Ice Cream Carters and Van
Salespersons (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Transport
Workers' Union of New South Wales, Industrial Organisation of Employees.
(No. IRC 1239 of 2006)
Before The Honourable
Justice Wright, President
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14 March 2006
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The Honourable Justice
Walton, Vice-President
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The Honourable Mr
Deputy President Harrison
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The Honourable Justice
Haylen
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Commissioner Tabbaa
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VARIATION
1. Insert in numerical
order in clause 2, Arrangement of the award published 8 December 2000 (320 I.G.
1114), the following new clause number and subject matter:
35. Secure Employment
2. Insert after clause 34, Exemptions, the following new
clause:
35. Secure Employment
(a) Objective of this Clause
The
objective of this clause is for the employer to take all reasonable steps to
provide its employees with secure employment by maximising the number of permanent
positions in the employer’s workforce, in particular by ensuring that casual
employees have an opportunity to elect to become full-time or part-time
employees.
(b) Casual Conversion
(i) A casual employee engaged by a particular employer on a regular
and systematic basis for a sequence of periods of employment under this Award
during a calendar period of six months shall thereafter have the right to elect
to have his or her ongoing contract of employment converted to permanent
full-time employment or part-time employment if the employment is to continue
beyond the conversion process prescribed by this subclause.
(ii) Every employer of such a casual employee shall give the
employee notice in writing of the provisions of this sub-clause within four
weeks of the employee having attained such period of six months. However, the
employee retains his or her right of election under this subclause if the
employer fails to comply with this notice requirement.
(iii) Any casual employee who has a right to elect under paragraph
(b)(i), upon receiving notice under paragraph (b)(ii) or after the expiry of
the time for giving such notice, may give four weeks’ notice in writing to the
employer that he or she seeks to elect to convert his or her ongoing contract of
employment to full-time or part-time employment, and within four weeks of
receiving such notice from the employee, the employer shall consent to or
refuse the election, but shall not unreasonably so refuse. Where an employer
refuses an election to convert, the reasons for doing so shall be fully stated
and discussed with the employee concerned, and a genuine attempt shall be made
to reach agreement. Any dispute about a refusal of an election to convert an
ongoing contract of employment shall be dealt with as far as practicable and
with expedition through the disputes settlement procedure.
(iv) Any casual employee who does not, within four weeks of
receiving written notice from the employer, elect to convert his or her ongoing
contract of employment to full-time employment or part-time employment will be
deemed to have elected against any such conversion.
(v) Once a casual employee has elected to become and been
converted to a full-time employee or a part-time employee, the employee may
only revert to casual employment by written agreement with the employer.
(vi) If a casual employee has elected to have his or her contract
of employment converted to full-time or part-time employment in accordance with
paragraph (b)(iii), the employer and employee shall, in accordance with this
paragraph, and subject to paragraph (b)(iii), discuss and agree upon:
(1) whether the employee will convert to full-time or part-time
employment; and
(2) if it is agreed that the employee will become a part-time
employee, the number of hours and the pattern of hours that will be worked
pursuant to a part time work agreement made under Chapter 2, Part 5 of the Industrial
Relations Act 1996 (NSW);
Provided
that an employee who has worked on a full-time basis throughout the period of casual
employment has the right to elect to convert his or her contract of employment
to full-time employment and an employee who has worked on a part-time basis
during the period of casual employment has the right to elect to convert his or
her contract of employment to part-time employment, on the basis of the same
number of hours and times of work as previously worked, unless other
arrangements are agreed between the employer and the employee.
(vii) Following an agreement being reached pursuant to paragraph
(vi), the employee shall convert to full-time or part-time employment. If there
is any dispute about the arrangements to apply to an employee converting from
casual employment to full-time or part-time employment, it shall be dealt with
as far as practicable and with expedition through the disputes settlement
procedure.
(viii) An employee must not be engaged and re-engaged, dismissed or
replaced in order to avoid any obligation under this subclause.
(c) Occupational Health and Safety
(i) For the purposes of this subclause, the following
definitions shall apply:
(1) A "labour hire business" is a business (whether an
organisation, business enterprise, company, partnership, co-operative, sole trader,
family trust or unit trust, corporation and/or person) which has as its
business function, or one of its business functions, to supply staff employed
or engaged by it to another employer for the purpose of such staff performing
work or services for that other employer.
(2) A "contract business" is a business (whether an
organisation, business enterprise, company, partnership, co-operative, sole
trader, family trust or unit trust, corporation and/or person) which is
contracted by another employer to provide a specified service or services or to
produce a specific outcome or result for that other employer which might
otherwise have been carried out by that other employer’s own employees.
(ii) Any employer which engages a labour hire business and/or a
contract business to perform work wholly or partially on the employer’s
premises shall do the following (either directly, or through the agency of the
labour hire or contract business):
(1) consult with employees of the labour hire business and/or
contract business regarding the
workplace occupational health and safety consultative arrangements;
(2) provide employees of the labour hire business and/or contract
business with appropriate occupational health and safety induction training
including the appropriate training required for such employees to perform their
jobs safely;
(3) provide employees of the labour hire business and/or contract
business with appropriate personal protective equipment and/or clothing and all
safe work method statements that they would otherwise supply to their own
employees; and
(4) ensure employees of the labour hire business and/or contract
business are made aware of any risks identified in the workplace and the
procedures to control those risks.
(iii) Nothing in this subclause (c) is intended to affect or detract
from any obligation or responsibility upon a labour hire business arising under
the Occupational Health and Safety Act 2000 or the Workplace Injury
Management and Workers Compensation Act 1998.
(d) Disputes Regarding the Application of this Clause
Where a
dispute arises as to the application or implementation of this clause, the
matter shall be dealt with pursuant to the disputes settlement procedure of
this award.
(e) This clause has no application in respect of organisations
which are properly registered as Group Training Organisations under the Apprenticeship
and Traineeship Act 2001 (or equivalent interstate legislation) and are
deemed by the relevant State Training Authority to comply with the national
standards for Group Training Organisations established by the ANTA Ministerial
Council.
3. This variation shall take effect from the 14 March 2006.
F. L. WRIGHT J,
President.
M. J. WALTON J,
Vice-President.
R. W. HARRISON D.P.
W. R. HAYLEN J.
I. TABBAA, Commissioner.
____________________
Printed by the authority of the Industrial
Registrar.