FOOD PRESERVERS (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, industrial organisation of employees.

 

(No. IRC 475 of 2002)

 

 

VARIATION

 

1.          Insert into the Arrangement of the award published 16 November 2001 (329 I.G. 489), as varied, the following new clause number and subject matter:

 

10A.    Implementation of a 38 Hour Week

 

2.          Delete paragraph 5.10.3 of clause 5, Contracts of Employment, and insert in lieu thereof the following:

 

5.10.3               Saturdays, Sundays and Holidays - Overtime - The rates of pay for casual employees for overtime or for work on Saturdays, Sundays and holidays shall be time and a half or double time, double time and a half, or treble time, as appropriate, in accordance with clauses 12, Overtime - Rates and Conditions, and 19, Sunday and Holiday Rates, calculated as to casual day workers or day-shift workers on 1/38^th of the appropriate weekly rate for the work; for such work by a casual employee on afternoon or  night shift the  rates ascertained for day workers or day shift workers shall have added to them  in the case of  afternoon shift  15 per  cent or  in the  case of  night shift 30 per cent.

 

3.          Delete clause 10, Hours of Work, and insert in lieu thereof the following::

 

10.  Hours of Work

 

10.1.     The ordinary hours of work shall be 38 per week.

 

10.2.     Except for shift workers, the ordinary hours of work shall be worked in five days of not more than eight hours continuously except for breaks for meals between 6.00 a.m. and 6.00 p.m. on Mondays to Fridays inclusive.  Provided that where as a result of the introduction of 6.00 am - 6.00 p.m. as ordinary hours of work an existing employee (as at 28 August 2002) may lose regular or usual overtime, that change with respect to that employee shall be preceded by consultation with the employee (and where the employee is a member, consultation with the union) and if the consultation fails to resolve the matter it shall be settled in accordance with the settlement of disputes procedure.

 

10.3.     The daily starting and finishing times for day work shall be fixed by the employer within the spread of hours prescribed by 10.2 hereof and shall not be altered except on one week's notice, or during the season, two days' notice, given to the employee.

 

10.4.     An employee on day work or day shift may be transferred to an afternoon or night shift on at least 48 hours notice by the employer.  Where an employee is so transferred without at least 48 hours notice, the shift or part thereof worked by the employee without that notice shall, for the purpose of this clause be deemed to be part of the employee's ordinary 38 hours of work.  Such work shall be paid for at an extra half rate for the first three hours and an extra full rate thereafter on a daily basis in addition to the employee's ordinary rate of pay and appropriate shift penalties.  Provided that this subclause shall not apply where with the consent of the employer, an employee agrees with  another employee independently to exchange a rostered shift to suit the mutual convenience of the employees concerned.

 

10.5.     Rostered days off falling on a public holiday

 

10.5.1   An employee who work continuous work and who by the circumstances of the arrangement of the employee's ordinary hours of work is entitled to a rostered day off which falls on a public holiday prescribed by this clause shall, at the discretion of the employer, be paid for that day 7.6 hours at ordinary rates or have an additional day added to the employee's annual leave.  This provision shall not apply when the public holiday on which the employee is rostered off falls on a Saturday or Sunday. 

 

10.5.2   In the case of an employee whose ordinary hours of work are arranged in accordance with 10A.2.2 or 10A.2.4, the week day to be taken off shall not coincide with a public holiday fixed in accordance with clause 18, Holidays.  Provided that, the event that a public holiday is prescribed after an employee is given notice of the employee's week day off and the public holiday falls on the week day the employee is to take off, the employer shall allow the employee to take the day off on an alternate week day. 

 

4.          Insert after clause 10, Hours of Work, the following new clause 10A, Implementation of 38 Hour Week:

 

10A.  Implementation of 38 Hour Week

 

10A.1  Ordinary hours of work shall be an average of 38 per week as provided in clauses 10, Hours of Work, and 11, Shift Work.

 

10A.2  Except as provided by 10A.4 and 10A.5 hereof, the method of implementation of the 38 hour week may be any of the following:

 

10A.2.1            by employees working less than eight ordinary hours each day; or

 

10A.2.2            by employees working less than eight ordinary hours on one or more days each week; or

 

10A.2.3            by fixing one weekday on which all employees will be off during a particular work cycle; or

 

10A.2.4            by rostering employees off on various days of the week during a particular work cycle so that each employee has one week day off during the cycle.

 

10A.3  In each plant, an assessment should be made as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation.

 

10A.4  Subject to 10.4, the employer and the majority of employees in the plant or sections or sections concerned may agree that the hours of work are to exceed eight on any day, thus enabling a weekday off to be taken more frequently than would otherwise apply.

 

10A.5  Circumstances may arise where different methods of implementation of the 38 hour week apply to various groups or sections of employees in the plant or establishment concerned.

 

10A.6  Notice of days off

 

Except as provided in 10A.7 and 10A.8 hereof, in cases where, by virtue of the arrangement of employee's ordinary working hours, an employee, in accordance with 10A.2.3 and 10A.2.4 hereof, is entitled to a day off during the employee's work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday the employee is to take off.  Provided that lesser period of notice may be agreed by the employer and majority of employees or section or sections concerned.

 

10A.7  Substitute days

 

10A.7.1            An employer, with the agreement of the majority of employees concerned may substitute the day an employee is to take off in accordance with 10A.2.3 and 10A.2.4 hereof for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.

 

10A.7.2            An individual employee, with the agreement of the employer, may substitute the day the employee is to take off for another day.

 

10A.8  Flexibility in relation to rostered days off

 

10A.8.1            Notwithstanding any other provision of this clause, where the ordinary hours of work of an establishment, plant or section are organised in accordance with 10A.2.3 and 10A.2.4 hereof an employer, the union and the majority of employees in the establishment, plant, section or sections concerned may agree to accrue up to a maximum of five rostered days off in special circumstances such as where there are regular and substantial fluctuations in production requirements in any year.

 

10A.8.2            Where such agreement has been reached the accrued rostered days off must be taken within twelve months on which they fall due.

 

10A.8.3            It is understood between the parties that the involvement of the union would be necessary in cases where it has members in the plants concerned and not in non-union establishments.

 

5.          Delete clause 11, Shift Work, and insert in lieu thereof the following:

 

11.  Shift Work

 

11.1      Definitions of Shift Work

 

"Day Shift'' shall not commence before 6.00 a.m.

 

"Afternoon Shift'' means any shift commencing after 6.00 p.m. and at or before midnight.

 

"Night Shift'' means any shift finishing after midnight and at or before 8.00 a.m.

 

11.2      Requirements to Work Shift Work

 

Subject to 11.1, 11.6 and 11.7 hereof and clause 10A, Implementation of 38 Hour Week, an employer may require any employee to perform a week's work on shift work of five shifts of 8 hours each.  Such shifts shall be worked between 11.00 p.m. on a Sunday and 8.00 a.m. on the following Saturday.

 

11.3      Shift Rates

 

Except where a higher rate of pay is provided under clause 19, Sunday and Holiday Rates, for work on a Sunday or holiday, payment for any afternoon shift shall be at ordinary time plus 15 per cent, and for any night shift shall be at ordinary time plus 30 per cent.  Provided that as to casual employees on shift work, subclause 5.10.2 of clause 5, Contracts of Employment, shall apply.

 

11.4      Meal Breaks on Shift Work

 

A meal break of 30 minutes shall be allowed to shift workers on all shifts, other than day shift, to be taken as nearly as possible in the middle of the shift.  Where three shifts (day, afternoon and night) are worked, the time of such meal break will be counted and paid for as time worked.

 

11.5      Restrictions

 

No employees under the age of 18 years shall be employed on night shift.

 

11.6      Alteration - Times of Duties

 

The commencing and finishing times of shift work shall be fixed by the employer and shall not be altered except on one week's notice or, during the season, two days' notice, given to the employee.

 

11.7      Shift Transfers

 

An employee on afternoon or night shift may be transferred to day work, day shift or another shift on at least 48 hours' notice by the employer.  Where an employee is so transferred without at least 48 hours' notice, any day or shift or part thereof worked by the employee shall be deemed to be part of the employee's 38 hours of employment.  Such work shall be paid for at an extra half-rate for the first 3 hours and an extra full rate thereafter on a daily basis in addition to the employee's ordinary rate of pay and shift penalties, if applicable.  Provided that this subclause shall not apply where, with the consent of the employer, an employee agrees with another employee independently to exchange a rostered shift to suit the mutual convenience of the employees concerned. 

 

6.          Delete paragraphs 12.1.1 and 12.1.3. of clause 12, Overtime, and insert in lieu thereof the following:

 

12.1.1   Day Workers Monday to Friday Inclusive

 

For all time worked before 6.00a.m. or after 6.00p.m. or before the fixed starting time or after the fixed finishing time on any day, Monday to Friday inclusive, or in excess of 8 ordinary hours on any such 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.

 

12.1.3   Shift Workers

 

(a)        For all time worked before the fixed starting time of any shift or after the fixed finishing time of any shift or in excess of 8 hours on any shift, or in excess of 38 ordinary hours on shift in any week - time and one-half for the first three hours and double time thereafter, plus, for all such overtime, 15 per cent of ordinary time if on afternoon shift or 30 per cent of ordinary time if on night shift.  Such entitlements shall continue until the completion of overtime work.

 

(b)       Where work commences on a Saturday, until noon - time and one- half for the first three hours and double time thereafter up to noon, plus for all such work 15 per cent of ordinary time if on afternoon shift; and after noon - double time, plus 15 per cent of ordinary time if on afternoon shift or 30 per cent of ordinary time if on night shift.

 

7.          Delete subclause 21.1 of clause 21, Sick Leave, and insert in lieu thereof the following:

 

21.1      Except as otherwise provided, an employee (other than a casual) who is absent from work during ordinary hours on account of personal illness, injury, elective surgery, or dental work other than routine dental maintenance, shall in the case of a day worker, be entitled to leave of absence at the ordinary time rate of pay of the appropriate classification and in the case of a shift worker at the ordinary time rate of pay of the appropriate classification plus the employee’s relevant shift allowance, of 38 hours of paid sick leave during the employee’s first year of employment with the employer and to 61 hours of paid sick leave during each subsequent year of continuous employment, subject to the following conditions and limitations:

 

8.          Delete clause 29, Payment of Wages, and insert in lieu thereof the following:

 

29.  Payment of Wages

 

29.1.     The employer may determine the method of payment of wages which shall be paid weekly, during working hours, by one of the following ways:

 

(a)        Cash;

 

(b)        Cheque; or

 

(c)        Electronic funds transfer (EFT) into the employees' nominated financial institution account, without cost to the employee.

 

29.2      Payment of cash or cheque wages - if cash or cheque wages are to be paid, such cash or cheque wages shall be paid without delay prior to the employee ceasing work on the nominated pay day.  Employees who are kept waiting for their cash or cheque wages for more than ten minutes after the usual time for ceasing work shall be paid overtime rates for all waiting time.  This subclause shall not apply if cash or cheque wages cannot be paid within working time due to circumstances beyond the employer's control.

 

29.3      Payment of wages by EFT - where wages are paid by into an employee's nominated bank account, wages shall be available on the nominated pay day.  If the wages are not available on the designated pay day, the employee shall contact the employer, who shall contact the relevant financial institution for the wages to be made available.

 

If, by the day following the designated pay day, the wages are still not available, employees who are kept waiting for wages to be credited into their nominated bank account for more than ten minutes after the usual time for ceasing work on pay day shall be paid overtime rates for all waiting time.  This subclause shall not apply if wages cannot be paid within working time due to circumstances beyond the employer's control.

 

29.4      Payment on termination - upon termination of employment, in the case of cash payment of wages or payment of wages by electronic funds transfer, all wages due to an employee (including a casual) shall be paid to an employee on the day of termination.  In the case of payment of wages by cheque, such wages shall be forwarded to the employee by post on the next ordinary working day.

 

9.          This variation shall take effect from the first full pay period to commence on or after 28 August 2002.

 

 

 

 

M. J. WALTON  J, Vice-President.

F. MARKS  J.

J. McLEAY, Commissioner.

 

 

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Printed by the authority of the Industrial Registrar.