$18.80 p/wk
|
$19.35 p/wk
|
3
|
4(c)
|
In Charge of plant
|
$8.75 p/wk
|
$9.00 p/wk
|
4
|
4(d)
|
First Aid Attendant
|
$1.80 p/day
|
$1.85p/day
|
5
|
6(g)(i)
|
Meal Allowance
|
$7.80 p/meal
|
$8.65 p/meal
|
6
|
10(c)
|
Travelling Expenses
|
$7.80 p/meal
|
$8.65 p/meal
|
7
|
11(a)(i)
|
Country Work
|
$275.70 p/wk
|
$292.25 p/wk
|
8
|
11(a)(iii)
|
Incidentals Allowance
|
$2.95 p/night
|
$3.15 p/night
|
9
|
4(e)
|
Leading hand Allowance
|
$14.10/week
|
$15.80/week
|
"Note": These allowances are contemporary for
expense related allowances as at 30 March 2001 and for work related allowances
are inclusive of adjustments in accordance with the May 2001 State Wage Case
Decision of the Industrial Relations Commission of New South Wales.
M. J. WALTON J, VP
P. J. SAMS D.P.
B. W. O'NEILL,
Commissioner
____________________
Printed by the authority of the Industrial Registrar.