VEHICLE INDUSTRY - REPAIR SERVICES AND RETAIL (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Applications by Australian
Business Industrial and another, industrial organisations of employers, and Shop,
Distributive and Allied Employees' Association, New South Wales, industrial
organisation of employees.
(Nos. IRC 2469 of 2000 and 3366 of 2002)
Before The Honourable
Justice Kavanagh
|
9 April, 29 May, 13 June 2002
|
AWARD
PART A
1.
Arrangement
PART A
Clause No. Subject Matter
1. Arrangement
2. Contract
of Employment
3. Casual
Employment
4. Part-time
Employment
5. Payment
of Wages
6. Wage
Rates
7. Award
Modernisation
8. Payment
By Results
9. Junior
Employees
10. Special
Rates & Allowances
11. Hours of
Work
12. Implementation
of 38-Hour Week
13. Meal
Breaks
14. Rates for
Saturday Work
15. Rates for
Sunday Work
16. Rates for
Holiday Work
17. Shift Work
& Rates Therefore
18. Overtime
19. Mixed
Functions
20. Holidays
21. Annual
Leave
22. Long
Service Leave
23. Sick Leave
24. Personal/Carer's
Leave
25. Bereavement
Leave
26. Make Up of
Workers' Compensation Payments
27. Travelling
Time, Accommodation and Meals
28. Accommodation
& Conveniences
29. Clothing,
Etc.
30. Jury
Service
31. Superannuation
32. Introduction
of Change and Redundancy
33. Shop
Stewards
34. Notice
Board
35. Right of
Entry
36. Time and
Wages Record
37. Parental
Leave
38. Basis of
Award and Leave Reserved to Apply
39. Savings
and Exemptions
40. Traineeships
41. Disputes
and Industrial Grievance Procedure
42. Anti-Discrimination
43. Supported
Wage
44. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1 - Wages - Adult Weekly Employees
Table 2- Wages - Junior Weekly Employees
Table 3 - Wages - Casual Driveway Attendants
Table 4 - Wages - Casual Console Operators
Table 5 - Wages - Training - Skill Level A
Table 6 - Wages - Training - Skill Level B
Table 7 - Allowances
Table 8 - Hourly Rates for Trainees Who Have Left School
2.
Contract of Employment
(a) Weekly or
Casual Hire: Except as hereinafter provided, employment shall be by the
week. An employee not specifically
engaged as a casual employee shall be deemed to be employed by the week.
(b) An employee,
other than a casual, engaged for the first time shall for the first three weeks
of such engagement, be employed on a probationary basis from day to day at the
appropriate weekly rate fixed by this Award and terminable on a day's notice.
(c) Performance of
Work: An employee shall perform such work under this award as the employer
shall, from time to time, reasonably require.
(d)
(i) Absence from
Duty: An employee not attending for duty shall, except as provided for in
clauses 20 - Holidays, 21 - Annual Leave, 23 - Sick Leave, 24 - Personal/Carers
Leave, 25 - Bereavement Leave, 26 - Make Up of Workers' Compensation Payments,
30 - Jury Service, lose pay for the actual time of such non-attendance.
(ii) Where an
employee is absent from work for up to 30 minutes on any day which does not
entitle the employee for payment of wages, the employer and employee can agree
that such absence can be made up with work after/or before normal commencing
times, up to the equivalent of the said absence which will not be subject to
overtime or other penalty rates.
(e) Termination of
Employment:
Notice of termination by employer.
(i)
(1) In order to
terminate the employment of an employee the employer shall give to the employee
the following notice:
Period of Continuous
Service
|
Period of Notice
|
Less than 1 year
|
1 week
|
1 year and up to the completion of 3 years
|
2 weeks
|
3 years and up to the completion of 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
(2) In addition to
the notice in sub-paragraph (1) of this clause, 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.
(3) For the
purposes of this subclause, such notice may be given at any time but shall
expire at the ordinary finishing time of a working day or shift. Notice given before the commencement of a
day's work or shift shall be deemed to have been given at the end of the
previous day's work or shift, and notice given during a day's work or shift
shall be deemed to be given at the end of that day's work or shift.
(4) Where an
employer gives an employee notice of termination of employment the parties may
mutually agree to the employment ending at any time after the giving of the
notice and before expiration of the period of the notice and in such a case
wages shall be paid only up to the time of the agreed termination.
(5) Payment in
lieu of the notice of this clause prescribed in sub-paragraph (1) and/or (2)
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.
(6) In calculating
any payment in lieu of notice an employee shall be paid the appropriate wages
at the rate applicable as prescribed by clauses 5, 6, and 8 which is
appropriate to the employee.
(7) The period of
notice in this clause shall not apply in the case of dismissal for conduct that
justifies instant dismissal, including malingering, inefficiency, neglect of
duty or misconduct or in the case of casual employees, apprentices, or
employees engaged for a specific period of time or for a specific task or
tasks.
(8) Where an
employer gives an employee notice of termination of employment the employee
shall at any time after having been given such notice be entitled to give
notice to the employer of the immediate termination of his/her employment but
in such circumstances the employee shall pay or forfeit wages for the balance
of the notice period.
(9) Subject to
paragraphs (8) and this subparagraph, where an employer has given notice to an
employee as aforesaid the employee shall continue in employment until the date
of the expiration of such notice. An employee
who, having been given notice as aforesaid, is absent from work during such
period without reasonable cause (proof whereof shall be upon the employee)
shall be deemed to have abandoned employment and shall not be entitled to
payment for any work done within that notice period.
(10) For the purpose
of this clause continuity of service shall be calculated in the manner
prescribed by the Annual Holidays Act,
1944.
Notice of Termination by Employee
(ii)
(1) The notice of
termination required to be given by an employee shall be the same as that
required of an employer, save and except that there shall be no additional
notice based on the age of the employee concerned.
(2) For the
purposes of this subclause, such notice may be given at any time but shall
expire at the ordinary finishing time of a working day or shift. Notice given before the commencement of a
day's work or shift shall be deemed to have been given at the end of the
previous day's work or shift, and notice given during a day's work or shift
shall be deemed to be given at the end of the day's work or shift.
(3) If an employee
fails to give or work out the appropriate notice the employer shall have the
right to withhold moneys due to the employee with a maximum amount equal to the
ordinary time rate of pay for the period or balance of notice.
(4) Where an
employee gives notice of the termination of the employee's employment the
parties may mutually agree to the employment ending at any time after the
giving of the notice and before expiration of the period of the notice and in
such a case wages shall be paid only up to the time of the agreed termination.
(5) Where an
employee has given notice of the termination of employment the employee shall
at any time after giving such notice be entitled to give notice to the employer
of the immediate termination of employment but in such cases the employee shall
pay or forfeit wages for the balance of the notice period.
(6) Subject to
sub-paragraphs (4) and (5) of this clause an employee who has given notice as
aforesaid shall continue in employment until the expiration of such notice
notwithstanding subparagraph (3) of this paragraph. An employee who having given notice as aforesaid, absents
himself/herself from work during such notice period without reasonable cause
(proof whereof shall be upon the employee) shall be deemed to have abandoned
employment and shall not be entitled to payment for work done within that
notice period.
(7) For the
purpose of this clause continuity of service shall be calculated in the manner
prescribed by the Annual Holidays Act,
1944.
Time Off During Notice Period
(iii) Where an
employer has given notice of termination to an employee, an employee shall be
allowed up to seven hours thirty six minutes time off without loss of pay for
the purpose of seeking other employment. The time off shall be taken at times
that are convenient to the employee after consultation with the employer.
Statement of employment
(iv) 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.
Summary dismissal
(v) Notwithstanding
the provisions of subparagraph (1) of paragraph (i) of this subclause, the
employer shall have the right to dismiss any employee without notice for
conduct that justifies instant dismissal, including malingering, inefficiency,
neglect of duty or misconduct and in such cases the wages shall be paid up to
the time of dismissal only.
Unfair dismissal
(vi) Termination of
employment by an employer shall not be harsh, unjust, or unreasonable.
For the purposes of this clause termination of
employment shall include terminations with or without notice.
Without limiting the above, except where a distinction,
exclusion, or preference is based on the inherent requirements of a particular
position, termination on the ground of race colour, sex, marital status, family
responsibilities, pregnancy, religion, political opinion, national extraction
and social origin shall constitute a harsh, unjust, or unreasonable termination
of employment.
(f) Notification
of Absence:
(i) Subject to
paragraph (ii) hereof an employee who is absent from work without the
employer's consent for a continuous period equalling one working day or more,
shall, on the first day of such absence, at the commencement of the employee's
shift, if practicable and in any other event within four hours of the
commencement of the shift, inform the employer of the absence stating the
reasons and the estimated duration thereof.
(ii) Employees who
establish that their failure to give the required particulars of an absence was
reasonable in the circumstances shall not be in breach of this subclause.
(g) Abandonment of
Employment:
(i) The absence
of an employee from work for a continuous period exceeding three working days
without the consent of the employer and without notification to the employer in
accordance with subclause (f) of this clause shall be prima facie evidence that
the employee has abandoned their employment.
(ii) If within a
period of fourteen days from the last attendance at work or the date of the
employee's last absence in respect of which notification has been given or
consent has been granted, an employee has not established to the satisfaction
of the employer that the employee was absent for reasonable cause, the employee
shall be deemed to have abandoned the employee's employment.
(iii) Termination
of employment by abandonment in accordance with this subclause shall operate as
from the date of the last attendance at work or the last day's absence in
respect of which consent was granted, or the date of the last absence in
respect of which notification was given to the employer, whichever is the
later.
(h) Time Keeping
(i) Notwithstanding
anything elsewhere contained in this award an employer may select and utilise for
timekeeping purposes any fractional or decimal proportion of an hour (not
exceeding six minutes) and may apply such proportion of an hour
(ii) If an
employer adopts a proportion for the aforesaid purpose the employer shall apply
the same proportion for the calculation of overtime.
3.
Casual Employment
(i) A casual
employee is one engaged and paid as such.
The maximum period for which a casual employee can work continuously on
a full time basis (ie. the total daily and weekly hours elsewhere prescribed in
this award) shall be six weeks. In any
case where such full time employment extends beyond six weeks, the employee
shall thereafter be deemed to be employed by the week.
(ii) A casual
employee, other than a vehicle salesperson, a driveway attendant or a console
operator shall be paid per hour 1/38th of the weekly wage prescribed by clauses
5, 6 and 8 of this award, as the case may be, for the work performed plus a
loading as set out in the following table:
Day or Time Worked
|
Percentage Loading
|
Monday to Friday between 6:00am and 6:00pm
|
20
|
Monday to Friday between 6:00pm and 6:00am
|
45
|
Saturday at any time
|
70
|
Sunday at any time
|
120
|
Holidays at any time
|
120
|
In excess of eight hours on any day -
|
|
The first three hours
|
70
|
Thereafter
|
120
|
The loading prescribed in this paragraph shall not be
cumulative and in any case where more than one loading applies the employee
shall be entitled to the highest of the applicable rates.
(iii) For casual
driveway attendants and casual console operators, refer to subclauses (3) and
(4) of clause 5, Wage Rates.
4.
Part-time Employment
An employer in addition to employing full-time employees,
may employ part-time employees upon the following terms:
(a) A part-time
employee means a weekly employee who is engaged to work a regular number of
hours in each week not less than twenty hours.
(b) Such employee
for working ordinary time shall be paid per hour, or one thirty-eighth, of the weekly
rate prescribed by this Award for work which an employee performs and in
addition, shall be entitled, on a pro-rate basis, to be paid shift premiums
where applicable.
(c) An employee
engaged on a part-time basis shall be entitled to payments in respect of annual
leave, public holidays, sick leave, bereavement leave, jury service and make up
pay, arising under this Award on a proportionate basis calculated on the normal
ordinary hours the employee would have worked in accordance with subclause (a) of
this clause.
(d) A part-time
employee who works in excess of the hours determined under the contract of
employment shall be paid overtime in accordance with Clause 18, Overtime.
5.
Payment of Wages
(a)
(i) All wages
shall be paid weekly or with the agreement of the majority of the employees
working under this Award fortnightly.
Such wages shall be paid in cash, provided that with the authority in
writing of the employee and subject to the provisions of Part 3 of the
Industrial Relations (General) Regulation 1996, payment may be made either by
cheque or by payment into a bank account specified in the authority; provided
further that such authority may be withdrawn at any time by not less than seven
days' notice in writing to the employer.
(ii) Further, an
employer and an employee may agree that the employee's wages may be paid by
cheque or by direct transfer into the bank account or other financial
institution nominated by the employee.
Where wages are paid by direct transfer the employer will pay the bank
or other charges associated with such a method of payment.
(iii) Wages shall
be paid as follows:
1. In the case of
an employee whose ordinary hours of work are in accordance with clauses 4, 11
and 12 of this Award so that the employee works up to 38 hours per week, wages
shall be paid weekly or fortnightly according to the actual ordinary hours
worked each week.
2. In the case of
an employee whose ordinary hours of work are arranged in accordance with
clauses 4, 11 and 12 of this Award so that the employee works up to an average
of 38 ordinary hours each week during a work cycle, wages shall be paid weekly
or fortnightly according to a weekly average of ordinary hours worked even
though more or less than 38 may be worked in a work cycle.
(b) An established
pay day and/or pay period shall not be changed except by not less than four
weeks' notice by the employer to his employees.
(c) Wages shall be
paid in the employer's time not later than Thursday in any pay week.
(d) Where wages
are paid after 1.30 p.m. on pay day the employer shall not keep more pay in
hand than has accrued to an employee in respect of work performed by the
employee on such pay day and the preceding day. Where wages are paid before 1.30 p.m. on pay day the employer
shall not keep more pay in hand than has accrued to an employee in respect of
work performed by the employee on such pay day and the preceding days.
(e) Upon
termination of the employment, the employer shall pay wages due to an employee
-
(i) on the day of
such termination; or
(ii) by forwarding
such wages to the employee by post on the next working day; or
(iii) at the
employer's place of business on a stated day not later than seven days after
such termination. If the employer
requires the employee to visit such place of business to collect his wages, in
addition to the amount of moneys due, the employer shall pay the employee an
additional four hours' ordinary pay.
(f) An employer
may deduct from moneys due to an employee such amount as is authorised in
writing by the employee for a lawful purpose specified in the authority.
(g) On or prior to
pay day an employer shall state to each employee in writing the total amount of
wages to which the employee is entitled, the amount of overtime included
therein, details of any deductions made there from and the net amount being
paid to the employee.
6.
Wage Rates
(1) Adult Weekly
Employees
(a) Rates - The
total minimum rates of pay for adult weekly employees employed in each
classification, shall be -
(i) Level 1 For
employees employed as Parking Attendants, Driveway Attendants, Car Polishers
(by hand) and Car Cleaners and/or Washers, the weekly rates of pay as set out
in Table 1 - Wages - Adult Weekly Employees, of Part B, Monetary Rates.
(ii) Level 2 For employees
employed as Lubritorium Attendants, the weekly rates of pay shall be as set out
in the said Table 1.
(iii) Level 3B For
employees employed as Unqualified Automotive Parts Salespersons and as Console
Operators, the weekly rates of pay shall be as set out in the said Table 1.
(iv) Level 4 For
employees employed as Qualified Automotive Parts Salespersons, being employees
who has passed an appropriate course of technical school training, the weekly
rates of pay shall be as set out in Table 1.
(b) The rates of
pay in this award include the adjustments payable under the State Wage Case
2001. These adjustments may be offset
against:
(i) any
equivalent overaward payments, and/or
(ii) award wage
increases since 29 May 1991 other than safety net, State Wage Case and minimum
rates adjustments.
(c) Console
Allowance - A weekly employee required to operate a self-service console for up
to two hours per day, shall be paid, in addition to the rate of pay otherwise payable
under this award, the amount per week set out in Item 1 of Table 7 -
Allowances, of Part B, Monetary Rates.
Provided that an employee required to operate a self-service console in
excess of two hours per day shall be paid the rate prescribed for Level 3 in
Table 1.
(d) Leading Hand
Allowance - An employee appointed by an employer as a leading hand in charge of
more than two other employees shall be paid, in addition to the rate of pay
otherwise payable under this award, an amount per week based on the number of
employees supervised, as follows:
3 to 10 employees
|
|
11 to 20 employees
|
As set out in Item 2 of the
said Table 7.
|
21 or more employees
|
|
(2) Junior Weekly
Employees
(a) Junior Rates -
Driveway Attendants, etc - The total minimum weekly rate of pay for junior
employees employed as car cleaners, and/or washers, car polishers - by hand,
driveway attendant, lubritorium attendant, or parking attendant, shall be as
set out in Group B of Table 2 - Wages - Junior Weekly Employees, of Part B,
Monetary Rates.
(b) Junior Rates -
Automotive Parts Salesperson and Console Operators- The total minimum weekly
rate of pay for junior employees employed as automotive parts salespersons
shall be as set out in Group A of the said Table 2.
(c) An employer
bound by this award shall be entitled to employ juniors in any classification.
(d) Refer to
clause 9, Junior Employees, for provision regarding Junior Employees.
(3) Casual
Driveway Attendants
(a) Ordinary Time
- A casual driveway attendant shall be paid hourly rates of pay for
ordinary-time work as follows:
(i) Monday to
Friday - For ordinary-time work on Monday to Friday, the rates as set out in
Rate 1 of Table 3 - Wages - Casual Driveway Attendants, of Part B, Monetary
Rates.
(ii) Weekends and
Public Holiday - For ordinary-time work on Saturday, Sunday or a public
holiday, the rates as set out in Rate 2 of the said Table 3.
(b) Annual Leave -
The hourly rates of pay for casual driveway attendants provided under subclause
(a) of this clause include the 1/12 loading payable to casual employees in lieu
of annual holidays as prescribed by the Annual
Holidays Act 1944.
(c) Overtime
Loading (Casual) - A casual driveway attendant, for work in excess of 10 hours
per day or in excess of an average of 38 hours per week, shall be paid in
addition to the hourly rate of pay otherwise payable under this award, an
amount per hour as set out in Rate 3 of Table 3.
(d) Calculation -
The hourly rates calculated in accordance with this clause shall be rounded to
the nearest cent, with amounts less than half a cent rounded down to the next
lowest cent, and amounts equal to or greater than half a cent rounded up to the
next highest cent.
(4) Casual Console
Operator
(a) Ordinary Time
- A casual shall be paid hourly rates of pay for ordinary-time work as follows:
(i) Monday to
Friday - For ordinary-time work on Monday to Friday, the rates as set out in
Rate 1 of Table 4 - Wages - Casual Console Operators, of Part B, Monetary
Rates.
(ii) Weekends and
Public Holiday - For ordinary-time work on Saturday, Sunday or a public
holiday, the rates as set out in Rate 2 of the said Table 4.
(b) Annual Leave -
The hourly rates of pay for casual driveway attendants provided under subclause
(a) of this clause include the 1/12 loading payable to casual employees in lieu
of annual holidays as prescribed by the Annual
Holidays Act 1944.
(c) Overtime
Loading (Casual) - A casual console operator for work in excess of 10 hours per
day or in excess of an average of 38 hours per week, shall be paid in addition
to the hourly rate of pay otherwise payable under this award, an amount per
hour as set out in Rate 3 of the said Table 4.
(d) Calculation -
The hourly rates calculated in accordance with this clause shall be rounded to
the nearest cent, with amounts less than half a cent rounded down to the next
lowest cent, and amounts equal to or greater than half a cent rounded up to the
next highest cent.
7.
Award Modernisation
(a) The unions
agree to consider all matters raised by employers directed at modernising the
terms of this award so that it provides for more flexible working arrangements,
improves the quality of working life, enhances skills and job satisfaction and
assists positively in the restructuring process.
With respect to those matters that are settled by
negotiation, the unions agree that the outcomes will be processed via award
variations, on the understanding that these matters will not result in income
loss to employees and are not approached in a negative cost cutting manner.
It is recognised that scope also exists to have
enterprise agreements in accordance with Chapter 2, Part 2 of the Industrial Relations Act 1996.
(b) Work, Training
and Career Commitment
(i) Employees
working under this award are to perform a wider range of duties, including work
which is incidental or peripheral to their main tasks or functions.
(ii) Subject to
agreement at the enterprise level, employees are to undertake training for the
wider range of duties and for access to higher classifications.
(iii) Barriers to
advancement of employees within the award structure or through access to
training will not be created.
(iv) The unions
accept in principle the new award in which descriptions will be more broadly
based and generic in nature.
(v) The parties
agree to develop training and skills acquisition which is consistent with the
development of a skilled classification structure which is determined jointly
by the parties through surveying and testing of industry needs.
(c) At each
establishment or enterprise, the employer, the employees and their relevant
union or unions should establish a consultative mechanism and procedures
appropriate to the size, structure and the needs of that establishment or
enterprise.
Measures raised by the employer, employees or union(s)
for consideration, consistent with the objectives of this clause, shall be
processed through that consultative mechanism and procedures.
Measures raised for consideration consistent with this
clause, may be related to implementation of the new classification structure
and the facilitative provisions contained in this award.
8.
Payment by Results
(a) An employer
may remunerate any of the employees under any system of payment by results
based on rates which will enable workers of average capacity to earn at least
10 per cent in excess of their prescribed weekly rates.
Provided that an employee so employed shall not in any
week be paid less than the rate prescribed by this award for the class of work
being performed by the employee.
(b) A union party
to this award may apply to the Industrial Relations Commission of New South
Wales or to the Vehicle Industry (State) Industrial Committee for correction or
regulation of any piece work rate, time bonus rate, task rate or any other
system of payment by results now in operation or hereafter introduced into any
workshop controlled by an employer bound by this award.
(c) A union shall
not impose on a member any fine, penalty or other forms of punishment for
agreeing to accept or for accepting payment by results in accordance with this
award.
9.
Junior Employees
(a)
(i)
(1) The minimum
weekly rates of wages for a junior employed in the classifications as set out
in subparagraph (2) of this paragraph shall be calculated as follows:
Age
|
Percentage of
Ordinary Weekly Wage of Adult
|
|
Driveway Attendant
|
16 years of age and
under
|
47.5
|
17 years of age and
under
|
50
|
18 years of age and
under
|
62.5
|
19 years of age and
under
|
75
|
20 years of age and
under
|
87.5
|
(2) For the
purposes of subparagraph (1) of this subclause, the following classifications
apply:
Car cleaner and/or Washer
Car Polish (by hand)
Lubritorium Attendant
Parking Attendant
(ii)
(1) The minimum
weekly wage for a junior employed in the classifications set out in
subparagraph (2) of this paragraph shall be calculated as follows:
Age
|
Percentage of
Ordinary Weekly Wage of
|
|
Automotive Driveway
Attendant
|
16 years or under
|
47.5
|
17 years and under
|
50
|
18 years and under
|
62.5
|
19 years and under
|
75
|
20 years and under
|
87.5
|
(2) For the purposes
of subparagraph (1) of this paragraph the following classifications apply:
Automotive Parts Salesperson
Console Operator
(iii) The
percentages prescribed by paragraph (i) of this subclause shall be calculated
in multiples of five cents, amounts of two cents or less being taken to the
lower multiple and amounts in excess of two cents being taken to the higher
multiple.
(b) Proof of
Age: An employee who the employer has
reasonable grounds for suspecting is under the age of 21 years shall, if required,
furnish proof of age by means of a birth certificate of statutory declaration
by parent or guardian. The employer
shall be entitled to rely upon such proof.
(c) Prohibited
Work
No junior employee under the age of 18 years shall be
left working alone between the hours of 7.00 p.m. and 6.30 a.m.
10.
Special Rates and Allowances
In addition to the wages prescribed elsewhere in this award
the special rates and allowances hereinafter appearing shall be paid to employees
whether adult or junior employees.
(a) Confined
Spaces
(i) An employee
working in a confined space, i.e. a compartment, space or place, the dimensions
of which necessitate the employee working in a stooped or otherwise cramped
position or without proper ventilation, shall be paid an amount per hour extra
as set out in Item 3 of Table 7 - Allowances, of Part B, Monetary Rates.
(b) Dirty Work
(i) An employee
doing work which a foreperson and the employee agree is of an unusually dirty
or offensive nature - per hour extra as set out at Item 4 of Table 7.
(ii) In any case
coming within paragraph (i) of this clause the minimum payment on any day or
shift shall be as set out at Item 5 of Table 7 provided, however, that the said
minimum amount shall not be payable in respect of a specific job when other
higher special rates are payable for that job on the same day or shift and such
higher rates exceed the amount set out at Item 5, on the particular day or
shift.
(iii) In case of
disagreement between the foreperson and workperson, the workperson or a shop
steward on the employee's behalf shall be entitled, within twenty-four hours,
to ask for a decision on the workperson's claim by the employer's industrial
officer (if there is one), or otherwise by the employer or the executive
officer responsible for the management or superintendence of the plant
concerned. In such case, a decision
shall be given on the workperson's claim within forty-eight hours of its being asked
for (unless that time expires on a non-working day, in which case it shall be
given during the next working day) or else the said allowance shall be paid.
(iv) In any case
where a union alleges that an employer or the employer's representative is
unreasonable or capricious in relation to such a claim, it shall have the right
to bring such case before the Industrial Committee.
(c) Hot Places
(i) An employee
working for more then one hour in the shade:
(1) In places
where the temperature is raised by artificial means to between 46 and 54 degrees
Celsius - per hour extra as set out at Item 6 of Table 7.
(2) In places
where the temperature exceeds 54 degrees Celsius - per hour extra as set out at
Item 7 of Table 7.
(ii)
(1) Where work continues
for more than two hours in temperatures exceeding 54 degrees Celsius, an
employee shall also be entitled to twenty minutes rest without deduction of pay
after every two hours work.
(2) The
temperature shall be decided by the foreman of the work after consultation with
the employee who claims the extra rate.
(d) Livestock
Transports: An employee working on the
underside or the body of the stock compartment of a vehicle which has been
regularly used in the carriage of livestock and which has not been cleaned down
immediately before service - per hour extra as set out at Item 8 of Table 7.
(e) First Aid
Qualifications: An employee holding
first aid qualifications and appointed by his employer to perform first aid
duty - per week extra as set out at Item 9 of Table 7.
(f) Combined
Disabilities: Where two or more of the
disabilities for which special rates are prescribed in this clause occur at the
same time such rates shall accumulate, with the exception of subclauses (b) and
(d), of this clause, in which case the highest rate shall be payable.
(g) Glass or Slag
Wool: An employee handling loose slag
wool, loose insulwool or other loose material of a like nature used for
providing insulation against heat, cold or noise - per hour extra as set out at
Item 10 of Table 7.
(h) Rates Not
Subject to Penalty Additions: The
special rates and allowances prescribed by this clause shall be paid
irrespective of the times at which the work is performed and shall not be
subject to any premium or penalty additions.
11.
Hours of Work
(a) Subject to
Clause 12 - Implementation of 38-hour week and subject to the exceptions
hereinafter provided, the ordinary hours of work of an employee shall be an
average of 38 hours per week to be worked on not more than five days in any
week, on the following basis:
(i) 38 hours
within a work cycle not exceeding seven consecutive days; or
(ii) 76 hours
within a work cycle not exceeding fourteen consecutive days; or
(iii) 114 hours
within a work cycle not exceeding twenty-one consecutive days; or
(iv) 152 hours
within a work cycle not exceeding twenty-eight consecutive days; or
(v) Any other work
cycle during which a weekly average of 38 ordinary hours are worked or may be
determined in accordance with subclause 12.
(b)
(i) The
commencing times of any employee's daily hours once fixed in accordance with
clause 12 or subclause (c) hereof may vary from day to day in the week but not
by more than two hours. Provided that
in the implementation of the above work cycles referred to in subclause (a) of
this clause, 12 hours shall be the maximum number of ordinary hours per day,
and further that any agreement pursuant to paragraph (i) of subclause (b) of
clause or employer decision pursuant to paragraph (ii) of subclause (b) of clause
12 which provides that ordinary hours of work may exceed 10 hours per day,
shall have its terms and conditions ratified by The Industrial Relations
Commission of New South Wales. This
provision shall not operate so as to override any State transport legislation
which limits the number of ordinary hours which may be worked on any day.
(ii) Twelve hour
work periods will only be permitted where:
(1) there is a
continuous work process or other special circumstances can be shown to exist;
(2) a twelve hour
work period will not impose an excessive workload;
(3) they are in
conjunction with the possibility of reviewing working time generally;
(4) there has been
a proper examination of occupational health and safety considerations; and
(5) there is the
agreement of both the employer and the relevant Union.
(iii) Such
agreements pursuant to paragraph (i) of subclause (b) of the said clause 12, or
employer decision pursuant to paragraph (ii) of the said subclause (b), shall
include the following minimum safeguards:
(1) the
introduction of an extended shift shall be on a trial basis for 6 months to
allow workers to evaluate the effect of the change;
(2) an additional
paid break per shift;
(3) no more than
two night shifts shall be worked in succession unless otherwise agreed between
a particular employer or employer association and the relevant Union(s);
(4) at least a 12
hour interval between shifts;
(5) rosters shall
include at least two free weekends each months;
(6) day shifts
shall not start before 6.00 a.m., unless otherwise agreed between a particular
employer or employer association and the relevant Union(s);
(7) provision
shall be made for adequate relief arrangements;
(8) workers shall be
allowed some flexibility about shift change times and shift length;
(9) an employee
working 12 hour shifts shall not work overtime, other than in the exceptional
circumstances where a scheduled relief operator is not available, in which case
a maximum of two hours overtime only may be worked with such overtime being
paid at the rate of double time;
(10) no person under
the age of 18 years shall work on an extended shift;
(11) special rosters
are required for workers exposed to hazards, where health and safety standards
are determined on the basis of exposure over eight hours;
(12) where it is not
possible to continue to work on extended shifts for health reasons, the
employer shall take all necessary steps to find suitable alternative employment
for the worker.
(13) Further,
discussions should take place, coincidental with discussions regarding the
introduction of twelve hour work periods, with respect to the introduction of a
range of support services to assist in minimising the inconvenience of such
extended hours.
(c) Subject to
subclauses (a) and (b), of this clause, the daily or shift hours being observed
by an employer at the time of coming into operation of this award shall
continue until such time as they are altered as to all or a section of the
employees by agreement between their employer and an officer of the appropriate
union or a branch thereof or in the absence of agreement by seven days notice
of alteration given by an employer to the employees concerned and thereafter
shall only be altered in like manner.
(d)
(i) Except as
provided in paragraphs (ii) and (iii) hereof, the ordinary hours prescribed by
subclause (a) hereof shall be worked continuously except for meal and afternoon
tea breaks pursuant to Clause 13, Meal Breaks, at the discretion of the
employer.
(ii) Employees on
continuous work, i.e. work which is carried on with consecutive shifts of
employees throughout the twenty-four hours of each of at least five consecutive
days without interruption except during breakdowns or meal breaks, or due to
unavoidable causes beyond the control of the employer, shall work the ordinary
hours prescribed by subclause (a) hereof, on a daily basis continuously, and
shall be allowed during such hours twenty minutes each shift for crib which twenty
minutes shall be counted as time worked.
(iii) The ordinary
hours of work for a part-time employee determined in accordance with Clauses 4,
Part-time Employment; 11, Hours of Work, and 12, Implementation of 38-Hour
Week, shall be between 20 and not more than 38 hours.
(iv) As to weekly,
part-time or casual driveway attendants, the ordinary hours prescribed by
sub-clause (a) hereof shall be worked at the option of an employer in either of
the following ways:
(1) continuously,
on a daily basis, except for meal and afternoon tea breaks at the discretion of
the employer; or
(2) continuously,
on a daily basis, with twenty minutes during such hours each day or shift for
crib, which twenty minutes shall be counted as time worked.
12.
Implementation of 38-hour Week
(a) Ordinary hours
of work shall be an average of 38 hours per week as provided in Clause 11 -
Hours of Work.
(b)
(i) In each
establishment an assessment should be made as to which method if implementation
of the 38 hour week best suits the needs of the business and the employers
proposal shall be discussed with the employees concerned, the objective being,
to reach agreement on the method of implementation.
(ii) However,
where the work cycle proposed by the employer is not agreed by the employees
concerned, then the relevant Union(s) may have the matter reviewed by the
Vehicle Industry (State) Industrial Committee.
(c) Circumstances
may require that different methods of implementation of the 38 hour week apply
to individual employees, groups or sections of employees in the establishment
concerned.
(d) In the absence
of agreement at establishment level as to the method of implementation of the
38 hour week the following procedures shall be applied without delay:
(i) Consultation
shall take place within the particular establishment concerned.
(ii) If the
problem remains unresolved, the matter shall be referred to the Secretary of
the Union (or Unions) concerned or his deputy, at which level the matter will
again be dealt with without delay.
(iii) In the
absence of agreement either party may refer the matter to the Industrial
Relations Commission of New South Wales the Vehicle Industry (State) Industrial
Committee for resolution.
(e)
(i) Notwithstanding
any other provisions in Clause 11 - Hours of Work or in this clause an
employer, to suit any special circumstances, may reach agreement with an
individual employee or a group or section of employees and the relevant union
to defer the taking of up to 5 days of accumulated time off.
(ii) An individual
employee, with the agreement of the employer, may defer the taking of time off
up to a maximum of 5 days.
(iii) Where
agreement has been reached in accordance with paragraph (i) and (ii) hereof accumulated
time off must be taken within 6 months of the date on which agreement to defer
was reached.
(f)
(i) An employer,
with the agreement of the majority of the employees concerned, may substitute
the time an employee is to take off in accordance with subclause (a) of the
said Clause 11 (a) hereof for another day to meet the requirements of the
business in the event of rush orders, seasonal trading or for some other
emergency.
(ii) Where an
agreement has been reached in accordance with paragraph (i) of this subclause,
the deferred time off shall be taken within 6 months of the date on which
agreement to defer was reached.
13.
Meal Breaks
(a)
(i) Meal breaks
shall be for a period of not less than thirty minutes and not more than sixty
minutes.
(ii) In addition
an employer may provide to an employee an afternoon tea break not exceeding 15
minutes.
(b) Except as
provided in subclauses (d), (e) and (f) hereof an employee shall not be
required to work more than five hours without a break for a meal. An employee working beyond five hours shall
be paid at the rate of time and one-half until the employee receives a break.
(c) Except as
provided in subclauses (d), (e) and (f) hereof all work done during meal breaks
and thereafter until a meal break is allowed shall be paid for the rate of time
and one-half.
(d) Where the
employer and the majority of employees agree to a practice within an
establishment that six hours can be worked without a meal break being taken
such an arrangement will apply to all employees within that establishment.
(e) An employee as
a regular maintenance person shall work during meal breaks at the ordinary
rates herein prescribed when instructed to do so for the purposes of making
good breakdowns of plant or upon routine maintenance or plant which can only be
done while such plant is idle.
(f) An employer
may in appropriate circumstances reasonably require an employee to change the
timing of scheduled meal break or rest break to meet operational requirements.
14.
Rates for Saturday Work
(a) An employee
who works any of their ordinary hours on a Saturday shall be paid therefore as
follows:
(i) Driveway
attendants - ordinary time until noon, time and one-half thereafter.
(ii) Others - time
and one-half.
(b) An employee who
works outside their rostered hours on a Saturday shall be paid for the hours so
worked at the rate prescribed by clause 18, Overtime, of this award.
(c) Payments
prescribed by this clause shall stand alone and shall not be included for any
other purposes of this award.
(d) This clause
shall not apply to a driveway attendant referred to in subparagraph (ii) of
paragraph (a) of subclause (3) of clause 6, Wage Rates.
15.
Rates for Sunday Work
(a) An employee
who works any ordinary hours on a Sunday shall be paid therefore as follows:-
(i) Driveway
attendants - time and one-half
(ii) Others -
double time
(b) An employee
who works outside their rostered hours on a Sunday shall be paid for the hours
so worked at the rate prescribed by clause 18, Overtime.
(c) Payments
prescribed by this clause shall stand alone and shall not be included for any
other purposes of this award.
(d) This clause
shall not apply to a driveway attendant referred to in subparagraph (ii) of
paragraph (a) of subclause (3) of clause 6, Wage Rates.
16.
Rates for Holiday Work
(a) An employee
other than a casual who works any of their ordinary hours on a holiday referred
to in clause 20, Holidays, of this award, shall be paid therefore as follows:
(i) Driveway Attendants
- at the rate of ordinary time for the period so worked in addition to the
ordinary rate.
(ii) Others - at
the rate of time and a half for the period so worked in addition to the
ordinary rate.
(b) An employee
who works outside their rostered hours on a holiday referred to in clause 20,
Holidays, of this award, shall be paid for the hours so worked at the rate
prescribed by clause 18, Overtime, of this award.
(c) Payments
prescribed by this clause shall stand alone and shall not be included for any
other purposes of this award.
17.
Shift Work and Rates Therefore
(a) An employee
working on afternoon or night shift shall, except on a Saturday, Sunday or
holiday, referred to in clause 20, Holidays, of this award be paid in addition
to the employee's ordinary rate, an amount equal to the following relevant
percentage of his ordinary rate:
(i)
|
if working on night shift only
|
30%
|
(ii)
|
if working on afternoon shift only
|
18%
|
(iii)
|
if working on alternating afternoon and night shifts
|
20%
|
(iv)
|
if working on alternating day and night shifts
|
12.5% for night
shift
|
(v)
|
if working on alternating day, afternoon and night shifts
|
12.5% for afternoon
& night shifts
|
(vi)
|
if working on alternating day and afternoon shifts
|
12.5% for the afternoon
shift
|
(b) An employee
engaged on an afternoon or night shift which does not continue for at least
five successive working days or such shorter work cycle as may be worked
pursuant to clauses 11 Hours of Work, and 12, Implementation of 38-Hour Week,
shall be paid at the rate of time and one-half for each such shift.
(c) Except at
regular change-over of shifts, an employee shall not be required to work more
than one shift in each twenty-four hours.
(d) For the
purposes of this clause:
(i) "Afternoon
Shift" means a shift commencing after noon and not later than 6.00 p.m.
(ii) "Night
Shift" means a shift commencing after 6.00 p.m. and not later than 4.00
a.m.
(e) Payments
prescribed by this clause shall stand alone and shall not be included for any
other purposes of this award.
(f) This clause
shall not apply to a driveway attendant referred to in paragraph (iii) of
subclause (e) of clause 2, Contract of Employment.
(g) Daylight
Saving
(i) Notwithstanding
anything contained elsewhere in this award, in any area where State summer time
is prescribed as being in advance of the standard time of that State the length
of any shift -
(1) commencing
before the time prescribed by the relevant legislation for the commencement of
a summer time period; and
(2) commencing on
or before the time prescribed by such legislation for the termination of a summer
time period;
shall be deemed to be the number of hours represented
by the difference between the time recorded by the clock at the beginning of a
shift and the time so recorded at the end thereof, the time of the clock in
each case to be set to the time fixed pursuant to the relevant legislation.
(ii) In this
subclause the expressions "standard time" and "summer time"
shall bear the same meaning as are prescribed by the relevant State
legislation.
18.
Overtime
(a) An employee
other than a casual required to work outside the employee's ordinary hours
prescribed by Clauses 11 and 12 shall be paid therefore as follows:
(i) On a Sunday -
at the rate of double time.
(ii) On a holiday
referred to in clause 20, Holidays, of this award
(1) In the case of
a driveway attendant - at the rate of double time.
(2) Other
employees - at the rate of double time and one half.
(iii) On any other
day - time and one half for the first three hours and double time thereafter,
such double time to continue until the completion of the overtime work.
(iv) Time off in
lieu of payment for overtime may be provided if an employee so elects and is
agreed to by the employer.
Such time off in lieu must be taken at a mutually
convenient time and within 4 weeks of the overtime being worked.
Time off in lieu must equate to the overtime rate, ie.
if the employee works one hour overtime and elects to clear time off in lieu of
payment the time off would be equal to time and one half.
Provided that where an employee's employment is
terminated or the employee resigns or the entitlement has not been taken, the
entitlement shall be paid out at the rate at which it was accrued.
(b) The provisions
of subclause (a) hereof shall not apply when the time is worked:
(i) by arrangement
between the employees themselves; or
(ii) for the
purpose of effecting the customary rotation of shifts; or
(iii) in accordance
paragraph (ii) of subclause (d) of clause 2, Contract of Employment
(c) Extra Rates
not Cumulative - The extra rates prescribed in subclause (a) hereof are in
substitution for and not cumulative upon the shift work allowance prescribed by
clause 17 of this award.
(d) Minimum
Payment for Overtime on a Sunday or a Holiday - An employee required to work on
a Sunday or a holiday referred to in Clause 20, Holidays, of this award shall:
(i) If they be a
driveway attendant be afforded at least 3 hours' work or be paid for 3 hours at
the appropriate rate;
(ii) If they be
one other than referred to in paragraph (i) hereof be afforded at least 4
hours' work or paid for 4 hours at the appropriate rate;
except where such work is continuous with overtime or
work commenced on the previous day or completed on the following day. Provided that where work continues over two days
the minimum payment shall be for the stated minimum at the appropriate rate.
(e) Rest Period
before Recommencing Work:
(i) When overtime
work including work on a rostered day off or work on a Sunday or a holiday
referred to in clause 20, Holidays, of this award is necessary, it shall
wherever reasonably practicable be arranged so that an employee works not more
than fourteen hours in any period of twenty-four consecutive hours off duty in
each such twenty-four consecutive hours.
(ii) Subject to
the exceptions referred to in subclauses (f) and (g) of this clause, as to call
backs of less than three hours, when an employee finishes a period of work the
employee shall, subject to this subclause, be released until the employee has
had ten consecutive hours off duty without loss of pay for ordinary working
time occurring during such absence.
If, on the instructions of the employer, such an
employee resumes or continues work without having had such ten consecutive
hours off duty the employee shall be paid at the rate of double time until
released from duty for such period and 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.
(f) Standing By:
Subject to any custom now prevailing under which an employee is required
regularly to hold themself in readiness for a call-back, an employee directed
by the employer to hold themself in readiness to work outside ordinary working
hours shall, for the period required to hold themself in readiness, be paid
standing by time at ordinary rates from the time from which the employee is so
to hold themself in readiness.
(g) Call Back -
General
(i) An employee
recalled to work overtime after leaving the employer's business premises
(whether notified before or after leaving the premises) shall be paid for a
minimum of three hours' work at the appropriate rate for each time so recalled;
provided that, except in the case of unforeseen circumstances arising, the employee
shall not be required to work the full three hours if the job the employee was
recalled to perform is completed within a shorter period.
(ii) The
provisions of paragraph (i) hereof shall not apply:
(1) in cases where
it is customary for an employee to return to the employer's premises for
periods not exceeding thirty minutes each to perform a specific job outside
ordinary working hours in which case the employee shall be paid for a minimum
of one hour's work at the appropriate rate for each time so recalled; or
(2) where the
overtime is continuous (subject to a reasonable meal break) with the
commencement of ordinary working time.
(iii) Where the
actual time worked is less than three hours on such recall or on each of such
recalls, overtime worked in the circumstances specified in this subclause shall
not be regarded as overtime for the purposes of subclause (e) of this clause.
(h) Call Back -
Breakdowns, etc.
(i) An employee
recalled outside normal working hours for breakdown, accident or other
emergency work shall be paid at the rate of double time for the period of time
the employee is so recalled.
The calculation of the period of time of duty shall
include only the time reasonably occupied in travel or work between the time of
the employees departure from the normal place of residence and the time of
return thereto provided that:
(1) in the case of
the first call back in any one day an employee shall be paid as for at least a
period of two hours at the rate of double time; and
(2) in the case of
each subsequent call back in the same day as for at least a period of one hour
at the rate of double time whether occurring within two hours of the first call
back or not.
(ii) Where the
actual time worked is less than three hours on such recall or on each of such
recalls, overtime worked in the circumstances specified in this subclause shall
not be regarded as overtime for the purposes of subclause (e) of this clause.
(i) Crib Time
(i) An employee
working overtime for more than one and one-half hours after working ordinary
hours shall, before starting such overtime, be allowed a crib break of twenty
minutes which shall be paid for at ordinary rates.
(ii) An employee
working overtime shall be allowed a crib break of twenty minutes without
deduction of pay after each four hours of overtime worked provided he continues
work after such crib break.
Provided that where a day worker is required to work
overtime on a Saturday the first prescribed crib break shall, if occurring
between 10.00am and 1.00pm be paid for at ordinary rates.
(iii) An employer
and employee may agree to any variation of this subclause to meet the
circumstances of the work in hand provided that the employer shall not be
required to make any payment in respect of any time allowed in excess of twenty
minutes.
(iv) This subclause
shall not apply to an employee working overtime on a Sunday or holiday referred
to in clause 20, Holidays, of this award unless the employee is rostered to
work any ordinary hours on that day.
(j) Meal
Allowance
(i) An employee
required to work overtime for more than one and a half hours without being
notified on the previous day or earlier that the employee will be so required
to work shall either be supplied with a meal by the employer or paid an amount
set out at Item 11 of Table 7 - Allowances, of Part B, Monetary Rates, for the
first meal, and for each subsequent meal but such payment need not be made to
an employee living in the same locality as the workplace who can reasonably
return home for meals.
(ii) Unless an
employer advises an employee on the previous day or earlier that the amount of
overtime to be worked will necessitate that partaking of a second or subsequent
meal (as the case may be) the employer shall provide such second and/or
subsequent meals or make payment in lieu thereof as prescribed in paragraph (i)
of this subclause.
(iii) An employee
pursuant to notice who has provided a meal or meals and is not required to work
overtime or is required to work less than the amount advised shall be paid as
prescribed in paragraph (i) hereof for meals which the employee has provided
but which have become superfluous.
(iv) This subclause
shall not apply to an employee working overtime on a Sunday or holiday referred
to in clause 20, Holidays, of this award unless the employee is rostered to
work any ordinary hours on that day.
(k) Transport of
Employees: Where an employee normally uses public transport and is required to commence
and/or conclude overtime or shift work between 8.30 p.m. and 6.00 a.m. at a
time when public transport is not available, the employer shall provide the
employee with a conveyance to and/or from the employee's residence or pay the
his current wage for the time reasonably occupied in travelling to and/or from
the said residence.
(l) Reasonable
Overtime: An employer may require an employee to work reasonable overtime at
overtime rates and such employee shall work overtime in accordance with such
requirement.
19.
Mixed Functions
An employee engaged for more than two hours on one day or
shift on duties carrying a higher rate than the employee's ordinary
classification shall be paid the higher rate for such day or shift. If so engaged for two hours or less on one
day or shift, he or she shall be paid the higher rate for the time so worked.
20.
Holidays
(a) A weekly wage
employee shall be granted the following holidays without deduction of pay: New
Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour
Day or Eight Hour Day, Anzac Day, Queen's Birthday, August, Bank Holiday,
Christmas Day, Boxing Day or such other day as is generally observed in a
locality as a substitute for any of the said days respectively. Any additional holiday awarded under the
Federal Vehicle Industry, Repair, Services and Retail Award for the State of
New South Wales shall be a holiday under this subclause.
(b) For the
purposes of this award -
(i) Where
Christmas Day falls on a Saturday or on a Sunday, the following Monday and
Tuesday shall be observed as Christmas Day and Boxing Day respectively.
(ii) Where Boxing
Day falls on a Saturday, the following Monday shall be observed as Boxing Day.
(iii) Where New
Year's Day falls on a Saturday or on a Sunday, the following Monday shall be
observed as New Year's Day.
By agreement between an employer and the majority of
the employees in a particular workplace, other days may be substituted for the
said days or any of them as to that workplace.
Further, an employer and employee may agree to
substitute another day or days for the said days or any of them as to that
workplace.
(c) Where,
consequent upon any visit to Australia of Her Majesty the Queen or any other
member of the Royal Family a public holiday is proclaimed by the State, such
day shall within the defined locality, be deemed to be a holiday for the
purposes of this award. Provided that
an employee shall not be entitled to the benefit of more than one holiday
consequent upon such visit.
(d) Where an
employee is absent from employment on the working day before or the working day
after any of the holidays referred to in subclause (a) hereof, without
reasonable cause (proof whereof shall lie upon the employee) or the consent of
the employer, the employee shall not be entitled to payment for the holiday
which occurs on the day immediately following or immediately preceding such
absence.
(e) An employee
whose rostered off shift falls on a holiday referred to in subclauses (a) , (b)
or (c) hereof shall unless that day is a Saturday or a Sunday be paid for that
day at the ordinary rate or be given without loss of pay another day or shift
off duty during the week in which the holiday occurs.
21.
Annual Leave
(a) Annual
Holidays: See Annual Holidays Act
1944.
(b) Annual
Holidays Loading: When, pursuant to section 3 of the said Act, an employee is
given and takes an annual holiday, the employee shall be paid in addition to
the amount payable to the employee pursuant to the said Act, a further amount
in respect of the period taken calculated at the rate per week of 17.5 per cent
of the appropriate weekly wage prescribed by clause 6, Wage Rates.
(c) Where the
employment of an employee who has become entitled to an annual holiday pursuant
to section 3 of the said Act is terminated by the employer for any cause other
than misconduct and the employee has not taken all of the annual holiday to
which the employee is entitled, the employee shall be paid in addition to the
amount payable pursuant to the said Act, a further amount in respect of the
annual holiday to which the employee is entitled calculated at the rate
prescribed by paragraph (b) of this clause.
(d) This clause
applies where an employee is given and takes the annual holiday prescribed by
the said Act or any period thereof, and where the employment of an employee who
has become entitled to the annual holiday prescribed by the said Act is
terminated by the employer for any cause other than misconduct on or after that
date.
22.
Long Service Leave
See Long Service Leave
Act 1955.
23.
Sick Leave
(a) Entitlement:
An employee on weekly hiring is absent from work on account of personal
illness, or on account of injury by accident arising out of and in the course
of the employee's employment, shall be entitled to leave of absence, without
deduction of pay, subject to the following conditions and limitations:
(i) The employee
shall not be entitled to paid leave of absence for any period in respect of
which there is entitlement to workers' compensation.
(ii) The employee
shall comply with subclause (f), Notification of Absence, of clause 2, Contract
of Employment, of this award, in relation to such absence.
(iii) The employee
shall prove to the satisfaction of the employer (or, in the event of a dispute,
the Vehicle Industry (State) Industrial Committee) that the employee was unable
on account of such illness or injury to attend for duty on the day or days for
which sick leave is claimed.
(iv) The employee
shall not be entitled during the first year of any period of service with an
employer to leave in excess of 38 hours of working time but thereafter shall be
entitled to leave up to 60.8 hours of working time each year.
(v) In the case of
an employee who otherwise is entitled to payment under this clause but who at
the time of the absence concerned has not given three months' continuous
service in the employee's current employment with the employer the right to
receive payment shall not arise until the employee has given such service,
unless before that date the employee lawfully leaves the employment of that
employer or the employee's services are terminated by the employer through no
fault of the employee in which case the employee shall be entitled to payment
for any leave so taken on the basis of 3.16 hours for each completed month of
service.
(vi) all medical
certificates shall comply with the following criteria:
(1) Certificates
shall be legible and state that the employee is unfit for duty on account of
personal illness or injury by accident and expected duration of the disability.
(2) Certificates
shall be on pre-printed notepaper including the name of the medical
practitioner and the address of the surgery.
(3) Certificates
shall show the date of the medical examination and the name of the patient
examined.
(4) Retrospective
or altered certificates are unacceptable.
(b) Single Day
Absences: An employee shall not be entitled to single days of paid sick leave
on more than two occasions in any one year of service unless the employee
produces to the employer a certificate from a qualified medical practitioner to
the effect that he or she is unfit for duty on account of personal illness or
injury by accident. Nothing in this
subclause shall limit the employer's rights under paragraph (iii) of subclause
(a) hereof.
(c) Sick Leave
Year and Calculation of Sick Leave Rights: For the purpose of calculating sick
leave rights under this award:
(i) an employee
who continues in their present employment from the date of coming into
operation of this award shall be credited with the number of hours sick leave
which stood to the employee's credit with the present employer as at the date
of coming into operation of this award and shall have future paid sick leave
rights calculated on a yearly basis, the year commencing as from the beginning
of the employee's next sick leave year with that employer;
(ii) any other
employee shall have the sick leave and rights calculated with the one employer,
provided that when an employee continues in the service of an employer, the
employee shall be credited with 60.8 hours at the commencement of the
employee's next year of service.
(d) Cumulative
Sick Leave:
(i) Sick leave
shall accumulate from year to year so that any balance of the period specified
in paragraph (iv) of subclause (a), and subclause (c) of this clause which has
in any year not been allowed to an employee by the employer as paid sick leave
may be claimed by the employee and subject to the conditions hereinbefore
prescribed shall be allowed by the employer in a subsequent year without
diminution of the sick leave prescribed in respect of that year. Provided that sick leave which accumulates
pursuant to this subclause shall be available to the employee for a period of
12 years but for no longer from the end of the year in which it accrues.
(e) Transmission
of Business: Where an employer is a successor or assignee or transmittee of a
business, if an employee was in the employment of the employer's predecessor at
the time when the employer became such successor or assignee or transmittee the
employee in respect of the period during which the employee was in the service
of the predecessor shall for the purpose of this clause be deemed to be in the
service of the employer.
(f) Leave Granted
Without Entitlement: Where an employee claims sick leave in circumstances where
under the terms of this clause he has no entitlement and the employer at the
request of the employee, grants paid leave such paid leave shall be debited
against the employee's entitlement to sick leave.
24.
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) or 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 at Clause 23, 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 or de facto spouse
of the employee; or
(d) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(e) a relative of
the employee who is a member of the same household, where for the purposes of
this paragraph:
1. 'relative'
means a person related by blood, marriage of 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) For the
purpose only of providing care and support for a person in accordance with
subclause (1) of this clause, and despite the provisions of subclause (iv) of
Clause 18, Overtime, the following provisions shall apply.
(b) 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 twelve
(12) months of the said election.
(c) 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.
(d) If, having
elected to take time as leave in accordance with paragraph (a), the leave is
not taken for whatever reason, payment for time accrued at overtime rates shall
be made at the expiry date of the twelve (12) month period or on termination.
(e) 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 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.
25.
Bereavement Leave
(a) An employee
other than a casual employee shall be entitled to up to three 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 be available to the employee in respect to the death of a person
prescribed for the purposes of Personal/Carer's Leave in 24(1)(c)(ii), 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.
(e) Bereavement
leave may be taken in conjunction with other leave available under (1), (2),
(3), (4), (5) and (6) of clause 24. In
determining such a request the employer will give consideration to the circumstances
of the employee and the reasonable operation requirement of the business.
26.
Make Up of Workers' Compensation Payments
Subject at all times to the provisions of this clause, an
employee upon receiving payment of workers' compensation in the terms of the Workers' Compensation Act 1987, and
continuing to receive such payment in respect of weekly incapacity within the
meaning of the said Act shall be paid accident pay by the employer who is
liable to pay workers' compensation under the said Act which said liability by
the employer for accident pay, may be discharged by another person on the
employee's behalf, provided that -
(a)
(i) Accident pay
shall only be payable to an employee whilst such employee remains in the
employment of the employer by whom the employee was employed at the time of the
incapacity and then only for such period as the employee receives a weekly
payment under the Workers' Compensation
Act 1987.
(ii) The employer
shall not terminate the employment of the employee to avoid payment of
entitlements for the employee provided for in this clause.
(b) Accident pay
shall not apply to any incapacity occurring during the first three weeks of
employment unless such incapacity continues beyond the first three weeks and
then, the provisions of this clause shall apply only to the period of
incapacity after the first three weeks.
Provided that as to industrial aggravation or acceleration (as provided
in the Workers' Compensation Act
1987), the provisions of this subclause shall not apply unless the employee has
been employed with the employer at the time of the incapacity for a minimum
period of one month.
(c) The provisions
of this clause shall not apply in respect of any injury during the first five
normal working days of incapacity.
(d) An employee on
engagement may be required to declare all workers' compensation claims made by
the employee or on the employee's behalf in the previous five years and in the
event of false or inaccurate information being deliberately and knowingly declared
the employer may require the employee to forfeit the employee's entitlement to
accident pay under this clause.
(e) The maximum
period or aggregate of periods of accident pay to be made by an employer shall
be a total of twenty-six weeks for any one injury as defined in subclause (q)
of this clause.
(f) The
provisions of this clause shall not apply in respect of any period of other
paid leave of absence.
(g) An employee,
upon receiving an injury for which the employee claims to be entitled to receive
accident pay, shall give notice in writing of the said injury to the employer
as soon as reasonably practicable after the occurrence thereof; provided that
such notice may be given by a representative of the employee.
(h) In order to
receive entitlement to accident pay an employee shall conform to the
requirements of the Workers' Compensation
Act 1987, as to medical examination.
Where, in accordance with the said Act a medical referee gives a
certificate as to the condition of the employee and the employee's fitness for
work or specifies work for which the employee is fit and such work is made
available by the employer and refused by the employee or the employee fails to
commence the work, the provisions of this clause shall cease to apply to the
said employee from the date of such refusal or failure to commence the work.
(i) Where there
is a redemption of weekly compensation payments under the said Act the
employer's liability to pay benefits under this clause shall cease as from the
date of such redemption.
(j)
(i) An employee
receiving or who has received accident pay shall advise the employee's employer
of any action that the employee may institute or any claim the employee may
make for damages. Further, the employee
shall, if requested, provide an authority to the employer entitling the
employer to a charge upon any moneys payable pursuant to any verdict or
settlement on that injury.
(ii) Where an
employee obtains a verdict for damages in respect of an injury for which the
employee has received benefits under this clause the employer's liability to
pay such benefits shall cease from the date of such verdict; provided that if
the verdict for damages is not reduced either in whole or part by the amount of
the benefits so paid by the employer, the employee shall pay to the employer
the amount of such benefits already received in respect of that injury by which
the verdict has not been so reduced.
(iii) Where an
employee obtains a verdict for damages against a person other than the employer
in respect of an injury for which the employee has received benefits under this
clause, the employer's liability to pay such benefits shall cease from the date
of such verdict; provided that if the verdict for damages is not reduced either
in whole or part by the amount of benefits so paid by the employer the employee
shall pay to the employer any amount of such benefits already received in
respect of that injury by which the verdict has not been so reduced.
(k) Nothing in
this clause shall require an employer to insure against liability for the
payment of benefits under this clause.
(l) Any changes
in compensation rates under the Workers'
Compensation Act 1987, shall not increase the amount of the benefits
payable under this clause that would have been payable had the rates of
compensation remained unchanged.
(m) All rights to
any benefits under this clause shall cease on the death of an employee.
(n) This clause
shall only apply in respect of incapacity arising from an injury occurring or
recurring on or after 1 March 1987.
(o) Where an
employee receives a benefit payment under this clause and such payment is
payable for incapacity for part of a week, the amount shall be a direct
pro-rata payment.
(p) For the
purpose of this clause "Accident Pay" shall mean-
(i) In the case
of an employee who is deemed to be totally incapacitated within the meaning of
the said Act and arising from an injury covered by this clause means a weekly
payment of an amount representing the difference between the total amount of
compensation paid under the said Act for the week in question and the total
thirty eight hour weekly award rate for a day worker which would have been
payable under the employee's normal classification together with the employee's
normal weekly overaward payment for work for the week in question if the
employee had been performing the employee's normal duties, provided that shift
premiums, overtime payments, fares and travelling allowance, tool allowance,
special rates or other similar payments shall not be included.
(ii) In the case
of an employee who is deemed to be partially incapacitated within the meaning
of the Workers' Compensation Act
1987, and arising from an injury covered by this clause means a weekly payment
of an amount of compensation paid under the said Act for the period in question
together with the average weekly amount the employee is earning or is able to
earn in some suitable employment or business (as determined expressly or by
implication by the relevant Workers' Compensation Board or equivalent authority
or as agreed between the parties) and the total thirty eight hour weekly award
rate for a day worker which would have been payable under that employee's
normal weekly overaward payment for work for the week in question if the
employee had been performing the employee's normal duties; provided that shift
premiums, overtime payments, fares and travelling allowance, special rates or
other similar payments shall not be included.
The total so calculated shall be the same as that applying for a total
incapacity under paragraph (i) of this subclause, provided that where an
employee receives a weekly payment under this paragraph and subsequently such
payment is reduced pursuant to the Workers'
Compensation Act 1987, such reduction will not increase the liability of
the employer to increase the amount of accident pay in respect of that injury.
(q) For the
purpose of this clause "Injury" shall be given the same meaning and
application as applying under the Workers'
Compensation Act 1987, and no injury shall result in the application of
accident pay unless an entitlement exists under the Workers' Compensation Act 1987.
27.
Travelling Time, Accommodation & Meals
(a) Travelling Time:
An employee required on any day to perform ordinary work away from a location
where the employee normally works shall:
(i) If required
to present for normal working hours be paid at ordinary time rates for extra
time spent when travelling except on Saturdays, Sundays and holidays when the
employee shall be paid time and one half;
(ii) Be paid any
fares reasonably incurred in excess of those normally incurred in travelling
between his or her home and such workplace and depot:
(iii) An employee
who, with the approval of the company uses the employee's own means of
transport for travelling to or from outside jobs or venues shall be paid the
amount of excess fares which the employee would have been incurred in using
public transport unless the employee has an arrangement with the company for a
regular allowance.
(iv) An employee
who is required by the employer to use the employee's own motor vehicle on the
employer's business shall be paid an allowance per kilometre travelled as set
out at Item 12 of Table 7 - Allowances, of Part B, Monetary Rates.
(v) The maximum
travelling time to be paid shall be 12 hours out of any period of 24 hours, or
when sleeping both is provided by the employer for all night travel, eight
hours out of every 24.
(b) Transfer of
Employment : An employee
(i) engaged in
one locality to work in another; or
(ii) sent, other
than at the employee's own request, from the usual locality to another for
employment which can be reasonably regarded as permanent, involving a change of
residence, shall be paid travelling time whilst necessarily travelling between
such localities and, for a period not exceeding three months, expenses. Provided that such expenses shall cease
after the employee has taken up permanent residence or abode at the new
location.
(c) Accommodation
and Meals: Where an employee is required to travel in circumstances requiring
the employee to stay away from home overnight, the employee shall, except to
the extent that arrangements may be made for the expenses to be charged to the
employer, be reimbursed for expenses reasonably incurred for accommodation and
meals.
(d) "Expenses"
for the purpose of this clause means
(i) All
reasonable fares and expenses incurred whilst travelling including an amount
for each meal as set out at Item 13 of Table 7.
(ii) A reasonable
allowance to cover the cost incurred for board and lodging.
28.
Accommodation and Conveniences
Each employer, for the use of the employees, shall:
(i) supply
boiling water at meal times;
(ii) provide in each
workplace, an adequate supply of cool drinking water;
(iii) provide and
continuously maintain in each workplace, and at other places where employees
are regularly employed, a reasonably accessible first aid outfit in accordance
with the Occupational Health and Safety Regulation 2001;
(iv) provide proper
and sufficient sanitary conveniences;
(v) provide each
employee with a suitable locker, to be maintained in good working order, at
some reasonably convenient place on the employer's premises or hanging
facilities which afford reasonable protection for employee's clothes;
(vi) provide proper
and sufficient washing facilities.
29.
Clothing, Etc.
(a) Uniforms:
Where an employer requires an employee as a condition of employment to wear
special uniform, such uniform shall be supplied and cleaned free of cost to the
employee and shall remain the property of the employer.
(b) Seats: The
employer shall provide, where practicable, a suitable seat upon request by an
employee.
(c) Protective
Clothing: An employee working with acids or other substances of a like nature
shall be provided by the employer with adequate protective clothing and boots.
(d) Suitable
protective clothing shall be provided by the employer for an employee required
to work in the rain or in a car laundry or in a washing bay or in a steam
cleaning or proof coating operations.
(e) An employee
engaged in wet rubbing shall be provided by the employer with a rubber apron
and rubber boots.
30.
Jury Service
An employee on weekly hiring required to attend for jury
service during ordinary working hours shall be reimbursed by the employer an
amount equal to the difference between the amount paid in respect of the
employee's 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 the employer as soon as possible of
the date upon which the employee is required to attend for jury service. Further the employee shall give the employer
proof of attendance, the duration of such attendance, and the amount received
in respect of such jury service.
31.
Superannuation
(a) Definitions:
For the purpose of this clause:
(i) 'Act and
Regulations' means the Superannuation
Guarantee (Administration) Act 1992 and Regulations pertaining thereto, as
amended from time to time.
(ii) 'Employee'
means any person employed under the terms of this award.
(iii) 'Employer'
means any employer who is bound by this award.
(iv) 'Ordinary-time
Earnings' means the employee's wages for work performed in ordinary hours, as
defined in paragraph (a) of subclauses (3) and (4) of clause 6, Wage Rates;
clauses 14, Rates for Saturday Work, 15, Rates for Sunday Work; 16, Rates for
Holiday Work and 21, Annual Leave, and includes overaward payments and shift
penalties.
(v) The
"superannuation fund' shall mean either:
(1) Australian
Retirement Fund or Retail Employees' Superannuation Trust or MTAA Industry
Superannuation Fund or ASSET; or
(2) an exempt fund
under this award.
(vi) An
"exempt fund' shall mean:
(1) any fund
specified by an award or registered industrial agreement which has application
to the employees in the principal business of the employer where employees
covered by this award are the minority of award covered employees; or
(2) any nominated
fund by a union which the employer elects to pay in contribution on behalf of
the employer's employees provided that such fund complies with the Act and
Regulations; or
(3) any other
superannuation fund for which an employer, is already making contributions
which satisfy the contribution requirements of subclause (c) of this clause.
(b) Eligibility of
Employees:
(i) All employees
(other than casuals as defined in clause 3, Casual Employment) shall, on
completion of six weeks service (such service to include any service prior to
11 April 1990) become eligible for superannuation contributions as set out in
subclause (c) of this clause. Provided,
however, that such employees be given a death and disability cover in
accordance with the fund (at a cost not exceeding $2.00 per week) to provide
cover to such employees during the first six weeks of employment.
(ii) Casual
employees who earn more than $200.00 per month shall, upon completion of six
weeks service, become eligible for superannuation contributions as set out in
the said subclause (c). Provided,
however, that such employees be given death and disability cover in accordance
with the fund (at a cost not exceeding $2.00 per week) to provide cover to such
employees during the first six weeks of employment.
(c) Contributions:
(i) Subject to
subclauses (b), (d) and (f) of this clause, an employer shall contribute to the
superannuation fund chosen by the employee a superannuation contribution
equivalent to three per cent of such employee's ordinary-time earnings.
(ii) Provided that
such contributions shall be made upon completion of the qualifying period
specified in subclause (b) of this clause for eligible employees.
(iii) Provided
further, however, that such eligible employees be given death and disability
cover in accordance with the superannuation fund (at a cost not exceeding $2.00
per week) to provide cover to such employees during the first six weeks'
employment.
(iv) Such
contributions required by this subclause will be made to the superannuation
fund in the manner and at the times specified by the terms of the fund or in
accordance with any agreement between the employer and the Trustees of the
fund.
(d) Fund
Membership:
(i) On
engagement, and for existing employees, the employer shall make the employee
aware of his/her entitlements under this clause and offer the employee the opportunity
to become a member of the appropriate fund.
An employee shall be required to properly complete the necessary
application form(s) to become a member of an appropriate fund. The employee shall be free to determine the
fund of the employee's choice as provided by this clause.
(ii) The employer
shall make contributions in accordance with subclause (c) of this clause on
behalf of all eligible employees once such employees complete the qualifying
period as prescribed in subclause (b) of this clause and complete the necessary
application forms.
(iii) Where an
employee is not a member of the fund, but eligible to join the fund, the
employer shall remind the employee, in writing, of the employee's entitlements
within a period of a further six months from the date of becoming eligible for
superannuation.
(e) Exempt Fund
Employers:
(i) Any employer
making contributions to an exempt fund defined in paragraph (vi) of subclause
(a) of this clause shall notify the Industrial Relations Commission of New South
Wales.
(ii) Leave is
reserved to any employer to apply for exemption from this clause on the grounds
of the standard of existing superannuation arrangements provided by the
employer or the employer's financial capacity to pay.
(iii) In circumstances
where any organisation respondent to this award is concerned about the
suitability of any exempt fund as defined in paragraph (vi) of subclause (a) of
this clause it may challenge the suitability of that fund before the Industrial
Relations Commission of New South Wales within six months from the date of
operation or the date of fund selection, whichever is the latest.
(f) Absence from
Work: Subject to the Trust Deed of the fund of which the employee is a member,
absences from work will be treated in the following manner:
(i) Paid Leave -
Contributions shall continue whilst a member of a fund is absent on paid leave
such as annual leave, long service leave, public holidays, jury service, sick
leave and bereavement leave.
(ii) Unpaid Leave
- Contributions shall not be required to be made in respect of any absence from
work without pay.
(iii) Work Related
Injury and Sickness - In the event of an eligible employee's absence from work
due to work related injury or sickness, contributions shall continue for the
period of the absence (subject to a maximum of 52 weeks total absence for each
injury or sickness), provided that the member of the fund (employee) is
receiving payments in accordance with the provisions of an award or an
industrial agreement dealing with accident pay.
(g) Coercion or
Intimidation:
(i) No employer
or employee shall be coerced or intimidated into joining a particular fund by
any party of this award.
(ii) In the event
of a party alleging a breach of this provision the matter may be brought before
a member of the Industrial Relations Commission of New South Wales for
determination of the fund in dispute.
32.
Introduction of Change and Redundancy
(1) Introduction
of Change:
(a) Employer's
Duty to Notify
(i) Where an employer
has made a definite decision to introduce major changes in production, program,
organisation, structure or technology that are likely to have significant
effects on employees, the employer shall notify the employees who may be
affected by the proposed changes and their union or unions.
(ii) "Significant
effects" include termination of employment; major changes in the
composition, operation or size of the employer's workforce or in the skills
required; the elimination or diminution of job opportunities, promotion
opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of employees to other work or locations and the
restructuring of jobs. Provided that,
where the award makes provision for alteration of any of the matters referred
to herein, an alteration shall be deemed not to have significant effect.
(b) Employer's
Duty to Discuss Change
(i) The employer
shall discuss with the employees affected and their union or unions, inter alia,
the introduction of the changes referred to in subclause (1)(a) of this clause,
the effects the changes are likely to have on employees, measures to avert or
mitigate the adverse effects of such changes on employees and shall give prompt
consideration to matters raised by the employees and/or their union or unions
in relation to the changes.
(ii) 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
(1)(a).
(iii) For the
purpose of such discussion, the employer shall provide in writing to the
employees concerned and their union or unions, 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 be inimical to the employer's
interests.
(2) Redundancy:
(a) Discussions
Before Terminations
(i) 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 and this is not due to the
ordinary and customary turnover of labour and that decision may lead to
termination of employment, the employer shall hold discussions with the
employees directly affected and with their union or unions.
(ii) The
discussions shall take place as soon as practicable after the employer has made
a definite decision which will invoke the provisions of paragraph (i) of this
subclause and shall cover, inter alia, any reasons for the proposed
terminations, measures to avoid or minimise the terminations on the employees
concerned.
(iii) For the
purposes of the discussion the employer shall, as soon as practicable, provide
in writing to the employees concerned and their union or unions, 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 workers 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 be inimical to the
employer's interests.
(b) Transfer to
Lower Paid Duties - Where an employee is transferred to lower paid duties for
reasons set out in paragraph (i) of subclause (2)(a) of this subclause, 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 lower ordinary-time rate for the number of weeks of
notice still owing.
(c) Severance Pay
- In addition to the period of notice prescribed for ordinary termination in
subclause (e) of clause 2, Contract of Employment, and subject to further order
of the Industrial Relations Commission of New South Wales, an employee whose
employment is terminated for reasons set out in paragraph (i) of subclause
(2)(a) of this clause shall be entitled to the following amount of severance
pay in respect of a continuous period of service:
(i) 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
|
(ii) 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
|
(iii) "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.
Provided that the severance payments shall not exceed
the amount which the employee would have earned if employment with the employer
had proceeded to the employee's normal retirement date.
(d) Employee
Leaving During Notice - An employee whose employment is terminated for reasons
set out in paragraph (i) of subclause (2)(a) of this clause may terminate the
employee's employment during the period of notice and, if so, 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.
(e) Alternative
Employment - An employer, in a particular redundancy case, may make application
to the Industrial Relations Commission of New South Wales to have the general
severance pay prescription varied if the employer obtains acceptable
alternative employment for an employee.
(f) Time Off
During Notice Period -
(i) During the period
of notice of termination given by the employer an employee shall be allowed up
to seven hours 36 minutes time off without loss of pay during each week of
notice for the purpose of seeking other employment.
(ii) If the
employee has been allowed paid leave for more than eight 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.
For this purpose, a statutory declaration which states
the date, time and location of such interview will be sufficient.
(g) Notice to
Centrelink - Where a decision has been made to terminate employees in the
circumstances outlined in paragraph (i) of subclause (2)(a) of this clause, the
employer shall notify the Centrelink thereof as soon as possible, giving
relevant information including the number and categories of the employees
likely to be affected and the period over which the terminations are intended
to be carried out.
(h) Superannuation
Benefits - Subject to further order of the Commission, where an employee whose
employment is terminated receives a benefit from a superannuation scheme, the
employee only receive under subclause (2)(c) of this clause, the difference
between the severance pay specified in that subclause and the amount of the
superannuation benefit the employee receives which is attributable to employer
contributions only.
If this superannuation benefit is greater than the
amount due under the said subclause (c), then the employee shall receive no
payment under that subclause.
(i) Transmission
of Business -
(i) Where a
business is, before or after the date of this award, transmitted from an
employer (in this subclause called the "transmitter") to another
employer (in this subclause called "the transmittee") and an employee
who at the time of such transmission was an employee of the transmitter in that
business becomes an employee of the transmittee:
(1) the continuity
of the employment of the employee shall be deemed not to have been broken by
reason of such transmission; and
(2) the period of
employment which the employee has had with the transmitter or any prior
transmitter shall be deemed to be service of the employee with the transmittee.
(ii) In this
subclause "business" includes trade, process, business or occupation
and includes part of any such business and "transmission" includes
transfer, conveyance, assignment or succession, whether by agreement or by operation
of law, and "transmitted" has a corresponding meaning.
(j) Employees
with Less than One Year's Service - This clause shall not apply to employees
with less than one year's continuous service and the general obligation on
employers should be no more than to give relevant 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.
(k) Employees
Exempted - This clause shall not apply where employment is terminated as a
consequence of conduct that justifies instant dismissal, including malingering,
inefficiency, misconduct or neglect of duty, or in the case of casual
employees, probationary apprentices, apprentices, or employees engaged for a
specific period of time or for a specified task or tasks.
(l) Employers
Exempted - Subject to an order of the Industrial Relations Commission of New
South, in a particular redundancy case, this clause shall not apply:
(a) to employers
who employ less than 15 employees;
(b)
(i) to a lease
(service station only), franchise or licence or like agreement under which the
employer operates which is terminated without notice or with insufficient notice to comply with its provision where
proof is provided to the relevant union or unions;
(ii) where an
incoming employer offers to continue the employment of the employee;
(iii) to employers
who transfer employees to a related company and ensure continuity of service of
the employees so transferred.
(m) Incapacity to
Pay - An employer, in a particular redundancy case, may make application to the
Commission to have the general severance pay prescription varied on the basis
of the employer's incapacity to pay.
33.
Shop Stewards
An employee(s) appointed Union Delegate(s) in the workplace
shall, upon notification thereof to the employer, be recognised as the
accredited representative of the union to which the employee belongs. The Union Delegate shall be allowed the
necessary time during working hours to interview the employer or the employer's
representative on matters affecting employees whom the Union Delegate
represents.
34.
Notice Board
(a) An employer
shall permit the erection in a prominent position on the premises of a notice
board of reasonable dimensions or a number of such notice boards reasonable in
the circumstances, upon which an accredited representative of a union bound by
this award shall be permitted to post formal union notice signed by the
Secretary or organiser of the union concerned or by the representative positing
them. Any notice posted on a board not
so signed may be removed by an accredited representative of the Union concerned
or by the employer.
(b) An employer
shall have a copy of this award, as varied from time to time, available at a
place on the employer's premises reasonably accessible to the employees.
35.
Right of Entry
See Chapter 5, Part 7 of the Industrial Relations Act 1996.
36.
Time and Wages Record
See Industrial
Relations (General) Regulation 1996, Part 3, Pay Slips and Employers'
Records.
37.
Parental Leave
Subject to the terms of this clause employees are entitled
to maternity, paternity and adoption leave and to work part time in connection
with the birth or adoption of a child.
(A) Maternity Leave
- Nature of Leave
(1) Maternity
leave is unpaid leave.
(2) Definitions -
For the purposes of this subclause:
(a) 'Employee'
includes full-time, part-time and regular casual employees but does not include
other casual or seasonal employees.
(b) 'Paternity
Leave' means leave of the type provided for in subclause (B) whether prescribed
in an award or otherwise.
(c) 'Child' means
a child of the employee under the age of one year.
(d) 'Spouse'
includes a de facto or a former spouse.
(e) 'Continuous
service' means service under an unbroken contract of employment and includes:
(i) any period of
leave taken in accordance with this clause,
(ii) any period of
part time employment worked in accordance with this clause, or
(iii) any period of
leave or absence authorised by the employer or by the award.
(f) 'Regular
casual employee' means a casual employee who works for an employer on a regular
and systematic basis and who has a reasonable expectation of on-going
employment on that basis.
(3) Eligibility
for maternity leave - An employee who becomes pregnant, upon production to her
employer of the certificate required by paragraph (4) hereof, shall be entitled
to a period of up to 52 weeks maternity leave provided that such leave shall
not extend beyond the child's first birthday.
This entitlement shall be reduced by any period of paternity leave taken
by the employee's spouse in relation to the same child and apart from paternity
leave of up to one week at the time of confinement shall not be taken
concurrently with paternity leave.
Subject to paragraphs (6) and (9) of this subclause,
the period of maternity leave shall be unbroken and shall, immediately
following confinement, include a period of six weeks compulsory leave.
The employee must have had at lease 12 months
continuous service with that employer immediately preceding the date upon which
she proceeds upon such leave.
(4) Certification
- At the time specified in paragraph (5) the employee must produce to her
employer:
(a) a certificate
from a registered medical practitioner stating that she is pregnant and the
expected date of confinement;
(b) a statutory
declaration stating particulars of any period of paternity leave sought or
taken by her spouse and that for the period of maternity leave she will not
engage in any conduct inconsistent with her contract of employment.
(5) Notice
requirements
(a) an employee
shall, not less than 10 weeks prior to the presumed date of confinement,
produce to her employer the certificate referred to in subparagraph 4(a).
(b) an employee
shall give not less than four weeks notice in writing to her employer of the
date upon which she proposes to commence maternity leave, stating the period of
leave to be taken and shall, at the same time, produce to her employer the
statutory declaration referred to in subparagraph 4(b).
(c) an employer by
not less than 14 days notice in writing to the employee may require her to
commence maternity leave at any time within the six weeks immediately prior to
her presumed date of confinement.
(d) An employee
shall not be in breach of this clause as a consequence of failure to give the
stipulated period of notice in accordance with subparagraph (b) hereof if such
failure is occasioned by the confinement occurring earlier than the presumed
date.
(6) Transfer to a
Safe Job - Where, in the opinion of a duly qualified medical practitioner,
illness or risks arising out of the pregnancy or hazards connected with the
work assigned to the employee make it inadvisable for the employee to continue
at her present work, the employee shall, if the employer deems it practicable,
be transferred to a safe job at the rate and on the conditions attaching to
that job until the commencement of maternity leave.
If the transfer to a safe job is not practicable, the
employee may, or the employer may require the employee to, take leave for such
period as is certified necessary by a duly qualified medical practitioner. Such leave shall be treated as maternity
leave for the purposes of paragraphs (10), (11), (12) and (13) hereof.
(7) Variation of
Period of Maternity Leave
(a) Provided the maximum
period of maternity leave does not exceed the period to which the employee is
entitled under paragraph (3) hereof:
(i) the period of
maternity leave may be lengthened once only by the employee giving not less
than 14 days notice in writing stating the period by which the leave is to be
lengthened;
(ii) the period
may be further lengthened by agreement between the employer and the employee.
(b) The period of
maternity leave may, with the consent of the employer, be shortened by the
employee given not less than 14 days notice in writing stating the period by
which the leave is to be shortened.
(8) Cancellation
of Maternity Leave
(a) Maternity
leave, applied for but not commenced, shall be cancelled when the pregnancy of
an employee terminates other than by the birth of a living child.
(b) Where the
pregnancy of an employee then on maternity leave terminates other than by the
birth of a living child, it shall be the right of the employee to resume work
at a time nominated by the employer which shall not exceed four weeks from the
date of notice in writing by the employee to the employer that she desires to
resume work.
(9) Special
Maternity Leave and Sick Leave
(a) Where the
pregnancy of an employee not then on maternity leave terminates after 28 weeks
other than by the birth of a living child then -
(i) she shall be
entitled to such period of unpaid leave (to be known as special maternity
leave) as a duly qualified medical practitioner certifies as necessary before
her return to work, or
(ii) for illness
other than the normal consequences of confinement she shall be entitled, either
in lieu of or in addition to special maternity leave, to such paid sick leave
as to which she is then entitled and which a duly qualified medical
practitioner certifies as necessary before her return to work.
(b) Where an
employee not then on maternity leave suffers illness related to her pregnancy,
she may take such paid sick leave as to which she is then entitled and such
further unpaid leave (to be known as special maternity leave) as a duly
qualified medical practitioner certifies as necessary before her return to
work, provided that the aggregate of paid sick leave, special maternity leave
and maternity leave shall not exceed the period to which the employee is entitled
under paragraph (3) hereof.
(c) For the
purposes of paragraphs (10), (11), and (12) hereof, maternity leave shall
include special maternity leave.
(d) An employee
returning to work after the completion of a period of leave taken pursuant to this
paragraph shall be entitled to the position which she held immediately before
proceeding on such leave or, in the case of an employee who was transferred to
a safe job pursuant to paragraph (6) hereof, to the position she held
immediately before such transfer.
Where such position no longer exists but there are
other positions available, for which the employee is qualified for and is
capable of performing, she shall be entitled to a position as nearly comparable
in status and salary or wage to that of her former position.
(10) Maternity Leave
and Other Leave Entitlements
(a) Provided the
aggregate of leave including leave taken under this subclause, does not exceed
the period to which the employee is entitled under paragraph (3) hereof, an
employee may, in lieu of or in conjunction with maternity leave, take any
annual leave or long service leave or any part thereof to which she is
entitled.
(b) Paid sick leave
or other paid authorised award absences (excluding annual leave or long service
leave), shall not be available to an employee during her absence on maternity
leave.
(11) Effect of
Maternity Leave on Employment - Subject to this subclause, notwithstanding any
award or provision to the contrary, absence on maternity leave shall not break
the continuity of service of an employee but shall not be taken into account in
calculating the period of service for any purpose.
(12) Termination of
Employment
(a) An employee on
maternity leave may terminate her employment at any time during the period of
leave by notice given in accordance with this award.
(b) An employer
shall not terminate the employment of an employee on the ground of her
pregnancy or of her absence on maternity leave, but otherwise the rights of an
employer in relation to termination of employment are not hereby affected.
(13) Return to Work
After Maternity Leave
(a) An employee
shall confirm her intention of returning to her work by notice in writing to
the employer given not less than four weeks prior to the expiration of her
period of maternity leave.
(b) An employee,
upon returning to work after maternity leave or the expiration of the notice
required by subparagraph (a) hereof, shall be entitled to the position which
she held immediately before proceeding on maternity leave, or, in the case of
an employee who was transferred to a safe job pursuant to paragraph (6) hereof,
to the position which she held immediately before such transfer or in relation
to an employee who has worked part time during the pregnancy the position she
held immediately before commencing such part time work.
Where such position no longer exists but there are
other positions available for which the employee is qualified and the duties of
which she is capable of performing, she shall be entitled to a position as
nearly comparable in status and salary or wage to that of her former position.
(14) Replacement
Employees
(a) A replacement
employee is an employee specifically engaged as a result of an employee
proceeding on maternity leave.
(b) Before an employer
engages a replacement employee under this subclause, the employer shall inform
that person of the temporary nature of the employment and of the rights of the
employee who is being replaced.
(c) Before an
employer engages a person to replace an employee temporarily promoted or
transferred in order to replace an employee exercising her rights under this
clause, the employer shall inform that person of the temporary nature of the
promotion or transfer and of the rights of the employee who is being replaced.
(d) Nothing in this
subclause shall be construed as requiring an employer to engage a replacement
employee.
(B) Paternity Leave
- Nature of Leave
(1) Paternity
leave is unpaid leave.
(2) Definitions -
For the purposes of this subclause:
(a) 'Employee'
includes full-time, part-time and regular casual employees but does not include
other casual or seasonal employees.
(b) 'Maternity
leave' means leave of the type provided for in subclause (a) (and includes
special maternity leave) whether prescribed in an award or otherwise.
(c) 'Child' means
a child of the employee or the employee's spouse under the age of one year.
(d) 'Spouse'
includes a de facto or a former spouse.
(e) 'Primary
care-giver' means a person who assumes the principal role of providing care and
attention to a child.
(f) 'Continuous
service' means service under an unbroken contract of employment and includes:
(i) any period of
leave taken in accordance with this clause,
(ii) any period of
part time employment worked in accordance with this clause, or
(iii) any period of
leave or absence authorised by the employer or by the award.
(g) 'Regular casual
employee' means a casual employee who works for an employer on a regular and
systemic basis and who has reasonable expectation of on-going employment on
that basis.
(3) Eligibility
for paternity leave - A male employee, upon production to his employer of the
certificate required by paragraph (4), shall be entitled to one or two periods
of paternity leave, the total of which shall not exceed 52 weeks, in the
following circumstances:
(a) an unbroken
period of up to one week at the time of confinement of his spouse;
(b) a further
unbroken period of up to 51 weeks in order to be the primary care-giver of a
child provided that such leave shall not extend beyond the child's first
birthday. This entitlement shall be
reduced by any period of maternity leave taken by the employee's spouse in
relation to the same child and shall not be taken concurrently with that
maternity leave.
The employee must have had at least 12 months
continuous service with that employer immediately preceding the date upon which
he proceeds upon either period of leave.
(4) Certification
- At the time specified in paragraph (5) the employee must produce to his
employer:
(a) a certificate
from a registered medical practitioner which names his spouse, states that she
is pregnant and the expected date of confinement or states the date on which
the birth took place;
(b) in relation to any
period to be taken under subparagraph (3)(b) hereof, a statutory declaration
stating:
(i) he will take
that period of paternity leave to become the primary care-giver of a child;
(ii) particulars
of any period of maternity leave sought or taken by his spouse; and
(iii) for the
period of paternity leave he will not engage in any conduct inconsistent with
his contract of employment.
(5) Notice
Requirements
(a) The employee
shall, not less than ten weeks prior to each proposed period of leave, give the
employer notice in writing stating the dates on which he proposes to start and
finish the period or periods of leave and produce the certificate and statutory
declaration required in paragraph (4) hereof.
(b) The employee shall
not be in breach of this paragraph as a consequence of failure to give the
notice required in subparagraph (a) hereof if such failure is due to:
(i) the birth
occurring earlier than the expected date; or
(ii) the death of
the mother or the child; or
(iii) other
compelling circumstances.
(c) The employee
shall immediately notify his employer of any change in the information provided
pursuant to paragraph (4) hereof.
(6) Variation of
period of paternity leave
(a) Provided the
maximum period of paternity leave does not exceed the period to which the
employee is entitled under paragraph (3) hereof:
(i) the period of
paternity leave provided by subparagraph (3)(b) may be lengthened once only by
the employee giving not less than 14 days notice in writing stating the period
by which the leave is to be lengthened;
(ii) the period
may be further lengthened by agreement between the employer and the employee.
(b) The period of
paternity leave taken under subparagraph (3)(b) hereof may, with the consent of
the employer, be shortened by the employee giving not less than 14 days notice
in writing stating the period by which the leave is to be shortened.
(7) Cancellation
of paternity leave - Paternity leave, applied for under subparagraph (3)(b)
hereof but not commenced, shall be cancelled when the pregnancy of the
employee's spouse terminates other than by the birth of a living child.
(8) Paternity
leave and other leave entitlements
(a) Provided the
aggregate of any leave, including leave taken under this subclause, does not
exceed the period to which the employee is entitled under paragraph (3) hereof,
an employee may, in lieu of or in conjunction with paternity leave, take any
annual leave or long service leave or any part thereof to which he is entitled.
(b) Paid sick leave
or other paid authorised award absences (excluding annual leave or long service
leave) shall not be available to an employee during his absence on paternity
leave.
(9) Effect of paternity
leave on employment - Subject to this subclause, notwithstanding any award or
other provision to the contrary absence on paternity leave shall not break the
continuity of service of an employee but shall not be taken into account in
calculating the period of service for any purpose.
(10) Termination of
employment
(a) An employee on
paternity leave may terminate his employment at any time during the period of
leave by notice given in accordance with this award.
(b) An employer
shall not terminate the employment of an employee on the ground of his absence
on paternity leave, but otherwise the rights of an employer in relation to
termination of employment are not hereby affected.
(11) Return to work
after paternity leave
(a) An employee
shall confirm his intention of returning to work by notice in writing to the
employer given not less than four weeks prior to the expiration of the period
of paternity leave provided by subparagraph (3)(b) hereof.
(b) An employee,
upon returning to work after paternity leave or the expiration of the notice
required by subparagraph (a) hereof, shall be entitled to the position which he
held immediately before proceeding on paternity leave, or in relation to an
employee who has worked part time under this clause to the position he held
immediately before commencing such part time work.
Where such position no longer exists but there are
other positions available which the employee is qualified for and is capable of
performing, he shall be entitled to a position as nearly comparable in status
and pay to that of his former position.
(12) Replacement
employees
(a) A replacement
employee is an employee specifically engaged as a result of an employee
proceeding on paternity leave.
(b) Before an
employer engages a replacement employee the employer shall inform that person
of the temporary nature of the employment and of the rights of the employee who
is being replaced.
(c) Before an
employer engages a person to replace an employee temporarily promoted or
transferred in order to replace an employee exercising his rights under this
subclause, the employer shall inform that person of the temporary nature of the
promotion or transfer and of the rights of the employee who is being replaced.
(d) Nothing in this
subclause shall be construed as requiring an employer to engage a replacement
employee.
(C) Adoption Leave
(1) Nature of
Leave - Adoption leave is unpaid leave.
(2) Definitions -
For the purposes of this subclause:
(a) 'Employee' includes
full-time, part-time and regular casual employees but does not include other
casual or seasonal employees.
(b) 'Child' means a
person under the age of five years who is placed with the employee for the
purposes of adoption, other than a child or step-child of the employee or of
the spouse of the employee or a child who has previously lived continuously
with the employee for a period of six months or more.
(c) 'Relative
adoption' occurs where a child, as defined, is adopted by a grandparent, brother,
sister, aunt or uncle (whether of the whole blood or half blood or by
marriage).
(d) 'Primary
care-giver' means a person who assumes the principal role of providing care and
attention to a child.
(e) 'Spouse'
includes a de facto spouse.
(f) 'Continuous
service' means service under an unbroken contract of employment and includes:
(i) any period of
leave taken in accordance with this clause,
(ii) any period of
part time employment worked in accordance with this clause, or
(iii) any period of
leave or absence authorised by the employer or by the award.
(g) 'Regular casual
employee' means a casual employee who works for an employer on a regular and
systematic basis and who has a reasonable expectation of on-going employment on
that basis.
(3) Eligibility -
An employee, upon production to the employer of the documentation required by
paragraph (4) hereof shall be entitled to one or two periods of adoption leave,
the total of which shall not exceed 52 weeks, in the following circumstances:
(a) an unbroken
period of up to three weeks at the time of the placement of the child;
(b) an unbroken
period of up to 52 weeks from the time of its placement in order to be the
primary care-giver of the child. This
leave shall not extend beyond one year after the placement of the child and
shall not be taken concurrently with adoption leave taken by the employee's
spouse in relation to the same child.
This entitlement of up to 52 weeks shall be reduced by:
(i) any period of
leave taken pursuant to subparagraph (a) hereof, and
(ii) the aggregate
of any periods of adoption leave taken or to be taken by the employee's spouse;
The employee must have had at least 12 months
continuous service with that employer immediately preceding the date upon which
he or she proceeds upon such leave in either case.
(4) Certification
- Before taking adoption leave the employee must produce to the employer:
(a)
(i) A statement
from an adoption agency or other appropriate body of the presumed date of
placement of the child with the employee for adoption purposes; or
(ii) A statement
from the appropriate government authority confirming that the employee is to
have custody of the child pending application for an adoption order.
(b) In relation to
any period to be taken under subparagraph (3)(b) hereof, a statutory
declaration stating:
(i) the employee
is seeking adoption leave to become the primary care-giver of the child;
(ii) particulars
of any period of adoption leave sought or taken by the employee's spouse; and
(iii) for the
period of adoption leave the employee will not engage in any conduct
inconsistent with his or her contract of employment.
(5) Notice
requirements
(a) Upon receiving
notice of approval for adoption purposes, an employee will notify the employer
of such approval and within 2 months of such approval shall further notify the
employer of the period of adoption leave which the employee proposes to
take. In the case of a relative
adoption the employee shall notify as aforesaid upon deciding to take a child
into custody pending an application for an adoption order.
(b) An employee who
commences employment with an employer after the date of approval for adoption
purposes shall notify the employer thereof upon commencing employment and of
the period or periods of adoption leave which the employee proposes to
take. Provided that such employee shall
not be entitled to adoption leave unless the employee has not less than 12
months continuous service with that employer immediately preceding the date
upon which he or she proceeds upon such leave.
(c) An employee
shall, as soon as the employee is aware of the presumed date of placement of a
child for adoption purposes but not later than 14 days before such placement
give notice in writing to the employer of such date and of the date of the
commencement of any period of leave to be taken under subparagraph (3)(a)
hereof.
(d) An employee
shall, ten weeks before the proposed date of commencing any leave to be taken
under subparagraph (3)(b) hereof give notice in writing to the employer of the
date of commencing leave and the period of leave to be taken.
(e) An employee
shall not be in breach of this subclause, as a consequence of failure to give
the stipulated period of notice in accordance with subparagraphs (c) and (d)
hereof if such failure is occasioned by the requirement of an adoption agency
to accept earlier placement of a child, the death of the spouse or other
compelling circumstances.
(6) Variation of
Period of Adoption Leave
(a) Provided the
maximum period of adoption leave does not exceed the period to which the
employee is entitled under paragraph (3) hereof:
(i) the period of
leave taken under subparagraph (3)(b) hereof may be lengthened once only by the
employee giving not less than 14 days notice in writing stating the period by
which the leave is to be lengthened;
(ii) the period
may be further lengthened by agreement between the employer and employee.
(b) The period of
adoption leave taken under subparagraph (3)(b) hereof may, with the consent of
the employer, be shortened by the employee giving not less than 14 days notice
in writing stating the period by which the leave is to be shortened.
(7) Cancellation
of Adoption Leave
(a) Adoption
leave, applied for but not commenced, shall be cancelled should the placement
of the child not proceed;
(b) Where the
placement of a child for adoption purposes with an employee then on adoption
leave does not proceed or continue the employee shall notify the employer forthwith
and the employer shall nominate a time not exceeding 4 weeks from receipt of
notification for the employee's resumption of work.
(8) Special Leave
- The employer shall grant to any employee who is seeking to adopt a child,
such unpaid leave not exceeding 2 days, as is required by the employee to
attend any compulsory interviews or examinations as are necessary as part of
the adoption procedure. Where paid
leave is available to the employee the employer may require the employee to
take such leave in lieu of special leave.
(9) Adoption Leave
and Other Entitlements
(a) Provided the
aggregate of any leave, including leave taken under this subclause, does not
exceed the period to which the employee is entitled under paragraph (3) hereof,
an employee may, in lieu of or in conjunction with adoption leave, take any
annual leave or long service leave or any part thereof to which he or she is
entitled.
(b) Paid sick leave
or other paid authorised award absences (excluding annual leave or long service
leave), shall not be available to an employee during the employee's absence on
adoption leave.
(10) Effect of
Adoption Leave on Employment - Subject to this subclause, notwithstanding any
award or other provision to the contrary, absence on adoption leave shall not
break the continuity of service of an employee but shall not be taken into
account in calculating the period of service for any purpose.
(11) Termination of
Employment
(a) An employee on
adoption leave may terminate the employment at any time during the period of
leave by notice given in accordance with this Award.
(b) An employer
shall not terminate the employment of an employee on the ground of the
employee's application to adopt a child or absence on adoption leave, but
otherwise the rights of an employer in relation to termination of employment
are not hereby affected.
(12) Return to Work
After Adoption Leave
(a) An employee
shall confirm the intention of returning to work by notice in writing to the
employer given not less than 4 weeks prior to the expiration of the period of
adoption leave provided by subparagraph (3)(b) hereof.
(b) An employee,
upon returning to work after adoption leave shall be entitled to the position
held immediately before proceeding on such leave or in relation to an employee
who has worked part time under this clause the position held immediately before
commencing such part time work.
Where such position no longer exists but there are
other positions available which the employee is qualified for and is capable of
performing, the employee shall be entitled to a position as nearly comparable
in status and pay to that of the employee's former position.
(13) Replacement
Employees
(a) A replacement
employee is an employee specifically engaged as a result of an employee
proceeding on adoption leave.
(b) Before an
employer engages a replacement employee under this subclause, the employer
shall inform that person of the temporary nature of the employment and of the
rights of the employee who is being replaced.
(c) Before an
employer engages a person to replace an employee temporarily promoted or
transferred in order to replace an employee exercising her rights under this
clause, the employer shall inform that person of the temporary nature of the
promotion or transfer and of the rights of the employee who is being replaced.
(d) Nothing in this
subclause shall be construed as requiring an employer to engage a replacement
employee.
(D) Part-time Work
(1) Definitions -
For the purposes of this subclause:
(a) 'Male employee'
means an employed male who is caring for a child born of his spouse or a child
placed with the employee for adoption purposes.
(b) 'Female
employee' means an employed female who is pregnant or is caring for a child she
has borne or a child who has been placed with her for adoption purposes.
(c) 'Spouse'
includes a de facto or former spouse.
(d) 'Former
position' means the position held by a female or male employee immediately
before proceeding on leave or part time employment under this subclause whichever
first occurs or, if such position no longer exists but there are other
positions available for which the employee is qualified and the duties of which
he or she is capable of performing, a position as nearly comparable in status
and pay to that of the position first mentioned in this definition.
(e) 'Continuous
service' means service under an unbroken contract of employment and includes:
(i) any period of
leave taken in accordance with this clause;
(ii) any period of
part time employment worked in accordance with this clause; or
(iii) any period of
leave or absence authorised by the employer or by the award.
(2) Entitlement -
With the agreement of the employer:
(a) A male
employee may work part time in one or more periods at any time from the date of
birth of the child until its second birthday or, in relation to adoption, from
the date of placement of the child until the second anniversary of the
placement.
(b) A female
employee may work part time in one or more periods while she is pregnant where
part time employment is, because of the pregnancy, necessary or desirable.
(c) A female
employee may work part time in one or more periods at any time from the seventh
week after the date of birth of the child until its second birthday.
(d) In relation to
adoption a female employee may work part time in one or more periods at any
time from the date of the placement of the child until the second anniversary
of that date.
(3) Return to former
position -
(a) An employee
who has had at least 12 months continuous service with an employer immediately
before commencing part time employment after the birth or placement of a child
has, at the expiration of the period of such part time employment or the first
period, if there is more than one the right to return to his or her former
position.
(b) Nothing in
subparagraph (a) hereof shall prevent the employer from permitting the employee
to return to his or her former position after a second or subsequent period of
part time employment.
(4) Effect of part
time employment on continuous service - Commencement on part time work under
this clause, and return from part time work to full time work under this
clause, shall not break the continuity of service or employment.
(5) Pro rata
entitlements - Subject to the provisions of this subclause and the matters
agreed to in accordance with paragraph (8) hereof, part time employment shall
be in accordance with the provisions of this award which shall apply pro rata.
(6) Transitional
arrangements - Annual Leave
(a) An employee
working part time under this subclause shall be paid for and take any leave
accrued in respect of a period of full time employment, in such periods and
manner as specified in the annual leave provisions of this award, as if the
employee were working full time in the class of work the employee was
performing as a full time employee immediately before commencing part time work
under this subclause.
(b)
(i) a full-time
employee shall be paid for and take any annual leave accrued in respect of a
period of part time employment under this subclause, in such periods and manner
as specified in this award, as if the employee were working part time in the
class of work the employee was performing as a part time employee immediately
before resuming full time work.
(ii) provided
that, by agreement between the employer and the employee, the period over which
the leave is taken may be shortened to the extent necessary for the employee to
receive pay at the employee's current full time rate.
(7) Transitional
arrangements - Sick Leave - An employee working part time under this subclause
shall have sick leave entitlements which have accrued under this award
(including any entitlement accrued in respect of previous full time employment)
converted into hours. When this
entitlement is used, whether as a part time employee or as a full time
employee, it shall be debited for the ordinary hours that the employee would
have worked during the period of absence.
(8) Part time work
agreement
(a) Before
commencing a period of part time employment under this subclause the employee
and the employer shall agree:
(i) that the
employee may work part time;
(ii) upon the
hours to be worked by the employee, the days upon which they will be worked and
commencing times for the work;
(iii) upon the
classification applying to the work to be performed; and
(iv) upon the
period of part time employment.
(b) The terms of
this agreement may be varied by consent.
(c) The terms of
this agreement or any variation to it shall be reduced to writing and retained
by the employer. A copy of the
agreement and any variation to it shall be provided to the employee by the
employer.
(d) The terms of
this agreement shall apply to the part time employment.
(9) Termination of
employment
(a) The employment
of a part time employee under this clause, may be terminated in accordance with
the provisions of this award but may not be terminated by the employer because
the employee has exercised or proposes to exercise any rights arising under
this clause or has enjoyed or proposes to enjoy any benefits arising under this
clause.
(b) Any termination
entitlements payable to an employee whose employment is terminated while working
part time under this clause, or while working full time after transferring from
part time work under this clause, shall be calculated by reference to the full
time rate of pay at the time of termination and by regarding all service as a
full time employee as qualifying for a termination entitlement based on the
period of full time employment and all service as a part time employee on a pro
rata basis.
(10) Extension of
hours of work - An employer may request, but not require, an employee working
part time under this clause to work outside or in excess of the employee's
ordinary hours of duty provided for in accordance with paragraph (8).
(11) Nature of part
time work - The work to be performed part time need not be the work performed
by the employee in his or her former position but shall be work otherwise
performed under this award.
(12) Inconsistent
award provisions - An employee may work part time under this clause
notwithstanding any other provision of this award which limits or restricts the
circumstances in which part time employment may be worked or the terms upon
which it may be worked including provisions:
(a) limiting the
number of employees who may work part time;
(b) establishing
quotas as to the ratio of part time to full time employees;
(c) prescribing a
minimum or maximum number of hours a part time employee may work; or
(d) requiring
consultation with, consent of or monitoring by a union;
and such provisions do not apply to part time work
under this clause.
(13) Replacement
employees
(a) A replacement
employee is an employee specifically engaged as a result of an employee working
part time under this subclause.
(b) A replacement
employee may be employed part time.
Subject to this paragraph, paragraphs (5), (6), (7), (8), (9) and (12)
of this subclause apply to the part time employment of replacement employee.
38.
Basis of Award and Leave Reserved to Apply
(a) In order to
maintain uniformity in the industry, this award is based on the current Vehicle
Industry, Repair Services and Retail Award, 1983 of the Australian Industrial
Relations Commission made for the classes of labour provided for herein.
(b) Leave is
reserved to the parties to apply at any time for a variation of this award in order
to make the rates and conditions of work uniform with the said award of the
Australian Industrial Relations Commission or any award varying or replacing
such award, so that uniformity in the industry dealt with by this award may be
maintained.
39.
Savings and Exemptions
(a) Notwithstanding
anything contained in this award, the wages existing for employees at the date
of operation of this award shall not be reduced merely as a consequence of the
coming into operation of this award.
(b) Members of the
Retail Traders' Association of N.S.W. are exempt from the provisions of this
award, upon the conditions that they observe in respect of their employees the
whole of the provisions of the Shop Employees (State) Award.
40.
Traineeships
(1) Objectives: The
objective of this clause is to assist in the establishment of a system of
traineeships which provides approved training in conjunction with employment in
order to enhance the skill levels and future employment prospects of trainees,
particularly young people, and the long term unemployed. The system is neither designed nor intended
for those who are already trained and job ready. It is not intended that existing employees shall be displaced
from employment by trainees. Nothing in
this award shall be taken to replace the prescription of training requirements
in this Award.
(2) Definitions:
(a) Structured
Training means that training which is specified in the Training Plan which is
part of the Training Agreement registered with the relevant NSW Training
Authority. It includes training
undertaken both on and off-the-job in a traineeship scheme and involves formal
instruction, both theoretical and practical, and supervised practice. The training reflects the requirements of a
Traineeship approved by the relevant NSW Training Authority and leads to a
qualification set out in paragraph (f) of subclause (3), Training Conditions,
of this clause.
(b) Relevant Union
means the Shop, Distributive and Allied Employees Association, New South Wales,
the Shop Assistants and Warehouse Employees’ Federation of Australia, Newcastle
and Northern, New south Wales, and the Australian Liquor, Hospitality and
Miscellaneous Workers Union, Miscellaneous Workers Division, New South Wales
Branch.
(c) Trainee is an
individual who is a signatory to a training agreement registered with the
relevant NSW Training Authority and is involved in paid work and structured
training which may be on or off the job.
A trainee can be full-time, part-time or school-based.
(d) Traineeship
means a system of training which has been approved by the relevant NSW Training
Authority, and includes full time traineeships and part time traineeships.
(e) Training
Agreement means an instrument which establishes a Traineeship under the Industrial and Commercial Act 1989.
(Note: Under the Industrial and
Commercial Training Act a training agreement is also referred to as an
indenture).
(f) Training Plan
means a programme of training which forms part of a Training Agreement
registered with the Relevant NSW Training Authority.
(g) Relevant NSW
Training Authority means the Department of Education and Training, or successor
organisation.
(h) Year 10 for
the purposes of this award any person leaving school before completing Year 10 shall
be deemed to have completed Year 10.
(3) Traineeship
Conditions:
(a) The Trainee
shall attend an approved training course or training program prescribed in the
Training Agreement or as notified to the trainee by the Relevant NSW Training
Authority in an accredited and relevant traineeship.
(b) A Traineeship
shall not commence until the relevant Training Agreement, has been signed by
the employer and the trainee and lodged for registration with the Relevant NSW
Training Authority.
(c) The employer
shall ensure that the Trainee is permitted to attend the training course or
program provided for in the Training Agreement and shall ensure that the
Trainee receives the appropriate on-the-job training.
(d) The employer
shall provide a level of supervision in accordance with the Training Agreement
during the traineeship period.
(e) The employer
agrees that the overall training program will be monitored by officers of the
Relevant NSW Training Authority and that training records or work books may be
utilised as part of this monitoring process.
(f) Training
shall be directed at:
(i) the
achievement of key competencies required for successful participation in the
workplace (eg. literacy, numeracy, problem solving, team work, using
technology) and an Australian Qualification Framework Certificate Level I.
This could be achieved through foundation competencies
which are part of endorsed competencies for an industry or enterprise; and/or
(ii) the
achievement of key competencies required for successful participation in an
industry or enterprise (where there are endorsed national standards these will
define these competencies) as are proposed to be included in an Australian
Qualification Framework Certificate Level II or above.
(4) Employment
Conditions:
(a) A Trainee
shall be engaged as a full-time employee for a maximum of one year's duration
or a part-time trainee for a period no greater than the equivalent of one year
full-time employment.
For example, a part-time trainee working 2½ days per
week (including the time spent in approved training) works (and trains) half
the hours of a full-time trainee and therefore their traineeship could extend
for a maximum of two years.
In any event, unless the Relevant NSW Training Authority
directs, the maximum duration for a traineeship shall be thirty six months.
By agreement in writing, and with the consent of the
relevant NSW Training Authority, the relevant employer and the Trainee may vary
the duration of the Traineeship and the extent of approved training provided
that any agreement to vary is in accordance with the relevant Traineeship.
(b) A trainee
shall be subject to a satisfactory probation period of up to one month which
may be reduced at the discretion of the employer.
(c) Where the
trainee completes the qualification in the Training Agreement, earlier than the
time specified in the Training Agreement then the traineeship may be concluded
by mutual agreement.
(d) A traineeship
shall not be terminated before its conclusion, except in accordance with the Industrial and Commercial Training Act
1989, or by mutual agreement.
An employer who chooses not to continue the employment
of a trainee upon the completion of the traineeship shall notify, in writing,
the Relevant NSW Training Authority of their decision.
(e) The Trainee
shall be permitted to be absent from work without loss of continuity of
employment and/or wages to attend the approved training in accordance with the
Training Agreement.
(f) Where the
employment of a Trainee by an employer is continued after the completion of the
traineeship period, such traineeship period shall be counted as service for the
purposes of any Parent Award or any other legislative entitlements.
(g)
(i) The
Traineeship Agreement may restrict the circumstances under which the Trainee
may work overtime and shiftwork in order to ensure the training program is
successfully completed.
(ii) No Trainee
shall work overtime or shiftwork on their own unless consistent with the
provisions of the Parent Award.
(iii) No Trainee
shall work shiftwork unless the relevant parties to this Award agree that such
shiftwork makes satisfactory provision for approved training. Such training may
be applied over a cycle in excess of a week, but must average over the relevant
period no less than the amount of training required for non-shiftwork Trainees.
(iv) The Trainee
wage shall be the basis for the calculation of overtime and/or shift penalty
rates prescribed by this Award.
(h) All other
terms and conditions of this Award that are applicable to the Trainee or would
be applicable to the Trainee but for this clause shall apply unless
specifically varied by this clause.
(i) A Trainee who
fails to either complete the Traineeship or who cannot for any reason be placed
in full time employment with the employer on successful completion of the
Traineeship shall not be entitled to any severance payment.
The following employment conditions apply specifically
to part-time trainees:
(j) A part time
trainee shall receive, on a pro rata basis, all employment conditions
applicable to a full time trainee. All
the provisions of this award shall apply to part time trainees except as
specified in this clause.
(k) A part time
trainee may, by agreement, transfer from a part time to a full time traineeship
position should one become available.
(l) The minimum
daily engagement periods applying to part-time employees specified in this
Award shall also be applicable to part time trainees.
Where there is no provision for a minimum daily
engagement period in this Award or other industrial instrument(s), applying to
part-time employees, then the minimum start per occasion shall be 3 continuous
hours, except in cases where it is agreed that there shall be a start of 2
continuous hours, on 2 or more days per week, provided that:
(i) a 2 hour
start is sought by the employee to accommodate the employee’s personal
circumstances, or
(ii) the place of
work is within a distance of 5km from the employee’s place of residence.
(5) Wages -
Full-Trainees:
(a) The weekly
wages payable to full time trainees shall be as follows:
Industry/Skill Level A
|
Table 5
|
Industry/Skill Level B
|
Table 6
|
(b) These wage rates
will only apply to Trainees while they are undertaking an approved Traineeship
which includes approved training as defined in this Award.
(c) The wage rates
prescribed by this clause do not apply to complete trade level training which
is covered by the Apprenticeship system.
(d) For the
purposes of this provision, "out of school" shall refer only to
periods out of school beyond Year 10, and shall be deemed to
(i) include any
period of schooling beyond Year 10 which was not part of nor contributed to a
completed year of schooling;
(ii) include any
period during which a Trainee repeats in whole or part a year of schooling
beyond Year 10;
(iii) not include
any period during a calendar year in which a year of schooling is completed;
and
(iv) have effect on
an anniversary date being January 1 in each year.
Wages for Part-Time Trainees:
(e) This sub
clause shall apply to trainees who undertake a traineeship on a part time basis
by working less than full time ordinary hours and by undertaking the approved
training at the same or lesser training time than a full-time trainee.
(f) Table 8 -
Hourly Rates for Trainees Who Have Left School of Part B, Monetary Rates are
the hourly rates of pay where the training is either fully off-the-job or where
20% of time is spent in approved training.
These rates are derived from a 38 hour week.
(g) The hours for
which payment shall be made are determined as follows:
(i) Where the
approved training for a traineeship is provided off-the-job by a registered
training organisation, for example at school or at TAFE, these rates shall
apply only to the total hours worked by the part time trainee on-the-job.
(ii) Where the
approved training is undertaken on-the-job or in a combination of on-the-job
and off-the-job, and the average proportion of time to be spent in approved
training is 20% (ie. the same as for the equivalent full time traineeship):
(1) If the
training is solely on-the-job, then the total hours on-the-job shall be
multiplied by the applicable hourly rate, and then 20 per cent shall be
deducted.
(2) If the
training is partly on-the-job and partly off-the-job, then the total of all
hours spent in work and training shall be multiplied by the applicable hourly
rate, and then 20 per cent shall be deducted.
Note: 20 per cent is the average proportion of time
spent in approved training which has been taken into account in setting the
wage rates for most full time traineeships.
(iii) Where the normal
full time weekly hours are not 38 the appropriate hourly rate may be obtained
by multiplying the rate in the table by 38 and then dividing by the normal full
time hours.
(h) For
traineeships not covered by clause 7(a) above, the following formula for the
calculation of wage rates shall apply:
The wage rate shall be pro-rata the full time rates
based on variation in the amount of training and/or the amount of work over the
period of the traineeship which may also be varied on the basis of the following
formula:
Wage = Full time wage
rate x
|
Trainee
hours - average weekly training time
|
|
30.4*
|
* Note: 30.4 in
the above formula represents 38 ordinary full time hours less the average training
time for full time trainees (ie. 20%) a pro rata adjustment will need to be
made in the case where the Parent Award specifies different ordinary full time
hours: for example where the ordinary weekly hours are 40, 30.4 will be
replaced by 32.
(i) "Full
time wage rate" means the appropriate rate as set out in Table 5 - Wages -
Training - Skill Level 5 and Table 6 - Wages - Training - Skill Level B.
(ii) "Trainee
hours" shall be the hours worked per week including the time spent in
approved training. For the purposes of
this definition, the time spent in approved vocational training may taken as an
average for that particular year of the traineeship.
(iii) "Average
weekly training time" is based upon the length of the traineeship
specified in the traineeship agreement or training agreement as follows:
Average Weekly Training
Time =
|
7.6
x 12
|
|
length
of the traineeship in months
|
Note 1: 7.6 in the above formula represents the average
weekly training time for a full time trainee whose ordinary hours are 38 per
week a pro rata adjustment will need to be made in the case where the Parent
Award specifies different ordinary time hours for example, where the ordinary
weekly hours are 40, 7.6 will be replaced by 8.
Note 2: The parties note that the traineeship agreement
will require a trainee to be employed for sufficient hours to complete all
requirements of the traineeship, including the on the job work experience and demonstration
of competencies the parties also note that this would result in the equivalent
of a full day’s on the job work per week.
Example
of the Calculation for the Wage Rate For a Part-time Traineeship
A school student commences
a traineeship in year 11 the ordinary hours of work in the Parent Award are 38.
The training agreement specifies two years (24 months) as the length of the
traineeship.
"Average weekly
training time" is therefore 7.6 x 12/24 = 3.8 hours.
"Trainee hours"
totals 15 hours; these are made up of 11 hours work which is worked over two
days of the week plus 1-1/2 hours on the job training plus 2-1/2 hours off the
job approved training at school and at TAFE.
So the wage rate in year
11 is:
$181 x 15 - 3.8 =
$66.68 plus any applicable penalty rates under the Parent Award.
30.4
The wage rate varies when
the student completes year 11 and passes the anniversary date of 1 January the
following year to begin year 12 and/or if "trainee hours" changes.
41.
Disputes and Industrial Grievance Procedure
Subject to the provisions of the Industrial Relations Act 1996, grievances or disputes shall be
dealt with in the following manner:
(a) Procedures
relating to grievances of individual employees -
(i) 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.
(ii) A grievance
must be dealt with as close to its source as possible, with graduated steps for
further discussion and resolution at higher levels of authority.
(iii) Reasonable
time limits must be allowed for discussion at each level of authority.
(iv) 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.
(v) While a
procedure is being followed, normal work must continue.
(vi) The employee
may be represented by an industrial organisation of employees.
(b) Procedures
relating to disputes, etc., between employers and their employees:
(i) 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.
(ii) Reasonable
time limits must be allowed for discussion at each level of authority.
(iii) While a
procedure is being followed, normal work must continue.
(iv) 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 purpose
of each procedure.
42.
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 all reasonable steps
to ensure that the operation of the provisions of this award are not directly
or indirectly discriminatory in their effects.
It will be consistent with the fulfilment of these obligations for the
parties to make application to vary any provision of the award which, by its
terms or operation, has a direct or indirect discriminatory effect.
(3) Under the Anti-Discrimination Act 1977 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.
43.
Supported Wage
(a) Definition -
This clause defines the conditions 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 definitions 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 under the Social Security Act 1991, as amended
from time to time, or any successor to that scheme.
(iv) 'Assessment
Document' means the form provided for 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 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 current
employment.
The award 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 has 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 appropriate
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
(subclause (d))
|
% of Prescribed
Award Rate
|
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 $57.60 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 Document -
(i) All
assessment documents 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 documents shall be agreed and signed by the parties to the
assessment, provided that where a union which is 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 appropriate percentage should be subject to
annual review or earlier on the basis of a reasonable request for a
review. The process of review must 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
appropriate percentage will apply to the wage rate only. Employees covered by the provisions of the
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) Workplace
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 arrangements
and work organisation in consultation with other workers in the area.
(i) Trial Period
(i) In order for
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 must be undertaken and the proposed
wage rate for a continuing employment relationship must be determined.
(iii) The minimum
amount payable to the employee during the trial period shall be no less than
$50 per week.
(iv) Work trials
should include induction or training as appropriate to the job being trialled.
(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.
44. Area, Incidence
and Duration
(a) This Award
shall apply to the classes of employees referred to in clause 6, Wage Rates,
and Clause 9, Junior Employees, of this award, employed in vehicle service
shops (shops for the sale of motor spirit, motor oil or vehicle accessories),
motor garages and/or service stations and/or petrol service stations within the
jurisdiction of the Vehicle Industry (State) Industrial Committee.
(b) This Award
rescinds and replaces the Vehicle Industry - Repair Services and Retail (State)
Award published 30 November 2001 (329 I.G. 973) and all variations thereof.
(c) It shall take effect
from the first full pay period to commence on or after 29 May 2002 and shall
remain in force thereafter for a period of 12 months.
Part B
MONETARY
RATES
Table 1 - Wages - Adult Weekly Employees
Wage
|
Former Total per
|
|
|
|
|
Group
|
week includes
|
SWC
|
SWC
|
SWC
|
New Total
|
Level
|
SWC 1998
|
June 1999
|
May 2000
|
May 2001
|
Rate per week
|
|
|
$12.00
|
$15.00
|
$13.00
|
$
|
1
|
373.40
|
12.00
|
15.00
|
13.00
|
413.40
|
2
|
390.10
|
12.00
|
15.00
|
13.00
|
430.10
|
3
|
433.50
|
12.00
|
15.00
|
13.00
|
473.50
|
4
|
449.30
|
12.00
|
15.00
|
13.00
|
489.30
|
Table 2- Wages - Junior Weekly Employees
Classification
|
Percentage
|
Rate per Week
|
|
|
$
|
GROUP B
|
(Percentage of
Level 1)
|
|
Under 17 years
|
47.5
|
196.35
|
At 17 years
|
50
|
206.70
|
At 18 years
|
62.5
|
258.40
|
At 19 years
|
75
|
310.05
|
At 20 years and over
|
87.5
|
361.75
|
GROUP A
|
(Percentage of
Level 3)
|
|
Under 17 years
|
47.5
|
224.90
|
At 17 years
|
50
|
236.75
|
At 18 years
|
62.5
|
295.95
|
At 19 years
|
75
|
355.15
|
At 20 years and over
|
87.5
|
414.30
|
Table 3 - Wages - Casual Driveway
Attendants
Classification
|
Percentage
|
Rate per hour
|
|
|
$
|
Rate 1 - Monday to
Friday
|
Under 18 years
|
50
|
6.90
|
At 18 years
|
62.5
|
8.62
|
At 19 years
|
75
|
10.34
|
At 20 years and over
|
100
|
13.79
|
Rate 2 - Saturday,
Sunday and Public Holiday
|
Under 18 years
|
50
|
8.88
|
At 18 years
|
62.5
|
11.10
|
At 19 years
|
75
|
13.32
|
At 20 years and over
|
100
|
17.76
|
Rate 3 - Overtime
|
Under 18 years
|
50
|
3.72
|
At 18 years
|
62.5
|
4.65
|
At 19 years
|
75
|
5.58
|
At 20 years and over
|
100
|
7.44
|
Rate 4 - Console
Allowance
|
Under 18 years
|
50
|
0.26
|
At 18 years
|
62.5
|
0.26
|
At 19 years
|
75
|
0.25
|
At 20 years and over
|
100
|
0.25
|
Table 4 - Wages - Casual Console Operators
Classification
|
Percentage
|
Rate per hour
|
|
|
$
|
Rate 1 - Monday to Friday
|
Under 18 years
|
50
|
7.86
|
At 18 years
|
62.5
|
9.83
|
At 19 years
|
75
|
11.79
|
At 20 years and over
|
100
|
15.72
|
Rate 2 - Saturday,
Sunday and Public Holiday
|
Under 18 years
|
50
|
10.10
|
At 18 years
|
62.5
|
12.62
|
At 19 years
|
75
|
15.14
|
At 20 years and over
|
100
|
20.19
|
Rate 3 - Overtime
|
Under 18 years
|
50
|
4.33
|
At 18 years
|
62.5
|
5.41
|
At 19 years
|
75
|
6.49
|
At 20 years and over
|
100
|
8.65
|
Table 5 - Wages - Training - Skill Level A
Skills Level A - Where the accredited training course and
work performed are for the purpose of generating skills which have been defined
for work at industry/skill Level A.
|
Highest Year of Schooling
Completed
|
|
Year 10
|
Year 11
|
Year 12
|
|
$
|
$
|
$
|
School Leaver
|
151.00 (50%)*
|
187.00 (33%)
|
256.00
|
|
176.00 (33%)
|
211.00 (25%)
|
|
Plus 1 year out of
school
|
211.00
|
256.00
|
298.00
|
Plus 2 years
|
256.00
|
298.00
|
346.00
|
Plus 3 years
|
298.00
|
346.00
|
396.00
|
Plus 4 years
|
346.00
|
396.00
|
|
Plus 5 years or more
|
396.00
|
|
|
* Figures in brackets indicate proportion of time spent in approved
training to which the associated wage rate is applicable. Where not specifically indicated, the
average proportion of time spent in structured training which has been taken
into account in setting the rates is 20%.
Table 6 - Wages - Training - Skill Level B
Skills Level B - Where the accredited training course and
work performed are for the purpose of generating skills which have been defined
for work at industry/skill Level B.
|
Highest Year of
Schooling Completed
|
|
Year 10
|
Year 11
|
Year 12
|
|
$
|
$
|
$
|
School Leaver
|
151.00 (50%)*
|
187.00 (33%)
|
246.00
|
|
176.00 (33%)
|
211.00 (25%)
|
|
Plus 1 year out of
school
|
211.00
|
246.00
|
283.00
|
Plus 2 years
|
246.00
|
283.00
|
332.00
|
Plus 3 years
|
283.00
|
332.00
|
378.00
|
Plus 4 years
|
332.00
|
378.00
|
|
Plus 5 years or more
|
378.00
|
|
|
* Figures in brackets indicate proportion of time spent in
approved training to which the associated wage rate is applicable. Where not specifically indicated, the
average proportion of time spent in structured training which has been taken
into account in setting the rates is 20%.
Table 7 - Allowances
Item
|
Clause
|
Brief Description
|
Amount
|
No.
|
No.
|
|
$
|
1
|
6(1)(c)
|
Console Allowance
|
7.80 per week
|
2
|
6(1)(d)
|
Leading Hand Allowance
-
|
|
|
|
In charge of -
|
|
|
|
3 to 10 employees
|
21.90 per week
|
|
|
11 to 20 employees
|
33.20 per week
|
|
|
21 or more employees
|
42.10 per week
|
3
|
10(a)
|
Confined spaces
|
0.48 per hour
|
4
|
10(b)(i)
|
Dirty work
|
0.39 per hour
|
5
|
10(b)(ii)
|
Dirty work - minimum
payment any day/shift
|
1.48 day/shift
|
6
|
10(c)(i)(1)
|
Hot places - 46 - 54
degrees Celsius
|
0.39 per hour
|
7
|
10(c)(i)(2)
|
Hot places - in excess
of 54 degrees Celsius
|
0.48 per hour
|
8
|
10(d)
|
Livestock transports -
working on stock compartments
|
0.39 per hour
|
9
|
10(e)
|
First Aid
Qualifications
|
10.10 per week
|
10
|
10(g)
|
Handling glass or slagwool
|
0.48 per hour
|
11
|
18(j)(i)
|
Meal Allowance - first
and each subsequent meal
|
9.40 per meal
|
12
|
27(a)(iv)
|
Travelling time -
vehicle allowance
|
0.52 per km
|
13
|
27(d)(i)
|
Travelling expenses -
meal allowance
|
9.40 per meal
|
Table 8 - Hourly Rates for Trainees Who
Have Left School
|
Year 10
|
Year 11
|
Year 12
|
|
$
|
$
|
$
|
SKILL LEVEL A
|
School leaver
|
6.35
|
6.94
|
8.42
|
Plus 1 year after
leaving school
|
6.94
|
8.42
|
9.80
|
Plus 2 years
|
8.42
|
9.80
|
11.38
|
Plus 3 years
|
9.80
|
11.38
|
13.03
|
Plus 4 years
|
11.38
|
13.03
|
|
Plus 5 years or more
|
13.03
|
|
|
SKILL LEVEL B
|
School leaver
|
6.35
|
6.94
|
8.09
|
Plus 1 year after
leaving school
|
6.94
|
8.09
|
9.31
|
Plus 2 years
|
8.09
|
9.31
|
10.92
|
Plus 3 years
|
9.31
|
10.92
|
12.43
|
Plus 4 years
|
10.92
|
12.43
|
|
Plus 5 years or more
|
12.43
|
|
|
T. M. KAVANAGH J.
____________________
Vehicle Industry (State) Industrial Committee
Industries and Callings
Employees engaged in washing, cleaning and/or detailing
and/or greasing internal combustion propelled vehicles such as buses, cars,
lorries and vans in motor garages, motor vehicle dealers, petrol service
stations, and persons employed in selling motor oils and accessories and petrol
at or in motor garages, and/or service stations, or petrol from petrol pumps,
within the State, excluding the County of Yancowinna;
excepting motor mechanics and other craftsmen and their
assistants who perform any of such duties incidentally to their general duties,
and shop assistants;
and excepting also employees of:
State Rail Authority of New South Wales;
State Transit Authority of New South Wales;
The Commissioner of Motor Transport;
The Water Board;
The Hunter District Water Board;
South Maitland Railways Pty Limited;
The Electrolytic Refining and Smelting Company of
Australia Proprietary Limited, Metal Manufactures Limited, Australian
Fertilisers Limited, and Austral Standard Cables Proprietary Limited at Port
Kembla;
Blue Circle Southern Cement Limited;
The Kandos Cement Company Limited;
The Council of the City of Sydney and of shire and
municipal councils;
The Council of the City of Newcastle;
The Northern Rivers County Council;
Sydney Electricity;
The Electricity Commission of New South Wales trading
as Pacific Power;
The Broken Hill Proprietary Company Limited at
Newcastle;
Australian Wire Industries Pty Limited at its Sydney
Wiremill;
Australian Iron and Steel Proprietary Limited, within
the jurisdiction of the Iron and Steel Works Employees (Australian Iron and
Steel Proprietary Limited) Industrial Committee and the Quarries (Australian
Iron and Steel Pty Limited) Industrial Committee;
Australian Wire Industries Pty Limited at its Newcastle
Wiremill;
The Australian Gas Light Company;
and excepting also employees within the jurisdiction of the
following Industrial Committee:
County Councils (Electricity Undertakings) Employees;
Shortland County Council;
John Lysaght (Australia) Limited Newcastle;
John Lysaght (Australia) Limited Port Kembla;
Smelting and Fertiliser Manufacturing (Sulphide
Corporation Pty Limited and Greenleaf Fertilisers Limited);
Cement Workers, &c. (State);
Breweries, &c. (State);
and excepting also:
Employees in or about metalliferous and limestone
mines, in or in connection with mining for minerals other than coal or shale,
in or about diamond and gem-bearing mines, mining dredges, ore sluicing
processes, ore smelting, refining, treatment and reduction works;
All persons employed in or in connection with
hospitals, mental hospitals, public charitable institutions or ambulance work.
____________________
Printed by
the authority of the Industrial Registrar.