RESTAURANTS, &C.,
EMPLOYEES (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notice of award review pursuant to section 19 of the Industrial
Relations Act 1996.
(No. IRC 4151 of 1999)
Before the Honourable Justice Marks
|
31 May 2000
|
REVIEWED AWARD
1. Arrangement
PART A
Clause No. Subject Matter
17. Annual
Leave
32. Anti‑Discrimination
14. Apprentices
33. Area,
Incidence and Duration
1. Arrangement
21. Bereavement
Leave
25. Blood
Donors
8. Casual
Employees
3. Classification
Structure
2. Definitions
31. Employee
Representative and Union Business
30. Exhibition
of Award in Workplace
29. Grievance
Handling and Dispute Procedure
5. Hours
13. Juniors
24. Jury
Service
23. Laundry
Allowance
6. Make‑Up
Time
7. Meal Break/Rest
Pause
10. Mixed
Functions
31A. Operation of
the Sydney Olympic and Paralympic Games 2000 (State) Award
11. Overtime
and Penalty Rates
18. Parental
Leave
15. Payment of
Wages
20. Personal/Carers'
Leave
12. Public
Holidays
26. Redundancy
19. Sick Leave
27. Supported
Wage
4. Terms of
Employment
28. Traineeships
9. Wages
22. Work
Clothes and Safety Equipment
16. Working
Together
PART B
MONETARY RATES
Table 1 ‑ Wage
Rates
Table 2 ‑ Other
Rates and Allowances
2. Definitions
2.1 "Casual
Employee" means an employee who is engaged as such and paid as such.
2.2 "Establishment"
includes more than one restaurant if they are operated by the same employer and
are located in the same structure or place.
2.3 "Employee"
means an employee whose conditions of employment are regulated by this award.
2.4 "Full‑time
employee" means a permanent employee who is engaged to work an average of
38 ordinary hours in accordance with this award.
2.5 "Part‑time
employee" means a permanent employee who is engaged to work not less than
9 or 15 hours per week (as set out in clause 5.7), nor more than 32 ordinary
hours per week.
2.6 "Restaurant"
means any building, stand, stall, tent, vehicle or boat or any other structure
or place on or from which food is sold or served principally for consumption
at that structure or place or adjacent to it.
3. Classification Structure
3.1 The
following classification structure shall apply:
3.1.1 GRADE 1 is an
employee who is:
3.1.1.1 undertakingup to
three months on‑the‑job training so as to enable the employee to be
employed as a Grade 2 employee; or
3.1.1.2 providing
general assistance to employees of a higher grade, not including cooking or
direct service to customers, and is primarily engaged in one or more of the
following:
Cleaning, tidying and setting up of kitchen, food
preparation and customer services areas, including the cleaning of equipment,
crockery and general utensils;
Assembly and preparation of ingredients for cooking;
Handling pantry items and linen;
Setting and/or wiping down tables, removing food
plates, emptying ashtrays and picking up glasses.
General cleaning, gardening and labouring tasks.
3.1.2 GRADE 2 is an
employee who is primarily engaged in one or more of the following:
Heating pre‑prepared meals and/or preparing
simple food items, such as sandwiches, salads and toasted foodstuffs
Undertaking general waiting duties of both food and/or
beverages, including cleaning of restaurant equipment, preparing tables and
sideboards, clearing tables, taking customer orders at a table;
Taking orders by telephone or whilst stationed at a
fixed orderedpoint, serving food and/or beverages to tables;
Service from a snack bar, buffet or meal counter;
Receipt of monies, giving change, operation of cash
registers, and use of electronic swipe input devices.
Greeting and seating guests under general supervision.
Supplying, dispensing or mixing of liquor, including
cleaning of bar areas and equipment, preparing the bar for service, taking
orders and serving drinks and assisting in the cellar.
Receiving, storing and distributing goods not involving
the extensive use of documents and records.
Attending a cloakroom.
Laundry and specialised cleaning duties involving the
use of specialised cleaning equipment
and/or chemicals.
Allocated building, maintenance and/or gardening
duties.
3.1.3 GRADE 3 is an
employee who is primarily engaged in one or more of the following:
Preparing and cooking a limited range of basic food
items such as breakfasts, grills and snacks.
Waiting duties of food and/or beverages, including
providing assistance in choosing the meal and wines by providing detailed
information when required of each item listed on menus, advising customers on
the appropriate choices of wine and providing information on wine types and all
items on the wine list, taking customer orders, serving food and/or beverages,
supervises or undertakes the clearing of tables after and during meals, receipt
of monies, taking reservations, greeting and seating guests.
Preparing and serving a range of drinks, including
blended and other cocktails.
Receiving, storing and distributing goods not involving
the control of the store or cellar.
Security work requiring the holding of an appropriate
licence.
Assisting in the instruction on a one to one basis of
employees of a lower grade.
3.1.4 GRADE 4 is an
employee who is primarily engaged in one or more of the following:
Undertaking general cooking duties, including a la
carte cookery, baking, pastry cooking or butchery.
Full control of a cellar and/or store, including stock
control and ordering.
Designing, preparing and serving a range of
sophisticated cocktails and other drinks, or duties performed by a head bar
person.
Performing specialist waiting duties in a fine dining
or otherwise complex restaurant environment, such as those performed by a head
waiter.
Performing specialist wine waiting and ordering duties.
Providing basic supervision and instruction to
employees of a lower grade.
3.1.5 GRADE 5 is an
employee who has completed an apprenticeship or who has passed the appropriate
trade test and who is engaged in any of the following:
Undertaking cooking, baking, pastry cooking or
butchering duties.
Undertaking general and specialised waiting duties in a
restaurant.
Other trade work appropriate to an employee's trade.
The employer may require the employee to provide proof
of any previous service or a trade certificate at the time of commencing
employment. Where it is established that the employee failed to disclose that
information when required to do so such service or qualification shall not be
taken into account when assessing any later claim on the employer.
3.1.6 GRADE 6 is an
employee who is engaged in supervising, training and co‑ordinating staff
and who is responsible for the maintenance of service and operational
standards. Duties may include preparation of operational reports, development
of stock control and security procedures, menu planning, staff rostering and
staff recruitment and induction, but an employee at this grade shall not have
the right to engage or terminate the services of employees.
3.1.7 GRADE 7 is an
employee who has completed an apprenticeship or has passed the appropriate
trade test in cookery, butchery, baking or pastry cooking and has completed appropriate
additional training and who is engaged in supervising other trade qualified
cooks.
3.2 In the event
of uncertainty or any dispute arising over classifying employee(s) within the
classification structure, the parties shall refer to the training guidelines
issued by Tourism Training NSW. These guidelines indicate the relevant training
modules, and in more detail, the required competencies that relate to each
grade.
3.3 If an
employee has been assessed as having achieved the competency level by either:
completing a course recognised by the Australian
Hospitality Review Panel; or
ACCESS skills assessment scheme
and is performing the duties/functions referred to
within the appropriate grade then the employee shall be paid at that grade.
3.4 The above
grades cover all employees working in a restaurant, but not managerial staff
whose principal functions are not described in the grade descriptions. Where an
employee's duties are not mentioned within these classifications, the employee
shall be classified in a grade which, by reference to the grading descriptors,
most closely reflects the skills and responsibilities of the job.
4. Terms of Employment
4.1 Employees
shall be engaged on a full‑time, part‑time or casual basis. The
basis of the engagement will not be changed without giving the employee 28
day's notice of the change.
4.2 Upon
engagement an employee shall be informed by the employer of.
4.2.1 Whether the
employee is to be engaged on a full time, part time or casual basis.
4.2.2 The employee's
classification, job description and the duties to be performed.
4.2.3 The working
times including when meal breaks and rest breaks will be taken.
4.2.4 Who will
supervise the employee.
4.2.5 The training
the employee will receive.
4.2.6 The career path
the employee can expect.
4.2.7 Whether the
employee starts work on probation (not applicable to apprentices or trainees.
4.3 Probationary
Employment:
4.3.1 Employees
engaged as full‑time or part‑time employees without any previous
service with the employer may be employed on probation for the first 14 days of
employment, during which period the employment may be terminated with one day's
notice.
4.3.2 The work of
employees on probation will be assessed by the employer, and, the employee will
be told no later than 14 days after the employee has started whether the
employee will continue in employment after the probation period.
4.4 Leaving
Employment.
4.4.1 An employer may
terminate the employment of a full‑time or part‑time employee by
giving the amount of notice set out below for the employee's period of
continuous employment or by paying the employee the monies the employee would
otherwise have earned during this period:
less than 1 year
|
1 week
|
1 year and less than 3 years
|
2 weeks
|
3 years and less than 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
4.4.2 An employer
will not terminate an employee's employment unless the employee has been
employed with the employer for less than one month or the employer has told the
employee that the employer is unhappy with the employee's employment and the
employee has not improved after being given a chance to do so.
4.4.3 Nothing in this
clause shall affect the right of the employer to dismiss an employee without
notice or without paying any monies instead of notice if the employee has acted
dishonestly in employment, the employee has unreasonably failed to carry out a
direction properly given to them by a person in charge, or the employee has
otherwise behaved so badly as to justify being dismissed without notice.
4.4.4 A full‑time
or part‑time employee when leaving employment must give the employer at
least one week's notice or the employer may deduct from wages owing any part of
the notice period not worked. An employer shall not terminate an employee's
employment only because the employee has given notice.
4.4.5 On termination
of employment for any reason the employer will give a full or part‑time
employee a certificate of service stating how long the employee had worked for
the employer and what job the employee did.
4.5 Employees
shall perform such work as the employer shall, from time to time, reasonably
require (including working reasonable overtime) provided the employee is
competent to do the work or, if not, the employer is prepared to train the
employee to do the work.
4.6 Where an
employee is detained at work after the normal finishing time and it is then too late to travel by the
employee's usual transport to go home, the employer shall either arrange
transport or repay the employee's taxi fare.
4.7 Employees
shall not to be asked to pay any cash shortages unless the employee deliberately failed to charge the
customer the full amount or deliberately failed to collect the amount payable.
5. Hours
5.1 Full time
employees will work not more than an average of 38 ordinary hours per week in
accordance with this award. These ordinary hours may not be averaged over more
than a 4 week period (except if the employee is a seasonal employee).
5.2 Full‑time
and part‑time employees will work not more than 5 days per week or, by
agreement between the employer and the employee, not more than 20 days in a 4
week period.
5.3 Rosters:
5.3.1 The employer
shall display a roster in a place accessible to all employees. The roster shall
set out the starting, finishing and meal times for full‑time and part‑time
employees for each week. The roster shall be posted at least seven days before
its commencement.
5.3.2 Subject to
other clauses of this award, employees must work at such times and on such days
as the employer needs them. An employer cannot change the roster of a full‑time
or part‑time employee without giving the employee 7 days notice except in
an emergency beyond the employers control. The employer will discuss any change
with the employee and try to take into account the employee's family and
personal needs.
5.4 The ordinary
daily working hours of full‑time and part‑time employees will not
be more than 10 hours in any one shift not including the time taken for meal
breaks. By agreement between the employer and the employee, an employee, other
than an employee under 18 years old, may work up to 12 ordinary hours including
the time taken for a paid meal break, without the payment of a penalty under
clause11.1.
5.5 Full‑time
and part‑time employees will be given 10 clear hours off between
finishing work on one shift and starting work on the next shift or paid double
the employees ordinary rate of pay for all time worked until the employee has
had ten clear hours off.
5.6 If a full‑time
or part‑time employee works less than 3 hours on a shift the employee will be paid for no less
than 3 hours worked.
5.7 A part time
employee's ordinary hours shall be:
5.7.1 where there are
less than 15 full‑time and part‑time employees employed at the
establishment, not less than 9 hours per week and not more than 128 hours per
four week period.
5.7.2 where there are
15 or more full‑time and part‑time employees employed at the
establishment, not less than 15 hours per week and not more than 128 hours per
four week period.
5.8 If a part‑time
employee is not given at least 7 days notice of a change of rostered hours the employee will be paid an extra
10% for the whole of the period of any affected
shift(s) (and any overtime or other penalty payments will be calculated on this
extra 10%) except where the change of roster has been requested by the
employee.
5.9 Subject to
clause 11, Overtime and Penalty Payments, if a part‑time employee is
asked to work extra hours beyond the employee's rostered hours, the employer
will pay the employee for the employees work during that time at the rate that
would be paid to a casual employee. In addition to all other payments, the rate
shall include payment required by the Annual Holidays Act on termination of
employment. Hours worked under the provisions of this subclause shall not
otherwise be taken into account in determining a person's entitlement to annual
leave payments whether on termination of employment or otherwise.
5.10 Seasonal
Workers:
5.10.1 If the amount of
the employer's business changes substantially during the year because of
seasonal factors, the employee and the employer can agree to treat a full‑time
or part‑time the employee as a seasonal employee. if so, the employer
will pay the employee by equal weekly or fortnightly pays notwithstanding the
number of hours the employee works in any one day provided that averaged over
any period of 52 weeks the employer will not have paid the employee less than
the monies the employee would be entitled to receive throughout that period under
this award.
5.10.2 If an employee
is terminated by the employer, except in circumstances allowing the employer to
dismiss them without notice or by the employee for pressing social or domestic
or personal reasons the employer will pay the employee any higher amount which
would have been earned if the employee had not become a seasonal worker under
this clause, calculated from the last anniversary of the date the employee
commenced working for the employer as a full‑time or part‑time
employee.
5.11 Where an
employee works a broken shift the employer win pay the employee for not less
than 8 hours worked on any one shift. The shift will be spread over not more
than 2 periods within a span of not more than 14 hours inclusive of meal
breaks. For each broken shift worked, an employee shall be paid an allowance of
one half of the hourly ordinary rate of pay payable from time to time to
employees at the level 2 work classification.
6. Make‑Up Time
6.1 An employee
may elect, with the consent of the employer, to work "make‑up
time", under which the employee takes time off during 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.
6.2 An employee
on a regular night shift 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.
7. Meal Beak/Rest Pause
7.1 An employee
will be given a meal break of between 30 minutes and 1 hour after working not
more than 5 hours. The first meal break taken on any shift shall be unpaid. The
second meal break will be a paid break, and the employee will be paid a meal
allowance for the second break the amount of which is set out in Item 1 of
Table 2 of Part B or given a meal. If because (and only because) the work the
employee is doing means that the employee cannot take a meal break by the end
of 5 hours, the employer can ask the employee to work up to a further hour
before the employee takes the break, and that break will become a paid break.
7.2 In addition
to the employee's meal break(s), an employee win be given a paid rest pause of
ten minutes once during each work period of 5 hours.
8. Casual Employees
8.1 Casual
employees will not be entitled to annual leave loading or compassionate or
bereavement leave or to payment for jury service or as a blood donor and
clauses 5, 6, 18, 19, 20, 21, 25, 26, 27 and 29 do not apply to them.
8.2 The ordinary
daily working hours of casual employees will not be more than 10 hours in any
one shift not including the time taken for meal breaks. By agreement between
the employer and the employee, hours per shift may be not more than 12
including the time taken for meal breaks (employees under 18 years old will not
be required to work more than 10 hours in any one shift), without the payment
of a penalty under clause 11. 1.
8.3 If a casual
employee works less than 3 hours on a shift the employee will be paid for no
less than 3 hours worked.
8.4 Casual
employees will not be entitled to any public holiday penalty unless the
employee work on a public holiday.
9. Wages
9.1 Full‑Time
Employees:
9.1.1 Adult full‑time
employees shall be paid the appropriate minimum weekly wage rate for the
employees grade as set out in Table 1 of Part B of this award.
9.1.2 Wage rates will
be calculated to the nearest 10 cents.
9.2 Part‑Time
Emp1oyees:
9.2.1 Part‑time
employees shall be paid an hourly rate equal to the appropriate weekly rate
divided by thirty‑eight.
9.2.2 Terms and
conditions of this award applicable to full‑time employees shall apply to
part‑time employees on a pro‑rata basis.
9.3 Casual
Employees:
9.3.1 Casual
employees will be paid for each hour worked 1/38th of the weekly rate for the
grade which applies to the employee plus 20%. All overtime and other penalty
payments will be calculated on this rate.
9.3.2 Casual
employees are also entitled to be paid 1/12th of the employees ordinary pay, as
defined in the Annual Holidays Act, to pay for the employees annual holiday
entitlement.
10. Mixed Functions
An employee who is required by the employer to carry out
work on a temporary basis that carries a higher rate of pay than the employee's
ordinary classification, shall be paid the higher rate while doing that work.
This clause shall not apply to work performed under supervision for training
purposes.
11. Overtime and Penalty Rates
11.1 If the
employer requires an employee to work:
11.1.1 overtime being
for full time employees more than 38 hours per week or the employer may average
these hours over up to a 4 week period (except if the employee is a seasonal
employee).
11.1.2 overtime being
for part time employees more than 128 hours in a 4 week period (except if the
employee is a seasonal employee).
11.1.3 overtime being
more than the ordinary daily working hours set out in 5.4.
11.1.4 on a Saturday
(except if the employee works a regular night shift referred to in clause 11.2)
11.1.5 on a Sunday
11.1.6 on a public
holiday
the employer will pay the employee extra wages (called
a penalty) being:
in the case of 11. 1. 1 and 11. 1. 2 time and one half
of the ordinary rate of pay for the first 2 hours worked and after that double
time,
in the case of 11.1.3 double the ordinary rate of pay
for an overtime worked,
in the case of Saturday work time and a quarter of the
ordinary rate of pay for all time worked,
in the case of Sunday work time and a half of the
ordinary rate of pay for all time worked, and
in the case of public holidays work two and a half
times the ordinary rate of pay for all time worked.
11.2 Where an
employee works ordinary hours between midnight and 6.00am. they are to be paid
an extra 30% penalty for all time worked during these hours. Notwithstanding
the foregoing, if the employee works more than half of a regular shift on any
day between midnight and 6.00am, the employer will pay the employee for all
time worked on that shift an extra 30% penalty and clauses 11.1.3 and 11.1.4
will not apply to the employee. The
above penalties are not payable for work on Sundays and public holidays, or for
overtime worked under clause 11. 1.
11.3 Time off in
lieu of payment for overtime:
The employee may, with the consent of the employer take time
off within 12 months of becoming entitled to these payments instead of being
paid with the time off being calculated at the rate of one hour off for every
hour worked. Time off not taken within 12 months will be paid out at the
overtime rates applying at the time it was earned.
12. Public Holidays
12.1.1 Public
holidays are New Year's Day, Good Friday, Easter Saturday, Easter Monday,
Christmas Day, Boxing Day and the days on which Australia Day, Anzac Day,
Queen's Birthday and Labour Day are observed as public holidays.
12.1.2 Where a
substitute day is proclaimed or gazetted to replace any of the above days, the
substituted day shall be the public holiday in lieu of the original day.
12.2 If an
employee works on a public holiday, the employee shall be paid at the rate of
double time and one‑half for all time worked.
12.3 If an
employee, other than a casual employee, does not work and would normally be
rostered to work on a public holiday, the employee will be paid the employees
normal ordinary wages for that week.
12.4 If an
employee, other than a casual employee, is not normally rostered to work
regularly on the same days each week and the employee is not rostered to work
on a public holiday, the employer will either pay the employee an additional
day's wages, or add a day to the employees annual holiday's leave, or give the
employee another day off on ordinary pay within 28 days after or within one
week before hat public holiday.
12.5 An employer
may not change an employee's normal rosters to avoid paying the employee for a
public holiday.
12.6 If an
employee, other than a casual employee, is absent from work on the working day before or the working day after
a public holiday without reasonable excuse, the employee shall not be entitled
to payment for such a holiday.
12.7 An employee,
other than a casual employee, will be given an additional day as a public
holiday. The employee will become entitled to this on the anniversary of each
continuous year of employment with an employer. That day can be taken on a day
which is convenient to the employee and employer as a public holiday and is
instead of a union picnic day.
13. Juniors
The minimum weekly wage rate for a junior employee shall be
calculated by applying the following percentages of the appropriate adult rate
for the classification in which the employee is employed:
Age
|
%
|
|
|
17 years of age and under
|
62
|
18 years of age
|
70
|
19 years of age
|
80
|
20 years of age
|
90
|
14. Apprentices
14.1 The minimum
weekly wage rate for apprentices shall be calculated by applying the following
percentages to the total rate of a Grade 5 employee.
|
% of
|
|
Grade 5
|
Four year apprentice cooks ‑
|
|
1st year (or equivalent training stage)
|
46
|
2nd year (or equivalent training stage)
|
54
|
3rd year (or equivalent training stage)
|
67
|
4th year (or equivalent training stage)
|
80
|
"Equivalent training stage" recognises that
an employee could receive credit for training undertaken prior to the
commencement of the employees apprenticeship or have the ability to accelerate
the period of the employees apprenticeship.
14.2 Tool
Allowance
An apprentice in cooking who provides the employees own
tools shall be paid an allowance set out in Item 2 of Table 2 of Part B.
15. Payment of Wages
15.1 All wages
will be paid weekly or fortnightly by cheque or electronic funds transfer into
up to two accounts nominated by the employee from time to time or by cash as
the employer may choose.
15.2 Casual
employees will be paid at the end of each continuous pay period that they work
(but no longer than weekly) either by cash or as the employer may choose.
15.3 Wages will be
paid within 2 business days of the end of each pay period.
15.4 All wages
will be calculated in 10 minute intervals for time worked of less than an hour.
16. Working Together
16.1 The parties
to this award recognise the need for employers and employees to work closely to
make the employers organisation a better place to work and to make business
better. Employers shall consult with employees either individually, within
working groups, or altogether.
16.2 Individually:
Employers shall meet with employees from time to time
and at least twice a year to discuss matters such as the employees' progress,
job performance, problems, training programme and career prospects.
16.3 As work
groups:
Employers and employees shall hold meetings from time
to time and at least twice a year to discuss how the business is doing, what
changes can be made to increase business and work efficiency, any concerns either
party has about work or work related matters and any proposed changes that may
lead to employees being made redundant.
16.4 An employer
shall not harm an employee in employment because an employee has expressed an
opinion.
17. Annual Leave
(See the Annual Holidays Act)
17.1 After an
employee has worked for the employees employer for 12 consecutive months the
employer will pay the employee a loading of 171/2 on the employees annual
holiday pay each time the ‑employee take holidays or on termination of
employment.
17.2 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 between the
employer and the employee.
17.3 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.
18. Parental Leave
An employee, other than a casual employee, is entitled to
unpaid maternity leave, paternity leave or adoption leave under the Industrial
Relations Act 1996.
19. Sick Leave
19.1 An employee,
other than a casual employee, who has worked for the employer for more than one
month shall be entitled to up to 38 hours off in the first year of employment
and 60.8 hours off in each of the second and subsequent years of employment
without loss of pay if the employee is unable to attend work because the
employee is ill or has been injured.
19.2 An employee
employed by the employer on 15 February, 1993 and who is still employed by that
employer may have rights to cash in some or all of any sick leave entitlement
accumulated to that date when the employee's employment terminates, in accordance
with the Industrial Relations Act 1996.
19.3 An employee
must give the employer as much notice as possible if the employee is to take
sick leave, and give the employer any reasonable poof that the employer may
ask.
19.4 Sick Leave
accumulates from year to year for three years, that is, sick leave not taken in
each year of service will be available to the employee for a period of three
years from the end of each such year.
20. Personal/Carer's Leave
20.1 Use of Sick
Leave
20.1.1 An employee,
other than a casual, with responsibilities in relation to a class of person set
out in clause 20.1.3.2 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 19 of the award, 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.
20.1.2 The employee
shall, if required, establish 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.
20.1.3 The entitlement
to use sick leave in accordance with this subclause is subject to:
20.1.3.1 the
employee being responsible for the care and support of the person concerned;
and
20.1.3.2 the
person concerned being:
20.1.3.2.1 a
spouse of the employee; or
20.1.3.2.2 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;
20.1.3.2.3 a
child or an adult child (including an adopted child, a step child, a foster
child or an exnuptial 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
20.1.3.2.4 a same
sex partner who lives with the employee as the de facto partner of that
employee on a bona fide domestic basis; or
20.1.3.2.5 a
relative of the employee who is a member of the same household, where for the
purposes of this paragraph:
20.1.3.2.5.1 "relative"
means a person related by blood, marriage or affinity;
20.1.3.2.5.2 "affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
20.1.3.2.5.3 "household"
means a family group living in the same domestic dwelling.
20.1.4 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.
20.2 Unpaid Leave
for Family Purpose
An employee may elect, with the consent of the
employer, to take unpaid leave for the purpose of providing care and support to
a class of person set out in 20.1.3.2 above who is ill.
21. Bereavement Leave
21.1 An employee,
other than a casual employee, shall be entitled to up to three days bereavement
leave in each year of employment without deduction of pay on the death of a
person prescribed in 21.3 below.
21.2 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.
21.3 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 20.1.3, provided that
for the purpose of bereavement leave, the employee need not have been
responsible for the care of the person concerned.
21.4 An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which employee has already been granted other leave.
21.5 Bereavement
leave may be taken in conjunction with other leave available under subclauses
20.2, 20.1.3, 20.1.4 and 20.1.5 of clause 20, Personal Carer's Leave. In
determining such a request the employer will give consideration to the
circumstances of the employee and the reasonable operational requirements of
the business.
22. Work Clothes and Safety Equipment
22.1 The employer
will provide an employee with all necessary safety equipment and clothing. The
employee must use/wear these items at all times when necessary and must take
good care of them.
22.2 The employer
will replace all broken or lost items but the employer can ask the employee to
pay the employer back if they are lost or broken because of carelessness of the
employee. The onus of proving this will be on the employer.
23. Laundry Allowance
23.1 The employer
will launder an employee's special clothing or pay the employee a laundry
allowance the amount of which is set out in Item 2 of Table 3 of Part B.
23.2 Special
clothes are those which the employer asks the employee to wear as a uniform and
which the employee could not use for everyday wear or, if the employee is a
chef or cook, the employees uniform.
24. Jury Service
24.1 If an
employee, other than a casual employee, is required to attend for jury service
the employer will pay the employee the difference between what the employee
would have earned while working for the employer and the amount of jury pay
received by the employee.
24.2 The employee
shall give the employer proof that the employee was on jury service and the
amount received.
24.3 The employee
must tell the employer as soon as the employee knows that the employee is
required for jury service.
25. Blood Donors
If an employee wishes to donate blood, the employee may do
so during working hours without loss of pay provided that:
25.1 The time and
day selected meet with the employer's convenience and does not unduly disrupt
the employers operations.
25.2 The employee
is able to donate blood at a place within 5 walking minutes of the restaurant.
25.3 The employee
must provide the employer with proof that the employee donated blood; and
25.4 This
entitlement is limited to a maximum of 2 hours on no more than 3 occasions in
any one year of employment.
26. Redundancy
This clause only applies to employers which have 15 or more
employees (whether employed under this award or otherwise) immediately before
taking a decision to make an employee redundant.
If it is necessary to make an employee redundant the
employer will:
26.1 Only do so if
there is no other job the employer can reasonably give the employee, bearing in
mind the employee's skills and experience and any training that can reasonably
be given to the employee.
26.2 Give the
employee as much notice as possible and, in any event, not less than the period
of notice set out below for the employee's period of continuous employment:
Less than I year
|
1 week
|
1 year and less than 3 years
|
2 weeks
|
3 years and less than 3 years
|
3 weeks
|
5 years and over
|
4 weeks
|
In addition to the notice above, employees over 45
years of age at the time of the giving of the notice, with not less than two
years continuous service, shall be entitled to an additional week's notice.
Payment in lieu of the notice above shall be made if
the appropriate notice period is not given, provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof
26.3 If the
employee accepts a transfer to lower paid duties, maintain the employees higher
rate of pay for the period of notice set out in clause 26.2 above.
26.4 Also give the
employee one day a week off without loss of pay for each week of notice set out
in clause 26.2 above to look for another job, provided that the employee tells
the employer beforehand details of what the employee win be doing.
26.5 Give the
employee a written statement that the employee is to be made redundant,
together with details of the employee's employment record with the employer.
26.6 Pay the
employee severance pay in accordance with the following table:
Years of Service
|
Number of Weeks Severance Pay
|
|
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 3 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
|
|
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
|
"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, over award payments, shift penalties
and allowances paid in accordance with this award.
However, an employer can apply to the Industrial
Relations Commission for permission to pay a lower amount if the employee gets
another job or if an employer cannot afford to pay all or part of those
severance moneys.
27. Supported Wage
27.1 Definitions
27.1.1 "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 with the Supported Wage System.
27.1.2 "Assessment
Instrument" 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.
27.1.3 "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.
27.1.4 "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.
27.1.5 "Commonwealth
Government Authority" means the Commonwealth Government Department whose
responsibility includes the administration of the Supported Wage System.
27.2 Application
27.2.1 This clause
applies only to employees 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, because of the effects of a disability on the employees productive
capacity and who meet the impairment criteria for the receipt of a Disability
Support Pension.
27.2.2 This 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.
27.2.3 This clause does
not apply to employers in respect of the employers facility, programme,
undertaking service or the like which receives funding under the Disability
Services Act 1993 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 Act, or if a part
only has received recognition, that part.
27.3 Wages
27.3.1 Following the
trial period prescribed in clause 27.4.5, employees to whom this clause applies
shall be paid the applicable percentage of the minimum rate of pay prescribed
by the relevant parent award for the class of work which the person is
performing according to the following schedule:
Assessed Capacity
Rate
|
% of Relevant
Parent Award
|
|
|
10%
|
10%
|
20%
|
20%
|
30%
|
30%
|
40%
|
40%
|
50%
|
50%
|
60%
|
60%
|
70%
|
70%
|
80%
|
80%
|
90%
|
90%
|
NOTATION: Where
a person's assessed capacity is 10% the person shall receive a high degree of
assistance and support.
27.3.2 Notwithstanding
anything otherwise contained in this award, the weekly ordinary time rate of
pay for employees employed under the terms of this clause shall not be less
than the amounts as are fixed from time to time by an competent Commonwealth
Government Authority for the purposes of the Supported Wage System.
27.3.3 The weekly wage
shall be the rate of pay for all purposes.
27.4 Employment
Conditions
27.4.1 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:
27.4.1.1 The
employer and the union to which the employee belongs, in consultation with the employee or, if desired by an of
these:
27.4.1.2 The
employer, the employee and an accredited Assessor.
27.4.2 Lodgement of
Assessment Instrument
27.4.2.1 All
assessment instruments under the conditions of this award, including the
appropriate percentage of the award rate to be paid to the employee, shall be
lodged by the employer with the Registry of the Industrial Relations Commission
of New South Wales.
27.4.2.2 All
assessment instruments shall be agreed and signed by the parties to the
assessment, provided that where the union is not a party to the assessment, it
shaft be referred by the Registry to the union by certified mail and shall take
effect unless an objection is notified to the Registry within ten working days.
27.4.3 Review of
Assessment
The assessment of the applicable percentage shall be
subject to annual review or earlier on the basis of a reasonable request for
such a review. The process of review shall be in accordance with the procedures
for assessing capacity under the Supported Wage System.
27.4.4 Workplace
Adjustment
An employer wishing to employ a person under the
provisions of this clause shall 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 employees in the area.
27.4.5 Trial Period
27.4.5.1 In
order for an adequate assessment of the employee's capacity to be made, an
employer may employ a person under the provision of this award for a trial
period not exceeding 12 weeks, except that in some cases additional work
adjustment time (not exceeding four weeks) may be needed.
27.4.5.2 During
the trial period the assessment of capacity shall be undertaken and the
proposed wage rate for a continuing employment relationship shall be
determined.
27.4.5.3 Work
trials should include induction or training as appropriate to the job being
trialed.
27.4.5.4 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
clause 28.4.
28. Traineeships
28.1 Ap1ications
This clause applies only to persons employed in a
traineeship which has been registered with the Relevant NSW Training Authority
28.2 Definitions
28.2.1 A
"traineeship" is a program of training comprising structured training
with an employer, and it will include training conducted by a Registered
Training Organisation that has been approved by the Vocational Education
Training Accreditation Board. For the purposes of the traineeship, structured
training shall mean formal instruction and closely supervised practice directly
related to that instruction that is undertaken according to the provisions of
the training agreement.
28.2.2 A "training
agreement means an agreement between an employer and a trainee for registered
training and employment which is approved by the Relevant NSW Training
Authority.
28.2.3 A
"trainee" is an employee undertaking a traineeship who is bound by a
training agreement.
28.2.4 "Relevant
NSW Training Authority" means the Department of Education and Training or
its successor organisation.
28.3 Training
Conditions
A trainee undertaking a traineeship shall be engaged as a
full‑time employee for a traineeship of a nominal period of one year or
as approved by the Relevant NSW Training Authority, provided that the trainee
shall be subject to a satisfactory probation period of up to one month.
28.4 All Trainees
28.4.1 The time spent
off the job at training shall be allowed without loss of continuity of
employment.
28.4.2 Where employment
of a trainee by an employer is continued after completion of the traineeship
period, the traineeship period shall be counted as service for all award and
statutory entitlements where consistent with relevant legislation.
28.4.3 For the purposes
of the Long Service Leave Act 1955, where an employee has entered into a
contract of employment with an employer within a 12 month period after the
completion of the traineeship with the employer, the period of the employee's
traineeship with the employer shall be taken into account for the purposes of
ascertaining the period of service of the employee with that employer under
that contract of employment.
28.4.4 Preference in
continuation of employment shall be given to trainees, where possible, should
vacancies occur at the conclusion of the training period.
28.4.5 The provisions
of the Workplace Injury Management and Workers Compensation Act 1998,
and the Occupational Health and Safety Act 1983, shall apply to
trainees.
28.4.6 It is
acknowledged by the parties to this award that the purpose of the relevant
traineeships is to create education and career opportunities for persons who
would otherwise be unemployed, and to that extent the traineeship systems will
not be utilised by employers as a means of displacing existing regular
employees, whether full‑time, part‑time or casual.
28.4.7 The employer
shall ensure that the trainee is permitted to attend prescribed off the‑job
training and is provided with on‑the‑job training approved by the
Relevant State Training Authority.
28.4.8 The union shall
be afforded reasonable access to trainees and the trainees records, consistent
with the Industrial Relations Act 1996.
28.5 Wages
28.5.1 The weekly wage
payable to Trainees shall be calculated by multiplying the hourly rate
applicable to the trainee by 38, less the average weekly training time to be
spent in structured training.
28.5.2 Junior hourly
rates shall be calculated in accordance with Clause 13 ‑ Juniors. The rate for employees 21 years of age and
over shall be calculated at the rate for a Grade 2 employee.
28.5.3 The average
weekly training time to be spent in structured training shall be calculated by
averaging the total number of hours that the trainee, during each year of
employment, spends in structured training over the total number of weeks in
that year of employment under the traineeship.
29. Grievance Handling and Disputes Procedure
29.1 Procedures
Relating to Grievances of Individual Employees:‑
29.1.1 The employee is
required to notify (in writing or otherwise) the employer as to the substance
of the grievance, request a meeting with the employer for bilateral discussions
and state the remedy sought.
29.1.2 A grievance must
initially be dealt with as close to its source as possible, with graduated
steps for further discussion and resolution at higher levels of authority.
29.1.3 Reasonable time
limits must he allowed for discussion and resolution at higher levels of
authority.
29.1.4 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.
29.1.5 While a
procedure is being followed normal work must continue.
29.2 Procedures
Relating to Disputes etc. Between Employers and their Employees.
29.2.1 A question,
dispute or difficulty must initially be dealt with as close to its source as possible,
with graduate steps for further discussion and resolution at higher levels of
authority.
29.2.2 Reasonable time
limits must be allowed for discussion at each level of authority.
29.2.3 While a
procedure is being followed, normal work must continue.
29.3 The employer
may be represented by an industrial organisation of employers and the employees
may be represented by an industrial organisation of employees for the purposes
of each procedure.
30. Exhibition of Award in Workplace
A copy of this award must be exhibited in a conspicuous
place at the restaurant.
31. Employee Representative and Union Business
Where there is no union delegate on site, the employer will
recognise any person appointed by a majority of employees as an employee
representative. The employer win not recognise more than one employee
representative for less than 50 persons who are employed by the employer at any
one time. The employer will provide a notice board in a staff area for the
employee representative (who may be a union delegate) to place notices,
including union notices, provided that the notices do not contain defamatory or
offensive material.
32. Anti‑Discrimination
32.1 It is the
intention of the parties bound by this award to seek to achieve the object of
section 3(f) of the Industrial Relations Act 1996 to prevent and
eliminate discrimination in the workplace. This includes discrimination on the
grounds of race, sex, marital status, disability, homosexuality, transgender
identity and age.
32.2 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.
32.3 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 or unlawful discrimination
or harassment.
32.4 Nothing in
this clause shall 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 propogate 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.
32.5 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.
33 Area, Incidence and
Duration
33.1 This award
rescinds and replaces:
33.1.1 the Restaurant,
&c., Employees' (State) Award published 1 September, 1982 and reprinted 15
November 1991 (265 IG 1604) as varied;
33.1.2 the Restaurants,
&c., Employees (State) Wages Adjustment Award published 17 November 1995
(289 IG 403);
33.1.3 the Restaurant
Industry (State) Traineeship Award published 2 December 1994 (282 IG 938)
33.1.4 The Restaurant,
&c., Employees Redundancy and Technological Change (State) Award published
16 February 1996 (290 IG 818).
33.2 The award
applies to all employees who perform work described in the classification
structure in this award in restaurants as defined throughout New South Wales
and to the employers of those persons but not in the County of Yancowinna. The
award does not apply to restaurants forming part of motels or licensed clubs,
or conducted within a retail store, to canteens covered by the Canteen Workers
(State) Award employees of the Broken Hill Proprietary Company Limited or to
persons employed in hospitals or public charitable institutions.
33.3 Notwithstanding
any provision of this award, it shall not operate in circumstances where the
Sydney Olympic & Paralympic Games 2000 (State) Award Operates. This sub‑clause shall cease to operate
when the Sydney Olympic Games 2000 (State) Award is rescinded or ceases to have
effect.
33.4 This award
takes effect from the beginning of the first pay period to commence on or after
1 May 1997 and shall remain in force for a period of six months.
PART B
MONETARY RATES
Table 1 ‑
Wage Rates
Grade
|
From the first pay
period on or
after 18 August
1999*
$ per week
|
1
|
392.30
|
2
|
409.30
|
3
|
434.90
|
4
|
453.60
|
5
|
486.00
|
6
|
526.60
|
7
|
547.90
|
The rates of pay in this award include the adjustments
payable under the State Wage Cases of June 1998 and June 1999. These
adjustments may be offset against:
(a) any equivalent
overaward payments, and/or
(b) award
increases since 29 May 1991 other than safety net, adjustments and minimum
rates adjustments.
Table 2 - Other Rates and Allowances
Item
|
Clause No.
|
Brief Description
|
Amount
|
No.
|
|
|
$
|
1
|
6.1
|
Meal Allowance
|
7.50
|
2
|
13.2
|
Apprentices Tool Allowance
|
0. 53 per week
|
3
|
23.1
|
Laundry Allowance -
|
|
|
|
special clothing requiring ironing
|
2.30 per day to
|
|
|
|
a maximum of
|
|
|
|
6.90 per week
|
|
|
|
|
|
|
special clothing not requiring ironing
|
1.30 per day to
|
|
|
|
a maximum of
|
|
|
|
4.00 per week
|
F.
MARKS J.
____________________
Printed by the authority of the Industrial Registrar.