MISCELLANEOUS GARDENERS,
&c. (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Awards pursuant to Section 19 of the Industrial
Relations Act 1996, and another matter.
(Nos. IRC 3779, 3780,
3781, 3782 of 1999 and 3682 of 2000)
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Before Commissioner Cambridge
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16 November 2000 and
5 February 2001
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AWARD REVIEW
PART A
1. Arrangement
PART A
Clause No. Subject Matter
1. Arrangement
2. Anti-Discrimination
3. Definitions
4. Classifications
5. Contract of Employment
6. General Conditions
7. Hours
8. Implementation of 38-Hour Week
9. Rostered Days Off Duty
10. Wages
11. Allowances
12. Overtime
13. Saturday
and Sunday Work During Ordinary Hours
14. Sunday
Work
15. Payment of
Wages
16. Call Back
17. Mixed Functions
18. Sick Leave
19. Holidays
20. Annual
Leave
21. Annual
Leave Loading
22. Long
Service Leave
23. Personal/Carer's
Leave
24. Catholic
Employers - Personal/Carer’s Leave
25. Bereavement
Leave
26. Redundancy
27. Jury
Service
28. Attendance
at Repatriation Centres
29. Enterprise
Consultation
30. Disputes
Procedure
31. Superannuation
32. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1 - Wages
Table 2 - Allowances
2.
Anti-Discrimination
(i) 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 and age.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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."
3. Definitions
(i) Weekly
Employee means an employee employed by the week.
(ii) Part-time
Employee means an employee engaged by the week but who is required to work a
constant number of ordinary hours each week less than the ordinary number of
hours prescribed for weekly employees.
(iii) Casual
Employee means an employee engaged and paid as such but shall not include
employees working thirty-eight ordinary hours per week and shall not include
employees who are required to work a constant number of ordinary hours each
week.
(iv) Union means
the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South
Wales Branch.
(v) Seven-day
Shift Worker means an employee whose ordinary working period includes
Saturdays, Sundays, and/or public holidays which the employee may be regularly
rostered to work.
4. Classifications
(i) Introductory
Level (less than 3 months experience) - This is an entry level position. An employee at this level performs routine
duties essentially of a manual nature, and:
(a) performs
general labouring and cleaning duties;
(b) exercises
minimal judgement;
(c) works under
direct supervision;
(d) is undertaking
training so as to enable the employee to work at a higher level;
(e) after 3 months
employment at this level, the employee shall progress to Gardener Level 1.
(ii) Gardener
Level 1 - An employee at this level has three months experience in aggregate
with one or more employers and, in addition:
(a) works under
direct supervision either individually or in a team environment;
(b) is responsible
for the quality of the their own work, subject to the employees skill level;
(c) exercises
discretion within the employees skill level and training;
(d) maintains
gardens, lawns and rockeries;
(e) is engaged in
trimming edges, mowing lawns, sowing, planting, watering, weeding, spreading
fertiliser, clearing shrubs and trimming hedges;
(f) uses and
performs routine maintenance on hand tools, motor mowers and edgers.
(iii) Gardener
Level 2 - An employee at this level performs the work of a Gardener Level 1
and, in addition:
(a) works under
routine supervision;
(b) exercises
discretion within the employees level of skill and training;
(c) is responsible
for the quality of the employees own work;
(d) may possess a
Horticultural Certificate or equivalent;
(e) may perform
basic inventory control;
(f) prepares and
uses fertiliser and pest, disease and weed control mixtures;
(g) uses and
performs routine maintenance on gardening tools and equipment;
(h) has an
understanding of plant selection, irrigation systems and pruning techniques;
(i) understands
safety procedures and requirements in relation to the use of chemicals and
poisons and safety equipment and clothing.
(iv) Gardener
Level 3 - An employee at this level performs the work of the foregoing levels
and, in addition:
(a) works under
general supervision;
(b) may assist
with on-the-job training;
(c) assures the
quality of the employees own work;
(d) is able to
check the work of employees graded at lower levels;
(e) may operate
tractors, backhoes, chain saws, ganged mowers or other like powered machinery
and possess appropriate operational licences;
(f) may perform
routine maintenance of power tools and equipment;
(g) may perform
administrative tasks relating to inventory control and ordering and receipt of
gardening supplies and equipment.
(v) Gardener
Level 4 - An employee at this level has completed one or more of the following
courses or the equivalent:
Parks and Gardens Certificate III;
Landscaping Certificate III;
Greenkeeping Certificate III; and in addition -
(a) may work under
general supervision;
(b) assures the
quality of the employees own work and understands and applies quality control
techniques;
(c) may
co-ordinate work within a team environment;
(d) exercises
discretion within the scope of this level;
(e) may assist in
the provision of on-the-job training;
(f) may perform
routine maintenance of tools and equipment;
(g) may be
responsible for inventory control and the ordering and receipt of gardening
supplies and equipment;
(h) performs
non-trade tasks incidental to the employees work.
Where, by consultation between the employer and the
employee, it is agreed that the employee, through extensive gardening experience,
has the skills of a tradesperson and is required by the employer to work at a
level equivalent to a tradesperson, then the employee shall be classified as
Gardener Level 4 and paid as such. To be appointed as a Gardener Level 4 the
employee will have attained this level through ten years or more gardening
experience and must be fully capable of performing all gardening tasks of a
tradesperson. This shall include
competency in propagation, grafting and pruning of plants, maintenance of
nursery stock, gardens and rockeries, including their design and layout,
preparation of fertilisers and pest and weed control mixtures, prevention and
control of pests, diseases and weeds, irrigation systems, tree maintenance and
indoor plant maintenance. Where
agreement is not reached, the parties shall refer to clause 30, Disputes
Procedure.
5. Contract of
Employment
(i) Employees
may be employed on a weekly, part-time or casual basis.
(ii) Part-time
and casual employees shall be paid a minimum of three hours pay for each start.
(iii) The
employment of any employee, other than a casual employee, shall be terminated
by one week's notice or by the payment or forfeiture, as the case may be, of
one week's wages in lieu thereof.
(iv) Subject to
the provisions of this clause, during the first month of full-time or part-time
employment the contract of employment shall be of a probationary nature. Provided further, that during such
probationary period the employer will provide the employee with training,
instruction and supervision appropriate to the size, structure and needs of the
plant/enterprise.
(v) The
employment of a casual employee may be terminated by one hour's notice.
(vi) Notwithstanding
the foregoing provisions, the employer may dismiss an employee at any time for
misconduct or wilful disobedience and then shall be liable only for payment up
to the time of dismissal.
(vii) Employees
covered by this award shall perform all work within their skills and
competence, including work which is incidental or peripheral to their main
tasks or functions.
6. General Conditions
(i) Working in
the Rain - Where an employee is required to work in the rain, adequate
protective clothing shall be provided by the employer for the job. Such clothing shall remain the property of
the employer.
(ii) Change and
Meal Room - The employer shall provide, free of charge, at each place where
this award applies, a change and meal room furnished with individual lockable
lockers, tables and seats and facilities for heating and warming food, for use
by employees. Such room shall be used
exclusively as a change and meal room.
Boiling water shall be provided, free of charge, and shall be available
to employees at the commencement of meal breaks.
(iii) First-aid
Outfit - An adequate first-aid outfit shall be provided by the employer at each
establishment where this award applies.
(iv) Tools - All
tools required by employees shall be provided, free of charge, by the employer.
7. Hours
(i) The
ordinary working hours, exclusive of meal times, shall not exceed thirty-eight
per week and shall be worked Monday to Friday, inclusive; provided that such
daily hours may be varied by agreement between an employer and the union, where
applicable, in the event of water restrictions being enforced or other
emergencies arising. Provided further,
that in establishments operating from Monday to Sunday the ordinary working
hours, exclusive of meal times, shall be an average of 38 per week, which shall
be worked Monday to Sunday, inclusive.
(ii) Such hours
shall be worked between the hours prescribed for day workers by the award or
industrial agreement covering the majority of employees in the
establishment. Provided that, by
agreement with the employees, such hours may be worked between the hours of
6.00 a.m. and 6.00 p.m. Provided
further that during daylight saving such hours may be worked between 7.00 a.m.
and 7.00 p.m.
(iii) A meal
break shall be allowed of the same duration and at the same time as prescribed
for day workers by the award or industrial agreement covering the majority of
employees in the establishment.
Provided that a meal break shall be taken no later than five hours from
the commencement of work.
(iv) The ordinary
hours of work shall be notified in writing to employees in a conspicuous place
at the employee's place of work. Such
hours, when once fixed, shall not be altered without payment of overtime,
unless one week's clear notice to the employee is given; provided that such
week's notice shall not be required if any change of hours is by mutual
agreement between the employer and the employee.
8. Implementation of
38-Hour Week
Assessment should be made as to which method of
implementation best suits the business and such proposal shall be discussed
with employees in an effort to reach agreement. In the absence of agreement, the parties shall refer to clause
30, Disputes Procedure.
9. Rostered Days Off
Duty
Where by mutual agreement between an employer and the
employees a 38-hour week is to be implemented on the basis of a rostered day
off in each cycle of twenty working days, or an accumulation of rostered days
off up to ten days, the following provisions shall apply:
(i) Rostering -
(a) Rostered days
off shall be scheduled by mutual agreement between employees and the employer.
(b) Except as
provided by paragraph (c) of this subclause, an employee shall be advised by
the employer at least four weeks in advance of the weekday(s) to be rostered
off duty.
(c) The employer,
with the agreement of the majority of employees concerned, may substitute the
day(s) an employee is to be rostered off duty for another day(s) in the case of
a breakdown of machinery or to meet the requirements of the plant/enterprise.
(d) An individual
employee, with the agreement of the employer, may substitute the day(s)
scheduled to be rostered off duty for another day(s).
(e) In the event
that an employee is rostered off duty on a day which coincides with pay day,
such employee shall be paid not later than the working day immediately
following pay day.
(ii) Payment of
Rostered Day Off - For every ordinary hour paid for, payment to the employee of
one-twentieth (5 per cent) of the hourly rate (weekly rate divided by 38) will
be withheld by the employer and then paid in the pay week in which the
employee's rostered day(s) off is taken.
(iii) Rostered
Day Off Falling on a Public Holiday - In the event of an employee's rostered
day off falling on a public holiday, the employee and the company shall agree
to an alternative day off duty as a substitute; provided that in the absence of
agreement the substituted day shall be determined by the employer.
(iv) Work on
Rostered Day Off Duty - Any employee required to work on the employees rostered
day off shall be paid in accordance with the provisions of clause 12, Overtime.
(v) Sick Leave
and Rostered Days Off - Employees are not entitled to sick leave in respect of
absences on rostered days off as such absences are outside their ordinary hours
of duty.
10. Wages
(i) Weekly
Employees -
(a) The minimum
adult weekly rates of pay for employees in the classifications prescribed in
clause 4, Classifications, shall be as set out in Table 1 - Wages, of Part B,
Monetary Rates and the rates for allowances shall be as set out in Table 2 -
Allowances of the said Part B.
(b) The rates of
pay in this award include the adjustments payable under the State Wage Case
2000. These adjustments may be offset against:
(1) any equivalent
over award payments, and/or
(2) award wage
increases since 29 May 1991 other than safety net, State Wage Case and minimum
rates adjustments.
(ii) Part-time
Employees - A part-time employee, for each hour worked during ordinary working
hours, shall be paid at an hourly rate equal to the appropriate weekly rate,
divided by 38, prescribed by this award for the class of work performed. Provided that employees engaged as part-time
as at 16 November 2000, shall continue to receive the rate for the relevant
position and shall be entitled to wage increases equivalent to 25% of the
future State Wage Case Adjustments until such time as the rates coincide or the
new part-time rate (no loading) exceeds the rate, and in which case it shall
apply.
(iii) Casual
Employees - A casual employee, for each hour worked during ordinary working
hours, shall be paid at an hourly rate equal to the appropriate weekly rate,
divided by 38, prescribed by this award for the class of work performed, plus
15 per cent.
(iv) The hourly
rates of pay prescribed in subclauses (ii) and (iii) of this clause shall be
calculated to the nearest whole cent, any amount less than a half cent in the
result to be disregarded.
11. Allowances
(i) An employee
placed in charge of one or more employees shall be paid an additional allowance
(per week or per day as applicable) as set out in Item 1 of Table 2 -
Allowances, of Part B, Monetary Rates.
(ii) An employee
appointed by an employer to perform first-aid duties shall be paid an
additional amount per week as set out in Item 2 of the said Table 2 or an
additional amount per day as set out in Item 3 of Table 2.
(iii) An employee
required to work overtime in excess of one hour, and who has not been notified
of the necessity to work such overtime on the preceding day, shall be paid a
meal allowance as set out in Item 4 of Table 2 for the first and each
subsequent meal after each four hours of overtime. An employee who is notified
of the necessity to work such overtime on the preceding day and who is not
required to work, shall be paid the appropriate meal allowances as prescribed.
12. Overtime
All time worked in excess of and/or outside ordinary working
hours shall be paid for at the rate of time and one-half for the first two
hours and double time thereafter. For
the purpose of computing overtime, each day's work shall stand alone.
13. Saturday and
Sunday Work During Ordinary Hours
(i) Employees
required to work their ordinary hours on a Saturday or Sunday shall be paid for
all time so worked at the following rates:
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Saturday work
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time and one-half.
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Sunday work
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double time
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(ii) For the
purposes of this clause, the rates prescribed shall apply in respect of
ordinary hours of work only and shall apply to all employees, including casual
employees, provided that such casual employees are employed in establishments
operating from Monday to Sunday.
14. Sunday Work
An employee required to perform work on a Sunday shall be
paid at the rate of double time, with a minimum payment of not less than four
hours at such rate for each start.
15. Payment of Wages
(i) Wages may
be paid weekly or fortnightly where such method of payment applies to the
majority of employees at the establishment.
(ii) Wages may
be paid by cash or, in lieu thereof, an employee may request payment by
cheque. Provided that wages may be paid
by electronic funds transfer into a bank or other such account at the
employer's discretion.
(iii) The day
observed as pay day for the majority of employees in the establishment shall be
the pay day for employees covered by this award.
(iv) Employees
kept waiting for more than fifteen minutes after their normal ceasing time for
the payment of wages shall be paid at ordinary rates for the period from the
normal ceasing time until payment is made.
16. Call Back
(i) An employee
required to attend the employer's premises for any reason other than carrying
out rostered duties after leaving the place of employment (whether notified
before or after leaving the employees place of employment), shall be paid a
minimum of four hours' pay at the appropriate rate for each such attendance.
(ii) Provided
that this clause shall not apply where a period of duty is continuous (subject
to a reasonable meal break) with the completion or commencement of ordinary
working time.
(iii) Provided
further that such employee shall be given at least eight hours off duty,
excluding travelling time in excess of thirty minutes and a meal break of
thirty minutes, before being required to resume ordinary hours.
(iv) If such
employee is requested to resume duty before eight hours rest is given, double
ordinary rates shall be paid until the employee has been relieved from duty for
a period of eight hours.
17. Mixed Functions
(i) An employee
engaged for at least two hours on any day or shift on duties carrying a higher
rate than the employee's ordinary classification shall be paid the higher rate
for such day or shift; if for less than two hours on one day or shift, the
employee shall be paid the higher rate for the time so worked.
(ii) An employee
who is required to perform work temporarily for which a lower rate is paid,
shall not suffer any reduction in wages whilst so employed; provided that any
work of less than one week's duration shall be deemed to be temporary.
18. Sick Leave
(i) An employee
who, after not less than two months' continuous service with the employer, is
unable to attend for duty during ordinary working hours by reason of personal
illness or incapacity not due to the employee's own serious or wilful
misconduct, shall be entitled to be paid at ordinary-time rates of pay for the
time of such non-attendance, subject to the following conditions and
limitations:
(a) The employee
shall not be entitled to paid leave of absence for any period in respect of
which there is an entitlement to payment under the Workers' Compensation Act
1987.
(b) The employee shall,
as soon as reasonably practicable, and in any case within twenty-four hours of
the commencement of such absence, inform the employer of the inability to
attend for duty and, as far as practicable, state the nature of the injury or
illness and the estimated duration of the absence.
(c) The employee
shall furnish to the employer such evidence as the employer may desire that the
employee was unable, by reason of such illness or injury, to attend for duty on
the day or days for which sick leave is claimed; provided that a Statutory
Declaration shall be accepted in respect of any single day absences, but not
more than two such declarations in any one year.
(d) An employee
shall be entitled to five days' sick leave during the first year of service,
accruing on the basis of one day's sick leave for each two months service to a
maximum of five days.
(e) During the
second and each subsequent year of service an employee shall be entitled to 10
days sick leave.
(ii) Cumulative
Sick Leave - The rights under this clause shall accumulate from year to year so
that any part of the entitlement which has not been taken in any year may,
subject to the conditions prescribed by this clause, be claimed by the employee
and shall be allowed by the employer in any subsequent year of employment.
(iii) Definitions
of Continuous Service -
(a) For the
purpose of this clause, continuous service shall be deemed not to have been
broken by -
(1) any absence
from work on leave granted by the employer; or
(2) any absence
from work by reason of personal illness, injury or other reasonable cause
(proof whereof shall, in each case, be upon the employee).
Provided that time so lost shall not be taken into
account in computing the qualifying period of two months
(b) Service before
the date of coming into force of this award shall be taken into account in
computing the qualifying period of two months.
(iv) Attendance
at Hospital, etc. - Notwithstanding anything contained in subclause (i) of this
clause, a weekly employee suffering injury through an accident arising out of
and in the course of the employees employment, not being an injury in respect
of which there is an entitlement to workers' compensation, necessitating
attendance during working hours on a doctor, chemist or trained nurse, or at a
hospital, shall not suffer any deduction from the employees pay for the time
(not exceeding four hours) so occupied on the day of the accident, and shall be
reimbursed by the employer for all expenses reasonably incurred in connection
with such attendance and expenses shall include fares.
(v) Mixed
Industries - In any establishment where sick leave is prescribed by award or
agreement, Commonwealth or State, for the majority of employees in that
establishment, such provisions may apply to an employee otherwise entitled to
sick leave in accordance with this clause; provided that such provisions are
equal to or more beneficial than this award.
19. Holidays
(i) The days on
which the following holidays are observed shall be holidays under this award,
namely: New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day,
Queen's Birthday, Labour Day, Christmas Day, Boxing Day and any other day which
may hereafter be proclaimed as a public holiday throughout the State and the
picnic day of the union, which shall be held on a day to be determined each
year by agreement between the employer and the employees. Provided that where a day is observed either
as a picnic day or as an additional day by the general body of employees in any
establishment, then such day may be substituted for the picnic day of the union
as a holiday for any employee in that establishment entitled to such picnic day
or additional day as a holiday under this award.
(ii) Except as
hereinafter provided: The above holidays falling on an ordinary working day
shall be paid for if not worked; if worked, the employees shall be paid double
time and one-half with a minimum payment of not less than four hours at such
rate for each start.
(iii)
(a) Where a
holiday occurs on the rostered day off of a seven- day shift worker other than
a rostered day off given pursuant to the provisions of clauses 8,
Implementation of 38-Hour Week, and 9, Rostered Days Off Duty; and
(1) the seven-day
shift worker is not required to work on that day, the employer shall pay such
employee eight hours ordinary pay in respect of such day;
(2) the seven-day
shift worker is required to work on that day, the employer shall pay such
employee eight hours ordinary pay in respect of such time and, in addition, at
the rate of time and one-half for the first eight hours (with a minimum payment
of four hours) and double time and a half thereafter.
(b) The employer
may, in lieu of the payment of eight hours ordinary pay prescribed in paragraph
(a) of this subclause, add a day to the annual leave period.
(c) Any day or
days added in accordance with this subclause shall be the working day or
working days immediately following the annual leave period to which the
seven-day shift worker is entitled under clause 20, Annual Leave.
(d) Where the
employment of a seven-day shift worker has been terminated and as a consequence
there is an entitlement under section 4 of the Annual Holidays Act 1944
to payment in lieu of an annual holiday with respect to a period of employment,
such employee shall be entitled also to an additional payment for each day
accrued under this clause, at the appropriate ordinary rate of pay, if payment
has not already been made in accordance with paragraph (a) of this subclause.
(iv) Where an
employee is absent from their employment on the working day before or the
working day after a public holiday without reasonable excuse or without the
consent of the employer, the employee shall not be entitled to payment for such
holiday.
20. Annual Leave
(i) All employees
except seven-day shift workers - see Annual Holidays Act 1944.
(ii) Seven-day
shift workers -
(a) In addition to
the benefits provided by section 3 of the Annual Holidays Act 1944, with
regard to an annual holiday of four weeks, a seven-day shift worker, at the end
of each year of employment, shall be entitled to the additional leave as
prescribed below:
(1) If during the
previous year of employment there has been continuous service as a seven-day
shift worker, the additional leave with respect to that year shall be one week.
(2) If during the
previous year of employment there has only been service of a portion of it as a
seven-day shift worker, the additional leave shall be 3.25 hours for each
completed month of employment as a seven-day shift worker or, provided that
where the additional leave is or comprises a fraction of a day, such fraction
shall not form part of the leave period and any such fraction shall be
discharged by payment only.
(b) Where the
employment of a seven-day shift worker is terminated and there is thereby an
entitlement, under section 4 of the said Act, to payment in lieu of an annual
holiday with respect to a period of employment such employee also shall be
entitled to an additional payment of 3.25 hours at such ordinary rate of pay
for each completed month of service as a seven-day shift worker.
(iii) Payment
During Annual Leave - All employees shall receive payment for annual leave
periods calculated at their ordinary rate of pay in accordance with the
provisions of the said Act and shall, in addition, be paid all Saturday penalty
payments and Sunday penalty payments relating to ordinary time the employee
would have worked if the employee had not been on annual holidays. Such payment shall not include any penalty
payment in respect of a public holiday occurring during the annual holiday
which is a public holiday on which the employee would have worked an ordinary
shift.
21. Annual Leave
Loading
(i) In this
clause the Annual Holidays Act 1944 is referred to as "the
Act".
(ii) Before an
employee is given and takes an annual holiday or where, by agreement between
the employer and employee the annual holiday is given and taken in more than
one separate period, then before each of such separate periods the employer
shall pay the employee a loading determined in accordance with this
clause. (NOTE: The obligation to pay in
advance does not apply where an employee takes an annual holiday wholly or
partly in advance - see subclause (vi) of this clause.)
(iii) The loading
is payable in addition to the pay for the period of holiday given and taken and
due to the employee under the Act and this award.
(iv) The loading
is to be calculated in relation to any period of annual holiday to which the
employee becomes or has become entitled under the Act and this award (but
excluding days added to compensate for public or special holidays worked or
public or special holidays falling on an employee's rostered day off not
worked), or where such a holiday is given and taken in separate periods, then
in relation to each such separate period.
(NOTE: See subclause (vi) of this clause as to holidays taken wholly or
partly in advance.)
(v) The loading
is the amount payable for the period or the separate period, as the case may
be, stated in subclause (iv) of this clause, at the rate per week of 17.5 per
cent of the appropriate ordinary weekly time rate of pay prescribed by this
award for the classification in which the employee was employed immediately
before commencing the annual holiday, but shall not include any other
allowances, penalty rates, overtime rates or any other payments prescribed by
this award.
(vi) No loading
is payable to an employee who takes an annual holiday wholly or partly in
advance; provided that, if the employment of such an employee continues until
the date when there would have been an entitlement under the Act to an annual
holiday, the loading then becomes payable in respect of the period of such
holiday and is to be calculated in accordance with subclause (v) of this clause,
applying the award rates of wages payable on that day. This subclause applies where an annual
holiday has been taken wholly or partly in advance, and the entitlement to the
holiday arises after that date.
(vii) Where, in
accordance with the Act, the employer's establishment or part of it is
temporarily closed down for the purpose of giving an annual holiday or leave
without pay to the employees concerned:
(a) An employee
who is entitled under the Act to an annual holiday and who is given and takes
such a holiday shall be paid the loading calculated in accordance with
subclause (v).
(b) An employee
who is not entitled under the Act to an annual holiday and who is given and
takes leave without pay shall be paid, in addition to the amount payable under
the Act, such proportion of the loading that would have been payable under this
clause if the employee had become entitled to an annual holiday prior to the
close down as the qualifying period of employment in completed weeks bears to
52.
(viii)
(a) When the
employment of an employee is terminated by the employer for a cause other than
misconduct, and at the time of the termination the employee has not been given
and has not taken the whole of an annual holiday to which the employee became
entitled, a loading shall be paid calculated in accordance with subclause (v)
for the period not taken.
(b) Except as
provided in paragraph (a) of this subclause, no loading is payable on the
termination of an employee's employment.
22. Long Service Leave
See Long Service Leave Act 1955.
23. Personal/Carer's Leave
(i) Use of Sick
Leave -
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (2) of paragraph (c), who needs the employee's
care and support, shall be entitled to use, in accordance with this subclause,
any current or accrued sick leave entitlement, provided for in clause 18, Sick
Leave, of this award, for absences to provide care and support for such persons
when they are ill. Such leave may be taken for part of a single day.
(b) The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person. In normal circumstances, an
employee must not take carer's leave under this subclause where another person
has taken leave to care for the same person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(1) the employee
being responsible for the care of the person concerned; and
(2) the person
concerned being:
(A) a spouse of the
employee; or
(B) a de facto
spouse, who, in relation to a person, is a person of the opposite sex to the
first mentioned person who lives with the first mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
(C) a child or an
adult child (including an adopted child, a step child, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or spouse or de facto spouse
of the employee; or
(D) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(E) a relative of
the employee who is a member of the same household, where for the purposes of
this subparagraph:
(1) "relative"
means a person related by blood, marriage or affinity;
(2) "affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
(3) "household"
means a family group living in the same domestic dwelling.
(d) An employee
shall, wherever practicable, give the employer notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person's relationship to the employee, the reasons for taking such leave and
the estimated length of absence. If it
is not practicable for the employee to give prior notice of absence, the
employee shall notify the employer by telephone of such absence at the first
opportunity on the day of absence.
(ii) Unpaid
Leave for Family Purpose -
(a) An employee
may elect, with the consent of the employer, to take unpaid leave for the
purpose of providing care and support to a member of a class of person set out
in subparagraph (2) of paragraph (c) of subclause (i) who is ill.
(iii) Annual
Leave -
(a) An employee
may elect with the consent of the employer, subject to the Annual Holidays
Act 1944, to take annual leave not exceeding five days in single day
periods or part thereof, in any calendar year at a time or times agreed by the
parties.
(b) Access to
annual leave, as prescribed in paragraph (a) of this subclause, shall be exclusive
of any shutdown period provided for elsewhere under this award.
(c) An employee
and employer may agree to defer payment of the annual leave loading in respect
of single day absences, until at least five consecutive annual leave days are
taken.
(iv) Time Off in
Lieu of Payment for Overtime -
(a) 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.
(b) 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.
(c) If, having
elected to take time as leave in accordance with paragraph (a) 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.
(d) Where no
election is made in accordance with the said paragraph (a), the employee shall
be paid overtime rates in accordance with the award.
(v) Make-up Time
-
(a) An employee
may elect, with the consent of the employer, to work "make-up time",
under which the employee takes time off ordinary hours, and works those hours
at a later time, during the spread of ordinary hours provided in the award, at
the ordinary rate of pay.
(b) An employee on
shift work may elect, with the consent of the employer, to work "make-up
time" (under which the employee takes time off ordinary hours and works
those hours at a later time), at the shift work rate which would have been
applicable to the hours taken off.
(vi) Rostered
Days Off -
(a) An employee
may elect, with the consent of the employer, to take a rostered day off at any
time.
(b) An employee
may elect, with the consent of the employer, to take rostered days off in part
day amounts.
(c) An employee
may elect, with the consent of the employer, to accrue some or all rostered
days off for the purpose of creating a bank to be drawn upon at a time mutually
agreed between the employer and employee, or subject to reasonable notice by
the employee or the employer.
(d) This subclause
is subject to the employer informing each union which is both party to the
award and which has members employed at the particular enterprise of its
intention to introduce an enterprise system of RDO flexibility, and providing a
reasonable opportunity for the union(s) to participate in negotiations.
24. Catholic Employers
- Personal/Carer’s Leave
Clause 23 and 25 of this Award, shall not apply to employees
of a body which has been established by the Catholic Church to propagate
religion, who are covered by the Miscellaneous Workers (Catholic
Personal/Carer’s Leave) (State) Award published 7 May 1999 (309 I.G. 196) as
varied.
25. Bereavement Leave
(i) An
employee, other than a casual employee, shall be entitled to up to two days
bereavement leave without deduction of pay, up to and including the day of the
funeral, 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 a minimum of two days bereavement leave where the employee
travels outside Australia to attend the funeral.
(ii) The
employee must notify the employer as soon as practicable of the intention to
take bereavement leave and will provide to the satisfaction of the employer
proof of death.
(iii) Bereavement
leave shall be available to the employee in respect to the death of a person prescribed
for the purposes of personal/carer’s leave as set out in subparagraph (2) of
paragraph (c) of subclause (i) of clause 23, Personal/Carer’s Leave of this
Award, provided that, for the purpose of bereavement 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) Bereavement
leave may be taken in conjunction with other leave available under subclauses
(ii), (iii), (iv), (v) and (vi) of the said clause 23. In determining such a
request, the employer will give consideration to the circumstances of the employee and the reasonable
operational requirements of the business.
26. Redundancy
(i) Application
-
(a) This clause
shall apply in respect of full-time and part-time persons employed in the
classifications specified in this award, and all variations thereof.
(b) This clause
shall apply in respect of employers who employ 15 employees or more immediately
prior to the termination of employment of employees, in the terms of subclause
(iv), Termination of Employment.
(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.
(3) Provided that
where this 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) of
this subclause, 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 the said paragraph (a).
(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 to be done by anyone pursuant to subparagraph
(1) of paragraph (a) of subclause (ii), Introduction of Change, 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 paragraph and shall cover, inter alia, any reason 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
purpose 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 employees 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 paragraph
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), Introduction of Change:
(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
|
|
2 years and less than 5 years
|
3 weeks
|
|
3 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 paragraph sets out the notice provisions to be
applied to termination by the employer for reasons arising from technology in
accordance with paragraph (a), Employer's duty to notify, of subclause (ii),
Introduction of Change:
(1) In order to
terminate the employment of an employee, the employer shall give to the
employee three 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 purpose 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 the Centrelink thereof as soon as possible, giving
relevant information, including the number and categories of the employees
likely to be affected and the period over which the terminations are intended
to be carried out.
(g) Centrelink
Employment 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), Introduction of Change, 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), Termination of
Employment, subject to further order of the Industrial Relations Commission of
New South Wales, the employer shall pay the employee 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:
|
Years of service
|
Under 45 years of age entitlement
|
|
|
|
|
Less than 1 year
|
Nil
|
|
1 year and less than 2 years
|
4 weeks
|
|
2 years and less than 3 years
|
7 weeks
|
|
3 years and less than 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 of age or over, the entitlement shall be in accordance
with the following scale:
|
Years of service
|
45 years of age and over entitlement
|
|
|
|
|
Less than 1 year
|
Nil
|
|
1 year and less than 2 years
|
5 weeks
|
|
2 years and less than 3 years
|
8.75 weeks
|
|
3 years and less than 4 years
|
12.5 weeks
|
|
4 years and less than 5 years
|
15 weeks
|
|
5 years and less than 6 years
|
17.5 weeks
|
|
6 years and over
|
20 weeks
|
(3) "Week's
pay" means the all-purpose rate for the employee concerned at the date of
termination and shall include, in addition to the ordinary rate of pay,
overaward payments, shift penalties and allowances paid in accordance with this
award, as varied.
(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) of this
subclause. The Commission shall have regard to such financial and other
resources of the employer concerned as the Commission thinks relevant, and the
probable effect paying the amount of severance pay in the said paragraph (a)
will have on the employer.
(c) Alternative
employment - Subject to an application by the employer and further order of the
Commission, an employer may pay a lesser amount (or no amount) of severance pay
than that contained in paragraph (a) of this subclause if the employer obtains
acceptable alternative employment for an employee.
(vi) Savings
Clause - Nothing in this clause 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 industrial organisation of employees and any employer
bound by this clause.
27. Jury Service
(i) An employee
shall be allowed leave of absence during any period when required to attend for
jury service.
(ii) During such
leave of absence, an employee shall be paid the difference between the jury
service fees received and normal rates of pay as if working, provided that
payment for such leave shall be limited to a maximum of 2 weeks in any one
period of jury service.
(iii) An employee
shall be required to produce to the employer proof of jury service fees
received and proof of requirement to attend and attendance on jury service and
shall give the employer notice of such requirement as soon as practicable after
receiving notification to attend for jury service.
28. Attendance at Repatriation
Centres
(i) Weekly
employees, being ex-service personnel, shall be allowed as time worked, lost
time incurred whilst attending repatriation centres for medical examination
and/or treatment, provided that:
(a) such lost time
does not exceed four hours on each occasion and a maximum of 20 hours per
annum;
(b) the employee
produces evidence satisfactory to the employer that the employee is so required
to and subsequently does attend a repatriation centre.
(ii) Provided
that the employer shall be entitled to deduct from such lost time any payment
the employee is entitled to receive for lost time from the Repatriation
Department in respect of any such attendance.
29. Enterprise Consultation
Enterprises covered by this award shall establish a consultative
mechanism and procedures appropriate to their size, structure and needs for
consultation and negotiation on matters affecting their efficiency and
productivity.
30. Disputes Procedure
It is the intention of the parties to this award to
eliminate disputes which result in stoppages, bans or limitations, and it is
agreed that the parties to this award shall confer in good faith with a view to
resolving the matter by direct negotiation and consultation in the following
sequence:
(i) Any grievance
or dispute which arises shall, where possible, be settled by discussion on the
job between the employee and the employee's immediate supervisor.
(ii) If the matter
is not resolved at this level, the matter will be further discussed between the
affected employee, the union delegate where applicable and the supervisor or
manager of the relevant section or department, and the employer's industrial
representative may be notified.
(iii) If no
agreement is reached, the union organiser and union delegate may discuss the
matter with the company's nominated industrial relations representative.
(iv) Whilst the
foregoing procedure is being followed, work shall continue normally. No party shall be prejudiced as to the final
settlement by the continuance of work in accordance with this subclause.
(v) Should the
matter still not be resolved, it may be referred by either party to the
Industrial Relations Commission of New South Wales for settlement.
31. Superannuation
(i) Definitions
- In this clause:
(a) "ASSET"
means the Australian Superannuation Savings Employment Trust.
(b) "ARF"
means the Australian Retirement Fund.
(c) "Union"
means the Australian Liquor, Hospitality and Miscellaneous Workers Union, New
South Wales Branch.
(d) "Ordinary-time
Earnings" means -
(1) In the case of
a weekly employee, the award classification rate of pay (including shift
allowance) together with any overaward payment for ordinary hours of work.
(2) In the case of
a part-time or casual employee, the number of ordinary hours worked in each
week multiplied by the appropriate hourly rate for the award classification of
the employee (including the part-time or casual loading and/or shift
allowance).
(3) Provided that
it shall not include overtime, meal allowances, occasional bonus payments, or
any other ancillary payments of a like nature.
(e) "Overaward
Payment" means the amount (whether it be termed "overaward
payment", "attendance bonus", "service increment", or
any term whatsoever) which an employee would receive in excess of the award
rate of pay for the classification in which such employee is engaged. Provided that such payment shall exclude
overtime, meal allowances and any other ancillary payments of a like nature.
(f) "Trustee"
means the trustee of an approved fund as may be appointed from time to time.
(g) "Act"
means the Occupational Superannuation Standards Act 1987 and Regulations
made thereto.
(ii) Fund -
(a) The employer
shall make the superannuation contributions or improvements pursuant to this
clause to any of the following funds selected by the employer, provided that
such fund complies with the Act:
(1) ASSET;
(2) ARF;
(3) any approved
fund that has application to other employees in the employer's business.
(b) Provided
further that an employer shall not be compelled to contribute to more than one
fund in respect of employees covered by this clause.
(iii) Pre-existing
Arrangement - Nothing in this clause shall affect any arrangement for the
payment of 3 per cent occupational superannuation into a fund that complies
with the Occupational Superannuation Guidelines and is approved by the
Occupational Superannuation Commissioner as conforming to the Commonwealth
Government's operational standards for occupational superannuation funds to
which an employer prior to 26 August 1991 was making contributions on behalf of
employees; provided that such contributions were intended to be, and are, in
full satisfaction of the superannuation principle adopted by the State Wage
Case of 1986, as varied from time to time by subsequent State Wage Case
decisions.
(iv) Employer to
Become Party to an Approved Fund:
(a) Each employee
bound by this clause shall sign and execute an application to become a
participating employer of an approved fund determined in accordance with
subclause (ii), Fund, within one month of an employee becoming an eligible
employee in accordance with subclause (vi), Eligibility of Employees.
(b) Each employer
bound by this clause shall become party to the approved fund upon the
acceptance by the Trustee of the approved fund of an application to become a
participating employer, duly signed and executed by each employer and the
Trustee of the approved fund.
(c) Each employer
bound by this clause shall provide every employee who is not already a member
of the approved fund with a membership application form for the approved fund
upon commencement of service or upon commencement of this clause.
(v) Employee to
Enrol in an Approved Fund - Each employee upon becoming eligible to become a
member of a fund determined in accordance with this clause shall -
(a) complete and
sign the necessary application form(s) to enable that employee to become a
member of that fund;
(b) return such
forms to the employer within 28 days of receipt in order to be entitled to the
benefit of the contributions prescribed in subclause (vii), Contributions.
(vi) Eligibility
of Employees -
(a) Date of
Becoming Eligible -
(1) Permanent
Employees - All weekly and part-time employees shall be eligible to join the
approved fund after 3 months continuous service with the employer; provided
that part-time employees shall regularly work 12 hours or more per week.
(2) Casual
Employees - All casual employees shall be eligible to join the approved fund if
they regularly work 12 hours or more per week and have completed six months
service with a particular employer.
(b) Payment From
Date Eligible - Notwithstanding the date upon which an employee signs a
membership application form (refer to subclause (v), Employee to Enrol in an
Approved Fund), contributions in accordance with subclause (vii),
Contributions, shall be made from the date when the employee became accepted
for membership.
(vii) Contributions
-
(a) Subject to
subclauses (vi), Eligibility of Employees, and (viii), Method by Which an Employer
Shall Become a Respondent, an employer shall contribute to a superannuation
fund in accordance with subclause (ii), Fund, on behalf of each eligible
employee a superannuation contribution equivalent to 3 per cent of such
eligible employee's ordinary-time earnings from the beginning of the first pay
period to commence on or after the date from which the employer is made
respondent to this award.
(b) The benefits
offered by the fund selected in accordance with subclause (ii) and of which the
employee is a member, may be improved such that the improvements are equivalent
to the value of contributions required to be made by this clause and are in
accordance with the Act.
(c) A pro rata
deduction shall be made from the weekly contribution payable for any unauthorised
absence of at least one day's duration.
(d) An employer
shall not be required to contribute during any periods of unpaid leave - such
as unpaid sick leave, maternity leave or the like, or periods of workers'
compensation. The obligation of the
employer to contribute to the fund in respect of an employee shall cease on the
last day of such employee's employment with the employer.
(viii) Method by
Which an Employer Shall Become a Respondent - By a consent application to the
Industrial Committee, or upon the expiration of 21 calendar days from the date
of service by the Secretary of the union upon an employer of an invitation to
enter into an agreement providing for 3 per cent occupational superannuation,
the employer shall be added or shall be deemed to be added, as the case may be,
to the list of respondents. The
employer's obligation to commence payment of contributions, subject to
subclauses (vii) and (viii), shall come into force from:
(a) the date upon
which such employer becomes respondent to this award; or
(b) a date joined
by agreement; or
(c) the common
rule date of operation.
(ix) Employee's
Failure to Enrol in a Fund - Where an employer has complied with the
requirements of subclause (iv) and an eligible employee fails to complete, sign
and return the application form to become a member of a superannuation fund
within 28 days of the receipt by the employee of that form, then that employer
shall:
(a) advise an
eligible employee in writing of the non-receipt of the application form and
further advise the eligible employee that continuing failure to complete, sign
and return such form within 14 days could jeopardise the employee's entitlement
to the occupational superannuation benefit prescribed by this award;
(b) in the event
that an eligible employee fails to complete, sign and return such application
form within the specified period of 14 days, be under no obligation to make any
occupational superannuation contributions in respect of such eligible employee,
excepting as from any subsequent date from which a completed and signed
application form is received by the employer;
(c) in the event
that an eligible employee fails to return a completed and signed application
form within a period of six months from the date of this original request by
the employer, again advise that eligible employee in writing of the entitlement
and that the receipt by the employer of a completed and signed application form
is a prerequisite to the payment of any occupational superannuation
contributions, and forward a copy of such advice to the union of which the
employee is a member.
(x) Death and
Disability Cover - This clause places no requirement on an employer to cover an
employee against death, disablement or similar occurrences.
(xi) Exemptions -
(a) The following
employers shall be exempted from the provisions of this clause:
John Fairfax and Sons Limited;
Rothmans of Pall Mall (Aust) Limited;
Inghams Enterprises Pty Limited;
Broken Hill Proprietary Company Limited and Tubemakers
of Australia Limited or any corporation which is a related corporation within
the meaning of the Corporations Act 1981 of either the Broken Hill
Proprietary Company Limited or Tubemakers of Australia Limited.
(b) Employers of
employees who are covered by a superannuation award or agreement made pursuant
to the Industrial Relations Act 1996 or the Workplace Relations Act 1996
(Commonwealth) shall be exempted from the provisions of this clause.
(xii) Remitting
Payments - Each employer shall remit to the Trustee of the fund all
contributions due in respect of their employees retrospectively between the
conclusion of the calendar month and before the end of the next calendar month,
or such other times and in such manner as may be agreed upon in writing between
the employer and the Trustee.
(xiii) Records -
Each employer shall retain all records relating to the calculation of payments
due to the fund determined in subclause (ii), Fund, in respect of each employee
and such records shall be retained for a period of six years. They shall be available for inspection by:
(a) The officials
of the union in accordance the Industrial Relations Act 1996;
(b) representatives
of the Trustee.
32. Area, Incidence and
Duration
(i) This Award
shall apply to all persons employed in the classifications set out in Table 1 -
Wages, of Part B, Monetary Rates, within the jurisdiction of the Miscellaneous
Gardeners, &c. (State) Industrial Committee.
(ii) This award
was made following a review under section 19 of the Industrial Relations Act,
1996 and rescinds and replaces the Miscellaneous Gardeners, &c. (State)
Award published 30 September 1994 (281 I.G. 1211), the Miscellaneous Gardeners,
&c., Redundancy (State) Award published 24 March 1995, (284 I.G. 920) the
Miscellaneous Gardeners, &c. (State) Wages Adjustment Award published 25
August 1995 (287 I.G. 712), and the Miscellaneous Workers Gardeners, &c.
(State) Wages Adjustment and Allowances Award published 2 May 1997 (298 I.G.
14), and all variations thereof.
(iii) This award
takes effect from the beginning of the first full pay period to commence on or
after 16 November 2000 and shall remain in force thereafter for a period of 2
years until varied or rescinded.
PART B
MONETARY RATES
Table 1 - Wages
|
Classification
|
Former Rate
Per Week
$
|
SWC 2000
$
|
Total Rate Per Week
$
|
|
Introductory Level
|
385.40
|
15.00
|
400.40
|
|
Level 1
|
402.10
|
15.00
|
417.10
|
|
Level 2
|
424.60
|
15.00
|
439.60
|
|
Level 3
|
445.50
|
15.00
|
460.50
|
|
Level 4
|
477.20
|
15.00
|
492.20
|
Table 2 - Allowances
|
Item No.
|
Clause No.
|
Brief Description
|
Amount
$
|
|
1
|
11(i)
|
Leading Hand Allowance
|
19.62 per week, or
3.93 per day
|
|
2
|
11(ii)
|
First Aid Certificate
|
10.68 per week
|
|
3
|
11(ii)
|
First Aid Certificate
|
2.13 per day
|
|
4
|
11(iii)
|
Meal Money
|
6.03
|
I. W. CAMBRIDGE,
Commissioner.
Miscellaneous Gardeners, &C. (State) Industrial Committee
Industries and Callings
All persons employed as propagators and/or gardeners and
general garden hands (other than employees of landscape or master gardeners)
employed in and about commercial and industrial undertakings, retirement
villages (including company or strata title retirement units) but excluding
establishments which are attached to or have a nursing home or facility
providing nursing care located within the grounds of the retirement village,
and further excluding retirement villages operated by religious organisations
and/or charitable institutions and/or voluntary non-profit organisations, and
churches in the State, excluding the County of Yancowinna, excepting employees
of the Crown, the State Rail Authority of New South Wales and Urban Transit
Authority of New South Wales, Roads and Traffic Authority of New South Wales,
the universities, employees engaged in rural industries, employees of Stanton
Pipes of Australia Pty Limited, CSR Limited and the ICI Rhodes Factory and
employees within the jurisdiction of the following Industrial Committees:
Agricultural Employees (State);
Club Employees (State);
Private Hospital Employees (State);
Cement, &c., Pipe Making (State);
Cement Makers (State);
Cement Workers, &c. (State);
Chemical Workers (State);
Fish Canning, &c. (State);
Gangers (State);
Labourers, Railway and Road Construction, &c.
(State);
Lime Makers, &c. (State);
Malted Milk Manufacture (State);
Matches Manufacture (State);
Nut Food Makers, &c. (State);
Quarries, Gravel and Sand Pits (State);
Quarries, &c. (Broken Hill Proprietary Company
Limited);
Race Clubs, &c., Employees (Country);
Race Clubs, &c., Employees (Cumberland and
Newcastle);
Soap and Candle Makers (State);
Sugar Manufacturers (State);
Australian Wire Industries Pty Ltd - Newcastle Ropery;
Steel Works Employees (Broken Hill Proprietary Company
Limited);
Iron and Steel Works Employees (Australian Iron and
Steel
Proprietary Limited);
Special Steels and Steel Products Manufacture
(Commonwealth Steel
Company Limited);
John Lysaght (Australia) Limited Newcastle;
John Lysaght (Australia) Limited Port Kembla;
John Lysaght (Australia) Limited Unanderra;
Australian Wire Industries Pty Limited - Sydney
Wiremill;
Australian Wire Industries Pty Limited - Newcastle Wiremill;
Australian Gas Light Company (Wages Division);
North Shore Gas Company Limited (Wages Division);
Tubemakers of Australia Limited, Newcastle;
Municipal and Shire Council Employees;
Municipal Employees (The Council of the City of
Sydney);
Municipal Employees (Newcastle);
Sydney County Council (Wages Division);
Sydney County Council (Salaried Division);
County Council (Electricity Undertakings) Employees;
Northern Rivers County Council;
St George County Council;
Shortland County Council;
Electricity Commission (Wages Staff);
Electricity Commission (Salaried, Other Than
Professional, Staff);
Metalliferous Miners, &c., General (State);
Smelting, &c. (Electrolytic R & S Company,
&c.);
Smelting (Sulphide Corporation Limited);
Brass and Copper Workers (State);
Water Supply and Sewerage Employees (Metropolitan);
Butchers, Wholesale (Country);
Butchers, Wholesale (Cumberland);
Butchers, Wholesale (Newcastle and Northern);
Meat Industry Employees (Riverstone Meat Company
Proprietary
Limited);
Flats, Residentials, &c. (State);
Boarding House Employees (State);
Nurseries Employees (State);
Restaurant, &c., Employees (State);
Retail Services Employees (State);
Public Hospital Employees (State).
____________________
Printed by the authority of the Industrial Registrar.