VEHICLE INDUSTRY - REPAIR SERVICES AND RETAIL
(STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review
of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1284
of 1999)
Before the Honourable Justice Kavanagh
|
28 June 2001
|
REVIEWED AWARD
PART A
1. ARRANGEMENT
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 & MEALS
|
28
|
ACCOMMODATION &
CONVENIENCES
|
29
|
CLOTHING, ETC.
|
30
|
JURY SERVICE
|
31
|
SUPERANNUATION
|
32
|
REDUNDANCY
|
33
|
INTRODUCTION OF CHANGE
|
34
|
SHOP STEWARDS
|
35
|
NOTICE BOARD
|
36
|
RIGHT OF ENTRY
|
37
|
TIME AND WAGES RECORD
|
38
|
PARENTAL LEAVE
|
39
|
BASIS OF AWARD AND
LEAVE RESERVED TO APPLY
|
40
|
SAVINGS &
EXEMPTIONS
|
41
|
TRAINEESHIPS
|
42
|
DISPUTES AND INDUSTRIAL
GRIEVANCE PROCEDURE
|
43.
|
ANTI-DISCRIMINATION
|
44
|
SUPPORTED WAGE
|
45
|
AREA, INCIDENCE &
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
|
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 sub clause,
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 sub clause, 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 sub clause, 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 equaling 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 sub clause.
(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 sub clause
(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 sub clauses (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 sub clause (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 payday 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 2000. 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 sub clause (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 sub clause (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 sub clause, 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
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 paragraph the
following classifications apply:
Automotive Parts Salesperson
Console Operator
(iii) The percentages prescribed by paragraph (i)
of this sub clause 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) Proportion :
(i) The proportion of juniors who may be employed by an employer
shall be as follows:-
Driveway
attendants and/or lubritorium attendants -
Two
juniors to one adult.
Three
juniors to 2, 3, 4 or 5 adults.
Four juniors to 6, 7 or 8 adults
and thereafter, one additional junior to each three or fraction of three adults
working in a site at any one time.
(ii) For the purpose of this sub clause
'junior' means a junior whether weekly hired or casual, and 'adult' means an
adult whether weekly hired or casual.
(d) 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 & 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 work person, the work person or a shop steward on the employee's
behalf shall be entitled, within twenty-four hours, to ask for a decision on
the work person'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 work person'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
Conciliation 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 sub
clauses (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 sub clause 12
(b) (i) The commencing times of any employee's
daily hours once fixed in accordance with clause 12 or
sub clause (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 sub-clause (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 sub clause (b) of clause or employer decision
pursuant to paragraph (ii) of sub clause (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 sub clause (b) of the said clause 12, or employer decision pursuant to
paragraph (ii) of the said sub clause (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 sub clauses (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 sub clause (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 sub clause (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 sub clause (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 sub clause, 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 sub clauses (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 sub clauses (d),
(e) and (f) hereof all work done during meal breaks and thereafter until a meal
break is allowed shall be paid for a 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 sub
clause (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 sub
clause (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 & 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
|
(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 changeover 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 sub clause (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 sub clause 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 sub clause (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 sub clause
(d) of clause 2, Contract of Employment
(c) Extra Rates not Cumulative - The extra
rates prescribed in sub clause (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
sub clauses (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 sub clause, 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 themselves in
readiness for a call-back, an employee directed by the employer to hold
themselves in readiness to work outside ordinary working hours shall, for the
period required to hold themselves in readiness, be paid standing by time at
ordinary rates from the time from which the employee is so to hold themselves
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 sub clause shall not be regarded as overtime
for the purposes of sub clause (e) of this clause.
(h) Call Back -
Breakdowns, etc.
(i) An employee recalled outside normal
working hours for breakdown, accident or other emergency work should 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 sub clause shall not be regarded as overtime
for the purposes of sub clause (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 sub clause 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 sub clause 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 sub clause.
(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 sub clause 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 traveling 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
sub clause.
(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 sub clause (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 sub clauses (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 sub
clause (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 sub clause shall limit the
employer's rights under paragraph (iii) of sub clause (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 sub
clause (a), and sub clause (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 sub clause
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 sub clause
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 sub clause (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 traveling 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 sub clause, 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 kilometer 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 & CONVENIENCES
Each employer, for the use of the employees, shall:
(i) supply
boiling water at meal times;
(ii) supply in each workshop, wholesome cool
drinking water from bubble taps or other suitable drinking fountains;
(iii) in each workplace, and at other places
where employees are regularly employed, provide and continuously maintain at a
place or places reasonably accessible to all employees an efficient first aid
outfit;
(iv) provide
proper and sufficient sanitary conveniences;
(v) provide at some reasonably convenient
place on the employer's premises a suitable locker for each employee 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: When requested by an employee and
where practicable, a suitable seat shall be provided by the employer.
(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 sub clauses (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 sub clause (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 sub clause (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 sub clause (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 sub clauses (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 sub clause (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 sub
clause 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 sub clause (c) of this clause on behalf of all eligible
employees once such employees complete the qualifying period as prescribed in
sub clause (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 sub clause (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 sub clause (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. 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 sub clause 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 sub clause (a) of this sub clause, 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 sub clause (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 sub clause (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
|
45 years of age and over 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
sub clause (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 sub clause (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 sub clause (c) of this clause, the difference between the
severance pay specified in that sub clause 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 sub clause (c), then the employee
shall receive no payment under that sub clause.
(i) Transmission
of Business -
(i) Where a business is, before or after the
date of this award, transmitted from an employer (in this sub clause called the
"transmitter") to another employer (in this sub clause 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 sub clause "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. 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 sub clause (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 sub clause (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.
34. SHOP STEWARDS
An employee appointed shop steward in the place or
department in which the employee is employed shall, upon notification thereof
to the employer, be recognised as the accredited representative of the union to
which the employee belongs, and the employee shall be allowed the necessary
time during working hours to interview the employer or the employer's
representative on matters affecting employees whom the person represents.
35. 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.
36. RIGHT OF ENTRY
See Chapter 5, Part 7 of the Industrial Relations Act 1996.
37. TIME AND WAGES RECORD
See Industrial Relations (General) Regulation 1996, Part 3,
Pay Slips and Employers' Records.
38. 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
sub clause:
(a) 'Employee' includes a part time employee
but does not include an employee engaged upon casual or seasonal work.
(b) 'Paternity Leave' means leave of the type
provided for in sub clause (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.
(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 sub clause, 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 sub clause, 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 sub clause, 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 sub clause, 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 sub clause 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 sub clause:
(a) 'Employee' includes a part time employee
but does not include an employee engaged upon casual or seasonal work.
(b) 'Maternity leave' means leave of the type
provided for in sub clause (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.
(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 sub clause, 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 sub clause, 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 sub 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 sub clause 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 sub clause:
(a) 'Employee' includes a part time employee
but does not include an employee engaged upon casual or seasonal work.
(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 stepchild 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.
(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 sub clause, 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 sub clause, 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 sub clause, 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 sub clause, 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 sub clause shall be
construed as requiring an employer to engage a replacement employee.
(D) Part Time
Work
(1) Definitions - For the purposes of this sub clause:
(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 sub clause 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
sub clause 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 sub clause.
(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 sub clause, 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 sub clause 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 sub clause 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
sub clause.
(b) A replacement employee may be employed
part time. Subject to this paragraph,
paragraphs (5), (6), (7), (8), (9) and (12) of this sub clause apply to the
part time employment of replacement employee.
39. 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.
40. SAVINGS & 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.
41. 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. Except as provided for in clause 6, Wage Rates, nothing in this award
shall be taken to replace the prescription of training requirements in this
award.
(2) Supersession - This clause shall not
apply to any employer covered by this award, with trainees who commenced under
the Australian Traineeship System prior to the making of this award.
(3) Definitions
-
(a) "Approved Training" means
training undertaken (both on and off the job) in a traineeship and shall
involve formal instruction, both theoretical and practical, and supervised
practice in accordance with a Traineeship Scheme approved by the relevant NSW
Training Authority. The training will
be accredited and lead to qualifications as set out in paragraph (e) of
subclause 4, Training, of this clause.
(b) "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" means an employee who
is bound by a Traineeship Agreement made in accordance with this award.
(d) "Traineeship" means a system of
training, which has been approved by the relevant NSW Training Authority.
(e) "Traineeship Agreement" means
an agreement made subject to the terms of this award between an employer and
the trainee for a traineeship and which is registered with the relevant NSW
Training Authority. A traineeship
agreement shall be made in accordance with the relevant approved traineeship
scheme and shall not operate unless this condition is met.
(f) "Traineeship Scheme" means an
approved traineeship applicable to a group or class of employees or to an
industry or sector of an industry or an enterprise. A traineeship scheme shall not be given approval unless
consultation and negotiation with the relevant union(s) upon the terms of the
proposed traineeship scheme and the traineeship have occurred. An application for approval of a traineeship
scheme shall identify the relevant union(s) and demonstrate to the satisfaction
of the relevant NSW Training Authority that the abovementioned consultation and
negotiation have occurred. A
traineeship scheme shall include a standard format, which may be used for a
traineeship agreement.
(g) "Parties to a Traineeship
Scheme" means the employer organisation and/or the employer and the
relevant union(s) involved in the consultation and negotiation required for the
approval of a traineeship scheme.
(h) "Appropriate State legislation"
means the Industrial and Commercial Training Act 1989 or any successor
legislation.
(i) "Year 10" - For the purposes
of this award, any person leaving school before completing Year 10 shall be
deemed to have completed Year 10.
(4) Training -
(a) The trainee shall attend an approved
training course or training program prescribed in the traineeship agreement or
as notified to the trainee by the relevant NSW Training Authority.
(b) A traineeship shall not commence until
the relevant traineeship agreement, made in accordance with a Traineeship
Scheme, has been signed by the employer and the trainee and lodged for
registration with the relevant NSW Training Authority, provided that if the
Traineeship Agreement is not in a standard format a Traineeship shall not
commence until the Traineeship Agreement has been registered with the relevant
NSW Training Authority. The employer
shall ensure that the Trainee is permitted to attend the training course or
program provided for in the Traineeship Agreement and shall ensure that the
Trainee receives the appropriate on-the-job training.
(c) The employer shall provide a level of
supervision in accordance with the Traineeship Agreement during the traineeship
period.
(d) 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.
(e) Training
shall be directed at:
(i) the achievement of key competencies
required for successful participation in the workplace where these have not
been achieved (e.g. literacy, numeracy, problem solving, team work, using
technology), and as are proposed to be included in the Australian Qualifications
Framework (AQF) Level 1 qualification.
This could be achieved through foundation competencies which are part of
endorsed competencies for an industry or enterprise; and/or
(ii) the achievement of 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 the Australian Qualifications Framework Level 1
qualification or above.
(5) Employment
Conditions -
(a) A trainee shall be engaged as a full-time
employee for a maximum of one year's duration provided that 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. 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 Scheme.
(b) An employer shall not terminate the
employment of a trainee without firstly having provided written notice of
termination to the Trainee concerned and the relevant NSW Training Authority in
accordance with the traineeship agreement or the Industrial and Commercial Training Act 1989.
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.
(c) The Trainee shall be permitted to be
absent from work without loss of continuity of employment and/or wages to
attend the training in accordance with the Traineeship Agreement.
(d) 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 relevant
Award or any other legislative entitlements.
(e) (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 relevant
award.
(iii) No Trainee shall work shiftwork unless the
parties to a Traineeship Scheme 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.
In the event that the parties
disagree with such determination it shall be open to any party to the award to
seek to have the matters in dispute determined by the Industrial Relations
Commission of New South Wales.
(f) For
the purposes of Tables 6 - Wages - Training Wage - Skill Level A, and 7 - Wages
- Training Wage - Skill Level B, "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 or contributed to a completed year of schooling;
(ii) include any period which a trainee
repeats in whole or part of a year of schooling beyond Year 10; and
(iii) not include any period during a calendar
year in which a year of schooling is completed;
(iv) have effect on an anniversary date being January 1 in each
year.
(g) At
the conclusion of the traineeship, this award ceases to apply to the employment
of the trainee and the relevant awards apply to the former trainee.
42. 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.
43. 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.
NOTE
(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.
44. 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
(sub-clause (d))
|
% Of Prescribed Award
Rate
|
10%
20%
30%
40%
50%
60%
70%
80%
90%
|
10%
20%
30%
40%
50%
60%
70%
80%
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 trialed.
(v) Where the employer and employee wish to
establish a continuing employment relationship following the completion of the
trial period, a further contract of employment shall be entered into based on
the outcome of assessment under subclause (d) of this clause.
45. 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) within the jurisdiction of
the Vehicle Industry (State) Industrial Committee.
(b) This award is made following a review
under section 19 of the Industrial
Relations Act 1996 and rescinds and replaces the Vehicle Industry - Repair
Services and Retail (State) Award published 18 October 1996 (295 IG 280) and
all variations thereof, insofar as that award applies to persons employed in
motor garage and/or service stations and/or petrol service stations.
(c) The award published 18 October 1996
took effect from the beginning of the first pay period to commence on 23 May
1996 and the variations thereof incorporated herein on the dates set out in the
attached Schedule A.
(d) The changes made to the award pursuant
to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles
for Review of Awards made by the Industrial Relations Commission of New South
Wales on 18 December 1998 (308 IG 307) are set out in the attached Schedule B
and take effect on 28 June 2001.
(e) The award remains in force until varied
or rescinded, the period for which it was made having already expired.
SCHEDULE A
Award and Variations
Incorporated
Clause
|
Award/
|
Date of
|
Date of Taking
|
Industrial
|
|
Variation Serial
|
Publication
|
Effect
|
Gazette
|
|
No.
|
|
|
Vol. Page
|
Award
|
B4528
|
18 October
|
23 May 1996
|
295
|
280
|
|
|
1996
|
|
|
|
32A
|
B4924
|
4 July 1997
|
30 August 1996
|
299
|
951
|
5, Part B - Tables 1 - 7
|
B5936
|
13 March 1998
|
1 September 1997
|
303
|
1076
|
Part B - Tables 4 & 5
|
B6199
|
26 June 1998
|
1 September 1997
|
305
|
623
|
Part B - Table 8
|
B6219
|
7 August 1998
|
31 October 1997
|
306
|
86
|
5, Part B - Tables 1 - 5, 8
|
B6580
|
5 March 1999
|
30 June 1998
|
308
|
580
|
Part B - Table 3
|
B6878
|
21 May 1999
|
30 June 1998
|
309
|
474
|
23
|
B7112
|
19 November
|
10 December 1998
|
312
|
273
|
|
|
1999
|
|
|
|
Part B - Table 8
|
B8797
|
20 April 2000
|
30 March 1999
|
315
|
7
|
36A, 5, Part B - Tables
|
B7691
|
7 July 2000
|
30 June 1999
|
316
|
1298
|
1 - 4, 7
|
|
|
|
|
|
5, Part B - Tables 1 - 4,
|
B9604
|
8 December
|
30 June 2000
|
320
|
1225
|
7
|
|
2000
|
|
|
|
Part B - Table 7
|
B9603
|
8 December
|
8 June 2000
|
320
|
1229
|
|
|
2000
|
|
|
|
Part B - Table 7
|
|
|
26 April 2001
|
|
|
|
|
|
|
|
|
|
SCHEDULE B
Changes Made on
Review
Date of Effect: 28
June 2001
(1) Provisions
Modified:
|
|
Previous Form of
|
Award
|
Clause
|
Clause Last
|
|
|
Published at IG:
|
|
|
Vol
|
|
|
Page
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
3
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
3A
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
4
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
5
|
295
|
280
|
|
5(i)(f)
|
320
|
1225
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
5A
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
7
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
9
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
10
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
10A
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
11
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State) Award
|
12
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
13
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
14
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
15
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
16
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
19
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
21
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
22
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
23
|
312
|
273
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
24
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
27
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
27A
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
28
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
29
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
31
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
31A
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
35
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
36
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
37
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
38
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
Part B
|
295
|
280
|
|
Tables 1 - 4
|
320
|
1225
|
|
Tables 5 - 6
|
303
|
1076
|
|
Table 7
|
320
|
1225
|
|
|
320
|
1229
|
(2) Provisions
Removed:
Award
|
Clause
|
Previous Form of
|
|
|
Clause Last
|
|
|
Published at IG:
|
|
|
Vol. Page
|
|
|
|
Vehicle Industry - Repair Services and Retail (State)
Award
|
2
|
295
|
280
|
Vehicle Industry - Repair Services and Retail (State) Award
|
6
|
295
|
280
|
PART B - MONETARY
RATES
Table 1 - Wages -
Adult Weekly Employees
Wage Group Level
|
Former Total per week includes
$10 ASNA
|
SWC -
June 1998
$14.00
|
SWC -
June 1999
$12.00
|
SWC -
May 2000
$15.00
|
New Total Rate per week ($)
|
1
|
359.40
|
14.00
|
12.00
|
15.00
|
400.40
|
2
|
376.10
|
14.00
|
12.00
|
15.00
|
417.10
|
3
|
419.50
|
14.00
|
12.00
|
15.00
|
460.50
|
4
|
435.30
|
14.00
|
12.00
|
15.00
|
476.30
|
Table 2 - Wages - Junior
Weekly Employees
Classification
|
Percentage
|
Rate per Week ($)
|
GROUP B
|
(Percentage of
Level 1)
|
|
Under 17 years
|
47.5
|
190.20
|
At 17 years
|
50
|
200.20
|
At 18 years
|
62.5
|
250.25
|
At 19 years
|
75
|
300.30
|
At 20 years and over
|
87.5
|
350.35
|
GROUP A
|
(Percentage of
Level 3)
|
|
Under 17 years
|
47.5
|
218.70
|
At 17 years
|
50
|
230.25
|
At 18 years
|
62.5
|
287.80
|
At 19 years
|
75
|
345.40
|
At 20 years and over
|
87.5
|
402.95
|
Table 3 - Wages - Casual
Driveway Attendants
Classification
|
Percentage
|
Rate per hour
$
|
RATE 1 - Monday to Friday -
|
Under 18 years
|
50
|
6.68
|
At 18 years
|
62.5
|
8.35
|
At 19 years
|
75
|
10.02
|
At 20 years and over
|
100
|
13.36
|
RATE 2 - Saturday, Sunday and Public Holiday -
|
Under 18 years
|
50
|
8.60
|
At 18 years
|
62.5
|
10.75
|
At 19 years
|
75
|
12.90
|
At 20 years and over
|
100
|
17.20
|
RATE 3 - Overtime -
|
Under 18 years
|
50
|
3.61
|
At 18 years
|
62.5
|
4.51
|
At 19 years
|
75
|
5.41
|
At 20 years and over
|
100
|
7.21
|
RATE 4 - Console Allowance
|
Under 18 years
|
50
|
0.25
|
At 18 years
|
62.5
|
0.25
|
At 19 years
|
75
|
0.24
|
At 20 years and over
|
100
|
0.24
|
|
|
|
|
Table 4 - Wages - Casual
Console Operators
Classification
|
Percentage
|
Rate per hour
$
|
RATE 1 - Monday to Friday -
|
Under 18 years
|
50
|
7.65
|
At 18 years
|
62.5
|
9.56
|
At 19 years
|
75
|
11.47
|
At 20 years and over
|
100
|
15.29
|
RATE 2 - Saturday, Sunday and Public Holiday -
|
Under 18 years
|
50
|
9.82
|
At 18 years
|
62.5
|
12.28
|
At 19 years
|
75
|
14.73
|
At 20 years and over
|
100
|
19.64
|
RATE 3 - Overtime -
|
Under 18 years
|
50
|
4.21
|
At 18 years
|
62.5
|
5.26
|
At 19 years
|
75
|
6.31
|
At 20 years and over
|
100
|
8.41
|
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.
From the first full pay period to commence on or after 28
June 2001.
|
Highest Year of Schooling Completed
|
|
Year 10
$
|
Year 11
$
|
Year 12
$
|
School Leaver
|
142.00 (50%)*
165.00 (33%)
|
176.00 (33%)
198.00 (25%)
|
241.00
|
Plus 1 year out of school
|
198.00
|
241.00
|
281.00
|
Plus 2 years
|
241.00
|
281.00
|
327.00
|
Plus 3 years
|
281.00
|
327.00
|
374.00
|
Plus 4 years
|
327.00
|
374.00
|
|
Plus 5 years or more
|
374.00
|
|
|
From the first full pay period to commence on or after 28
December 2001.
|
Highest Year of Schooling Completed
|
|
Year 10
$
|
Year 11
$
|
Year 12
$
|
School Leaver
|
147.00 (50%)*
171.00 (33%)
|
182.00 (33%)
205.00 (25%)
|
249.00
|
Plus 1 year out of school
|
205.00
|
249.00
|
290.00
|
Plus 2 years
|
249.00
|
290.00
|
337.00
|
Plus 3 years
|
290.00
|
337.00
|
386.00
|
Plus 4 years
|
337.00
|
386.00
|
|
Plus 5 years or more
|
386.00
|
|
|
* 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.
From the first full pay period to commence on or after 28
June 2001.
|
Highest Year of Schooling Completed
|
|
Year 10
$
|
Year 11
$
|
Year 12
$
|
School Leaver
|
142.00 (50%)*
165.00 (33%)
|
176.00 (33%)
198.00 (25%)
|
231.00
|
Plus 1 year out of school
|
198.00
|
231.00
|
266.00
|
Plus 2 years
|
231.00
|
266.00
|
312.00
|
Plus 3 years
|
266.00
|
312.00
|
356.00
|
Plus 4 years
|
312.00
|
356.00
|
|
Plus 5 years or more
|
356.00
|
|
|
From the first full pay period to commence on or after 28
December 2001.
|
Highest Year of Schooling Completed
|
|
Year 10
$
|
Year 11
$
|
Year 12
$
|
School Leaver
|
147.00 (50%)*
171.00 (33%)
|
182.00 (33%)
205.00 (25%)
|
239.00
|
Plus 1 year out of school
|
205.00
|
239.00
|
275.00
|
Plus 2 years
|
239.00
|
275.00
|
323.00
|
Plus 3 years
|
275.00
|
323.00
|
368.00
|
Plus 4 years
|
323.00
|
368.00
|
|
Plus 5 years or more
|
368.00
|
|
|
* 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
|
7.60 per week
|
2
|
6(1)(d)
|
Leading Hand Allowance
|
|
|
|
In charge of
|
|
|
|
3 to 10 employees
|
21.30 per week
|
|
|
11 to 20
employees
|
32.20 per week
|
|
|
21 or
more employees
|
40.90 per week
|
3
|
10(a)
|
Confined spaces
|
0.47 per hour
|
4
|
10(b)(i)
|
Dirty work
|
0.38 per hour
|
5
|
10(b)(ii)
|
Dirty work - minimum payment any day/shift
|
1.44 day/shift
|
6
|
10(c)(i)(1)
|
Hot places - 46 - 54 degrees Celsius
|
0.38 per hour
|
7
|
10(c)(i)(2)
|
Hot places - in excess of 54 degrees Celsius
|
0.47 per hour
|
8
|
10(d)
|
Livestock transports - working on stock compartments
|
0.38 per hour
|
9
|
10(e)
|
First Aid Qualifications
|
9.80 per week
|
10
|
10(g)
|
Handling glass or slagwool
|
0.47 per hour
|
11
|
18(j)(i)
|
Meal Allowance - first and each subsequent meal
|
9.10 per meal
|
12
|
27(a)(iv)
|
Travelling time - vehicle allowance
|
0.52 per km
|
13
|
27(d)(i)
|
Travelling expenses - meal allowance
|
9.10 per meal
|
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) Conciliation Committee and the Quarries (Australian Iron and
Steel Pty Limited) Conciliation 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 Conciliation 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.
T. M. KAVANAGH J.
____________________
Printed by the authority of the Industrial Registrar.