HEALTH, FITNESS AND INDOOR
SPORTS CENTRES (STATE) AWARD
award
REPRINT
This
reprint of the abovementioned award is published by the authority of the
Industrial Registrar under section 390 of the Industrial Relations Act 1996,
and under Rule 6.6 of the Industrial Relations Commission Rules 2009.
I
certify that the form of this reprint, incorporating the variations set out in
the schedule, is correct as at the latest date of effect therein mentioned.
G.
M. GRIMSON Industrial Registrar.
Schedule of Award and
Variations Incorporated
Clause
|
Award/
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Date of
|
Date of Taking Effect
|
Industrial Gazette
|
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Variation
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Publication
|
|
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|
Serial No.
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|
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|
|
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Vol.
|
Page
|
Award
|
C0077
|
04/05/2001
|
On and from 02/03/2001
|
324
|
497
|
Erratum to
|
C0166
|
22/06/2001
|
On and from 02/03/2001
|
325
|
792
|
C0077
|
|
|
|
|
|
31 (1)
|
C1016
|
08/03/2002
|
On and from 31/05/2001
|
331
|
1077
|
27A,
|
C1227
|
12/07/2002
|
On or after 22/04/2002
|
335
|
162
|
Appendix A
|
|
|
|
|
|
Erratum to
|
C1596
|
01/11/2002
|
On and from 02/03/2001
|
336
|
1081
|
C0077
|
|
|
|
|
|
30, Part B
|
C1454
|
22/11/2002
|
First pay period on and from 12/08/2001
|
337
|
126
|
Tables 1 & 2,
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|
|
|
|
|
Part C Tables
|
|
|
|
|
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1 - 6
|
|
|
|
|
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30, Part B
|
C1461
|
22/11/2002
|
First full pay period on and from 12/08/2002
|
337
|
130
|
27A(i)(iii)(iv)
|
C1626
|
07/02/2003
|
First pay period on or after 06/09/2002
|
338
|
240
|
(v), (vi(d)(e)
|
|
|
|
|
|
(g)) & Part C
|
|
|
|
|
|
27A (vi) (d),
|
C2255
|
05/12/2003
|
First full pay period on or after 06/09/2003
|
342
|
255
|
(vi) (g) (ii)
|
|
|
|
|
|
& Part C
|
|
|
|
|
|
8(c), 30(ii)
|
C2145
|
19/12/2003
|
First full pay period on or after 12/08/2003
|
342
|
483
|
and Part B
|
|
|
|
|
|
1, 21, 23,
|
C2816
|
12/11/2004
|
On 08/06/2004
|
347
|
300
|
27A, 28, 29,
|
|
|
|
|
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30, 31, 32,
|
|
|
|
|
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33, 34
|
|
|
|
|
|
31, Part B
|
C3121
|
25/02/2005
|
First full pay period on or after 12/08/2004
|
348
|
888
|
28, Part C
|
C3430
|
04/03/2005
|
First full pay period on or after 08/10/2004
|
348
|
1157
|
31, Part B
|
C3953
|
21/10/2005
|
First full pay period on or after 12/8/2005
|
354
|
639
|
28, Part C
|
C3992
|
18/11/2005
|
First full pay period on or after 08/10/2005
|
354
|
910
|
Erratum to
|
C4164
|
16/12/2005
|
|
355
|
531
|
C3953
|
|
|
|
|
|
1, 5A
|
C4898
|
20/10/2006
|
From 07/03/2006
|
361
|
451
|
31, Part B
|
C5010
|
20/10/2006
|
First full pay period on or after 12/08/2006
|
361
|
454
|
1, 15, 15A,
|
C5540
|
06/07/2007
|
On and from 19/12/2005
|
362
|
1229
|
16, 17, 19
|
|
|
|
|
|
31, Part B
|
C5939
|
12/10/2007
|
First full pay period on or after 12/08/2007
|
363
|
1487
|
34
|
C6129
|
08/02/2008
|
On and from 23/07/2007
|
364
|
966
|
31, Part B
|
C6627
|
29/08/2008
|
First full pay period on or after 12/08/2008
|
366
|
626
|
28, Part C
|
C7020
|
26/06/2009
|
First full pay period on or after 20/02/2009
|
368
|
444
|
28, Part C
|
C7052
|
26/06/2009
|
First full pay period on or after 20/08/2009
|
368
|
447
|
31, Part B
|
C7230
|
30/10/2009
|
First full pay period on or after 18/09/2009
|
369
|
547
|
Correction to
|
C7273
|
30/10/2009
|
|
369
|
546
|
C2145
|
|
|
|
|
|
28, Part C
|
C7053
|
26/06/2009
|
First full pay period on or after 20/10/2010
|
368
|
450
|
28, Part C
|
C7406
|
26/02/2010
|
First full pay period on or after 23/12/2009
|
369
|
1411
|
28, Part C
|
C7634
|
02/09/2011
|
First full pay period on or after 16/12/2010
|
371
|
629
|
PART A
1. Arrangement
PART A
Clause No. Subject Matter
1. Arrangement
2. Rates of
Pay
3. Classifications
4. Terms of
Engagement
5. Casual
Employment
5A. Secure
Employment
6. Part-time
Employment
7. Hours of
Work
8. Overtime
9. Saturday
and Sunday Work
10. Public
Holidays
11. Payment of
Wages
12. Higher
Duties
13. Meal Breaks
14. Sick Leave
15. Personal/Carer's
Leave
15A. Parental
Leave
16. Unpaid
Leave for Family Purpose
17. Annual
Leave
18. Annual
Leave Loading
19. Compassionate
Leave
20. Jury
Service
21. First-aid
22. General
Conditions
23. Allowances
24. Travelling
Time
25. Miscellaneous
Statutory Provisions
26. Grievance
and Dispute Settlement Procedure
27. Training
28. Traineeships
29. Superannuation
30. Annualised
Salaries
31. State Wage
Case Adjustment
32. Anti-Discrimination
33. Redundancy
34. Area,
Incidence and Duration
35. Leave
Reserved
PART B
MONETARY RATES
Table 1 - Rates of Pay
Table 2 - Other Rates and Allowances
Table 3 - Base Rate
Table 4 - Supplementary Payments
PART C
TRAINEE MONETARY RATES
Table 1 - Industry/Skill Level A
Table 2 - Industry/Skill Level B
Table 3 - Industry/Skill Level C
Table 4 - School Based Traineeships
APPENDIX A - Skills Levels for Qualifications
2. Rates of Pay
(a) Weekly Rates -
The rates paid to an employee in the classification set out in clause 3,
Classifications shall be as set out in (i) of Table 1‑ Rates of Pay, of
Part B, Monetary.
NOTE: These rates are fixed in relation to the
tradesperson (C10) classification in the Federal Metal Industry Award. The
relativities fixed in relation to that classification are:
(i)
|
Level 1
|
78%
|
(ii)
|
Level 2
|
82%
|
(iii)
|
Level 3A
|
87.4%
|
(iv)
|
Level 3B
|
91.5%
|
(v)
|
Level 4
|
92%
|
(vi)
|
Level 5
|
100%
|
(vii)
|
Level 6
|
115%
|
The wages payable to employees under this award are
inclusive of any payment by way of commissions or other similar payments to the
extent that commissions or other similar payments match the total Supplementary
Payments in Table 4 - Supplementary Payments, of Part B.
(b) Junior Rates - A
junior employee engaged at level 1, 2 or 3 shall be paid the following for that
level:
Percentage of
Appropriate Adult Rate
|
%
|
At sixteen years and
under
|
55%
|
At seventeen years
|
65%
|
At eighteen years
|
75%
|
At nineteen years
|
85%
|
At twenty years
|
100%
|
Provided that employees who hold recognised industry-wide
qualifications and are required to act upon them at 18 years or older with at
least 12 months experience shall be paid the full adult rate of pay.
(c) Supervisory
Loadings - an employee appointed by an employer to supervise other employees shall
be paid, in addition to the rates of pay prescribed in subclause (a) of this
clause, the following amount per week specified in Table 2 - Other Rates and
Allowances, of Part B as follows:
In charge of up to 5 employees - Item 1;
In charge of 6 and up to 10 employees - Item 2;
In charge of 11 or more employees - Item 3;
or pro rata amount per engagement for part‑time
and casual employees.
(d) For the
calculation of the casual hourly rate refer to clause 5, Casual Employment.
3. Classifications
Level 1 - A level 1 employee is an employee who is
undertaking training which may include information on the employer’s business,
conditions of employment, introduction of supervisors and fellow workers,
training and career path opportunities, occupational health and safety, equal
employment opportunities and quality assurance.
An employee at this level performs routine duties
essentially of a manual nature and to the level of his/her training:
exercises minimal judgement;
works under direct supervision;
is undertaking structured training/learning in the
following areas:
- clerical assistant duties including switchboard
operation, reception, information services, taking bookings;
- providing general assistance to employees of a higher
grade, not including cooking or direct service to customers;
- cleaning, tidying and setting up of kitchen, food
preparation and customer service areas, including cleaning of equipment,
crockery and general utensils;
- assembly and preparation of ingredients for cooking;
- handling pantry items and linen;
- setting and/or wiping down tables, removing food
plates, emptying ashtrays and picking up glasses;
- general cleaning, gardening and labouring tasks
- door duties, attending a cloakroom or car park not involving
the handling of cash
Level 2 - A Level 2 employee is an employee who has
completed at least 3 months or in the case of a casual or part time employee,
456 hours training at Level 1 so as to enable him/her to perform work within
the scope of this level. An employee at
this level:
performs work above and beyond the skills of an
employee at Level 1 and to the level of is/her training.
works from instructions or procedures and works under
direct supervision either individually or in a team environment.
is primarily engaged in one or more of the following
duties:
- overseeing pool activities;
- assisting with classes and directing leisure
activities in a recreational complex;
- attending to equipment and displays, eg pool
attendant;
- providing customer advice, sales and services;
- operating switchboard and/or telephone paging system;
- clerical duties, involving intermediate keyboard
skills with instructions;
- programme/ticket selling and general sales involving
receipt of monies and giving change, including operation of cash registers, use
of electronic swipe input devices - laundry and/or cleaning duties involving
the use of cleaning equipment and/or chemicals;
- maintaining general presentation of grounds;
- door duties, attending a cloak room or car park;
- serving from a
snack bar, buffet or meal counter;
- supplying, dispensing or mixing of liquor, including
cleaning of bar area and equipment, preparing the bar for service, taking
orders and serving drinks;
- non-cook duties in a kitchen.
Level 3A - A Level 3A employee has completed structured
training (which may include formal Life Saving, Rescue and Resuscitation
Training) recognised by the industry as relevant and appropriate to perform
within the scope of this level.
is responsible for the quality of their own work
subject to routine supervision either individually or in a team environment;
exercises discretion within their level of skills and
training;
assists in the provision of on-the-job training of
employees at Levels 2 and 1 where applicable.
Indicative of some of the duties which an employee at
this level may perform include:
- pool attendant (Lifeguard) involved in overseeing
pool activities under supervision by a more qualified employee;
- Instructor who works directly with more qualified
staff to provide supervision of a group or individual fitness activity or
program, only after commencing a recognised course or undertaking accredited
training;
- Aerobics instructor undertaking accredited training
with less than 12 months experience in the industry;
- recreational/leisure activities, involving the
planning, and/or co-ordinating and/or conduct of individual leisure, games,
promotional and/or entertainment activities;
- masseur with less than 12 months experience in the
industry;
- supervision of front desk, including customer liaison
and rostering of front office staff;
- building service employee who undertakes maintenance
and/or restoration of hard floor surfaces, including buffing and sealing and/or
operating ride on powered sweeping machines;
- gardener / grounds maintenance employee not
possessing trade qualifications (and not employed as green keeper);
- maintenance of machinery, plant and technical
equipment (non trade qualifications), including a trade assistant undertaking
formal training who takes direction from a more qualified employee;
- preparing and cooking a limited range of basic food
items such as breakfasts, grills and snacks;
- security work requiring the holding of an appropriate
license
- reconciling cash transactions;
- ordering stock;
- undertakes routine chemical testing under technical
supervision
Level 3B - Weight loss counsellor who develops
nutritional plans and weight loss programs and who weighs and measures and
records clients progress.
Level 4 - An employee at this level shall be capable of
performing the indicative skills of a Level 3A employee and shall also be able
to work from complex instructions in the following areas:
Aerobics instructor who has undertaken accredited
training plus who has a minimum of 12 months of regular employment in the
industry;
Masseur with more than 12 months experience in the
industry;
Caretaker who is responsible for maintaining general
site appearance, and supervising or co-ordinating the work of building services
/ grounds employees at lower levels.
Progression to Level 5 will be dependent upon
successful application and availability of position
Level 5 - An employee who is qualified in a trade recognised by the industry as relevant
and appropriate to the work performed, and who is competent to perform work
within the scope of this level.
An employee at this level is responsible for supervision,
training and co-ordination (including rostering) of employees within their
respective work area to ensure delivery of service. An employee at this level is one who performs the following range
of tasks or duties:
- Instructor (including Aerobics instructor) who
conducts more than one level or type of class or activity and who may assist in
the design and delivery of programs and is capable of assessing participants;
- Lifeguard holding relevant industry qualifications at
trade or equivalent level;
- Weight loss counsellor responsible for co-ordinating
or supervising the work of employees at lower levels;
- Trade qualified in a single trade stream and who is
responsible for giving trade directions
for Levels 1 to 4;
- Employee performing horticultural duties at a
Certificate or equivalent level.
- Building Maintenance supervisor involved in
supervising the general maintenance of buildings and work of employees at
Levels 1 to 4;
Level 6 - An employee who is engaged in supervising,
training and co-ordinating staff and who is responsible for the maintenance of
service and operational standards, and who exercises substantial responsibility
and independent initiative and judgement with a requisite knowledge of their
specific field and of the employers business.
An employee at this level would have:
worked or studied in a relevant field and/or have
specialist knowledge, qualifications and experience; or
hold formal trade or technical qualifications relevant
to the employer in more than one trade or technical field; which are required
by the employer to perform the job; or
hold specialist post trade qualifications which are
required by the employer to perform the job, and will have achieved a level or
organisation or industry specific knowledge sufficient for them to give advice
and/or guidance to their organisation and/or clients in relation to specific
areas of their responsibility.
Indicative of duties at this level are:
- General supervision of catering or retail functions;
- Centre administration involving supervision of staff
and systems and co-ordinating events;
- development of in-house training programs for
instructors and co-ordinators
NOTE: Where supervision is a feature or responsibility
of the Level, the supervisory loading referred to in subclause (c), of Clause
2, Rates of Pay, shall not be payable.
FURTHER NOTE: The definitions contained in the
classification structure above shall have no application to a person employed
in a managerial capacity (including a manager employed in a Weight Loss Centre)
that is a person who is employed primarily to control the conduct of the
employer’s business either in whole or in part and who in the performance of
his/her duties regularly makes decisions and accepts responsibility on matters
relating to the administration and conduct of business.
4. Terms of
Engagement
(a) An employee
shall be employed as one of the following:
(i) a full-time
employee;
(ii) a part-time
employee;
(iii) a casual
employee
(b) The employment
of employees (excluding casual employees) may be terminated by one week's
notice on either side which may be given at any time or by the payment by the
employer or forfeiture by the employee of a week's pay in lieu of notice. This
shall not affect the right of the employer to dismiss an employee without
notice in the case of an employee guilty of malingering, inefficiency, neglect
of duty or misconduct.
(c) Trial Period -
Notwithstanding anything elsewhere contained in this clause, the first three
months of employment will be on a trial basis and may be terminated by two
days' notice by either side, or by the payment in lieu by the employer or
forfeiture by the employee, of two days' wages.
(d) Notwithstanding
anything contained in this award, an employer may deduct payment of wages for
any day, or part thereof, on which an employee cannot be usefully employed
because of:
(i) any strike;
(ii) any breakdown
of machinery; or
(iii) any stoppage
of work unavoidable by the employer.
5. Casual Employment
(a) Casual employees
are persons engaged and paid as such.
(b) A casual
employee shall be engaged either on an ordinary or "all‑up"
basis as detailed below:
(i) Ordinary Casual
- An ordinary casual shall be paid 1/38 of the appropriate weekly rate plus:
(1) a 15 per cent
loading (except when Saturday, Sunday, public holiday or night work penalties
are paid); and
(2) the equivalent
of one‑twelfth of the ordinary hourly rate of pay for a full-time
employee for each hour worked.
The payments specified in this subclause include
statutory obligations under the Annual Holidays Act, 1944.
An ordinary casual employee shall be paid for a minimum
engagement of three hours.
(ii) All‑up
Casual - An all-up casual shall be paid 1/38 of the appropriate weekly rate
plus a loading of 30 per cent for each hour worked.
This 30 per cent loading includes statutory obligations
under the Annual Holidays Act, 1944, and the loadings applicable under
this award for work on Saturdays, Sundays, public holidays and at night.
An all‑up casual employee shall be paid for a
minimum engagement of three hours.
Provided that where an employer has been engaging casual(s) for periods
of less than 3 hours prior to the commencement of this award, they may continue
to do so, subject to a minimum engagement of one hour and a half. Also provided that an all‑up casual
employee involved in the presentation or conducting of sports games/training
(e.g. instructors) shall be paid for a minimum engagement of one hour.
5A. 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 either consistent with any other part-time
employment provisions of this award or 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.
6. Part-time
Employment
(a) A part‑time
employee is a permanent employee engaged to work less than an average of thirty‑eight
hours per week over any 28 day period, but not less than 15 hours per fortnight
and who is not engaged and paid as a casual.
(b) A part‑time
employee shall be engaged in writing, detailing their minimum weekly hours and
method of engagement.
(c) A part-time
employee shall be paid an hourly rate equivalent to the appropriate weekly rate
divided by thirty-eight with a minimum shift of three consecutive hours.
(d) Part-time
employees shall receive the same benefits as apply to full‑time employees
under this award but on a pro rata basis.
(e) A part‑time
employee can be required to work more than one shift on any day. Provided that the total shifts on any day
shall not be less than three hours in duration and there shall be not more than
two such shifts per day within a span of 12 hours from the start of the first
such shift to the end of the second such shift, exclusive of any breaks.
7. Hours of Work
(a) Subject to
subclause (g) of this clause, the ordinary hours of work shall be not more than
an average of thirty eight per week to be worked on one of the following bases:
(i) 38 hours within
a work cycle not exceeding seven consecutive days;
(ii) 76 hours within
a work cycle not exceeding fourteen consecutive days; or
(iii) 152 hours
within a work cycle not exceeding twenty-eight consecutive days.
The hours of work are to be worked each day in either
one or two shifts totalling not more than:
(i) Ten hours for
full-time employees.
(ii) ten hours for
part-time employees, subject to subclause (e) of clause 6, Part-time
Employment.
(iii) Eight hours
for casual employees.
exclusive of any breaks.
(b) All employees
shall be notified by the employer of their working shifts by means of a roster
placed in the staff room for each employee's perusal. At least seven days
notice shall be given to the employee should any alteration of the working
hours be intended, except in the case of emergency or where the employee(s)
agrees to the alteration.
(c) Each employee
shall have an average of two days off in each week of employment in a 28 day
period. Such two days shall be consecutive if it is reasonably possible to
arrange rosters accordingly.
(d) An employee
shall be paid a loading of 30 per cent for ordinary hours worked between
midnight and 6.00 a.m. on all occasions.
(e) An employee who
is principally engaged as a cleaner shall be paid a loading of 15 per cent for
ordinary hours worked between 6.00pm and midnight. This loading is not payable
on weekends or public holidays.
(f) Full-time and
part-time employees will be given 10 clear hours off between finishing work on
one ordinary shift and starting work on the next ordinary shift on consecutive
days or be paid overtime for all time worked until the employee has had ten
clear hours off.
(g) Employees in
Weight Loss Centres - the ordinary hours of work for employees in weight loss
centres covered by this award shall be
38 per week between the hours of 6.00 am to 8.00 pm, Monday to Friday, and 8.00
am to 6.00 pm on a Saturday.
(h) Make-up Time -
(i) 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.
(ii) 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.
8. Overtime
(a) All work
performed in excess of the hours prescribed in subclause (a) of clause 7, Hours
of Work, shall be overtime.
(b) Overtime shall
be paid at the rate of time and a half for the first two hours and double time
thereafter on a daily basis, calculated on:
(i) The ordinary
rate of pay for weekly employees;
(ii) The loaded
casual rate (i.e. 15 per cent or 30 per cent loading) for casual employees
(c) Reasonable
Overtime
(i) Subject to
paragraph (ii) below, an employer may require an employee to work reasonable overtime
at overtime rates or as otherwise provided for in this award.
(ii) An employee may
refuse to work overtime in circumstances where the working of such overtime
would result in the employee working hours, which are unreasonable.
(iii) For the purposes
of paragraph (ii) what is unreasonable or otherwise will be determined having
regard to:
(1) any risk to
employee health and safety;
(2) the employee's
personal circumstances including any family and carer responsibilities;
(3) the needs of the
workplace or enterprise;
(4) the notice (if
any) given by the employer of the overtime and by the employee of his or her
intention to refuse it; and
(5) any other
relevant matter.
(d) When overtime
work is necessary it shall, wherever reasonably practicable, be arranged that
employees have at least ten consecutive hours off duty between the work of
successive days. An employee (other
than a casual employee) who works so much overtime between the termination of
ordinary work on one day and the commencement of ordinary work on the next day,
and that employee has not had at least ten consecutive hours off duty between
those times, shall be released after completion of such overtime until ten
consecutive hours off duty has been allowed without loss of pay for ordinary
working time occurring during such absence.
When such a break is not granted by the employer, the
employee shall be paid double time for all time worked until the appropriate
break is granted.
(e) Time Off in Lieu
of Payment for Overtime
(i) Prior to
working overtime, 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 12 months of the said election.
(ii) 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.
(iii) If, having
elected to take time as leave in accordance with paragraph (i) of this
subclause, the leave is not taken for whatever reason payment for time accrued
at overtime rates shall be made at the expiry of the 12 month period or on
termination.
(iv) Where no
election is made in accordance with the said paragraph (i), the employee shall
be paid overtime rates in accordance with the award.
9. Saturday and
Sunday Work
(a) All ordinary
work on a Saturday shall be paid at the employee's ordinary‑time
classification rate of pay plus a penalty equal to 25 per cent of the
employee's ordinary-time classification rate of pay.
(b) All ordinary
work on a Sunday shall be paid at the employee's ordinary‑time
classification rate of pay plus a penalty equal to 50 per cent of the
employee's ordinary‑time classification rate of pay.
10. Public Holidays
(a) Employees, other
than casual employees, shall be entitled to the following public holidays
without deduction of pay: New Year's Day, Australia Day, Labour Day, Good
Friday, Easter Saturday, Easter Monday, Anzac Day, Birthday of the Sovereign,
Christmas Day, Boxing Day, and any other day or days gazetted as public
holidays shall be public holidays for the purposes of this clause.
Provided that the abovementioned holidays may be
substituted for another day off, by agreement between the employer and the
employee(s), to be taken within one month of the said holiday or adjacent to a
period of annual leave.
(b) In addition to
the holidays specified in subclause (a) of this clause, an employee shall be
entitled to one additional day as a public holiday in each calendar year. Such
additional holiday shall be observed on the day when the majority of employees
in an establishment observed a day as an additional holiday or on another day
mutually agreed between the employer and the employee. The additional
holiday is not cumulative and must be
taken within each calendar year.
(c) Where an
employee is absent from employment on the working day (or part thereof) before,
or the working day (or part thereof) after a public holiday (or group of public
holidays) without reasonable cause, onus of proof of which will lie with the
employee, the employee shall not be entitled to payment for the holiday(s)
succeeding or preceding the absence.
(d) For all work
performed on a public holiday an employee shall be paid at double time and a
half.
11. Payment of Wages
(a) All employees
are to be paid either weekly, fortnightly or monthly, provided that if demanded
by the employee, he/she shall be paid at least once each fortnight.
(b) Wages shall be
paid at the election of the employer by:
(i) cash; or
(ii) cheque; or
(iii) electronic
funds transfer (EFT).
An employer shall be required to give reasonable notice
to employee’s of any decision to change the method of payments of wages.
(c) Written details
of all payments and deductions from wages shall be supplied to employees.
12. Higher Duties
An employee transferred to work in a classification
that provides for a rate of pay higher than the employee's own ordinary rate
shall be paid at such higher rate during the period of transfer, such payment
to continue for a minimum period of one hour.
13. Meal Breaks
(a) Meal breaks
shall be not less than thirty minutes and not more than one hour.
(b) Such meal breaks
are to be commenced not more than five hours after commencing work.
(c) If the employees
are required to work during the time when a meal break should be allowed
pursuant to this clause they shall be paid for such time at the appropriate
overtime rate and the meal break shall be postponed to another mutually
convenient time.
(d) No part of the time
taken as a meal interval shall be counted as part of the ordinary hours of
work.
(e) Where
practicable a paid tea break may be allowed each day for full‑time
employees. Provided that the taking of such break(s) shall be subject to the
workload of the business.
(f) Subject to (c),
no employee shall be required to work more than 5 consecutive hours without a
break.
14. Sick Leave
An employee, other than a casual employee with not less
than three months' continuous service with the employer who, by reason of
personal ill-health, is unable to attend for duty shall be entitled to ordinary
rates of pay for the actual time of such non-attendance, subject to the
following conditions and limitations.
(a) The employees
shall not be entitled to paid leave of absence for a period in respect of which
the employee is entitled to compensation under the Workplace Injury
Management and Workers' Compensation Act 1998.
(b) The employee
wherever possible shall, prior to the commencement of such absence, inform the
employer of the employee's inability to attend for duty and, as far as
practicable, state the nature of the injury or illness and the estimated
duration of absence.
(c) The employee
shall provide, to the satisfaction of the employer, by the production of a medical
certificate or such other evidence as may be acceptable to the employer, that
he/she was unable, on account of illness or injury, to attend for duty on the
day or days for which sick leave is claimed.
(d) An employee
shall be entitled to be paid sick leave according to the following scale:
(i) During the
first year of service - 38 hours.
(ii) During the
second year of service - 60.8 hours.
(iii) During the
third and subsequent years of service - 76 hours.
Provided that the sick leave entitlement under this
clause may be accumulated, subject to continuous employment, for a maximum of
228 hours in addition to the current year's entitlement.
(e) For absences
adjacent to public holidays, refer to subclause (c) of clause 10, Public
Holidays.
15. Personal/Carer's
Leave
(a) Use of Sick
Leave -
(i) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in 15(iii)(2) who needs the employee’s care and support, shall be
entitled to use, in accordance with this subclause, any current or accrued sick
leave entitlement, provided for at clause 14, Sick Leave of the award, for
absences to provide care and support for such persons when they are ill, or who
require care due to an unexpected emergency. Such leave may be taken for part
of a single day.
(ii) The employee
shall, if required,
(1) 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, or
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
(iii) The
entitlement to use sick leave in accordance with this subclause is subject to:
(1) the employee
being responsible for the care and support of the person concerned; and
(2) the person
concerned being:
(A) a spouse of the
employee; or
(B) a defacto
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),
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:
" relative" means a person related by blood,
marriage or affinity;
"affinity" means a relationship that one
spouse because of marriage has to blood relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(iv) 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 their
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.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at clause 26, Grievance and Dispute Settlement Procedure,
should be followed.
(b) Personal Carers
Entitlement for casual employees -
(1) Subject to the
evidentiary and notice requirements in 15(a)(ii) and 15(a)(iv) casual employees
are entitled to not be available to attend work, or to leave work if they need
to care for a person prescribed in subclause 15(iii)(2) of this clause who are
sick and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(2) The employer and
the employee shall agree on the period for which the employee will be entitled
to not be available to attend work. In the absence of agreement, the employee
is entitled to not be available to attend work for up to 48 hours (i.e. two
days) per occasion. The casual employee is not entitled to any payment for the
period of non-attendance.
(3) An employer must
not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
15A. Parental Leave
(1) Refer to the Industrial
Relations Act 1996 (NSW). The
following provisions shall also apply in addition to those set out in the Industrial
Relations Act 1996 (NSW).
(2) An employer must
not fail to re-engage a regular casual employee (see section 53(2) of the Act)
because:
(a) the employee or
employee's spouse is pregnant; or
(b) the employee is
or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee's circumstances and,
provided the request is genuinely based on the employee's parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer's business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer service.
(c) Employee's
request and the employer's decision to be in writing
The employee's request and the employer's decision made
under 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(i) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(ii) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee's decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return to work on a part-time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer's capacity to comply with paragraph (a).
16. Unpaid Leave for
Family Purpose
(i) An employee may
elect, with the consent of the employer, to take unpaid leave for the purpose
of providing care and support to a class of person set out in 15(iii)(2) above
who is ill or who requires care due to an unexpected emergency.
17. Annual Leave
(a) See Annual
Holidays Act, 1944. Reference
should also be made to subclause (b) of clause 5, Casual Employment.
(b) Annual Leave -
(i) An employee may
elect, with the consent of the employer to take annual leave not exceeding ten
days in single-day periods, or part thereof, in any calendar year at a time or
times agreed by the parties.
(ii) 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.
(iii) 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.
(c) An employee may
elect with the employers agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
18. Annual Leave
Loading
(a) Each employee,
other than a casual employee, before going on any period of annual leave shall
for each week of such leave be paid an annual leave loading at the rate of 17½ per
cent of the ordinary weekly rate of pay prescribed herein for such employee.
(b) No loading is
payable to an employee who takes leave wholly or partly in advance. Provided
that if the employment of such an employee continues until the day when they would
have become entitled to annual leave, the loading then becomes payable in
respect of the period of such leave and is to be calculated by applying the
award rates of wages applicable on that day.
(c) No loading is
payable on the termination of an employee's employment.
19. Compassionate
Leave
(i) An employee,
other than a casual employee, shall be entitled to up to two days compassionate
leave, without deduction of pay, on each occasion of the death of a person
within Australia as prescribed in subclause (iii) of this clause. Where the
death of a person as prescribed by the said subclause (iii) occurs outside
Australia, the employee shall be entitled to three days compassionate leave
where the person travels overseas to attend the funeral.
(ii) The employee
must notify the employer as soon as practicable of the intention to take
compassionate leave and will provide to the satisfaction of the employer proof
of death.
(iii) Compassionate
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of personal/carer's leave as set out in
subparagraph (2) of paragraph (iii) of subclause (a) of Clause 15,
Personal/Carer's Leave, provided that for the purpose of compassionate leave,
the employee need not have been responsible for the care of the person
concerned.
(iv) 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.
(v) Compassionate
leave may be taken in conjunction with other leave available under paragraph
(iv) subclause (a) of the said clause 15, and clause 16, Unpaid Leave for
Family Purpose. In determining such a request the employer will give
consideration to the circumstances of the employee and the reasonable
operational requirements of the business.
(vi) Bereavement
entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in 19(ii) casual employees are entitled to
not be available to attend work, or to leave work upon the death in Australia
of a person prescribed in subclause 15(iii)(2) of clause 15, Personal/Carer's
Leave.
(b) The employer and
the employee shall agree on the period for which the employee will be entitled
to not be available to attend work. In the absence of agreement, the employee
is entitled to not be available to attend work for up to 48 hours (i.e. two
days) per occasion. The casual employee is not entitled to any payment for the
period of non-attendance.
(c) An employer must
not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not engage a casual employee are otherwise not affected.
20. Jury Service
(a) An employee, other
than a casual employee, required to attend for jury service during his/her
ordinary working hours shall be reimbursed by the employer an amount equal to
the difference between the amount paid in respect of their attendance for such
jury service and the amount of wages they would have received in respect of the
ordinary time they would have worked had they not been on jury service.
(b) An employee
shall notify the employer as soon as possible of the date upon which he/she is
required to attend for jury service.
Also, the employee shall give the employer proof of their attendance,
the duration of such attendance and the amount received in respect of such jury
service.
21. First-aid
(a) An employee
appointed by the employer to perform first-aid duties and who holds a first-aid
certificate shall be paid an additional amount per week as set out in Item 4 of
Table 2 of Part B or per shift as set out in Item 4 of Table 2 of Part B.
This allowance shall not be regarded for calculating
other payments arising from this award.
(b) First-aid Kits -
See Occupational Health and Safety Act
2000 (First-aid Regulation).
22. General
Conditions
(a) A sufficient
supply of boiling or purified water shall be provided at meal hours for all
employees.
(b) A lunch room,
which may be an area separated by a partition (mobile or otherwise) from the
public and is separated from any dressing room, shall be provided by the
employer.
(c) A lockable
cabinet, cupboard, drawer or locker where employee's valuable may be stored shall
be provided by the employer.
(d) Access to
suitable lavatory facilities, in close proximity to the work station, shall be
provided by the employer.
(e) Where required,
an employee working outdoors shall be supplied with wet weather gear, footwear
and adequate reflective clothing.
23. Allowances
(a) Stocking
Allowance - Employees shall be paid a stocking allowance as set out in Item 5
of Table 2 of Part B, if they are required by the employer to wear stockings in
the course of their employment. This allowance shall only apply to employees
employed in Weight Loss Centres.
(b) Toilet Cleaning
Allowance - A cleaner required to clean lavatories shall be paid an allowance
as set out in Item 5 of Table 2 of Part B. Lavatories of both sexes can be cleaned
by either male or female cleaners as long as appropriate steps are taken to
ensure that the lavatories are not in use at the time of cleaning. This allowance shall not be
payable to employees required to clean toilets as an ancillary function to their
normal duties.
(c) Laundry
Allowance - Where a Weight Loss Centre requires an employee to wear a uniform
or clothing, the Weight Loss Centre shall supply and maintain such uniforms,
free of charge to the employee by the Weight Loss Centre laundering or dry
cleaning such uniform or clothing.
Provided that a laundry allowance as set out in Item 5 of Table 2 may be
paid in lieu.
(d) Broken Shift
Allowance - part-time or full-time employees working broken shifts as provided
for in subclause (e) of Clause 6, Part-time Employment and clause 7, Hours of
Work, shall be paid the additional allowances as set out in Item 5 of Table 2.
24. Travelling Time
If an employee is temporarily transferred from the
usual place of employment, the employee shall be reimbursed any extra cost of
travelling and shall be paid for any excess time occupied in travelling.
25. Miscellaneous
Statutory Provisions
(a) Long Service
Leave - Long Service Leave Act, 1955.
(b) Parental Leave -
See Industrial Relations Act, 1996 (Chapter 2, Part 4,Division 1).
(c) Particulars of
wages to be supplied to employees - See Industrial Relations Act, 1996
(Section 123).
(d) Time and pay
sheets to be kept - See Industrial Relations Act, 1996 (Section 129).
26. Grievance and Dispute
Settlement Procedure
Subject to the Industrial Relations Act 1996
grievances or disputes shall be dealt with in the following manner:
(a) The employee is
required to notify (in writing or otherwise) the employer as to the substance
of the grievance, requesting a meeting with the employer for bilateral
discussions and state the remedy sought. This meeting shall take place within
two working days of the issue arising (weekends and holidays excepted).
(b) If agreement is
not reached, the matter shall then be referred by the employer to a higher
authority (where this exists) not later than three working days after (a) above
(weekends and holidays excepted). 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 (in writing or otherwise) for not
implementing any proposed remedy.
(c) If the matter is
still not settled within a reasonable period of time, it may be referred/notified
to the Industrial Relations Commission for settlement by either party.
(d) While a
procedure is being followed, normal work must continue.
(e) The employer may
be represented by an industrial organisation of employers and the employees(s)
may be represented by the Union for the purposes of each step of the procedure.
(f) The foregoing
disputes settlement procedure is not mandatory for an employee of a small
business employer. For the purposes of this subclause a small business employer
is defined as:
(i) an employer of
fewer than 20 employees; or
(ii) an employer
with a management structure under which all persons employed by the employer
are subject to the direct supervision and control of the employer or the chief
executive of the employer.
27. Training
The parties acknowledge that varying degrees of
training are provided to employees, both via internal, on the job and through
external training providers.
The parties commit themselves to continuing such
training as is regarded by them as
appropriate and improving training in cases where this is required.
It is agreed that the parties will co‑operate in
ensuring that appropriate training is available for all employees and the
parties agree to co‑operate in encouraging both employers and employee to
avail themselves of the benefits to both from such training.
28. Traineeships
(i) Application -
(a) Subject to
paragraph (c) of this subclause, and clause 34, Area, Incidence and Duration
this clause shall apply to persons who are undertaking a traineeship (as
defined) and is to be read in conjunction with this award.
(b) Notwithstanding
(a), this clause shall apply provisionally for an interim period:
(i) Starting upon
the commencement date as recorded on a valid "Application to Establish a
Traineeship" signed by both the employer and the Trainee, which has been
lodged with the Commissioner for Vocational Training; and
(ii) Ending at the
time the employer is notified that the establishment of the traineeship has been
approved, or at the end of the probationary period, whichever is the later.
(c) This award or
any former industrial agreement of the Industrial Relations Commission of New
South Wales shall apply, except where inconsistent with this clause.
(d) Notwithstanding
the foregoing, this clause shall not apply to employees who were employed by an
employer under this award referred to in paragraph (a) of this subclause prior
to the date of approval of a traineeship relevant to the employer, except where
agreed upon between the employer and the relevant union(s).
(e) This clause does
not apply to the apprenticeship system or any training program which applies to
the same occupation and achieves essentially the same training outcome as an
existing apprenticeship in an award as at 27 April 1998, or in an award that
binds the employer. This clause only applies to AQF IV traineeships when the
AQF III traineeship in the training package is listed in Appendix A to this
award. Further, this award also does not apply to any certificate IV training
qualification that is an extension of the competencies acquired under a
certificate III qualification which is excluded from this clause due to the
operation of this subclause.
NOTATION: - The abbreviation ‘AQF’ means Australian
Qualification Framework.
(f) At the
conclusion of the traineeship, this clause shall cease to apply to the
employment of the trainee and the rest of this award shall apply to the former
trainee.
(ii) Objective -
The objective of this clause is to assist in the establishment of a system of
traineeships which provides approved training in conjunction with employment in
order to enhance the skill levels and future employment prospects of trainees,
particularly young people, and the long term unemployed. The system is neither designed nor intended
for those who are already trained and job ready. It is not intended that
existing employees shall be displaced from employment by trainees. Nothing in
this clause shall be taken to replace the prescription of training requirements
in the award.
(iii) Definitions
Structured Training means that training which is
specified in the Training Plan which is part of the Training contract
registered with the relevant NSW Training Authority. It includes training undertaken both on and off-the-job in a
Traineeship and involves formal instruction, both theoretical and practical,
and supervised practice. The training
reflects the requirements of a Traineeship approved by the relevant NSW
Training Authority and leads to a qualification set out in paragraph (f) of
subclause (iv) of this clause.
Relevant Union means a union party to the making of
this award and which is entitled to enrol the Trainee as a member.
Trainee is an individual who is a signatory to a
Training contract registered with the relevant NSW Training Authority and is
involved in paid work and structured training which may be on or off the
job. A trainee can be full-time,
part-time or school-based.
Traineeship means a system of training which has been
approved by the relevant NSW Training Authority, and includes full time
traineeships and part time traineeships including school-based traineeships.
Training contract means an instrument which establishes
a Traineeship under the Apprenticeship
and Traineeship Act 2001(NSW).
Training Plan means a programme of training which forms
part of a Training contract registered with the Relevant NSW Training
Authority.
School-Based Trainee is a student enrolled in the Higher
School Certificate, or equivalent qualification, who is undertaking a
traineeship which forms a recognised component of their HSC curriculum, and is
endorsed by the relevant NSW Training Authority and the NSW Board of Studies as
such.
Relevant NSW Training Authority means the Department of
Education and Training, or successor organisation.
Year 10 - For the purposes of this clause, any person
leaving school before completing Year 10 shall be deemed to have completed Year
10.
(iv) Training
Conditions
(a) The Trainee
shall attend an approved training course or training program prescribed in the
Traineeship contract or as notified to the trainee by the relevant NSW Training
Authority in an accredited and relevant traineeship.
(b) A Traineeship
shall not commence until the relevant Training contract, has been signed by the
employer and the trainee and lodged for registration with the relevant NSW
Training Authority.
(c) The employer
shall ensure that the Trainee is permitted to attend the training course or
program provided for in the Traineeship contract and shall ensure that the
Trainee receives the appropriate on-the-job training.
(d) The employer
shall provide a level of supervision in accordance with the Training contract
during the traineeship period.
(e) The employer
agrees that the overall training program will be monitored by officers of the
relevant NSW Training Authority and that training records or work books may be
utilised as part of this monitoring process.
(f) Training shall
be directed at:
(i) the achievement
of key competencies required for successful participation in the workplace (eg.
literacy, numeracy, problem solving, team work, using technology) and an
Australian Qualification Framework Certificate Level I.
This could be achieved through foundation competencies
which are part of endorsed competencies for an industry or enterprise; and/or
(ii) the
achievement of key competencies required for successful participation in an industry
or enterprise (where there are endorsed national standards these will define
these competencies) as are proposed to be included in an Australian
Qualification Framework Certificate Level II or above.
(v) Employment
Conditions
(a) A Trainee shall
be engaged as a full-time employee for a maximum of one year's duration or a
part-time trainee for a period no greater than the equivalent of one year
full-time employment.
For example, a part-time trainee working 2½ days per
week (including the time spent in approved training) works (and trains) half
the hours of a full-time trainee and therefore their traineeship could extend
for a maximum of two years.
In any event, unless the relevant NSW Training
Authority directs, the maximum duration for a traineeship shall be thirty-six
months.
By agreement in writing, and with the consent of the
relevant NSW Training Authority, the relevant employer and the Trainee may vary
the duration of the Traineeship and the extent of approved training provided
that any agreement to vary is in accordance with the relevant Traineeship.
(b) A trainee shall
be subject to a satisfactory probation period of up to one month which may be
reduced at the discretion of the employer.
(c) Where the
trainee completes the qualification in the Training contract, earlier than the
time specified in the Training contract then the traineeship may be concluded
by mutual agreement.
(d) A traineeship
shall not be terminated before its conclusion, except in accordance with the Apprenticeship and Traineeship Act 2001
(NSW), or by mutual agreement.
An employer who chooses not to continue the employment
of a trainee upon the completion of the traineeship shall notify, in writing,
the relevant NSW Training Authority of their decision.
(e) The Trainee
shall be permitted to be absent from work without loss of continuity of
employment and/or wages to attend the approved training in accordance with the
Training contract.
(f) Where the
employment of a Trainee by an employer is continued after the completion of the
traineeship period, such traineeship period shall be counted as service for the
purposes of any award or any other legislative entitlements.
(g)
(i) The Training
contract 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 this award.
(iii) No Trainee shall
work shiftwork unless the relevant parties to this award agree that such
shiftwork makes satisfactory provision for Structured Training. Such training
may be applied over a cycle in excess of a week, but must average over the
relevant period no less than the amount of training required for non-shiftwork
Trainees.
(iv) The Trainee
wage shall be the basis for the calculation of overtime and/or shift penalty
rates prescribed by this award.
(h) All other terms
and conditions of this award shall apply.
(i) A Trainee who
fails to either complete the Traineeship or who cannot for any reason, be
placed in full time employment with the employer on successful completion of
the Traineeship shall not be entitled to any severance payment.
The following employment conditions apply specifically
to part-time and school-based trainees
(j) A part-time
trainee shall receive, on a pro rata basis, all employment conditions
applicable to a full-time trainee. All
the provisions of this award shall apply to part time trainees except as
specified in this clause.
(k) A part time
trainee may, by agreement, transfer from a part time to a full time traineeship
position should one become available.
(l) The minimum
daily engagement periods applying to part-time employees specified in this
award shall also be applicable to part time trainees.
Where there is no provision for a minimum daily
engagement period in this award or other industrial instrument(s), applying to
part-time employees, then the minimum start per occasion shall be 3 continuous
hours, except in cases where it is agreed that there shall be a start of 2
continuous hours, on 2 or more days per week, provided that:
(i) a 2 hour start
is sought by the employee to accommodate the employee’s personal circumstances,
or
(ii) the place of
work is within a distance of 5km from the employee’s place of residence.
(m) School-based
trainees shall not be required to attend work during the interval starting four
weeks prior to the commencement of the final year Higher School Certificate
Examination period and ending upon the completion of the individual’s last HSC
examination paper.
(n) For the purposes
of this clause, a school-based trainee shall become an ordinary trainee as at January
1 of the year following the year in which they ceased to be a school student.
(vi) Wages -
Wages - Full-Trainees -
(a) The weekly wages
payable to full time trainees shall be as prescribed in Part C of the award, as
follows:
Industry/Skill Level
A
|
Table 1A
|
Industry/Skill
Level B
|
Table 1B
|
Industry Skill
Level C
|
Table 1C
|
School-Based
Trainees
|
Table 1D
|
(b) These wage rates
will only apply to Trainees while they are undertaking an approved Traineeship which
includes approved training as defined in this clause.
(c) The wage rates
prescribed in this clause do not apply to complete trade level training which
is covered by the Apprenticeship system.
(d) The rates of pay
in this award include the adjustments payable under the State Wage Case
2010. These adjustments may be offset
against:
(i) any equivalent
over-award payments; and/or
(ii) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustment.
(e) Appendix A sets
out the rate of pay or skill level of a Traineeship. Where the actual traineeship is listed in Appendix A, the rate of
pay or skill level in respect of the traineeship is determinative of the actual
rate of pay or skill levels (i.e. skill levels A, B or C) that are contained in
the Traineeship. Where the traineeship
is not listed in Appendix A, the skill levels in Appendix A are illustrative of
the appropriate levels, but are not determinative of the actual skill levels.
The determination of the appropriate rate of pay or skill level for the purpose
of determining the appropriate wage rate shall be based on the following
criteria:
(i) Any agreement
of the parties, or submission by the parties;
(ii) The nature of
the industry;
(iii) The total
training plan;
(iv) Recognition
that training can be undertaken in stages;
(v) The exit skill
level in the Parent Award contemplated by the traineeship.
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 this provision, "out of school" shall refer only to
periods out of school beyond Year 10, and shall be deemed to
(i) include any
period of schooling beyond Year 10 which was not part of nor contributed to a
completed year of schooling;
(ii) include any
period during which a Trainee repeats in whole or part a year of schooling
beyond Year 10;
(iii) not include any
period during a calendar year in which a year of schooling is completed; and
(iv) have effect on
an anniversary date being January 1 in each year.
(g)
(i) Definition of
Adult Trainee
An adult trainee for the purpose of this subclause is a
trainee who would qualify for the highest wage rate in Industry/Skill Level A,
B, or C if covered by that Industry/Skill Level.
(ii) Wage Rates for
Certificate IV Traineeships
(a) Trainees undertaking
an AQF IV traineeship shall receive the relevant weekly wage rate for AQF III
trainees at Industry/Skill Levels A,B, or C as applicable with the addition of
3.8 per cent of that wage rate.
(b) An adult trainee
who is undertaking a traineeship for an AQF IV qualification shall receive the
following weekly wage as applicable based on the allocation of AQF III
qualifications:
Industry/Skill Level
|
First Year of
Traineeship
|
Second Year of
Traineeship
|
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
|
$
|
$
|
Industry/Skill Level A
|
561.00
|
582.00
|
Industry/Skill Level B
|
540.00
|
561.00
|
Industry/Skill Level C
|
489.00
|
507.00
|
Wages for Part-time and School-Based Trainees -
(a) This clause shall
apply to trainees who undertake a traineeship on a part time basis by working
less than full time ordinary hours and by undertaking the approved training at
the same or lesser training time than a full-time trainee.
(b) Table 1 - Hourly
Rates for Trainees Who Have Left School and Table 4 - Hourly Rates for
School-based Traineeships of Part C, Monetary Rates are the hourly rates of pay
where the training is either fully off-the-job or where 20% of time is spent in
approved training. These rates are derived
from a 38-hour week.
(c) The hours for
which payment shall be made are determined as follows:
(i) Where the
approved training for a traineeship (including a school based traineeship) is
provided off-the-job by a registered training organisation, for example at
school or at TAFE, these rates shall apply only to the total hours worked by
the part-time trainee on-the-job.
(ii) Where the
approved training is undertaken on-the-job or in a combination of on-the-job and
off-the-job, and the average proportion of time to be spent in approved
training is 20% (i.e., the same as for the equivalent full-time traineeship):
(1) If the training
is solely on-the-job, then the total hours on-the-job shall be multiplied by
the applicable hourly rate, and then 20 per cent shall be deducted.
(2) If the training
is partly on-the-job and partly off-the-job, then the total of all hours spent
in work and training shall be multiplied by the applicable hourly rate, and
then 20 per cent shall be deducted.
Note: 20 per cent is the average proportion of time
spent in approved training which has been taken into account in setting the
wage rates for most full time traineeships.
(iii) Where the
normal full time weekly hours are not 38 the appropriate hourly rate may be
obtained by multiplying the rate in the table by 38 and then dividing by the
normal full time hours.
(d) For traineeships
not covered by clause 8(b) above, the following formula for the calculation of
wage rates shall apply:
The wage rate shall be pro-rata the full time rates
based on variation in the amount of training and/or the amount of work over the
period of the traineeship which may also be varied on the basis of the
following formula:
Wage = Full-time wage rate
|
x
|
Trainee hours - average weekly training time
|
|
|
30.4*
|
* NOTE: 30.4 in the above formula represents 38
ordinary full time hours less the average training time for full time trainees (i.e.,
20%) a pro rata adjustment will need to be made in the case where the Parent
Award specifies different ordinary full time hours: for example where the
ordinary weekly hours are 40, 30.4 will be replaced by 32.
(i) "Full time
wage rate" means the appropriate rate as set out in Table 1 -
Industry/Skill Level A, Table 2 - Industry/Skill Level B, Table 3 -
Industry/Skill Level C and Table 4 - School-based Traineeships of Part C,
Monetary Rates.
(ii) "Trainee
hours" shall be the hours worked per week including the time spent in
approved training. For the purposes of
this definition, the time spent in approved vocational training may be taken as
an average for that particular year of the traineeship.
(iii) "Average
weekly training time" is based upon the length of the traineeship
specified in the traineeship agreement or training agreement as follows:
Average Weekly Training Time
=
|
7.6
x 12
|
|
length
of the traineeship in months
|
NOTE: 1:7.6 in the above formula represents the average
weekly training time for a full time trainee whose ordinary hours are 38 per
week a pro rata adjustment will need to be made in the case where the Parent
Award specifies different ordinary time hours for example, where the ordinary
weekly hours are 40, 7.6 will be replaced by 8.
NOTE 2: The parties note that the traineeship agreement
will require a trainee to be employed for sufficient hours to complete all
requirements of the traineeship, including the on the job work experience and
demonstration of competencies the parties also note that this would result in
the equivalent of a full day’s on the job work per week.
Example of the
calculation for the wage rate for a part time traineeship
A school student commences a traineeship in year 11 the ordinary
hours of work in the Parent Award are 38. The training agreement specifies
two years (24 months) as the length of the traineeship.
"Average weekly training time" is therefore 7.6
x 12/24 = 3.8 hours.
"Trainee hours" totals 15 hours; these are made
up of 11 hours work which is worked over two days of the
week plus 1-1/2 hours on-the-job training plus 2-1/2 hours
off the job approved training at school and at
TAFE.
So the wage rate in year 11 is:
$181 x
|
15 - 3.8
|
=
|
$66.68 plus any applicable penalty rates under the
Parent Award.
|
|
30.4
|
|
|
The wage rate varies when the student completes year 11
and passes the anniversary date of 1 January the
following year to begin year 12 and/or if "trainee
hours" changes.
|
(vii) Grievance
Procedures for Trainees -
(a) Procedures
relating to grievances of individual trainees -
(i) A trainee shall
notify the employer as to the substance of any grievance and request a meeting with
the employer for bilateral discussions in order to settle the grievance.
(ii) If no remedy
to the trainee’s grievance is found, then the trainee shall seek further
discussions and attempt to resolve the grievance at a higher level of
authority, where appropriate.
(iii) Reasonable
time limits must be allowed for discussions at each level of authority.
(iv) At the
conclusion of the discussions, the employer must provide a response to the
trainee’s grievance, if the matter has not been resolved, including reasons for
not implementing any proposed remedy.
At this stage an employer or a trainee may involve an industrial
organisation of employers or employees of which he/she is a member.
(v) If no resolution
of the trainee’s grievance can be found, then the matter may be referred to the
Industrial Relations Commission of New South Wales by either the trainee or the
employer or the industrial organisation representing either party.
(vi) While this
grievance procedure is being followed, normal work shall continue.
(b) Procedures
relating to disputes, etc., between employers and their trainees:
(i) A question,
dispute or difficulty must initially be dealt with at the workplace level where
the problem has arisen. If the problem cannot
be resolved at this level, the matter shall be referred to a higher level of
authority.
(ii) If no
resolution can be found to the question, dispute or difficulty the matter may
be referred to the Industrial Relations Commission of New South Wales by any
party to the dispute or the industrial organisation representing any of the
parties to the dispute.
(iii) Reasonable
time limits must be allowed for discussion at each level of authority.
(iv) While a
procedure is being followed, normal work must continue.
(v) The employer may
be represented by an industrial organisation of employers and the trainees may
be represented by an industrial organisation of employees for the purpose of
each procedure.
29. Superannuation
Superannuation Legislation -
(a) The subject of
superannuation is dealt with extensively by federal legislation including the Superannuation
Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge
Act, 1992, the Superannuation Industry (Supervision) Act 1993, the Superannuation
(Resolution of Complaints) Act 1993 and s.124 of the Industrial
Relations Act 1996. This
legislation, as varied from time to time, governs the superannuation rights and
obligations of the parties.
(b) Subject to the
requirements of this legislation, superannuation contributions may be made to:
(i) Nationwide
Superannuation Fund (NSF); or
(ii) ASSET
(Australian Superannuation Savings Employment Trust);or
(iii) Any industry
or multi-employer superannuation fund which has application to the employees in
the main business of the employer where employees covered by this award are a
minority of award covered employees, provided that such fund complies with the
Occupational Superannuation Guidelines and has joint employer/union management
such as ARF (Australian Retirement Fund), LIST (Law Industry Superannuation
Trust), MTAAISF (Motor Traders’ Association of Australia Industry
Superannuation Fund), PISF (Printing Industry Superannuation Fund), REST
(Retail Employees Superannuation Trust),STA (Superannuation Trust of Australia)
and TISS (Timber Industry Superannuation Scheme); or
(iv) Any
superannuation fund which has application to the employees in the main business
of the employer, pursuant to a superannuation arrangement approved by an
industrial tribunal prior to 18 July 1989, and where employees covered by this
award are a minority of award covered employees. Where freedom of choice is
provided for in such arrangement the principle of that provision shall apply;
or
(v) Any superannuation
fund which improves or provides superannuation to employees covered by this
clause provided that the employer commenced contributions to such fund prior to
14 February, 1992.
(vi) Such other funds
that comply with the requirements of this legislation.
(vii) Any other
approved occupational superannuation fund to which an employer or employee who
is a member of the religious fellowship known as The Brethren elects to
contribute.
30. Annualised
Salaries
Except as to the provisions of subclause (a), of clause
10, Public Holidays, clause 14, Sick Leave, clause 15, Personal/Carer's Leave, clause 16, Unpaid Leave For Family Purpose, clause 17,
Annual Leave, clause 19, Compassionate
Leave, clause 20, Jury Service, clause 25, Miscellaneous Statutory Provisions
and clause 28, Superannuation, this
award shall not apply to full-time and part-time employees who are in receipt
of a weekly wage in excess of 15 per cent above the rate for a Level 6
employee.
This provision shall not be taken to effect any right
to make other salary arrangements.
31. State Wage Case
Adjustment
The rates of pay in this award include the adjustments
payable under the State Wage Case 2010.
These adjustments may be offset against:
(a) any equivalent
overaward payments, and/or
(b) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustments.
32.
Anti-Discrimination
(1) It is the
intention of the parties bound by this award to seek to achieve the object in
section 3(f) of the Industrial Relations Act 1996 to prevent and
eliminate discrimination in the workplace.
This includes discrimination on the grounds of race, sex, marital
status, disability, homosexuality, transgender identity, age and
responsibilities as a carer.
(2) It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
(3) Under the Anti-Discrimination
Act 1977, it is unlawful to victimise an employee because the employee has
made or may make or has been involved in a complaint of unlawful discrimination
or harassment.
(4) Nothing in this clause
is to be taken to affect :
(a) any conduct or
act which is specifically exempted from anti-discrimination legislation;
(b) offering or
providing junior rates of pay to persons under 21 years of age;
(c) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to this
award from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
(5) This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by the legislation referred to in this clause.
NOTES:
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d) of
the Anti-Discrimination Act 1977 provides :
"Nothing in the Act affects ... any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
33. Redundancy
(i) Application -
(a) This clause
shall apply in respect of full-time and part-time employees.
(b) This clause
shall only apply to employers who employ 15 or more employees immediately prior
to the termination of employment of employees.
(c) Notwithstanding
anything contained elsewhere in this clause, this clause shall not apply to
employees with less than one year’s continuous service and the general obligation
on employers shall be no more than to give such 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.
(d) Notwithstanding
anything contained elsewhere in this clause, this clause shall not apply where
employment is terminated as a consequence of conduct that justifies instant
dismissal, including malingering, inefficiency or neglect of duty, or in the
case of casual employees, apprentices or employees engaged for a specific
period of time or for a specified task or tasks or where employment is
terminated due to the ordinary and customary turnover of labour.
(ii) Introduction
of Change -
(a) Employer’s duty
to notify
(1) 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 the union to which they belong.
(2) ‘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
(1) The employer
shall discuss with the employees affected and the union to which they belong,
inter alia, the introduction of the changes referred to in paragraph (a) above,
the effects the changes are likely to have on employees and 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 the union in
relation to the changes.
(2) 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 paragraph (a) of this
subclause.
(3) For the purpose
of such discussion, the employer shall provide to the employees concerned and
the union to which they belong 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 adversely affect the employer.
(iii) Redundancy -
(a) Discussions
before terminations
(1) Where an
employer has made a definite decision that the employer no longer wishes the
job the employee has been doing done by anyone pursuant to subparagraph (1) of
paragraph (a) of subclause (ii) above, and that decision may lead to the
termination of employment, the employer shall hold discussions with the
employees directly affected and with the union to which they belong.
(2) The discussions shall
take place as soon as is practicable after the employer has made a definite
decision which will invoke the provision of subparagraph (1) of this subclause
and shall cover, inter alia, any reasons for the proposed terminations,
measures to avoid or minimise the terminations and measures to mitigate any
adverse effects of any termination on the employees concerned.
(3) For the purposes
of the discussion the employer shall, as soon as practicable, provide to the
employees concerned and the union to which they belong, 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 adversely affect the
employer.
(iv) Termination of
Employment -
(a) Notice for
Changes in Production, Programme, Organisation or Structure - This subclause
sets out the notice provisions to be applied to terminations by the employer
for reasons arising from "production", "programme",
"organisation" or "structure" in accordance with subclause
(ii) (a)(1) above.
(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 less than 3
years
|
2 weeks
|
3 years and less than 5
years
|
3 weeks
|
5 years and over
|
4 weeks
|
(2) In addition to
the notice above, employees over 45 years of age at the time of the giving of the
notice with not less than two years continuous service, shall be entitled to an
additional week’s notice.
(3) Payment in lieu
of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(b) Notice for
Technological Change - This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from
"technology" in accordance with subclause (ii)(a)(1) above:
(1) In order to
terminate the employment of an employee the employer shall give to the employee
3 months notice of termination.
(2) Payment in lieu of
the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(3) The period of
notice required by this subclause to be given shall be deemed to be service
with the employer for the purposes of the Long Service Leave Act, 1955,
the Annual Holidays Act, 1944, or any Act amending or replacing either
of these Acts.
(c) Time off during
the notice period -
(1) During the period
of notice of termination given by the employer, an employee shall be allowed up
to one day’s time off without loss of pay during each week of notice, to a
maximum of five weeks, for the purposes of seeking other employment.
(2) If the employee
has been allowed paid leave for more than one day 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.
(d) Employee leaving
during the notice period - If the employment of an employee is terminated
(other than for misconduct) before the notice period expires, the employee
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) Statement of
employment - 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.
(f) Notice to Centrelink
- Where a decision has been made to terminate employees, the employer shall
notify 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.
(g) Centrelink
Separation Certificate - The employer shall, upon receipt of a request from an
employee whose employment has been terminated, provide to the employee an
"Employment Separation Certificate" in the form required by
Centrelink.
(h) Transfer to
lower paid duties - Where an employee is transferred to lower paid duties for
reasons set out in paragraph (a) of subclause (ii) above, 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 ordinary time rates for the number of weeks of notice still owing.
(v) Severance Pay -
(a) Where an
employee is to be terminated pursuant to subclause (iv) above, subject to
further order of the Industrial Relations Commission, the employer shall pay
the following severance pay in respect of a continuous period of service:
(1) If an employee
is under 45 years of age, the employer shall pay in accordance with the
following scale:
Under 45 Years of
Age
|
Years of Service
Age Entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
4 weeks
|
2 years and less than 3 years
|
7 weeks
|
3 years and less than 4 years
|
10 weeks
|
4 years and less than 5 years
|
12 weeks
|
5 years and less than 6 years
|
14 weeks
|
6 years and over
|
16 weeks
|
(2) Where an
employee is 45 years old 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
|
(3) ‘Weeks pay’
means the all purpose rate of pay for the employee concerned at the date of
termination, and shall include, in addition to the ordinary rate of pay, over
award payments, shift penalties and allowances provided for in the relevant
award.
(b) Incapacity to
pay - Subject to an application by the employer and further order of the
Industrial Relations Commission, an employer may pay a lesser amount (or no
amount) of severance pay than that contained in paragraph (a) above.
The Industrial Relations Commission shall have regard
to such financial and other resources of the employer concerned as the
Industrial Relations Commission thinks relevant, and the probable effect paying
the amount of severance pay in subclause (i) above will have on the employer.
(c) Alternative
Employment - Subject to an application by the employer and further order of the
Industrial Relations Commission, an employer may pay a lesser amount (or no
amount) of severance pay than that contained in paragraph (a) above if the
employer obtains acceptable alternative employment for an employee.
(vi) Savings Clause
- Nothing in this award shall be construed so as to require the reduction or
alteration of more advantageous benefits or conditions which an employee may be
entitled to under any existing redundancy arrangement, taken as a whole,
between the union and any employer bound by this award.
34. Area, Incidence
and Duration
(a)
(i) This award
shall apply to all employees engaged in the classifications detailed in Clause
2, Rates of Pay and clause 3, Classifications by any organisation, whether run
for profit or not, whose operation is substantially one or more of the
following:
Weight Loss Centres;
Gymnasiums;
Squash Courts;
Indoor Cricket and/or Sports Centres;
Ten Pin Bowling Allies;
Aquatic Centres;
Golf Driving Ranges;
Dance Schools Including Jazzercise;
Martial Arts School;
Tennis Centres; and/or
other like Health and Fitness Centres; or
(ii) Or individuals
who predominantly carry out one or more of the following activities:
Aerobics Instructor, Gym Instructor, Dance Instructor,
Health Counsellor, Pool Attendant, Sports Instructor and/or any other like
Health Attendant work; where such work is performed in an organisation where no
other award or registered enterprise agreement covers such persons; and
(iii) shall be
binding upon the Australian Workers’ Union, New South Wales, its officers and
members, the Australian Liquor, Hospitality and Miscellaneous Workers Union,
NSW Branch, its officers and members and employees, whether they are members of
the union or not.
(b) This award shall
not apply to employees of:
(i) contract
companies who may provide cleaning, security, catering and child care to any
organisation that this award would normally apply.
(ii) Registered
Clubs, Hotels, Motels, Resorts, which are already covered by awards.
(iii) Outdoor sports
stadiums (other than those persons in clause 33 (a) (ii) above,)
(iv) Entertainment
Venues.
(c) This Award is
made following a review under section 19 of the Industrial Relations Act,
1996 and rescinds and replaces the Health, Fitness and Indoor Sports Centres
(State) Award published 4 June 1999 (309 I.G. 561) and the Health, Physical
Culture and Weight Loss Centres, &c. (State) Superannuation Award published
13 March 1992 (268 I.G. 666).
(d) This award shall
take effect on and from 2 March 2001 and shall remain in force for a period of
12 months.
(e) 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 28 April 1999
(310 I.G. 359) take effect on and from 23 July 2007.
This award remains in force until varied or rescinded,
the period for which it was made already having expired.
35. Leave Reserved
Leave is reserved to the parties to amend this award to
provide for the following:
(a) a specific
exclusion for Child Care, pending the decision of the Chief Industrial
Magistrate in Court file no. CIM 550 of 1997 and CIM 551 of 1997.
(b) provision of a
laundry allowance and uniforms.
PART B
MONETARY RATES
Table 1 - Rates of Pay
Grade
|
Full Time
|
Hourly Rate
|
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
|
$
|
$
|
Level 1
|
584.50
|
15.38
|
Level 2
|
603.10
|
15.87
|
Level 3A
|
628.10
|
16.53
|
Level 3B
|
646.50
|
17.01
|
Level 4
|
649.60
|
17.10
|
Level 5
|
689.00
|
18.13
|
Level 6
|
759.50
|
19.98
|
Junior Rates for
Levels 1, 2 and 3
|
Percentage of
Appropriate Adult Rate
|
|
%
|
At 16 years and
under
|
55
|
At 17 years
|
65
|
At 18 years
|
75
|
At 19 years
|
85
|
At 20 years
|
100
|
Table 2 - Other Rates and Allowances
Item No.
|
Clause No.
|
Brief Description
|
Amount Per Week
|
|
|
|
SWC 2010 (4.25%)
|
|
|
|
$
|
1
|
2(c)
|
Supervisory loadings -
|
|
|
|
Up to 5 employees
|
24.50 per week
|
|
|
|
|
2
|
2(c)
|
Supervisory loadings -
|
|
|
|
6 to 10 employees
|
33.30 per week
|
|
|
|
|
3
|
2(c)
|
Supervisory loadings -
|
|
|
|
11 or more employees
|
44.85 per week
|
|
|
|
|
4
|
21(a)
|
First-aid allowance
|
11.45 per week
|
|
|
|
2.29 per shift
|
|
|
|
|
5
|
23(a)
|
Stocking allowance
|
3.10 per week
|
|
|
|
0.62 per day
|
|
|
|
|
|
23(b)
|
Toilet cleaning allowance
|
9.40
|
|
23(c)
|
Laundry Allowance
|
8.05 per week
|
|
|
|
1.61 per day
|
|
|
|
|
|
23(d)
|
Broken Shift Allowance:
|
|
|
|
For each broken shift so
|
|
|
|
worked
|
12.25 per day
|
|
|
|
|
|
|
Excess fares allowance
|
8.30 per week or
|
|
|
|
1.66 per day
|
|
|
|
|
Table 3 - Base Rate
|
Relativity
|
Amount Per Week
|
|
%
|
$
|
Level 1
|
78
|
284.90
|
Level 2
|
82
|
299.50
|
Level 3A
|
87.4
|
319.20
|
Level 3B
|
91.5
|
334.10
|
Level 4
|
92
|
336.00
|
Level 5
|
100
|
365.20
|
Level 6
|
115
|
420.00
|
Table 4 - Supplementary Payments
|
Relativity
|
Supplementary
Payments
|
|
%
|
$
|
Level 1
|
78
|
88.50
|
Level 2
|
82
|
90.60
|
Level 3A
|
87.4
|
93.40
|
Level 3B
|
91.5
|
94.90
|
Level 4
|
92
|
95.80
|
Level 5
|
100
|
100
|
Level 6
|
115
|
110.40
|
PART C
TRAINEE MONETARY
RATES
Table 1 - Weekly
Rates - Industry/Skill Level A
Where the accredited training course and work performed are
for the purpose of generating skills which have been defined for work at Skill
Level A.
|
Highest year of
schooling completed
|
|
Year 10
|
Year 11
|
Year 12
|
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
|
$
|
$
|
$
|
School Leaver
|
264.00
|
291.00
|
349.00
|
Plus 1 year out of school
|
291.00
|
349.00
|
407.00
|
Plus 2 years
|
349.00
|
407.00
|
472.00
|
Plus 3 years
|
407.00
|
472.00
|
540.00
|
Plus 4 years
|
472.00
|
540.00
|
540.00
|
Plus 5 years or more
|
540.00
|
540.00
|
540.00
|
The average proportion of time spent in Structured Training
which has been taken into account in setting the above rates is 20 per cent.
Table 2 - Weekly Rates - Industry/Skill Level B
Where the accredited training course and work performed are
for the purpose of generating skills which have been defined for work at Skill
Level B.
|
Highest year of
schooling completed
|
|
Year 10
|
Year 11
|
Year 12
|
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
|
$
|
$
|
$
|
School Leaver
|
264.00
|
291.00
|
338.00
|
Plus 1 year out of school
|
291.00
|
338.00
|
389.00
|
Plus 2 years
|
338.00
|
389.00
|
457.00
|
Plus 3 years
|
389.00
|
457.00
|
521.00
|
Plus 4 years
|
457.00
|
521.00
|
521.00
|
Plus 5 years or more
|
521.00
|
521.00
|
521.00
|
The average proportion of time spent in structured training which
has been taken into account in setting the above rates is 20 per cent.
Table 3 - Weekly Rates - Industry/Skill Level C
Where the accredited training course and work performed are
for the purpose of generating skills which have been defined for work at Skill
Level C.
|
Highest year of
schooling completed
|
|
Year 10
|
Year 11
|
Year 12
|
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
|
$
|
$
|
$
|
School Leaver
|
264.00
|
291.00
|
335.00
|
Plus 1 year out of school
|
291.00
|
335.00
|
377.00
|
Plus 2 years
|
335.00
|
377.00
|
420.00
|
Plus 3 years
|
377.00
|
420.00
|
470.00
|
Plus 4 years
|
420.00
|
470.00
|
470.00
|
Plus 5 years or more
|
470.00
|
470.00
|
470.00
|
The average proportion of time spent in structured training
which has been taken into account in setting the above rates is 20 per cent.
Table 4 - School-Based Traineeships
|
Year of Schooling
|
|
Year 11
|
Year12
|
|
SWC 2010 (4.25%)
|
SWC 2010 (4.25%)
|
|
$
|
$
|
School based Traineeships Skill Levels A, B and C
|
264.00
|
291.00
|
The average proportion of time spent in structured training
which has been taken into account in setting the above rates is 20 per cent.
Appendix A
Industry/Skill Levels
Industry/Skill Level A
Industry/Skill Level B
Sport & Recreation (Sport & Recreation -
Certificate) II
Sport & Recreation (Sport & Recreation -
Certificate) III
Sport & Recreation (Career Oriented Participation)
Certificate II
Sport & Recreation (Career Oriented Participation)
Certificate III
Sport & Recreation (Coaching) Certificate III
Sport & Recreation (Officiating) Certificate II
Sport & Recreation (Officiating) Certificate III
Sport & Recreation Sport (Trainer) Certificate III
Sport & Recreation Community Recreation (Instruct)
Certificate II
Sport & Recreation Community Recreation Certificate
II
Sport & Recreation Community Recreation Certificate
III
Sport & Recreation Fitness Certificate III
Sport & Recreation Sport (Massage Therapy)
Certificate III
Industry/Skill Level C
____________________
Printed by
the authority of the Industrial Registrar.