Malthouses
(State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1618 of 2007)
|
Before Commissioner
Connor
|
28 February 2008
|
REVIEWED AWARD
1. Arrangement
Clause No. Subject Matter
l. Arrangement
2. Rates of
Pay
3. Casual
Employees
4. Hours
5. Overtime
6. Saturday
Shifts
7. Sunday and
Holiday Work
8. Public
Holidays
9. Sick Leave
10. Personal/Carer's
Leave
l0A. Parental
Leave
11. Annual
Leave
12. Paid
Stopwork Meetings
13. Bereavement
Leave
14. First-aid
Attendant
15. Industrial
Clothing
16. Terms of
Employment
17. Anti-Discrimination
18. Redundancy
and Technological Change
18A Secure
Employment
19. Introduction
of Change
20. Redundancy
21. Termination
of Employment
22. Severance
Pay
22A. Traineeships
23. Area,
Incidence and Duration
PART B
Monetary Rates
Table 1 - Wages
Table 2 - Other Rates and Allowances
2. Rates of Pay
2.1 The minimum
rates of pay for adults shall be the rates in Table 1 - Wages and Table 2 -
Other Rates and Allowances.
2.2 A flat rate
allowance as set out in Item 1 of Table 2 - Other Rates and Allowances shall be
paid to all employees for the special conditions of dust, dirt, heat or
confined space which may apply in the Malting Industry. This allowance is also
to apply while an employee is on paid sick leave, annual leave and long service
leave.
2.3 A Shiftworker,
as defined, shall be paid an allowance as set out in Item 2 of Table 2 - Other
Rates and Allowances.
2.4 A Leading Hand
shall be paid an allowance as set out in Item 3 of Table 2 - Other Rates and
Allowances.
2.5 A laundry
allowance shall be paid as set out in Item 4 of Table 2 - Other Rates and
Allowances
3. Casual Employees
3.1 "Casual Employees"
shall mean and be deemed to be any employee engaged for a period of less than
five days a week, Monday to Friday inclusive, and shall be paid 25 per cent
extra per hour.
4. Hours
4.1 For employees
not working on shift work, the ordinary working hours shall be 40 per week to
be worked on 5 days of 8 hours per day on Monday to Friday inclusive. The said
hours shall be exclusive of a lunch break of 45 minutes and shall be worked
between 6 a.m. and 6 p.m. An employee shall not be required to take a lunch
break within four hours of the ordinary starting time or work longer than five
hours from the ordinary starting time without a lunch break: provided that in
any instance where it is not possible to grant the lunch break within five
hours of the ordinary starting time, all time after the said five hours shall
be treated as time worked and paid for at time and one-half, i.e. half-time
extra until released for a meal interval of forty-five minutes.
4.2 Shiftworkers
shall mean and be deemed to be two or three sets of employees working 16 hours
or 24 hours respectively by shifts of eight hours' duration in sequence. They
shall work their shift straight out, including crib time of at least 20 minutes
during each shift. The ordinary working hours for shiftworker shall be forty
per week and may be worked on five days of eight hours per day on Monday to
Friday inclusive; provided that if the employer and the union agree, the
ordinary working hours shall not exceed an average of forty per week, spread
over a cycle of two, three or four weeks as provided by the appropriate rosters
prepared by the employer, and to be worked in shifts of eight hours each. A
roster when put into operation shall not, except in the case of emergency, be
altered without seven days notice of such alteration being given to the
employees concerned. Shiftworkers may relieve one another before the end of a
shift without any liability on the part of an employer to pay overtime rates
for time worked beyond the eight hours per shift.
4.3 There shall be a
fixed time of starting and ceasing work for each employee which shall not,
except in the case of emergency be altered by the employer without seven days'
notice.
4.4 Notwithstanding
anything contained in Clause 4.2 shiftworkers employed at Basett Bros and
Burston and Co. Pty Ltd and Joe White Malting Limited may be employed between
the hours of 3 p.m. and 7 a.m. on permanent shifts and such persons shall be
treated as shiftworkers.
5. Overtime
5.1 For all the time
worked in excess of the hours prescribed in Clause 4, Hours, of this award,
payment shall be made at the rate of time and one-half for the first two hours
and double time thereafter.
5.2 An employee
required to work overtime in excess of two hours after the usual finishing time
shall be paid the amount as set out in Item 5 of Table 2 - Other Rates and
Allowances.
5.3 An employee who
works so much overtime between the termination of the ordinary work on one day
the commencement of the ordinary work on the next day that they have not had at
least ten consecutive hours off duty between those times shall, subject to
Clauses 5.4 and 5.5, 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.
5.4 If on the
instructions of the employer such an employee resumes or continues work without
having had such ten consecutive hours off duty they shall be paid at double
rates until they are released from duty for such period and they then shall be
entitled to be absent until they have had ten consecutive hours off duty
without loss of pay for ordinary working time occurring during their absence.
5.5 The period of
ten hours shall be reduced to a period of eight hours where necessary to effect
the periodic rotation of weekly shifts.
6. Saturday Shifts
6.1 Shifrworkers
shall be paid for work performed between midnight Friday and midnight on
Saturday at the rate of time and one-half unless they are working overtime
between such hours in which case their payment shall be as prescribed by Clause
5, Overtime, of this award.
6.2 An employee not
working on shift and who is required to work on a Saturday shall be paid for a
minimum of four hours at the appropriate overtime rate.
7. Sunday and Holiday
Work
7.1 All time on duty
by an employee on Sunday shall be paid for at the rate of double time, which
shall be in lieu of any rate otherwise payable under this award with a minimum
payment of four hours. All time of duty by any employee on a public holiday
provided by this award, shall be paid for at double time and one-half with a
minimum payment of four hours.
7.2 Where a public
holiday falls on a shiftworker's rostered day off, they shall be paid one-day's
pay in lieu thereof.
8. Public Holidays
8.1 For the purposes
of this award, the days on which the undermentioned days are ordinarily
observed shall be public holidays:
New Year's Day, Anniversary Day, Good Friday, Easter
Monday, Anzac Day, Sovereign's Birthday, Eight Hour Day, Christmas Day, Boxing
Day, the third Monday in February and all other gazetted holidays observed
throughout the State.
8.2 An employee
shall not be called upon to work on a public holiday unless they have received
twenty-four hours' notice of such duty. Provided that in the event of any of
the said public holidays falling on a Sunday and another day in the following
week being observed in lieu thereof throughout the State, then the latter shall
be the day to be observed under this part of this award. No deduction shall be
made from the wage of any employee engaged by the week because of absence from
work on a public holiday. Payment for a public holiday shall be made to an
employee absent through illness and for whom no payment is due in the pay week
in which the holiday falls provided such absence does not exceed four weeks
prior to such holiday.
8.3 An employer and
an employee, or an employer and the majority of employees in an establishment
may agree to observe an alternative day as a holiday m lieu of the third Monday
in February.
9. Sick Leave
9.1 An employee who
is absent from their work on account of personal illness, or on account of
injury by accident arising out of and in the course of their employment, shall
be entitled to leave of absence, without deduction of pay, subject to the
following conditions and limitations:
9.1.1 An employee shall
not be entitled to paid leave of absence for any period in respect of which
they are entitled to workers' compensation.
9.1.2 An employee shall
within twenty-four hours of the commencement of such absence inform the
employer of their inability to attend for duty, and as far as practicable,
state the nature of the injury or illness and the estimated duration of the
absence.
9.1.3 An employee shall
prove to the satisfaction of their employer that they were unable on account of
such illness or injury to attend for duty on the day or days for which sick
leave is claimed.
9.1.4 An employee shall
not be entitled during their first year of any period of service with an employer
to leave in excess of 64 hours of working time. Provided that during the first
six months of service with an employer they shall be entitled to sick leave
which shall accrue on a pro-rata basis of 5.33 hours for each month of service.
9.1.5 An employee shall
not be entitled during the second or subsequent years of any period of service
with an employer to leave in excess of 80 hours of working time.
9.2 Single Day
Absences - In the case of an employee who claims to be allowed paid sick leave
in accordance with this clause for an absence of one day only such employee if
in the year they have already been allowed paid sick leave on more than one
occasion for one day only, shall not be entitled to payment for a day claimed
unless they produce to the employer a certificate of a duly qualified medical
practitioner that in the medical practitioner's opinion the employee was unable
to attend for duty on account of personal illness or on account of injury by
accident. However, an employer may agree to accept from the employee a
Statutory Declaration, stating that they were unable to attend for duty on
account of personal illness or on account of injury by accident in lieu of a
certificate of a duly qualified medical practitioner as prescribed by this
subclause. Nothing in this subclause shall limit the employer's rights under
Clause 9.1.3.
9.3 Cumulative Sick
Leave - Paid Sick Leave shall accumulate indefinitely.
9.4 Year of Service
- Year of service for the purpose of this clause means the period between the
date of commencement in employment in any year and the anniversary of the
commencement of employment in the next year.
10. Personal/Carer's
Leave
10.1 Use of Sick Leave
10.1.1 An employee, other
than a casual employee, with responsibilities m relation to a class of person
set out in 10.1.3.2 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 at clause 9, Sick Leave of the award, for absences
to provide care and support for such persons when they are ill, or who require
care due to an unexpected emergency.
Such leave may be taken for part of a single day.
10.1.2 The employee
shall, if required,
(1) 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, or
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
10.1.3 The entitlement to
use sick leave in accordance with this subclause is subject to:
10.1.3.1 the
employee being responsible for the care and support of the person concerned;
and
10.1.3.2 the
person concerned being:
10.1.3.2.1 a spouse
of the employee; or
10.1.3.2.2 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;
10.1.3.2.3 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
10.1.3.2.4 a same
sex partner who lives with the employee as the de facto partner of that
employee on a bona fide domestic basis; or
10.1.3.2.5 a
relative of the employee who is a member of the same household, where for the
purposes of this paragraph:
10.1.3.2.5.1 "relative"
means a person related by blood, marriage or affinity;
10.1.3.2.5.2 "affinity"
means a relationship, that one spouse because of marriage has to blood
relatives of the other; and
10.1.3.2.5.3 "household"
means a family group living in the same domestic dwelling.
10.1.4 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.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring_ purposes the employer and employee
shall discuss appropriate arrangements which as far as practicable, take
account of the employer's and employee's requirements.
Where the parties are unable to reach agreement the
disputes procedure, should be followed.
10.2 Unpaid Leave for
Family Purpose
An employee may elect with the consent of the employer,
to take unpaid leave for the purpose of providing care and support to a class
of person set out in 10 1 3.2 above who is ill or who requires care due to an
unexpected emergency.
10.3 Annual Leave
10.3.1 An employee may
elect with the consent of the employer, subject to the Annual Holidays Act 1944
(NSW), 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.
(i) Any casual
employee who has a ri2ht to elect under paragraph (b)(i), upon receiving notice
under paragraph (b)(ii) or after the expiry of the time for giving such notice,
may give four weeks' notice in writing to the employer that he or she seeks to
elect to convert his or her ongoing contract of employment to full-time or
part-time employment, and within four weeks of receiving such notice from the
employee, the employer shall consent to or refuse the election, but shall not
unreasonably so refuse Where an employer refuses an election to convert the
reasons for doing so shall be fully stated and discussed with the employee
concerned, and a genuine attempt shall be made to reach agreement. Any dispute
about a refusal of an election to convert an ongoing contract of employment
shall be dealt with as far as practicable and with expedition through the
disputes settlement procedure.
(ii) Any casual
employee who does not, within four weeks of receiving written notice from the
employer, elect to convert his or her ongoing contract of employment to
full-time employment or part-time employment will be deemed to have elected
against. any such conversion.
(iii) Once a casual
employee has elected to become and been converted to a full-time employee or a
part-time employee, the employee may only revert to casual employment by written
agreement with the employer.
(iv) If a casual
employee has elected to have his or her contract of employment converted to
full-time or part-time employment in accordance with paragraph (b)(iii) the
employer and employee shall in accordance with this paragraph, and subject to
paragraph (b)(iii), discuss and agree upon:
(1) whether the
employee will convert to full-time or part-time employment and
(2) if it is agreed
that the employee will become a part-time employee the number of hours and the
pattern of hours that will be worked either consistent with any other part-time
employment provisions of this award pursuant to a part time work agreement made
under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW);
Provided that an employee who has worked on a full-time
basis throughout the period of casual employment has the right to elect to
convert his or her contract of employment to full-time employment and an
employee who has worked on a part-time basis during the period of casual
employment has the right to elect to convert his or her contract of employment
to part-time employment, on the basis of the same number of hours and times of
work as previously worked, unless other arrangements are agreed between the
employer and the employee.
(v) Following an
agreement being reached pursuant to paragraph NO, the employee shall convert to
full-time or part-time employment. If there is any dispute about the
arrangements to apply to an employee converting from casual employment to fulltime
or part-time employment, it shall be dealt with as far as practicable and with
expedition through the disputes settlement procedure.
(vi) An employee
must not be engaged and re-engaged dismissed or replaced in order to avoid any
obligation under this subclause.
(a) Disputes
Regarding the Application of this Clause
Where a dispute arises as to the application or
implementation of this clause the matter shall be dealt with pursuant to the
disputes settlement procedure of this award.
10.3.2 Access to annual
leave, as prescribed in paragraph 10.3.1 above, shall be exclusive of any
shutdown period provided for elsewhere under this award.
10.3.3 An employee and
employer may agree to defer payment of annual leave loading in respect of
single day absences, until at least five consecutive annual leave days are
taken.
10.4 Time Off in lieu
of payment for overtime
10.4.1 An employee may
elect, with the consent of the em lover, to take time-off in lieu of payment
for overtime at a time or times agreed with the employer within twelve (12)
months of the said election.
10.4.2 Overtime taken as
time off during ordinary time hours shall be taken at the ordinary time rate,
that is an hour for each hour worked.
10.4.3 If, having elected
to take time as leave in accordance with subclause 10.4.1 above, the leave is
not taken for whatever reason; payment for time accrued at overtime rates shall
be made at the expiry of the twelve (12~month period or on termination.
10.4.4 Where no election
is made in accordance with subclause 10.4.1, the employee shall be paid
overtime rates in accordance with the award.
10.5 Make Up Time
10.5.1 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.
10.5.2 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.
10.6 Personal Carers
Entitlement for casual employees -
(1) Subject to the
evidentiary and notice requirements in 10.1.2 and 10.1.4 casual employees are
entitled to not be available to attend work, or to leave work if they need to
care for a person prescribed in subclause 10. 1.3.2 of this clause who are sick
and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(2) The employer and
the employee shall agree on the period for which the employee will be entitled
to not be available to attend work. In the absence of agreement, the employee
is entitled to not be available to attend work for Lip to 48 hours (i.e. two
days) per occasion. The casual employee
is not entitled to any payment for the period of non-attendance.
(3) An employer must
not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
10A. Parental Leave
(1) Refer to the Industrial
Relations Act 1996 (NSW). The following provisions shall also apply in addition
to those set out in the Industrial Relations Act 1996 (NSW).
(2) An employer must
not fail to re-engage a regular casual employee (see section 53(2) of the Act)
because:
(a) the employee or
employee's spouse is pregnant; or
(b) the employee is
or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not exceeding
12 months;
(iii) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee's circumstances and,
provided the request is genuinely based on the employee's parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer's business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
(c) Employee's
request and the employer's decision to be in writing
The employee's request and the employer's decision made
under 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take reasonable
steps to:
(i) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(ii) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee's decision regarding the duration of parental
leave to be taken whether the employee intends to return to work and whether
the employee intends to request to return to work on a part-time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer's capacity to comply with paragraph (a).
11. Annual Leave
11.1 For annual leave
provisions see Annual Holidays Act 1944, provided that the period of
leave shall be deemed to be four weeks, and provided further that an employee
when proceeding on their four weeks' paid annual leave or five weeks' in the
case of a seven-day shift worker, shall be paid for the first week of such
leave at double their ordinary rate of pay.
This additional week's pay is only payable where an employee is taking
their full period of annual leave, and is not payable in respect of pro rata
annual leave payments made at the time of termination of employment; provided
that where the employee and the employer agree, leave may be taken in two
separate periods and in such case the first week of the mutually agreed period
of leave shall be paid at double rate.
11.2 Seven-day
shiftworkers (i.e. Employees whose ordinary working period includes Sundays and
Holidays on which they are regularly rostered for work) shall be allowed
additional leave as specified below: If
during the year of service, an employee has served continuously as a seven-day shiftworker,
the additional leave with respect to that year shall be one week to be paid at
his ordinary rate of pay. If during the year of service, the employee has
served for only a portion of it as a seven-day shiftworker, the additional
leave shall be calculated on a pro rata basis provided that if such calculation
includes a fraction of a day such fraction shall not form part of the leave
period and any such fraction shall be discharged by payment only.
11.3 Where the
employment of an employee has been terminated and they thereby become entitled
under section 4 of the Annual Holidays Act, 1944, to payment in lieu of an
annual holiday payment, a payment of 3.33 hours at his ordinary wage rate shall
be made with respect to each twenty-one shifts of service as a seven-day
shiftworker which they have rendered during such period of employment.
11.4 Employees shall
receive one month's notice of commencement of annual leave.
12. Paid Stopwork
Meetings
12.1 The employer
shall allow two paid meetings each year under the following conditions:
12.1.1 The Union
Divisional Secretary shall give reasonable notice to the employer of the
meetings.
12.1.2 The meetings shall
be held at the workplace during the last two ordinary hours of day work.
12.1.3 The Union and the
employer shall agree on steps to be taken to ensure the safety of the plant and
product.
13. Bereavement Leave
13.1 An employee,
other than a casual employee, shall be entitled to up to three days bereavement
leave in each year of employment without deduction of pay on the death of a person
prescribed in 13.3 below.
13.2 The employee must
notify the employer as soon as practicable of the intention to take bereavement
leave and will, if required by the employer, provide to the satisfaction of the
employer proof of death.
13.3 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 in 10.1.3, provided that
for the purpose of bereavement leave, the employee need not have been
responsible for the care of the person concerned.
13.4 An employee shall
not be entitled to bereavement leave under this clause during any period in
respect of which employee has already been granted other leave.
13.5 Bereavement leave
may be taken in conjunction with other leave available under subclauses 10.2,
10.3, 10.4 and 10.5 of clause 10, Personal Carer's Leave. In determining such a
request the employer will give consideration to the circumstances of the
employee and the reasonable operational requirements of the business.
13.6 Bereavement
entitlements for casual employees
13.6.1 Subject to the
evidentiary and notice requirements in 13.2 casual employees are entitled to
not be available to attend work, or to leave work upon the death in Australia
of a person prescribed in subclause 10.1.3.2 of clause 10, Personal/Carer's
Leave.
13.6.2 The employer and
the employee shall agree on the period for which the employee will be entitled
to not be available to attend work. In
the absence of agreement, the employee is entitled to not be available to
attend work for up to 48 hours (i.e. two days)per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
13.6.3 An employer must
not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not engage a casual employee are otherwise not affected.
14. First-Aid
Attendant
14.1 An employee
qualified and authorised to act as a first-aid attendant shall be paid an
allowance as set out in Item 6 of Table 2 - Other Rates and Allowances for all
time worked.
15. Industrial
Clothing
15.1 The issue of
industrial clothing shall be as agreed upon between the individual employer and
the employees and/or the Union.
16. Terms of
Employment
16.1 Employment under
this award shall be by the week, but an employee not attending for duty shall,
except as provided by Clause 9 of this award, lose pay for the actual time of
such non-attendance.
16.2 Employment shall
be terminated by a week's notice on either side to be given at any time during
the week or by the payment or forfeiture of a week's wages as the case may
be. This shall not affect the right of
the employer to dismiss an employee without notice for inefficiency, misconduct
or neglect of duty and in such cases wages shall be paid up to the time of
dismissal only.
16.3 An employee shall
perform such work as shall from time to time be required on the usual days and
within the prescribed hours.
16.4 For the purpose of
meeting the needs of the employer in the industry such employer may require any
employee to work reasonable overtime including work on Saturdays, Sundays and
Public Holidays at the rate prescribed by this part of this award and unless
reasonable excuse exists the employee shall work in accordance with such
requirement.
17.
Anti-Discrimination
17.1 It is the
intention of the parties bound by this award to seek to achieve the object of
section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate
discrimination in the workplace. This includes discrimination on the grounds of
race, sex, marital status, disability, homosexuality, transgender identity, age
and responsibilities as a carer.
17.2 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.
17.3 Under the Anti-Discrimination
Act 1977, it is unlawful to victimise an employee because the employee has
made or may make or has been involved in a complaint or unlawful discrimination
or harassment.
17.4 Nothing in this
clause shall 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;
(d) a parry to this
award from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
17.5 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.
18. Redundancy and
Technological Change
APPLICATION
18.1 This Part shall
apply in respect to full time and part time persons employed in the
classifications within this Award.
18.2 In respect to
employers who employ 15 or more employees immediately prior to the termination
of employment of employees, in the terms of Clause 21.
18.3 Notwithstanding
anything contained elsewhere in this Part, this Part shall not apply to
employees with less than one year's continuous service and the general
obligation on employers shall be no 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.
18.4 Notwithstanding
anything contained elsewhere in this Part, this Part 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.
18A. Secure Employment
18A.1
(a) Objective of
this Clause
The objective of this clause is for the employer to
take all reasonable steps to provide its employees with secure employment by
maximising the number of permanent positions the employer's workforce, in
particular by ensuring that casual employees have an opportunity to elect to
become full-time or part-time employees.
(b) Casual
Conversion
(i) A casual
employee engaged by a particular employer on a regular and systematic basis for
a sequence of periods of employment under this Award during a calendar period
of twelve months shall thereafter have the right to elect to have his or her
ongoing contract of employment converted to permanent full-time employment or
part-time employment if the employment is to continue beyond the conversion
process prescribed by this subclause.
(ii) Every employer
of such a casual employee shall give the employee notice in writing of the
provisions of this sub-clause within four weeks of the employee having attained
such period of twelve months. However, the employee retains his or her right of
election under this subclause if the employer fails to comply with this notice
requirement.
(c) This clause has
no application in respect of organisations which are properly registered as Group
Training Organisations under the Apprenticeship and Traineeship Act 2001
(or equivalent interstate legislation) and are deemed by the relevant State
Training Authority to comply with the national standards for Group Training
Organisations established by the ANTA Ministerial Council.
Secure Employment
(OH&S)
18A.2. Occupational
Health and Safety
(i) For the
purposes of this subclause the following definitions shall apply:
(a) A "labour
hire business" is a business (whether an organisation, business enterprise,
company, partnership, co-operative sole trader, family trust or unit trust
corporation and/or person) which has as its business function, or one of its
business functions, to supply staff employed or engaged by it to another
employer for the purpose of such staff performing work or services for that
other employer.
(b) A "contract
business" is a business (whether an organisation, business enterprise,
company, partnership, co-operative, sole trader, family trust or unit trust,
corporation and/or person) which is contracted by another employer to provide a
specified service or services or to produce a specific outcome or result for
that other employer which might otherwise have been carried out by that other
employer's own employees.
(ii) Any employer
which engages a labour hire business and/or a contract business to perform work
wholly or partially on the employees premises shall do the following (either
directly, or through the agency of the labour hire or contract business):
(1) consult with employees
of the labour hire business and/or contract business regarding the workplace
occupational. health and safety consultative arrangements;
(2) provide
employees of the labour hire business and/or Contract business with appropriate
occupational health and safety induction training including the appropriate
training required for such employees to perform their jobs safely;
(3) provide
employees of the labour hire business and/or contract business with appropriate
personal protective equipment and/or clothing and all safe work method
statements that they would otherwise supply to their own employees; and
(4) ensure employees
of the labour hire business and/or contract business are made aware of any
risks identified in the workplace and the procedures to control those risks.
(iii) Nothing in
this subclause is intended to affect or detract from any obligation or
responsibility upon a labour hire business arising under the Occupational
Health and Safety Act 2000 or the Workplace Injury Management and Workers
Compensation Act 1998.
19. Introduction of
Change
19.1 Employer's Duty
to Notify
19.1.1 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 to which they belong.
19.1.2 "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, it shall be deemed not to have significant effect.
19.2 Employer's Duty
to Discuss Change
19.2.1 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 subclause 19.1 above, 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.
19.2.2 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 19.1 of this
Clause.
19.2.3 For the purpose 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 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.
20. Redundancy
20.1 Discussions
Before Terminations
20.1.1 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 19.1.1, 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.
20.1.2 The discussions
shall take place as soon as is practicable after the employer has made a
definite decision which will invoke the provision of subclause 20.1.1 and shall
cover, inter alia, any reasons 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.
20.1.3 For the purpose of
the discussion the employer shall, as soon as 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.
21. Termination of
Employment
21.1 Notice for
Changes in Production, Programme, Organisation or Structure
This subclause 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 subclause 19.1.1.
21.1.1 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 one 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
|
21.1.2 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.
21.1.3 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.
21.1.4 Unless and until
the employer has complied with the requirements of Clause 19, Introduction of
Change, and Clause 20, Redundancy, the status quo will be maintained; that is,
the employer will not implement the redundancy or redundancies which is or are
the subject of the dispute, and the employees will not take industrial action.
21.2 Notice for
Technological Change
This subclause sets out the notice provisions to be
applied to termination by the employer for reasons arising from technology in
accordance with subclause 19.1.1 of this award:
21.2.1 In order to
terminate the employment of an employee, the employer shall give to the
employee three months' notice of termination.
21.2.2 Payment in lieu of
the notice above shall be made if the appropriate notice period is not given.
Provided that employment shall be terminated by part of the period of notice
specified and part payment in lieu thereof.
21.2.3 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.
21.3 Time Off During
the Notice Period
21.3.1 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.
21.3.2 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.
21.4 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 to which the
employee would have been entitled 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.
21.5 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.
21.6 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 the employees
likely to be affected and the period over which the terminations are intended
to be carried out.
21.7 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 Centrelink.
21.8 Transfer to
Lower-Paid Duties
Where an employee is transferred to lower-paid duties
for reasons set out in subclause 19.1; 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 rates for the number of weeks of notice still owing.
22. Severance Pay
22.1 Where an employee
is to be terminated pursuant to subclause 21, subject to further order of the
Industrial Relations Commission of New South Wales, the employer shall pay the
employee the following severance pay in respect of a continuous period of
service.
22.1.1 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
|
22.1.2 Where an employee
is 45 years old or over, the entitlement shall be 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
|
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
|
22.1.3 "Week's
pay" means the all-purpose rate 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 pursuant to this award.
22.2 Incapacity To Pay
Subject to an application by the employer and further
order of the Industrial Relations Commission of New South Wales, an employer
may pay a lesser amount (or no amount) of severance pay than that contained in
subclause 22.1 above.
The Commission shall have regard to such financial and
other resources of the employer concerned as the Commission thinks relevant,
and the probable effect of paying the amount of severance pay in subclause 22.1
of this Clause will have on the employer.
22.3 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 subclause 22.1 above if the employer
obtains acceptable alternative employment for an employee.
22A. Traineeships
As to traineeships for persons covered by this award, see
the Training Wage (State) Award 2002 published 26 September 2003 (341 LG. 569)
or any successor thereto.
23. Area, Incidence
and Duration
This award is made following a review under section 19 of
the Industrial Relations Act 1996 and rescinds and replaces the
Malthouses (State) Award published 7 December 2005 (330 IG 25).
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 Awards made by the Industrial
Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take
effect on and from 28 February 2008.
This award remains in force until varied or rescinded, the
period for which it was made having already expired.
Malt Houses (State) Industrial Committee Industries and
callings.
All persons employed in or in connection with malt houses in
the State, excluding the County of Yancowinna:
Excepting employees employed by members of the Brewers'
Association of New South Wales within the jurisdiction of the Breweries,
&c., (State) Industrial Committee;
And excepting all persons employed as administrative office
cleaners;
And excepting also employees within the jurisdiction of the
following Industrial Committees: Clerks (State);
Builders' Labourers (State); Carpenters, Bricklayers
(State); Electricians, &c. (State) Engine Drivers, &c., General
(State); Painters, &c. (State);
Plasterers, &c. (State); Plumbers and Gasfitters
(State); Carters, &c. (State);
Sheet Metal Workers, &c. (State); Coopers (State);
Ironworkers' Assistants, &c. (State);
Commercial Travellers (State).
PART B
MONETARY RATES
Table 1- Wages
The rates of pay in this award include the adjustments
payable under the State Wage Case 2007. These adjustments may be offset
against:
(a) any equivalent
over award payments, and/or
(b) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustments.
|
Classification
|
Wage Total
|
|
|
$
|
|
Malthouse Employee
|
554.40
|
Table 2 - Other
Rates and Allowances
|
Item
|
Clause No.
|
Description
|
Amount
|
|
1
|
2.2
|
Flat Rate Allowance
|
9.70 per week
|
|
2
|
2.3
|
Shift Worker
|
48.40 per week
|
|
3
|
2.4
|
Leading Hand
|
31.40 per week
|
|
4
|
2.5
|
Laundry Allowance I
|
7.20 per week
|
P.
J. CONNOR, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.