ICE CREAM MAKERS (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notices of award review pursuant to
section 19 of the Industrial Relations
Act 1996.
(No. IRC 5619, 5620 and 5621 of 1999 and 5285 of 2000)
|
Before The Honourable Justice Marks
|
22 May 2001
|
REVIEWED AWARD
PART A
Arrangement
Clause No Subject Matter
1 Title
2 Definitions
3 Hours
4 Mixed Functions
5 Shift Work
6 Rates of Pay
7 State Wage Case Adjustments
8 Supported Wage
9 Overtime, Sunday and Holiday Rates
10 Holidays
11 Meal Break
12 Meal Allowance
13 Rest Period
14 Engagement and Termination of Employment
15 Protective Clothing
16 Annual Leave
17 Annual Leave Loading
18 Sick Leave
19 Bereavement Leave
20 Personal Carer’s Leave
21 Working Alone
22 Jury Service
23 Shop Stewards
24 Compassionate Leave
25 Long Service Leave
26 Part-Time Employment
27 Payment of Wages
28 First Aid
29 Redundancy
30 Grievance Procedure
31 Training
32 Leave Reserved
33 Anti-Discrimination
34 Area, Incidence and Duration
PART B - Monetary Rates
Table 1 - Adult Wages
Table 2 - Other Rates
and Allowances
1. Title
This award shall be known as the Ice Cream Makers (State)
Award.
2. Definitions
(i) Ice Cream
Mixer shall mean an employee responsible for the mix preparation, whether under
the control of a foreperson or otherwise.
(ii) Assistant Ice
Cream Mixer shall mean an employee directly assisting the Ice Cream Mixer as
defined in subclause (i) of this clause.
(iii) Operator -
Moulding and Freezing shall mean an employee who controls the operation of an
Ice Cream Churn in conjunction with a moulding or extruding and freezing
machine, being machines producing product by the freeze or freeze heat method.
(iv) Operator -
Auto Filler shall mean an employee who controls the operation of an Ice Cream
Churn in conjunction with an automatic filling machine, producing semi-frozen
product.
(v) Operator -
Manual Filler shall man an employee who controls the operation of an Ice Cream
Churn producing semi-frozen product requiring manual fill operation.
(vi) Other Operator
shall mean an employee undergoing training on any of the classifications or who
operates machines auxiliary to machines mentioned in subclauses (iii), (iv) and
(v) of this clause.
(vii) Packer shall
mean an employee who performs the work incidental to the production line such
as forming cartons, packing into cartons, sealing cartons, filling containers,
lidding, loading sticks into "stick" machines, observing products
passing through machines and discarding imperfect products and / or materials,
transferring products by hand from point to point, preparatory work for the
shrink wrapping process and any other associated duties.
(viii) Union shall
mean the Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union, New South Wales Branch.
(ix) Ice Cream
Production Assistant - An employee appointed by the employer to this grade
shall be required to perform any one or more of the functions within this grade
and may be undertaking training so as to enable the employee to work in
Manufacturer Grade 1:
(1) General Hand
(2) Packer
In addition employees in this grade will undergo a training
program and will have to successfully complete the program to a competency level
defined within the program.
(x) Ice Cream
Manufacturer - Grade 1
An employee appointed by the employer to this grade shall be
required to perform any one or more functions within this grade and may be
required to perform any of the duties for which they are trained under
Production Assistant; they may also be undertaking training so as to enable
them to work in Manufacturer Grade 2:
(1) Stretchwrap
Operator / Forklift Driver
(2) Trainee
Operator
(3) Other Operator
In addition employees will undergo a training program and
will have to successfully complete the program to a competency level defined
within the program.
(xi) Ice Cream
Manufacturer - Grade 2
An employee appointed by the employer to this grade shall be
required to perform any one or more of the functions within this grade an may
be required to perform any of the duties for which they are trained under
Manufacturer Grade 1 and Production Assistant; they may also be undertaking
training so as to enable them to work in Manufacturer Grade 3:
(1) Operator Auto
Filler
(2) Operator
Manual Filler
(3) Assistant Ice
Cream Mixer
(xii) Ice Cream
Manufacturer - Grade 3
An employee appointed by the employer to this grade shall be
required to perform this function and may be required to perform any of the
duties for which they are trained under Manufacturer Grade 2, Manufacturer
Grade 1 and Production Assistant:
(1) Ice Cream
Mixer
(2) Operator
Moulding and Freezing
(3) Cake Decorator
In addition employees in this grade will undergo a training
program and will have to successfully complete the program to a competency
level defined within the program.
3. Hours
(i) The ordinary
hours of day workers shall be 40 per week.
(ii) Such ordinary
hours shall be worked in five days of not more than 8 hours continuously
(except for breaks for meals) between 7:00 a.m. and 5:30 p.m. on Mondays to
Fridays, inclusive.
(iii) The daily
starting and finishing times shall be fixed by the employer within the spread
of hours prescribed in subclause (ii) of this clause and shall not be altered
except after one week’s notice given to the employee.
4. Mixed
Functions
An employee if employed on a higher class of work shall be
paid at the higher rate for all time worked upon such higher duty, provided
that if the employee is so employed for more than two hours on any day, the
employee shall receive the wages for the higher class of work for the whole of
the day and if the employee is so employed for ten hours or more in any pay
week the employee shall be paid at the higher rate for the whole of that pay
week. If an employee is called upon to work on a class of work carrying a lower
rate of pay the said employee shall suffer no reduction.
5. Shift Work
An employer may employ employees on shift work subject to
the following conditions and limitations:
(i) A night shift
may be worked by adult employees only in which case the ordinary hours of work
shall not exceed forty hours per week inclusive of crib time. Such shifts shall
be worked continuously on each night, Monday to Friday inclusive between the
hours of 10 p.m. and 8 a.m. on the succeeding day.
(ii) An employee
engaged on night shift shall be paid a loading of thirty per cent of the wages
prescribed by clause 6, Rates of Pay, of this award.
(iii) Morning and
afternoon shifts may be worked subject to the following conditions:
(a) The ordinary
hours shall be worked in five shifts of eight hours inclusive of crib time,
Monday to Friday, inclusive.
(b) A crib time of
twenty minutes shall be allowed to shift workers on each shift which shall be
counted as time worked.
(c) A rest period
of twenty minutes which shall be counted as time worked shall be allowed to
shift workers. Such twenty minutes shall be taken either in one period or in
two periods of ten minutes at times mutually convenient.
(d) The employer
shall give to the union not less than seven days’ notice of its intention to
work shifts and of the times between which such shifts shall be worked;
provided that shifts shall not commence before 6 a.m. and shall not finish
later than 11:30 p.m.
(e) Employees
whilst working on afternoon shift shall be paid the rate per shift as set out
in Item 6 of Table 2 - Other Rates and Allowances of Part B - Monetary Rates in
addition to the ordinary rates.
(f) Afternoon
shift shall mean any shift finishing after 6 p.m. and at or before 11:30 p.m.
(g) Employees
whilst working on night shift shall be paid 30 per cent, in addition to the
ordinary rates.
(iv) Norco
Co-operative Limited may commence a shift at 4:00 a.m. for the purpose of
preparing mixers for the day with a shift loading of 10 per centum.
6. Rates of Pay
Adult and junior employees shall be paid in accordance with
the rates prescribed in Table 1 - Rates of Pay, of Part B, Monetary Rates.
7. State Wage
Case Adjustments
The rates of pay in this Award include the adjustments
payable under the State Wage Case 2000. Those adjustments may be offset
against:
(a) any equivalent
overaward payments, and / or
(b) award wage
increases since 29 May 1991 other than safety net, State Wage Case and minimum
rates adjustments.
8. Supported
Wage
Employees Eligible for a Supported Wage -
(a) The clause
defines the condition which will apply to employees who, because of the effects
of a disability, are eligible for a supported wage under the terms of this
award. In the context of this clause, the following will apply:
(i) Supported
Wage System means the Commonwealth Government system to promote employment for
people who cannot work at full award wages because of a disability, as documented
in Supported Wage System: Guidelines and Assessment Process.
(ii) Accredited
Assessor means a person accredited by the management unit established by the
Commonwealth under the Supported Wage System to perform assessments of an
individual’s productive capacity within the Supported Wage System.
(iii) Disability
Support Pension means the Commonwealth pension scheme to provide income
security for persons with a disability as provided for under the Social Security Act 1991, or any
successor to that scheme.
(iv) Assessment
Document means the form provided under the Supported Wage System that records
the assessment of the productive capacity of the person to be employed under
the Supported Wage System.
(b) Eligibility
Criteria - Employees covered by this clause will be those who are unable to
perform the range of duties to the competence level required within the class
of work for which the employee is engaged under this award, because of the
effects of a disability on their productive capacity, and who meet the
impairment criteria test for receipt of a Disability Support Pension.
The clause does not apply to any existing employee who has a
claim against the employer which is subject to the provisions of workers’
compensation legislation or any provision of this award relating to the
rehabilitation of employees who are injured in the course of their employment.
This clause does not apply to employers in respect of their facility, program,
undertaking, service or the like which receives funding under the Disability Services Act 1986 and fulfils
the dual role of service provider and sheltered employer to people with
disabilities who are in receipt of, or are eligible for, a Disability Support
Pension, except with respect to an organisation which as received recognition
under section 10 or section 12A of the said Act or, if a part only has received
recognition, that part.
(c) Supported Wage
Rates - Employees to whom this clause applies shall be paid the applicable
percentage of the minimum rate of pay prescribed by this award for the class of
work which the person is performing, according to the following schedule:
Assessed capacity Percentage
of prescribed award rate
(subclause (d))
10% 10
20% 20
30% 30
40% 40
50% 50
60% 60
70% 70
80% 80
90% 90
(Provided that the minimum amount payable shall be not less
than $45.00 per week.)
Where a person’s assessed capacity is 10 per cent, they
shall receive a high degree of assistance and support.
(d) Assessment of
Capacity - For the purpose of establishing the percentage of the award rate to
be paid to an employee under this award, the productive capacity of the
employee will be assessed in accordance with the Supported Wage System and
documented in an assessment instrument by either:
(i) the employer
and a union party to the award, in consultation with the employee or, if
desired, by any of these:
(ii) the employer
and an accredited assessor from a panel agreed by the parties to the award and
the employee.
(e) Lodgement of
Assessment Instrument -
(i) All
assessment instruments under the conditions of this clause, including the
appropriate percentage of the award wage to be paid to the employee, shall be
lodged by the employer with the Registrar of the Industrial Relations
Commission of New South Wales.
(ii) All
assessment instruments shall be agreed and signed by the parties to the
assessment, provided that where a union which is a party to the award is not a
party to the assessment, it shall be referred by the Registrar to the union by
certified mail and will take effect, unless an objection is notified to the
Registrar within ten working days.
(f) Review of
Assessment - The assessment of the applicable percentage should be subject to
annual review or earlier on the basis of a reasonable request for such a
review. The process of review will be in accordance with the procedures for
assessing capacity under the Supported Wage System.
(g) Other Terms
and Conditions of Employment - Where an assessment has been made, the
applicable percentage shall apply to the wage rate only. Employees covered by
the provisions of this clause will be entitled to the same terms and conditions
of employment as all other workers covered by this award paid on a pro rata
basis.
(h) Work
Adjustment - An employer wishing to employ a person under the provisions of
this clause must take reasonable steps to make changes in the workplace to
enhance the employee’s capacity to do the job. Changes may involve redesign of
job duties, working time arrangement and work organisation in consultation with
other workers in the area.
(i) Trial Period
-
(i) In order of
an adequate assessment of the employee’s capacity to be made, an employer may
employ a person under the provisions of this clause for a trial period not
exceeding 12 weeks, except that in some cases additional work adjustment time
(not exceeding four weeks) may be needed.
(ii) During the
trial period the assessment of capacity shall be undertaken and the proposed
wage rate for a continuing employment relationship shall be determined.
(iii) The minimum
amount payable to the employee during the trial period shall be no less than
$45.00 per week.
(iv) Work trials
should include induction or training as appropriate to the job being trialed.
(v) Where the
employer and employee wish to establish a continuing employment relationship
following the completion of the trial period, a further contract of employment
shall be entered into, based on the outcome of assessment under subclause (d)
of this clause.
9. Overtime, Sunday
and Holiday Rates
(i) An employee,
who works for any time in excess of forty hours in any one week or before the
fixed starting time or after the fixed finishing time shall be paid for such
time at the rate of time and one-half for the first two hours and at the rate
of double time thereafter.
(ii) An employee
required to work on a Sunday shall be paid at the rate of double time, whilst
an employee required to work on a public holiday shall be paid at the rate of
double time and a half, provided that an employee required to work on 25
December or Good Friday shall be paid at treble time. There shall be a minimum
payment of four hours at the rate herein described for any start on such day.
(iii) An employee
required to work during the usual meal break shall be paid at the rate of time
and one-half and such rates shall continue to be paid until the employee is
allowed the usual meal break.
(iv) When overtime
work is necessary it shall, wherever reasonably practicable, be so arranged
that employees have at least ten consecutive hours off duty between the work of
successive days.
(v) An employee
(other than a casual employee) who works so much overtime between the
termination of their ordinary work on one day and the commencement of their
ordinary work on the next day that the employee has not had at least ten
consecutive hours off duty between those times shall, subject to this
subclause, be released after completion of such overtime until the employee has
had ten consecutive hours off duty without loss of pay for ordinary working
time occurring during such absence.
If, on these instructions of the employer, such employee
resumes or continues work without having had such ten consecutive hours off
duty, the employee shall be paid at double rates until the employee is released
from duty for such period and the employee shall then be entitled to be absent
until the employee has had ten consecutive hours off duty without loss of pay
for ordinary working time occurring during such absence.
Notation: The provisions of this award, in particular this
clause, shall be read in conjunction with the Occupational Health and Safety Act 2000.
10. Holidays
(i) The following
holidays shall be observed as holidays, viz.:
New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter
Monday, Anzac Day, Queen's Birthday,
Labour Day, Christmas Day, Boxing Day, or any day observed in lieu of such
days, and such other days as may be proclaimed as public holidays for the State
and observed as such and the union picnic day which shall be held on the last
Monday in October, in each year.
(ii) Employees,
other than casual employees, shall be entitled to the holidays specified in
subclause (i) of this clause without loss of pay provided that such employees
do not absent themselves from work on the working day preceding or the working
day succeeding such holiday.
(iii) When such
holidays fall on consecutive days an employee who works on either the working
day preceding or the working day succeeding such holiday, but not on both,
shall be entitled to payment for the holiday closest to the day on which the
employee worked.
(iv) The employer
may require from an employee evidence of the employee’s attendance at the
picnic and the production of the butt of a picnic ticket issued for the picnic
shall be sufficient evidence of such attendance. Where such evidence is
required by the employer payment need not be made unless the evidence is
produced.
11. Meal Break
(i) Except as to
shift work employees, no employee shall work more than five hours without a
suitable meal break, such meal break shall be not less than thirty minutes nor
more than one hour.
(ii) Each employee
on shift work shall be allowed at least twenty minutes for crib during the
fifth hour of this employment which shall be counted as time worked.
12. Meal Allowance
An employee required to work overtime in excess of one hour
without having been notified on the previous day, shall be paid the sum as set
out in Item 3 of Table 2 - Other Rates and Allowances of Part B - Monetary
Rates to provide the employee with a meal and an additional sum as set out in
the said Item 3 for each further four hours so worked; provided that in the
case of day workers where such overtime is completed by 5:30 pm, a meal
allowance is not paid if the overtime worked is not more than one and one-half
hours.
13. Rest Periods
(i) Rest periods
of ten minutes’ duration shall be allowed to all employees within the third
hour after starting time and the third hour after meal break.
(ii) Rest periods
in each instance shall be paid for and if worked by direction of the employer
shall be paid for at the rate of double time.
14. Engagement and
Termination of Employment
(i) Employees
shall be engaged on a full-time, part-time or casual basis and shall be paid by
the week.
(ii) The
engagement of an employee may be terminated only by one week’s notice or the
payment or forfeiture, as the case may be, of one week’s wages in lieu provided
that the employer may dismiss an employee at any time for misconduct or wilful
disobedience and then shall be liable for the payment of wages due to the time
of dismissal only.
15. Protective
Clothing
(i) Caps,
overalls, uniforms and other protective covering shall be provided by the
employer free of charge and shall be kept laundered by the employer: Provided
that the employer may require the employee to launder their uniforms / overalls
only, in which case the employer shall reimburse the employee the amount as set
out in Item 5 of Table 2 - Other Rates and Allowances of Part B - Monetary
Rates per week.
(ii) Caps,
overalls, uniforms and other protective covering shall be returned on demand
and in default thereof the employee shall pay for them at a reasonable rate
calculated by the employer and the union.
16. Annual Leave
See Annual Holidays
Act 1944.
17. Annual Leave
Loading
(i) In this
clause the Annual Holidays Act 1944,
is referred to as "the Act".
(ii) Before an
employee is given and takes their annual holiday, or, where by agreement
between the employer and employee the annual holiday is given and taken in more
than one separate period, then before each such separate period, the employer
shall pay the employee a loading determined in accordance with this clause.
(NOTE: The obligation to pay in advance does not apply where an employee takes
an annual holiday wholly or partly in advance - see subclause (vi).)
(iii) The loading
is payable in addition to the pay for the period of holiday given and taken and
due to the employee under the Act and this award.
(iv) The loading is
to be calculated in relation to any period of annual holiday to which the
employee becomes or has become entitled.
(v) The loading is
the amount payable for the period or the separate period as the case may be,
state in subclause (iv) at the rate per week of 17.5 per cent of the
appropriate ordinary weekly time rate of pay prescribed by this award for the
classification in which the employee was employed immediately before commencing
the employee’s annual holiday, together with where applicable the extra rates
pursuant to subclauses (iii) and (v) of clause 6, Rates of Pay, of this award,
but shall not include penalty rates, shift allowances, overtime rates, or any
other payments prescribed by this award.
(vi) No loading is
payable to an employee who takes an annual holiday wholly or partly in advance;
provided that if the employment of such an employee continues until the day
when the employee would have become entitled under the Act to the annual
holiday, the loading then becomes payable in respect of the period of such
holiday and is to be calculated in accordance with subclause (v) of this clause
applying to the award rates of wages payable on that day.
(vii)
(a) When the
employment of an employee is terminated by the employer for a cause other than
misconduct and at the time of the termination the employee has not been given
and has not taken the whole of an annual holiday to which the employee has
become entitled the employee shall be paid a loading calculated in accordance
with subclause (iv) for the period not taken.
(b) Except as
provided by paragraph (a) of this subclause no loading is payable on the
termination of an employee’s employment.
Shift Worker -
(viii) This clause
extends to an employee who is given and takes an annual holiday and who would
have worked as a shift worker if the employee had not been on holiday; provided
that, if the amount to which the employee would have been entitled by way of
shift work allowances and weekend penalty rates for the ordinary time (not
including time on a public or special holiday) which the employee would have
worked during the period of the holiday exceeds the loading calculated in
accordance with this clause, then the amount shall be paid to the employee in
lieu of the loading.
18. Sick Leave
(a) Entitlement to
Sick Leave
An employee who is absent from work on account of illness or
on account of injury by accident shall be entitled to paid sick leave subject
to the following conditions:
The employee shall be entitled to paid sick leave after one
months service;
Where absences occur in the first 3 months of employment,
payment for sick leave shall be subject to the production of a medical
certificate covering the period of absence.
An employee shall be entitled to the following sick leave
entitlements:
- 40 hours
during the first year of employment.
- 80 hours
during the second and subsequent years of employment:
(b) Inability to
Attend for Work - Notifying the Employer
The employee shall inform the employer of the inability to attend
for work within 2 hours of the commencement of such absence and, as far as
practicable, state the nature of the employee's illness or injury and the
estimated duration of the absence. If
it is not reasonably practicable to inform the employer of the absence within 2
hours the employee shall inform the employer within 4 hours.
(c) Proof of
Illness or Injury
The employee shall provide to the satisfaction of the
employer, or in the event of any dispute to the Industrial Relations
Commission, that the employee was unable, on account of such illness or injury,
to attend for work for the period of sick leave claimed.
The employer may require an employee to make a statutory
declaration verifying the cause and length of the employee's absence.
(d) Cumulative
effects of unexhausted sick leave entitlement
Where an employee has not exhausted the amount of sick leave
owing to them as outlined in subclause (a) above, the balance of any leave
owing shall be cumulative and be available in subsequent years of employment
for the purposes of this clause. This
shall be in addition to any entitlement that arises in the second or subsequent
years of employment under this clause.
(e) Single Day
Absences
Where an employee is paid sick leave for a single days
absence in one year, the employee shall not be entitled to payment for a
further single days absence unless a medical certificate stating proof of
illness or injury is provided to the employer.
19. Bereavement
Leave
(i) An employee,
other than a casual employee, shall be entitled three days bereavement leave,
without deduction of pay, up to and including the day of the funeral, on each
occasion of the death of a person as prescribed in subclause (iii) of this
clause. Provided that, if the employee
claims payment for such leave in excess of two ordinary working days, the
employee shall furnish proof satisfactory to the employer that the employee
attended the funeral.
(ii) 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.
(iii) Bereavement
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of personal/carer's leave as set out in
subparagraph (ii) of paragraph (c) of subclause (1) of clause 20,
Personal/Carers Leave, provided that, for the purpose of bereavement leave, the
employee need not have been responsible for the care of the person concerned.
(iv) An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which the employee has been granted other leave.
(v) Bereavement
leave may be taken in conjunction with other leave available under subclauses
(2), (3), (4), (5) and (6) of the said
clause 20. In determining such a
request, the employer will give consideration to the circumstances of the
employee and the reasonable operational requirements of the business.
20. 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 subparagraph (ii) of paragraph (c), who needs the employee's
care and support, shall be entitled to use, in accordance with this subclause,
any current or accrued sick leave entitlement, provided for in clause 18, Sick
Leave, for absences to provide care and support for such persons when they are
ill. Such leave may be taken for part
of a single day.
(b) The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person.
In normal circumstances, an employee must not take carer's leave under
this subclause where another person has taken leave to care for the same
person.
(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 o r 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 to 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
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.
(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 member of a class of person set out
in subparagraph (ii) of paragraph (c) of subclause (1) who is ill.
(3) Annual Leave
(a) An employee
may elect with the consent of the employer, subject to the Annual Holidays Act
1944, to take annual leave not exceeding five days in single day periods or
part thereof, in any calendar year at a time or times agreed by the parties.
(b) Access to
annual leave, as prescribed in paragraph (a) of this subclause, shall be
exclusive of any shutdown period provided for elsewhere under 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.
(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 the 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 time accrued
at overtime rates shall be made at the expiry of the 12 month 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 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
day 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 upon at a time mutually
agreed between the employer and employee, or subject to reasonable notice by
the employee or the 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.
21. Working Alone
No employee shall be required to work alone without regular
observation or contact with another responsible person.
22. Jury Service
An employee, other than a casual, required to attend for
jury service during their ordinary working hours shall be reimbursed by the
employer an amount equal to the difference between the amount paid in respect
of their attendance for such jury service and the amount of wage the employee
would have received in respect of the ordinary time the employee would have
worked had the employee not been on jury service.
An employee shall notify their employer as soon as possible
of the date upon which the employee is required to attend for jury service.
Further the employee shall give their employer proof of their attendance, the
duration of such attendance and the amount received in respect of such jury
service.
23. Shop Stewards
(a) An employee
who is elected or appointed a shop steward shall be recognised as such by the
employer and subject to the permission of the employer, which permission shall
not be unreasonably withheld, the shop steward may interview members of the
union during working time and if such time is during the shop steward’s working
time, the shop steward shall suffer no loss of pay.
(b) A shop steward
shall be permitted to interview the employer or its representative during
working hours without loss of pay.
(c) A shop steward
shall be permitted easy access to a telephone to call branch officials at any
time.
24. Compassionate
Leave
(i) An employee
shall be entitled to leave of absence upon notice without pay in order to
attend to matters relating to the education of a child or to attend to personal
legal business or legal business involving a person dependent either wholly or
partially upon the employee or to attend to matters of a medical nature
involving the employee personally or a person whose relationship to the
employee is such as it is reasonable that the employee shall be in attendance
or escort the person to a medical appointment.
(ii) An employee
shall be entitled to so much leave of absence upon notice as is necessary to
attend a parent, spouse, child, stepchild or ward whose death is anticipated to
be imminent.
25. Long Service
Leave
See Long Service Leave
Act 1955.
26. Part-time
Employment
(i) A part-time
employee is an employee engaged for a regular number of hours each week less
than 40 but such hours shall not be less than 15.
(ii) The weekly
hours shall be worked at the same time and on the same days of the week, and
all time worked outside these hours shall be paid as overtime.
(iii) Such an
employee for working ordinary time shall be paid per hour one-fortieth of the
weekly rate prescribed by this award; and where applicable the appropriate
shift penalty shall be paid on a pro rata basis.
27. Payment of
Wages
(i) Wages shall
be paid weekly and not later than two working days following the completion of
the pay week; provided, however, that where the Secretary of the union and an
employer agree in writing, such wages may be paid not later than three working
days following the completion of the pay week.
(ii) Waiting Time
- an employee kept waiting for their wages on pay day for more than ten minutes
after the usual time for ceasing work shall be paid overtime after that ten
minutes with a minimum payment as for half an hour.
This subclause shall not apply if wages cannot be paid
within the time specified due to a cause beyond the employer’s control, in
which case wages shall be paid at the earliest time in which payment becomes
possible.
(iii) Payment on
Termination - Upon termination of employment, all wages due to an employee
(including a casual) shall be paid to the employee on the day of such
termination or forwarded to the employee by post on the next ordinary working
day.
28. First-aid
An employee appointed by the employee to perform first-aid
duty, shall in addition to the employee’s ordinary rate of pay be paid the
amount as set out in Item 4 of Table 2 - Other Rates and Allowances of Part B -
Monetary Rates per week extra.
29. Redundancy
(i) Application -
(a) This clause
shall apply in respect of full-time and part- time employees as set out in
clause 6, Rates of Pay.
(b) This clause
shall apply only in respect to employers who employ more than 15 employees
immediately prior to the termination of employment of employees, in the terms
of subclause (iv) of this clause.
(c) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply to
employees with less than one year's continuous service, and the general
obligation on employers shall be 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.
(d) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply where
employment is terminated as a consequence of conduct that justifies instant
dismissal, including malingering, inefficiency or neglect of duty, or in the
case of casual employees, apprentices or employees engaged for a specific
period of time or for a specified task or tasks or where employment is
terminated due to the ordinary and customary turnover of labour.
(ii) Introduction
of Change -
(A) 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 to which they belong.
(b) "Significant
effects" include termination of employment, major changes in the
composition, operation or size of the employer's workforce or in the skills
required, the elimination or diminution of job opportunities, promotion
opportunities or job tenure, the alteration of hours of work, the need for
retraining or transfer of employees to other work or locations and the
restructuring of jobs.
(B) Employer's Duty
to Discuss Change -
(a) The employer
shall discuss with the employees affected and the union to which they belong,
the introduction of the changes referred to in subclause (A) of this clause,
the effects the changes are likely to have on employees and measures to avert
or mitigate the adverse effects of such changes on employees, and shall give
prompt consideration to matters raised by the employees and/or the union in
relation to the changes.
(b) The discussion
shall commence as early as practicable after a definite decision has been made
by the employer to make the changes referred to in the said subclause (A).
(c) For the
purpose of such discussion, 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.
(iii) Redundancy
Discussions Before Terminations -
(a) Where an
employer has made a definite decision that the employer no longer wishes the
job the employee has been doing to be done by anyone, pursuant to paragraph (a)
of subclause (ii), Introduction of Change, and that decision may lead to the
termination of employment, the employer shall hold discussions with the
employees directly affected and with the union to which they belong.
(b) The
discussions shall take place as soon as practicable after the employer has made
a definite decision which will invoke the provision of paragraph (a) of this
subclause and shall cover, any reason for the proposed terminations, measures
to avoid or minimise the terminations and measures to mitigate any adverse
effects of any termination on the employees concerned.
(c) For the
purpose of the 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.
(iv) Termination of
Employment
(A) Notice for
Changes in Production, Program, 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
paragraph (a) of subclause (ii) of this clause.
(a) In order to
terminate the employment of an employee, the employer shall give to the
employee the following notice:
Period of continuous service Period
of notice
Less than 1 year 1
week
1 year and less than 3 years 2
weeks
3 years and less than 5 years 3 weeks
5 years and over 4
weeks
(b) In addition to
the notice above, employees over 45 years of age at the time of the giving of
the notice, with not less than two years' continuous service, shall be entitled
to an additional week's notice.
(c) Payment in
lieu of 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.
(B) Notice for
Technological Change - This subclause sets out the notice
provisions to be applied to terminations by the employer for reasons arising
from "technology" in accordance with paragraph (a) of subclause (ii)
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.
(C) Time Off During
the Notice Period -
(a) During the
period of notice of termination given by the employer, an employee shall be
allowed up to one day's time off without loss of pay during each week of
notice, to a maximum of five weeks, for the purpose of seeking other
employment.
(b) If the
employee has been allowed paid leave for more than one day during the notice
period for the purpose of seeking other employment, the employee shall, at the
request of the employer, be required to produce proof of attendance at an
interview or the employee shall not receive payment for the time absent.
(D) 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
as those 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.
(E) 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.
(F) Notice to
Centrelink or the appropriate Government Authority - Where a decision has been
made to terminate the employment of 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.
(G) 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.
(H) Transfer to
Lower Paid Duties - Where an employee is transferred to lower paid duties for
reasons set out in paragraph (a) of subclause (ii), the employee shall be entitled
to the same period of notice of transfer as the employee would have been
entitled to if the employee's employment had been terminated, and the employer
may, at the employer's option, make payment in lieu thereof of an amount equal
to the difference between the former ordinary-time rate of pay and the new
ordinary- time rate for the number of weeks of notice still owing.
(v) Severance Pay
(a) Where an
employee is to be terminated pursuant to subclause (iv) Termination of
Employment, 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:
(A) If an employee
is under 45 years of age, the employer shall pay in accordance with the
following scale:
Years of service Under
45 years of age entitlement
Less than 1 year Nil
1 year and less than 2 years 4
weeks
2 years and less than 3 years 7 weeks
3 years and less than 4 years 10 weeks
4 years and less than 5 years 12 weeks
5 years and less than 6 years 14 weeks
6 years and over 16
weeks
(B) Where an
employee is 45 years of age or over, the entitlement shall be in accordance
with the following scale:
Years of service 45
years of age and over entitlement
Less than 1 year Nil
1 year and less than 2 years 5 weeks
2 years and less than 3 years 8.75 weeks
3 years and less than 4 years 12.5 weeks
4 years and less than 5 years 15 weeks
5 years and less than 6 years 17.5 weeks
6 years and over 20 weeks
(C) "Week's
pay" means the all-purpose rate of pay for the employee concerned at the
date of termination and shall include, in addition to the ordinary rate of pay,
overaward payments, shift penalties and allowances paid in accordance with this
award.
(b) 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
(a) of this clause.
The Commission shall have regard to such financial and other
resources of the employer concerned as the Commission thinks relevant, and the
probable effect paying the amount of severance pay in subclause (a) of this
subclause will have on the employer.
(c) Alternative
Employment - 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
(a) of this subclause if the employer obtains acceptable alternative employment
for an employee.
30. Grievance
Procedure
(i) Procedures
Relating to Grievances of Individual Employees
(a) The employee
is required to notify the employer (in writing or otherwise) as to the
substance of the grievance, request a meeting with the employer for bilateral
discussions and state the remedy sought.
(b) A grievance
must initially be dealt with as close to its source as possible, with graduated
steps for further discussion and resolution at higher levels of authority.
(c) Reasonable
time limits must be allowed for discussion at each level of authority.
(d) At the
conclusion of the discussion, the employer must provide a response to the
employee's grievance, if the matter has not been resolved, including reasons
for not implementing any proposed remedy.
(e) While a
procedure is being followed, normal work must continue.
(f) The employee
may be represented by an industrial organisation of employees and the employer
may be represented by an industrial organisation of employers.
(ii) Procedures
Relating to Disputes, etc., Between Employers and their Employees -
(a) A question,
dispute or difficulty must initially be dealt with as close to its source as
possible, with graduated steps for further discussion and resolution at higher
levels of authority.
(b) Reasonable
time limits must be allowed for discussion at each level of authority.
(c) While a
procedure is being followed, normal work must continue.
(d) The employer
may be represented by an industrial organisation of employers and the employees
may be represented by an industrial organisation of employees for the purposes
of each procedure.
31. Training
(a) The 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:
(i) developing a
more highly skilled and flexible workforce;
(ii) providing
employees with career opportunities through appropriate training to acquire
additional skills; and
(iii) removing
barriers to the utilisation of skills required.
(b) Following
proper consultation or through the establishment of a training committee, an
employer shall develop a training program consistent with:
(i) the current
and future skill needs of the enterprise;
(ii) the size,
structure and nature of the operations of the enterprise;
(iii) the need to
develop vocational skills relevant to the enterprise and the industry through
courses conducted by accredited education institutions and providers.
(c) 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 clearly states its role and responsibilities, for example:
- formulation
of a training program and availability of training courses and career
opportunities to employees;
- dissemination
of information on the training program and availability of training courses and
career opportunities to employees;
- the
recommending of individual employees for training and reclassification;
- monitoring
and advising management and employees on the on-going effectiveness of the
training.
(d)
(i) Where it is
agreed that additional training in accordance with the program developed
pursuant to subclause (b) hereof should be undertaken by an 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.
(ii) Any costs
associated with standard fees for prescribed courses and prescribed textbooks
(including those textbooks which are available in the employer's technical
library) incurred in connection with the undertaking of training shall be
reimbursed by the employer upon production of evidence of such expenditure. Provided that reimbursement shall be on the
basis of reports of satisfactory progress.
(iii) Travel costs
incurred by an employee undertaking training in accordance with this clause
which exceed those normally incurred in travelling to and from work shall be
reimbursed by the employer.
(e) Subclauses
(b), (c) and (d) herein shall operate as interim provisions and shall be
reviewed as part of the ongoing process of award restructuring. The parties shall monitor the effectiveness
of those interim provisions in encouraging the attainment of the objectives
detailed in subclause (a) hereof. In
this connection the unions reserve the right to press for the mandatory
prescription of a minimum number of training hours per annum without loss of
pay for an employee undertaking training to meet the needs of an individual
enterprise and/or the Ice Cream Making industry.
(f) Any disputes
arising in relation to subclauses (b) and (c) shall be subject to the
provisions of clause 30, Grievance Procedure.
(g) Redefine the
role of operator to include reference to the responsibility for quality, safety
and hygiene. In addition, employees in
this grade will:
(i) undergo a
training program and will have to successfully complete the program to a
competency level defined within the program;
(ii) be
responsible for achieving, monitoring and maintaining specified product
quality;
(iii) be
responsible for implementing and monitoring hygiene work practices.
(h) Commitment
from the union to discuss the future roles and responsibilities of
employees. The industry is introducing
a Total Quality Management philosophy with the intention of giving a
competitive edge by improving quality and hygiene. It is the wish of the industry to provide employees with the
right work practices and equipment in a clean and safe environment. To achieve this it is proposed that the
union give a commitment to discuss reviewing the roles and responsibilities of
employees seeking their involvement in support via work study groups and
consultative committees.
A commitment is also required from the union and its members
to participate in purposeful and cooperative discussions towards the
achievement of a Streets Ice Cream Site Agreement.
32. Leave Reserved
Leave is reserved to the union to apply as it may be advised
with respect to:
(i) the quantum
of ordinary hours to be worked each week or twenty working day cycle.
(ii) accident pay.
33. Anti
Discrimination
(i) 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
and age.
(ii) 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
this award which, by its terms or operation, has a direct or indirect
discriminatory effect.
(iii) 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.
(iv) Nothing in
this clause is to be taken to affect:
(a) any conduct or
act which is specially 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.
(v) This clause
does not create legal rights or obligations in addition to those imposed upon
the parties by 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 this 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."
34. 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 Ice Cream Makers (State) award published 9 November
1983 (231 IG 1038), the Ice Cream Makers (State Wage Case 1996) (State) Award
published 22 November 1996 (295 IG 1086), Ice Cream Makers Family Leave
Provisions (State) Award published 27 October 1995 (288 IG 931), and the Ice
Cream Makers Redundancy (State) Award published 31 March 1995 (284 IG 1061),
and all variations thereof.
It shall apply to all employees engaged in or in connection
with the manufacture, packing, putting up and conveying to cold store of ice
creams, frozen ices, or snows, in the State, excluding the County of
Yancowinna, within the Industries and Callings of this award.
The changes made to this award pursuant to section 19 of the
Industrial Relations Act 1996 take
effect on and from 22 May 2001. This award remains in force until varied or
rescinded, the period for which it was made having already expired.
PART B - Monetary Rates
Table 1 - Wages
|
Classification
|
Former rate per
|
SWC May
|
New total rate per
|
|
|
week $
|
2000 $
|
week $
|
|
|
|
|
|
|
Ice Cream Productions Assistant -
|
|
|
|
|
General Hand
|
391.80
|
15.00
|
406.80
|
|
Packer
|
391.80
|
15.00
|
406.80
|
|
Ice Cream Manufacturer Grade 1 -
|
|
|
|
|
Stretchwrap operator / forklift operator
|
408.00
|
15.00
|
423.00
|
|
Trainee Operator
|
400.80
|
15.00
|
415.80
|
|
Other Operator
|
400.80
|
15.00
|
415.80
|
|
Ice Cream Manufacturer Grade 2 -
|
|
|
|
|
Operator auto filler
|
415.30
|
15.00
|
430.30
|
|
Operator manual filler
|
408.00
|
15.00
|
423.00
|
|
Assistant ice cream mixer
|
405.90
|
15.00
|
420.90
|
|
Ice Cream Manufacturer Grade 3 -
|
|
|
|
|
Ice Cream Mixer
|
426.70
|
15.00
|
441.70
|
|
Operator moulding and freezing
|
423.30
|
15.00
|
438.30
|
|
Cake decorator
|
423.30
|
15.00
|
438.30
|
Junior Employees
|
Classification
|
Former rate per week $
|
SWC May 2000 $
|
New total rate per week $
|
|
Under 17 years of age
|
180.30
|
5.60
|
185.90
|
|
At 17 years
|
213.50
|
6.60
|
220.10
|
|
At 18 years
|
Adult Rate
|
|
|
Table 2 - Other Rates and Allowances
|
Item
|
Clause
|
Brief Description
|
Amount
|
|
No.
|
No.
|
|
$ per week
|
|
1
|
|
Leading Hands -
|
|
|
|
|
Leading hands shall, in addition to their appropriate rate
of pay,
|
|
|
|
|
be paid the following amounts:
|
|
|
|
|
In charge of two and up to five employees inclusive
|
18.25
|
|
|
|
In charge of six and up to ten employees inclusive
|
23.10
|
|
|
|
In charge of more than ten employees
|
26.60
|
|
2
|
|
Casual employees -
|
|
|
|
|
Casual employees shall be paid one-fortieth of the
appropriate
|
|
|
|
|
weekly wage, plus 20 per cent thereof per hour.
|
|
|
3
|
12
|
Meal Allowance
|
8.70
|
|
4
|
28
|
First-aid Allowance
|
9.70
|
|
5
|
15(ii)
|
Laundry Allowance
|
15.40
|
|
6
|
5(iii)(e)
|
Shift Allowance
|
13.10
|
Industries and Callings
Employees engaged in or in connection with the manufacture,
packing, putting up and conveying to cold store of ice cream, frozen ices or
snows, in the State, excluding the County of Yancowinna;
Excepting -
Engineers, fitters, turners, blacksmiths, coppersmiths and
patternmakers;
Makers, fitters, and repairers of electrical apparatus and
installations, and employees engaged in the maintenance of electrical apparatus
and installations or in running electrical plant;
Tinsmiths, canister makers, sheet ironworkers, and tin box
makers;
Carpenters and joiners;
Engine-drivers and firepersons, greasers, trimmers,
cleaners, and pumpers engaged in and about the driving of engines, electrical
crane, winch, and motor drivers;
Plumbers and gasfitters and their assistants;
Painters;
Bricklayers and tuckpointers;
Carters, grooms, stablepersons, yardpersons, and drivers of
motor and other power propelled vehicles;
Watchpersons, caretakers and cleaners;
Clerks; and
Cold storage and ice hands.
F. MARKS J.
____________________
Printed by the authority of the Industrial Registrar.