Retail
Services Employees (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FULL BENCH
Application by Shop,
Distributive and Allied Employees' Association, New South Wales,
Industrial Organisation of Employees.
(No. IRC 1034 of 2006)
Before The Honourable
Justice Walton, Vice-President
|
21 March 2006
|
The Honourable Justice
Boland
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|
Commissioner Tabbaa
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VARIATION
1. Delete clause
14, Holidays of the award published 5 October 2001 (328 I.G. 261, and insert in
lieu thereof the following:
14. Holidays
(A) Public Holidays
-
(i) Subject to
subclause (B), work done on any of the holidays prescribed in paragraph (ii) of
this subclause shall be paid for at the rate of double time and one-half, with
a minimum payment of three hours.
(ii)
(a) The days
observed as New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter
Monday, Anzac Day, Queen's Birthday, Labour Day, the first Tuesday in November,
Christmas Day, Boxing Day and all days proclaimed as public holidays for the
State shall be holidays; provided that any day proclaimed as a holiday for the
State for a special purpose but observed throughout the State on different days
also shall be a holiday.
(b) For all
holidays not including the first Tuesday in November:
Every full-time or part-time employee allowed a holiday
specified herein shall be deemed to have worked in the week in which the holiday
falls the number of ordinary working hours that he/she would have worked had
the day not been a holiday.
Provided that any full-time or part-time employee whose
roster is changed with the intent of avoiding or reducing payment due or the
benefit applicable under this clause and who would, but for the change of
roster, have been entitled otherwise to a payment or benefit for a public
holiday or holidays shall be paid for such holiday or holidays as if his/her
roster had not been changed.
Provided further that where a full-time or part-time
employee working an average of five days per week is rostered so that he/she
does not work his/her ordinary hours on the same days each week and the
employee's rostered day off falls on a day prescribed as a holiday in
subparagraph (a) of this paragraph, the employee shall be paid by mutual
agreement between the employer and the employee in one of the following
methods:
(1) payment of an
additional day's wages;
(2) addition of
one day to the employee's annual holidays;
(3) another day
may be allowed off with pay to the employee within 28 days after the holiday
falls, or during the week prior to the holiday.
For the purposes of this paragraph, "day"
means the average number of hours in the employee's normal roster cycle worked
by the employee prior to the day on which the public holiday falls.
(iii) A full-time
or part-time employee absent without leave on their last working day before or
their first working day after any award holiday shall be liable to forfeit wages
for the day of absence as well as for the holiday, except where an employer is
satisfied that the employee's absence was caused through illness, in which case
wages shall not be forfeited for the holiday; provided that an employee absent
on one day only either before or after a group of holidays shall forfeit wages
only for one holiday as well as for the period of absence.
(B) The first
Tuesday in November - Full-time and part-time employees rostered to work shall
be entitled to a holiday without loss of pay on the first Tuesday of November
in any year.
Work on the first Tuesday in November shall not be paid
at the rate of double time and a half, but shall be paid as follows:
Where the establishment of an employer remains open and
a full-time or part-time employee volunteers to work on the first Tuesday in
November, such employee shall then be given another day off without loss of
pay. Such alternative day shall be
given and taken not later than 28 days after the nominated day on a day
mutually agreed between the employer and the employee.
Provided that 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 in lieu of the first Tuesday in
November.
Provided that in no circumstances shall an employee
forfeit entitlement to the additional holiday and should such extenuating
circumstances arise where the day is not taken as described above, it must be
given and taken on a day without loss of pay added to the employee’s next
period of annual leave.
Provided further that where an employee's employment
terminates prior to the taking of such alternative day, the employee shall
receive an additional day's pay on termination.
Provided further that employees on annual leave or long
service leave on the day referred to in this subclause shall have an additional
day added to their next period of annual leave.
2. This
variation shall take effect from 21 March 2006.
M. J. WALTON J,
Vice-President.
R. P. BOLAND J.
I. TABBAA, Commissioner.
____________________
Printed by
the authority of the Industrial Registrar.