Supervisors,
Breweries (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1619 of 2007)
Before Commissioner
Connor
|
23 April 2008
|
REVIEWED
AWARD
ARRANGEMENT
Applying to all Supervisors in the Brewing Industry
1. Structural
Efficiency
2. Training
3. Enterprise
Arrangements
4. Secure
Employment
5. Personal/Carers
Leave
6. Parental
Leave
7. Anti-Discrimination
8. Savings
9. Disputes Settling
Procedure
10. Redundancy
11. Traineeships
12. Area,
Incidence and Duration
1. Structural
Efficiency
(i) The parties to
this award are committed to co-operating positively to increase the efficiency,
productivity and international competitiveness of the brewing industry and to
enhance the career opportunities and job security of employees in the industry.
Accordingly, employees within each classification will perform a wider range of
duties including work which is incidental or peripheral to their main tasks or
functions.
(iii) At each plant
or enterprise, an employer and the employees and their relevant union shall
establish a consultative mechanism and procedure appropriate to the size,
structure and needs of that plant or enterprise. Measures raised by the
employer, employees or union or unions for consideration consistent with the
objectives of subclause (i) herein shall be processed through that consultative
mechanism and procedures.
(iii) Any dispute
arising in relation to the implementation of structural efficiency items shall
be subject to clause 9, Disputes Settling Procedure. Any matter left unresolved out of Structural Efficiency
Negotiations may be referred to the Industrial Commission of New South Wales
for determination.
2. Training
(i) Parties to this
award recognise that in order to increase the efficiency, productivity and
international competitiveness of industry, a greater commitment to training and
skill development is required. Accordingly, the parties commit themselves to:
(a) Developing a
more highly skilled and flexible workforce.
(b) Providing
employees with career opportunities through appropriate training to acquire
additional skills.
(c) Removing
barriers to the utilisation of skills acquired.
(ii) Following
proper consultation in accordance with subclause (ii) of clause 1, Structural
Efficiency, or through the establishment of a training committee, an employer
shall develop a training program consistent with:
(a) The current and
future skills needs of the enterprise.
(b) The size,
structure and nature of the operations of the enterprise.
(c) The need to
develop vocational skills relevant to the enterprise and the brewing industry
through courses conducted on the job and also by accredited educational
institutions and providers.
(iii) Where it is
agreed a training committee be established, that training committee should be
constituted by equal numbers of employer and employee representatives and have
a charter which providers.
(a) Formulation of a
training program and the availability of training courses and career
opportunities to employees.
(b) Dissemination of
information on the training program and availability of training courses and
career opportunities to the employees.
(c) The recommending
or otherwise of individual employees for training and reclassification.
(d) Monitoring and
advising management and employees on the ongoing effectiveness of the training.
(iv)
(a) Where as a
result of consultation in accordance with clause 1, Structural Efficiency or
through a training committee and with the employee concerned, it is agreed that
additional training in accordance with the program developed pursuant to
subclause ( ii ) herein should be undertaken by that employee, that training
may be undertaken either on or off the job.
Provided that if the training is undertaken during ordinary working
hours, the employee concerned shall not suffer any loss of pay. The employer
shall not unreasonably withhold such paid training leave.
(b) Any costs
associated with standard fees for prescribed courses and prescribed text books
incurred in connection with the undertaking of training shall be reimbursed by
the employer upon the production of evidence of such expenditure, provided that
reimbursement shall also be on an annual basis subject to the presentation of
reports of satisfactory progress.
3. Enterprise
Arrangements
(a) As part of the
Structural Efficiency exercise and as an ongoing process, improvements in
productivity and efficiency discussions may take place at an enterprise to
provide for:
* more
flexible working arrangements
* improvements
in the quality of working life
* enhancement
of skills
* training
and job satisfaction
* positive
assistance in the restructuring process
* encouragement
of consultation mechanisms across the workplace
* consideration
of a single bargaining unit
Union delegates at the place of work may be involved in
such discussions.
(b) The terms of any
proposed genuine arrangement reached between an employer and employee(s) in any
enterprise shall, after due processing, substitute for the provisions of this
award to the extent that they are contrary provided that:
(i) A majority of
employees affected genuinely agree.
(ii) Such
arrangement is consistent with current State Wage Case principles.
(c)
(i) Before any
arrangement required variation to the award is signed and processed in accordance with subclause (d), details of
such arrangements shall be forwarded in writing to the union or unions with
members in that enterprise affected by the changes and the employer
association, if any, of which the employer is a member. A union or an employer
association may, within 14 days thereof, notify the employer in writing of any
objection to the proposed arrangements including the reasons for such
objection.
(ii) When an
objection is raised, the parties are to confer in an effort to resolve the
issue.
(d) Such enterprise
arrangements shall be processed as follows:
(i) All employees
will be provided with the current prescriptions (e.g. award, industrial
agreement or enterprise arrangement) that apply at the place of work.
(ii)
(a) Where an
arrangement is agreed between the employer and the employees or their
authorised representatives at an enterprise, such arrangement shall be
committed to writing.
The authorised representative of employees at an
enterprise may include a delegate, organiser or official of the relevant union
if requested to be involved by the majority of employees at the establishment.
(b) Where the
arrangement is agreed between the employer and an absolute majority of
permanent employees under this award at an enterprise, such arrangement shall
be committed to writing.
(iii) The
arrangement shall be signed by the employer, or the employer’s duly authorised
representative, and the employees, or their authorised representative with whom
agreement was reached.
(iv) Where an
arrangement is objected to in accordance with subclause (c) (i) and the
objection is not resolved, an employer may make application to the Industrial
Commission to vary the award to give effect to the arrangement.
(v) The union and/or
employer association shall not unreasonably withhold consent to the
arrangements agreed upon by the parties.
(vi) If no party
objects to the arrangement, then a consent application shall be made to the
Industrial Commission to have the arrangement approved and the award varied in
the manner specified in paragraph (vii).
Such applications are to be processed in accordance
with the appropriate State Wage Case principles.
(vii) Where an
arrangement is approved by the Industrial Commission and the arrangement is
contrary to any provision of the award, then the name of the enterprise to
which the arrangement applies, the date of operation of the arrangement, the
award provisions from which the said enterprise is exempt and the alternative
provisions which are to apply in lieu of such award provision ( or reference to
such alternative provisions ), shall be set out in a schedule to the award.
(vii) No existing
employee shall suffer a reduction in entitlement to earnings, award or
overaward, for working ordinary hours of work as the result of award changes
made as part of the implementation of the arrangement.
4. Secure Employment
(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 in 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.
(iii) Any casual
employee who has a right 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.
(iv) 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.
(v) 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.
(vi) 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 or 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.
(vii) Following an
agreement being reached pursuant to paragraph (vi), 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
full-time or part-time employment, it shall be dealt with as far as practicable
and with expedition through the disputes settlement procedure.
(viii) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
(c) Occupational
Health and Safety
(i) For the
purposes of this subclause, the following definitions shall apply:
(1) 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.
(2) 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 employer’s 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 (c) 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.
(d) 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.
(e) 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.
5. Personal/ Carer’s
Leave
(1) Use of Sick
Leave
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in 5.1(c) (ii) 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, 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.
(b) The employee
shall, if required,
(i) 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
(ii) 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.
(c) 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
subparagraph:
1. "relative"
means a person related by blood, marriage or affinity;
2. "affinity"
means a relationship that one spouse because of marriage has blood relatives of the other; and
3. "household"
means a family group living in the same domestic dwelling.
(d) 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
estimated length of absence. If it is not practicable for the employee to give
prior notice of absence, the employee shall notify by telephone of such absence
at the first opportunity on the day of absence.
(e) 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 at clause 9, Disputes Settling Procedure, should be
followed.
(2) Unpaid Leave for
Family Purpose
(a) 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 5.1(c) above who
is ill or who requires care due to an unexpected emergency.
(3) Annual Leave
(a) An employee may
elect, with the consent of the employer to take annual leave not exceeding ten
days in single-day periods, or part thereof, in any calendar year at a time or
times agreed by the parties.
(b) Access to annual
leave, as prescribed in paragraph (a) of this subclause, shall be exclusive of
any shutdown period provided for elsewhere in this award.
(c) 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.
(d) An employee may
elect with the employers agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
(4) Time Off in Lieu
of Payment for Overtime
(a) 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.
(b) Overtime taken
as time off during ordinary time hours shall be taken at ordinary time rate-
that is an hour for each hour worked.
(c) If, having
elected to take time as leave in accordance with paragraph (a) of this
subclause, the leave is not taken for whatever reason payment for the time
accrued at overtime rates shall be made at the expiry of the 12 months period
or on termination.
(d) Where no
election is made in accordance with the said paragraph (a), the employee shall
be paid overtime rates in accordance with the award.
(5) Make-Up Time
(a) An employee may
elect, with the consent of the employer, to work "make-up time",
under which the employee takes time off at 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.
(b) 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.
(6) Rostered Days
Off
(a) An employee may
elect, with the consent of the employer, to take a rostered day off at any
time.
(b) An employee may
elect, with the consent of the employer, to take rostered days off in part
amounts.
(c) 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 on at a time mutually agreed
between the employer and employee, or subject to reasonable notice by the
employee or employer.
(d) 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.
(7) Personal Carers
Entitlement for casual employees -
(a) Subject to the
evidentiary and notice requirements in 5.1(b) 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 5.1(c) 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.
(b) 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.
(c) 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.
(8) Bereavement
Leave
(a) An employee
other than a casual employee shall be entitled to up to two days bereavement
leave without deduction of pay on each occasion of the death of a person
prescribed in (c) below.
(b) 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.
(c) Bereavement
leave shall not be available to the employee in respect to the death of a
person prescribed for the purposes of Personal/Carers Leave in subclause (1)
(c) of this clause, provided that for the purpose of bereavement leave, the
employee need not have been responsible for the care of the person concerned.
(d) 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, under subclauses
1, 2, 3, 4, 5, 6 and 7 of this clause. In determining such a request the
employer will give consideration to the circumstances of the employee and the
reasonable operational requirements of the business.
(e) Bereavement
entitlements for casual employees
(i) Subject to the
evidentiary and notice requirements in subclause 5.1(b), 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 5.1(c).
(ii) 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.
(iii) 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.
6. 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).
7.
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 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.
(2) It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take 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, 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.
(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.
NOTES
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d) of
the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects...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."
8. Savings
Nothing in this award shall be read or construed so as to
reduce any conditions of the existing contract of employment.
9. Disputes Settling
Procedure
Any grievance involving a foreman or supervisor covered by
this award shall be dealt with by progression through the established
management structure of each company.
If this process does not resolve the grievance, either party
may refer the matter to the NSW Industrial Relations Commission for
Conciliation and Arbitration if necessary.
10. Redundancy
(1) Application
(i) This clause
shall apply in respect of full-time and part-time employees employed in the
classifications specified in this award.
(ii) This clause
shall only apply to employers who employ 15 or more employees immediately prior
to termination of employment of an employee.
(iii) Notwithstanding
anything contained elsewhere in this clause, this clause 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.
(iv) Notwithstanding
anything contained elsewhere in this clause, 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 specified tasks or tasks or where employment is
terminated due to the ordinary and customary turnover of labour.
(2) Introduction of
Change-
(i) Employers 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
effects on employees, the employer shall notify the employees who may be
affected by the proposed changes and the union.
(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 restructuring
of jobs.
Provided that where paragraph (i) of subclause (1)
makes provision for the 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, inter alia, the
introduction of the changes referred to in subclause (2) above, the effects the
changes are likely to have on employees and measures to avert or mitigate the
adverse effects of 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 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.
(3) 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 pursuant to subparagraph (a) of
paragraph (i) of subclause (2), and that decision may lead to the termination
of employment, the employer shall hold discussions with the employees directly
affected and with the union.
(b) The discussions
shall take place as soon as is practicable after the employer has made a
definite decision which will invoke the provision of subparagraph (a) of this
paragraph 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.
(c) For the purposes
of the discussions the employer shall, as soon as practicable, provide to the
employees concerned and the union, 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.
(4) Termination of
Employment
(i) Notice for
Changes in Production, Program, Organisation and Structure
This subclause sets out the notice provisions to be
applied to termination by the employer for reasons arising from
"production", "program", "organisation" or
"structure" in accordance with subparagraph (a) of paragraph (i) of
subclause (2) of this clause.
(a) In order to
terminate the employment of an employee, the employer, shall give 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
notice, with not less than two years continuous service, shall be entitled to
an additional week’s notice.
(c) 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.
(ii) Notice for
Technological Change- This paragraph sets out the notice provisions to be
applied to terminations by the employer for reasons arising from
"technology" in accordance with subparagraph (a) of paragraph (i) of
subclause (2) 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 termination given by the employer an employee shall be allowed up to
one day’s time off without loss of 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 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 Centrelink 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.
(vii) Department of
Social Security 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 Department of Social Security.
(viii) Transfer to
Lower-paid Duties- Where an employee is transferred to lower-paid duties for
the reasons set out in paragraph (i) of subclause (2), 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.
(5) Severance Pay
(i) Where an
employee is to be terminated pursuant to subclause (4), 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 or
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) "Weeks
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,
over-award payments, shift penalties and allowances paid in accordance with
this award.
(ii) Incapacity to
Pay- Subject to application by the employer and further order of the Industrial
Relations Commission of New South Wales, an employer may pay a lesser amount of
severance pay than that contained in paragraph (i) of the subclause.
The Industrial Relations 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 of severance pay than that
contained in paragraph (i) above if the employer obtains acceptable alternative
employment for an employee.
11. Traineeships
As to traineeships for persons covered by this award, see
the Training Wage (State) Award 2002 published 26 September 2003 (341 I.G. 569)
or any successor thereto.
12. Area, Incidence
and Duration
(a) This award is
made following a review under section 19 of the Industrial Relations Act 1996
and replaces the Supervisors, Breweries (State) Award published 21 December
2001 (330 I.G. 528) and all variations thereof.
(b) The award
published on 15 April 1987 took effect from the first full pay period
commencing on or after 29 April 1986.
(c) 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 23 April 2008.
(d) This award
remains in force until varied or rescinded for the period for which it was made
already having expired.
P.
J. CONNOR, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.