ADVERTISING SALES REPRESENTATIVES (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.
(No. IRC 5757 of 1999)
Before The Honourable
Justice Schmidt
|
19 February 2001
|
REVIEWED AWARD
Arrangement
PART A
Clause No. Subject Matter
1. Title
2. Definitions
3. Terms of
Engagement
4. Training
5. Remuneration
6. Arbitrated
Safety Net Adjustments
7. Award
Modernisation
8. Flexibility
of Work
9. Enterprise
Agreements
10. Enterprise
Consultative Mechanism
11. Locomotion
12. Commission
13. Termination
of Employment
14. Annual
Leave
15. Annual
Holidays Loading
16. Sick Leave
17. Personal/Carer's
Leave
18. Long
Service Leave
19. Right of
Entry
20. Records of
Employment
21. Parental
Leave
22. Superannuation
23. Bereavement
Leave
24. Anti-Discrimination
25. Redundancy
26. Disputes
Procedure
27. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1 - Rates of Pay
Table 2 - Other Rates and
Allowances
PART A
1. Title
This Award shall be known as the Advertising Sales
Representatives (State) Award.
2. Definitions
In this award:
(a) Cadet
Representative means a person under the age of twenty-one years who is employed
to perform the duties of a Representative and who on employment is classified
as a Cadet Representative.
(b) Commission
shall be deemed to include any financial payment, bonus or financial reward
directly related to the soliciting or obtaining of advertising material from a
territory by an employee, but shall not be deemed to include any incentive
payment, bonus or reward periodically made by the employer on the basis of
profitability or performance of the employer or any section, group or division
thereof.
(c) Employee means
a Representative, a Probationary Representative and Cadet Representative
collectively.
(d) Union means
the National Union of Workers, New South Wales Branch.
(e) Probationary
Representative means a Representative
employed on probation in accordance with the provisions of subclause (b) of
clause 3, Terms of Engagement.
(f) Representative
means a person who on employment is engaged by the week and who is employed
substantially away from the employer's place of business in soliciting orders
for advertising space in newspapers, journals or periodicals, howsoever
described, within the jurisdiction of the Advertising Sales Representatives
(State) Industrial Committee.
3. Terms of
Engagement
(a) All
employees -
(i) Within 28
days from the commencement of this award or, where the employment commences
after such date, within 28 days from the commencement of their employment, the
employer shall provide the employee with a written statement advising of:
(1) the
classification in this award in which the employee is employed;
(2) the
remuneration payable;
(3) the locomotion
allowance payable (if any);
(4) where
commission is payable, the particulars set out in subclause (b) of clause
12, Commission; and
(5) where a
territory has been allocated, the boundaries or limits of such territory.
(ii) Where a
territory is allocated to an employee after employment commences, within 28
days of its allocation the employer shall provide the employee with a written
statement advising the employee of the boundaries or limits of such territory.
(b) Probationary
Representatives -
(i) A
Representative may be employed for no more than twelve months on probation.
(ii) No employer
shall employ more than one Probationary Representative for each three
Representatives (or part thereof) employed by that employer.
(iii) A person
under the age of twenty-one years who is employed as a Probationary
Representative and who completes the period of probation before attaining that
age shall be classified as a Representative on completion of the probationary
period.
(c) Cadet
Representative -
(i) A Cadet
Representative may be employed for no more than two years as a cadet.
(ii) Upon
completion of two years' employment a Cadet Representative may be engaged as a
Probationary Representative according to the provisions of subclause (b) of
this clause.
4. Training
(a) The parties
to this award recognise that in order to increase the efficiency, productivity
and competitiveness of the industry, a greater commitment to training is
required. For this purpose a
consultative mechanism and procedure, appropriate to the size, structure and
needs of the establishment or enterprise, may be established in order to
process any issues and/or matters that may arise in relation to training. Accordingly, the parties commit themselves
to:
(i) maintain and
develop an appropriately skilled and flexible workforce;
(ii) provide the
opportunity for career development consistent with the needs of the individual
company;
(iii) remove
barriers to the utilisation of skills required.
(b) An employer
may develop a training programme consistent with:
(i) the current
and future training needs of the enterprise;
(ii) the size,
structure and nature of the operations of the enterprise;
(iii) the need to
develop vocational skills relevant to the enterprise for internal course or
courses conducted by accredited providers.
5. Remuneration
(a) Subject to
subclause (d) of clause 12, Commission, the minimum weekly rates of
remuneration payable to employees shall be as set out in Table 1 - Rates of
Pay, of Part B, Monetary Rates.
(b)
(i) Employees
shall be paid weekly or fortnightly or, with the consent of the employee,
monthly.
(ii) Wages shall
be paid by cash, cheque or electronic funds transfer into the employee's bank
(or other recognised financial institution) account at the employer's
discretion.
(c) An employee
who is required by the employer to remain away from the employee’s usual place
of residence on more than two nights in any one week, Monday to Sunday,
inclusive, shall for that week be paid the amount as set out in Item 1 of Table
2 - Other Rates and Allowances, of the said Part B, in addition to the
remuneration prescribed by the said Table 1.
The provisions of this subclause will not apply if the employer pays all
reasonable expenses incurred by an employee.
6. Arbitrated Safety
Net Adjustments
(a) The rates of
pay in this award include the first, second and third arbitrated safety net
adjustments ($8.00 per week each - 1 May 1995, 5 March 1998) payable under the
State Wage Case - December 1994 Decision.
All the above Safety Net Adjustments may be offset to the extent of any
wage increase received at the enterprise level since 29 May 1991. Increases made under previous State Wage
Case Principles or under the current principles, excepting those resulting at
the enterprise level, are not to be used to offset arbitrated safety net
adjustments.
(b) The rates of
pay in this award include the adjustments payable under the State Wage Case of
May 2000. These adjustments may be
offset against:
(i) any
equivalent overaward payments; and/or
(ii) award wage
increases since 29 May 1991 other than Safety Net, State Wage Case, and Minimum
Rates Adjustments.
7. Award
Modernisation
(a) The parties
are committed to examining this award to ensure it reflects the needs of modern
business and to eliminate or amend provisions which restrict the ability of
employers to adapt quickly and efficiently to changes affecting their business
and the provisions of services to the consumer/customer.
(b) The parties
are committed to modernising the terms of the award so that it provides for
more flexible working arrangements, improves the quality of working life,
enhances skills and job satisfaction and assists positively in the
restructuring process.
(c) The Union is
prepared to discuss with employers all matters raised by the Union and the
employers for increased flexibility. As
such any discussion with the Union must be premised on the understanding that:
(i) Changes will
not be of a negative cost-cutting nature.
(ii) The
negotiations will include the Union and employer associations.
(iii) The Union
will not unreasonably oppose agreement.
(iv) If agreement
cannot be reached in the implementation process on a particular issue it shall
be referred to the Industrial Relations Commission of New South Wales for
resolution.
(d) Should an
agreement be reached between the parties pursuant to this clause at an
enterprise and that agreement requires award variation for that enterprise, the
parties will not oppose that award variation.
(e) The parties
agree that under this heading any award matter can be raised for discussion.
8. Flexibility of
Work
(a) Employees
are to perform a wider range of duties including work which is incidental or
peripheral to their main task or functions.
(b) Employees
shall perform such work as is reasonably and lawfully required of them by the
employer, including accepting instruction from authorised personnel.
(c) Employees
shall take all reasonable steps to achieve quality, accuracy and completion of
any job or task assigned to the employee.
(d) Employees
shall not impose any restrictions or limitations on a reasonable review of work
methods or standard work times.
(e) Discussion
shall take place at the enterprise with a view to reaching agreement for
employees to perform a wider range of tasks, removal of demarcation barriers
and participation of employees in additional training.
(f) For the
purpose of increasing productivity, flexibility and efficiency in mixed
enterprises, as well as enhancing opportunities for employees, broadbanding may
extend, by agreement between an employer and an employee, to allow the employee
to perform any work in a mixed enterprise within the scope of the employee’s
skills and competency. A mixed
enterprise is defined as an establishment where the primary operation is not
covered by this award.
(g) Subject to
the provisions of subclause (e) of this clause, employees in a mixed enterprise
shall not impose or continue to enforce demarcation barriers between the work
of employees, provided that it is agreed that the work lies within the scope of
the skill and competency of the employee concerned.
9. Enterprise
Agreements
See Part 2 of Chapter 2 of the Industrial Relations Act 1996.
10. Enterprise
Consultative Mechanism
At each enterprise there shall be established a consultative
mechanism appropriate to their size, structure and needs for consultation and
negotiation on matters affecting their efficiency and productivity.
11. Locomotion
(a) All means of
locomotion which an employer requires an employee to use for the purpose of
carrying out the employee’s duties shall be provided and shall be maintained by
the employer unless, by arrangement with the employer, the employee provides a
motor vehicle. If an employee in
pursuance of that arrangement does provide a motor vehicle the employee shall,
in addition to all other payments made to the employee in accordance with the
employee’s contract of employment, be paid a minimum allowance per week as set
out in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary
Rates, as a standing charge, plus a weekly amount calculated at the rate as set
out in the said Item 2 for the actual kilometres travelled by that vehicle each
week in the course of their employment.
(b) For the
purposes of subclause (a) of this clause, where an employee at the request of
the employer reports to their employer's place of business either or both on
commencement or completion of the employee's work on any day, the kilometres
travelled by the employee between the employee’s place of residence and the
employer's place of business, for the purpose of so reporting, shall not be
counted as kilometres travelled in the course of the employee's employment.
(c) Except where
the employment of an employee is terminated under clause 13, Termination of
Employment, an employee who has provided a vehicle by arrangement with the
employer shall be given at least four weeks' written notice of the employer's
intention to terminate or alter that arrangement or, in lieu thereof, shall be
paid the appropriate standing charge allowance for a period of four weeks.
(d) The standing
charge car allowance set out in the said Item 2 shall be paid during each week
of the calendar year except in respect of periods -
(i) when the
employee is absent from duty otherwise than in accordance with the provisions
of this award and without the consent of the employer; or
(ii) in excess of
three consecutive weeks when the vehicle is unavailable due to accident or
mechanical defect; or
(iii) in excess of
a total of three complete weeks in any one year when the employee is unable to
work on account of personal illness or incapacity, provided that any period of
less than one complete week shall not be taken into account for the purpose of
this paragraph.
(e) Where the
employer terminates the employment of an employee who has provided a motor
vehicle for use in connection with the employee’s employment, by payment in
lieu of notice or in circumstances where the employer is required to pay salary
in lieu of notice, the standing charge allowance applying to the motor vehicle
provided by the employee shall also be paid for the same period for which
salary is paid or is required to be paid in lieu of notice.
(f) An employee
who -
(i) at the time
of their application for employment neither owned nor was in the process of
acquiring the ownership of a motor vehicle by hire purchase or otherwise; and
(ii) informed the
employer of that fact prior to their engagement; and
(iii) was
thereafter engaged on terms requiring the employee to provide a motor vehicle
for use in their employment; and
(iv) did provide
such motor vehicle, shall be guaranteed a minimum of thirteen weeks' employment
and if before the expiry of that period the employer dismisses the employee
otherwise than for misconduct justifying summary dismissal, the employer shall
pay the employee for the unexpired portion of the period of thirteen weeks:
(1) at the minimum
rate of remuneration prescribed by Table 1 - Minimum Award Wage Rates of Part
B, Monetary Rates, appropriate for the employee; and
(2) the standing
charge allowance prescribed by Item 2 of Table 2.
(g) by agreement
between the employer and the Union, alternative locomotion arrangements not
less favourable to an employee in a particular case may be made in lieu of the
provisions of this clause.
(h) Where an
employee is provided with a vehicle by the employer for the purpose of carrying
out the employee’s duties the employee shall, if required by the employer, use
a petrol card provided by the employer when purchasing petrol for such vehicle.
12. Commission
(a) Where an
employee is paid commission the employer shall, within 28 days from the date of
commencement of the employee's employment or where arrangements as to
commission are varied by the employer pursuant to subclause (c) of this clause,
within 28 days of the date of such variation, provide the employee with a
written statement containing the following particulars:
(i) the rate or,
where there is more than one rate, the rates of commission payable; and
(ii) the
conditions and terms on which commission or any part thereof is payable or is
not payable, and
(iii) deductions,
if any, which are made or may be made to the commission payable.
(b) Where the
employer and the employee make a written agreement or agreements relating to
commission or territory, the employee shall be provided with a true copy of
such agreement or agreements. In the
event that the employee loses their copy or copies, the employer will provide
the employee with a further copy or copies if the employee so requires.
(c) The employer
shall be entitled to terminate or alter any arrangements made with the employee
either on engagement or subsequently regarding payment of commission, upon
giving the employee at least 28 days written notice of such termination or
alteration, in circumstances where the alteration involves a decrease in the
rate of commission payable.
(d) An employee
who is remunerated wholly or in part by commission shall not, over a period of
four weeks, receive an average remuneration which is less than four times the
weekly remuneration prescribed from time to time for that employee under Table
1 - Minimum Award Wage Rates, of Part B, Monetary Rates.
13. Termination of
Employment
(a) Employment
shall be on a weekly basis and, subject to this award, shall continue from week
to week until brought to an end in accordance with this award.
(b) Employment
may be brought to an end by either party giving one full week's notice of any
day of intention to terminate the employment or by the payment or forfeiture of
one week's remuneration, as the case may be, in lieu thereof; provided that an
employer may dismiss an employee without notice for misconduct and in such case
remuneration shall be paid up to the time of dismissal only.
(c) Provided
that the employer and employee may make alternative arrangements which shall be
not less favourable to the employee in whole or in part than the provisions of
this clause.
(d) On
termination of the employment all moneys payable to the employee shall, subject
to this award, be paid to the employee on the day of such termination or
forwarded to the employee by pre-paid registered mail on the next working day.
NOTATION: For further provisions which may be applicable
when the employment of an employee is terminated within the first thirteen
weeks of employment, see subclause (f) of Clause 11 - Locomotion.
14. Annual Leave
See Annual Holidays
Act 1944.
15. Annual Holidays
Loading
(a) In this
clause the Annual Holidays Act 1944
is referred to as "the Act".
(b) Before an
employee is given and takes annual holidays or when by agreement between the
employer and the 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 (f) of this clause.)
(c) 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.
(d) The loading
is to be calculated in relation to any period of annual holiday to which an
employee becomes entitled or where such a holiday is given and taken in
separate periods, then in relation to each such separate period.
(NOTE: See subclause
(f) of this clause as to holidays taken wholly or partly in advance.)
(e) The loading
is an amount payable for the period or the separate periods, as the case may
be, stated in subclause (d) of this clause at the rate per week of 17½ per cent
of the weekly rate of pay prescribed from time to time by Table 1 - Rates of
Pay, of Part B, Monetary Rates, for the classification in which the employee
was employed immediately before commencing the employee's annual holiday.
(f) 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 day when the employee would have become entitled 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 (e) of this clause
applying the weekly rate of pay applicable to the employee on that day under
the said Table 1.
(g) Where in
accordance with the Act an 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 employee concerned -
(i) 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 (e) of this clause.
(ii) 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 to the
employee under the Act, such proportion of the loading that would have been
payable to the employee under this clause if the employee had become entitled
to an annual holiday prior to the close-down as the employee’s qualifying
period of employment in completed weeks bears to 52.
(h)
(i) When the
employment of an employee is terminated by the employer for a cause other than
misconduct and at the time of termination the Representative has not been given
and has not taken the whole of an annual holiday to which the Representative
was entitled, the Representative shall be paid a loading calculated in
accordance with subclause (e) for the period not taken.
(ii) Except as
provided by paragraph (i) of this subclause, no loading is payable on the
termination of a Representative's employment.
16. Sick Leave
Each employee who has completed three months' continuous
service and who is absent from work on account of personal illness or injury
shall be entitled to leave of absence with pay, subject to the following conditions
and limitations:
(a) The employee
shall, within 24 hours of 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 illness or injury and the estimated duration of the absence.
(b)
(i) The employee
shall forward such evidence as the employer may reasonably require 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. After the first day's absence in any year of employment on
account of illness, the employer may require the employee to provide a doctor's
certificate for any further illness for which sick leave is claimed. Subject to paragraph (ii) of this subclause,
the employee shall not be entitled in respect of the first year of service to
sick pay for more than five days or for more than eight days for each year of
service in the second and subsequent years of service.
(ii) If the full
period of sick leave is not taken in any year, the whole or any untaken portion
shall be cumulative from year to year provided that an employer shall not be
bound to credit a Representative for sick leave which has accrued more than
five years before the end of the last completed year of service.
(iii)
(1) Where an
employee is absent from employment on the working day or part of the working
day immediately preceding or immediately after a State public holiday as
defined in this award; or
(2) before or
after a period of annual leave during which a State public holiday or State
public holidays occur as defined, without reasonable excuse, the employer's
consent or such other evidence as the employer may require, the employee shall
not be entitled to payment for such State public holiday or State public
holidays.
(3) For the
purposes of subparagraphs (1) and (2) of this paragraph a State public holiday
is defined as New Year's Day, Australia Day, Anzac Day, Good Friday, Easter
Saturday, Easter Monday, Queen's Birthday, Labour Day, Christmas Day, Boxing
Day and any other holidays which may from time to time be proclaimed for the
State in addition to or in lieu of such day or days.
17. Personal/Carer's
Leave:
(1) Use of Sick
Leave -
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) 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 16, Sick
Leave, for absences to provide care and support, for such persons when they are
ill. Such leave may be taken for part
of a single day.
(b) The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person.
In normal circumstances, an employee must not take carer's leave under
this subclause where another person has taken leave to care for the same
person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
(a) a spouse of
the employee; or
(b) a de facto
spouse, who, in relation to a person, is a person of the opposite sex to the
first mentioned person who lives with the first mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
(c) a child or an
adult child (including an adopted child, a step child, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or spouse or de facto spouse
of the employee; or
(d) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(e) a relative of
the employee who is a member of the same household, where for the purposes of this
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.
(2) Unpaid Leave
For Family Purpose -
(a) An employee
may elect, with the consent of the employer, to take unpaid leave for the
purpose of providing care and support to a member of a class of person set out
in subparagraph (ii) of paragraph (c) of subclause (1) who is ill.
(3) Annual Leave
-
(a) An employee
may elect with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five
days in single day periods or part thereof, in any calendar year at a time or
times agreed by the parties.
(b) Access to
annual leave, as prescribed in paragraph (a) of this subclause, shall be
exclusive of any shutdown period provided for elsewhere under this award.
(c) An employee
and employer may agree to defer payment of the annual leave loading in respect
of single day absences, until at least five consecutive annual leave days are
taken.
(4) Time Off In
Lieu Of Payment For Overtime -
(a) 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.
(5) Make-Up Time
-
(a) An employee
may elect, with the consent of the employer, to work "make-up time",
under which the employee takes time off ordinary hours, and works those hours
at a later time, during the spread of ordinary hours provided in the award, at
the ordinary rate of pay.
(b) An employee on
shift work may elect, with the consent of the employer, to work "make-up
time" (under which the employee takes time off ordinary hours and works
those hours at a later time), at the shift work rate which would have been
applicable to the hours taken off.
18. Long Service
Leave
See Long Service Leave
Act 1955.
19. Right of Entry
See Chapter 5, Part 7 of the Industrial Relations Act, 1996.
20. Records of
Employment
(a) Time sheets
and pay sheets to be kept by employers - see section 129 of the Industrial Relations Act, 1996.
(b) Particulars
to be furnished by an employer to an employee on the payment of any wages - see
section 123 of the said Act.
21. Parental Leave
See Part 4 of Chapter 2 of the Industrial Relations Act, 1996.
22. Superannuation
(a) Alternative
Fund means an approved fund other than the Labour Union Cooperative Retirement
Fund (which latter fund is hereinafter called LUCRF).
Approved Fund means LUCRF or any other superannuation fund
approved in accordance with the Commonwealth's operational standards for
occupational superannuation funds.
Commission Earnings means, in relation to each eligible
employee, the amount actually paid to the eligible employee on account of
commission.
Contributions means the contributions prescribed by clause
(b) of this clause.
Eligible Employee means an employee to whom this award
applies, other than an employee employed by an exempt employer.
Exempt Employer means an employer to which paragraph (ii) of
subclause (b) applies.
Ordinary Earnings means, in relation to each eligible
employee, the minimum weekly rate of remuneration payable to the eligible
employee under Table 1 - Rates of Pay, of Part B, Monetary Rates, any overaward
payments made to the eligible employee, and the eligible employee's commission
earnings, but does not include any locomotion allowance payable under clause
11, Locomotion, annual holidays loading payable under clause 15, Annual
Holidays Loading, or any amount payable to the eligible employee on account of
reimbursement of expenses.
Qualifying Period means, in relation to each eligible
employee, 20 days' actual service with the eligible employee's employer.
(b) Nature of
Benefits -
(i) Subject to
paragraphs (ii) and (iii) of this subclause, an employer to which this clause
applies shall pay contributions into either LUCRF or, if an alternative fund is
nominated by eligible employees under subclause (c) of this clause, the
alternative fund, in respect of each eligible employee at the rate of 3 per
cent of the eligible employee's ordinary earnings.
(ii) An employer
shall not be required to pay contributions in respect of any eligible employee
until:
(1) the eligible
employee has completed the qualifying period, at which time a contribution
shall also be paid in respect of the qualifying period; or
(2) the eligible
employee has been admitted to membership of the approved fund into which
contributions may be made in respect of the eligible employee,
whichever is the later event.
(iii) An employer
shall not be required to pay contributions in respect of any eligible employee
for any period when the employee is absent without pay from the employee’s
employment.
(iv) Contributions
shall be paid at monthly intervals in accordance with the procedures and
subject to the requirements prescribed by the relevant approved fund.
(c) Alternative
Funds - If an employer wishes to pay contributions in respect of its eligible
employees into an alternative fund:
(i) The employer
shall notify the State Secretary of the Union (hereinafter called the
Secretary) in writing by registered mail that the employer wishes to pay
contributions in respect of its eligible employees into a nominated alternative
fund (hereinafter called the nominated alternative fund).
(ii) Subject to
paragraph (v) of this subclause, the employer may begin to pay contributions in
respect of its eligible employees into the nominated alternative fund when it
receives the Secretary's agreement that it may do so in writing by registered
mail.
(iii) If the
employer and the Union are unable to reach agreement, the question of whether
the employer may pay contributions in respect of its eligible employees into
the nominated alternative fund shall be referred to the Advertising Sales
Representatives (State) Industrial Committee.
(iv) If the
Advertising Sales Representatives (State) Industrial Committee is unable, by
conciliation, to bring the employer and the union to an agreement on this
question, the industrial committee shall not proceed to arbitrate the question.
(v) Instead, each
of the employer's eligible employees, both those who are then employed by the
employer and those who are later employed by the employer, shall be allowed to
elect whether the contributions which are required to be made in respect of the
employee should be made into LUCRF or the nominated alternative fund. The eligible employee's election shall be
nominated in writing. The employer may
begin to pay contributions into the nominated alternative fund in respect of
those of its eligible employees who elect to have contributions paid into that
fund when it receives those eligible employees' nominations. An eligible employee shall not be entitled
to make another such election within five years after the last election is made
by the eligible employee pursuant to this subclause.
23. Bereavement Leave
(i) A weekly
employee shall be entitled on notice to bereavement leave, up to and including
the day of the funeral, without deduction of pay for a period not exceeding the
number of hours worked by the employee in two ordinary days' work on each
occasion of the death of a person prescribed in subclause (iii) below.
(ii) The
employee shall provide proof of death to the satisfaction of the employer, if
required by the employer.
(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 in subclause (1)(c)(ii)
of clause 17 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) An employee
shall be entitled to bereavement leave under this clause in the event of the
death outside Australia of a person prescribed in sub-clause (iii) above, if
the employee goes overseas to attend the funeral.
(vi) Bereavement
leave may be taken in conjunction with other leave available under subclauses
1(a), 2, 3, 4, and 5 of clause 17, Personal/Carers' Leave. In determining such a request, the employer
will give consideration to the circumstances of the employee and the reasonable
operational requirements of the business.
24.
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
and age.
(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."
25. Redundancy
(i) Application
-
(a) This clause
shall apply in respect of permanent 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
sub-clause.
(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 sub-paragraph (1) of
paragraph (a) of sub-clause (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 sub-clause 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 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 sub-clause
(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 sub-clause 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
Appropriate Commonwealth Agency - Where a decision has been made to terminate
employees, the employer shall notify the appropriate Commonwealth Agency
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) Department of
Social Security 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 the Department of Social Security.
(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.
26. Disputes
Procedure
(a) As soon as
is practicable after a dispute or claim has arisen, the employee concerned
shall take the matter up with his or her immediate supervisor, affording him or
her the opportunity to remedy the cause of the dispute or claim.
(b) Where any
such attempt has failed, the employee may take the matter up with a
representative of the management of the employer.
(c) If the
matter is not settled, the employee may notify a representative of the Union
who, if he or she considers that there is some substance in the dispute or
claim, shall forthwith take the matter up with the employer or his or her
representatives.
(d) Without
prejudice to either party, work should continue in accordance with the award
while the matters in dispute are being dealt with in accordance with this
clause.
(e) If the
matter is not settled, it may be referred to the Industrial Relations
Commission of New South Wales for conciliation.
27. Area, Incidence
and Duration
(a) This award
shall apply to employees employed or engaged in the State of new South Wales,
excluding the County of Yancowinna, within the jurisdiction of the Advertising
Sales Representatives (State) Industrial Committee.
(b) This award
is made following a review under Section 19 of the Industrial Relations Act 1996 and rescinds and replaces the
Advertising Sales Representatives (State) Award published 7 August 1998 (306
I.G. 1) and all variations thereof.
(c) The award
published 7 August 1998 took effect from the beginning of the first pay period
to commence on or after 3 March 1998 and the variations incorporated therein on
the dates set out in the attached Schedule A.
The changes made to the Award pursuant to the Award Review
pursuant to Section 19(6) of the Industrial
Relations Act 1996 and Principle 26 of the Principles for Review of Awards
made by the Industrial Relations Commission of New South Wales on 18 December
1998 (308 I.G. 307) are set out in the attached Schedule B and take effect on
19 February 2001.
This Award remains in force until varied or rescinded, the
period for which it was made being already expired.
NOTATION: This Award
Does Not Apply To Part-time or Casual Employees.
SCHEDULE A - AWARDS AND VARIATIONS INCORPORATED
Clause
|
Award
|
Date of
|
Date of taking
|
Industrial
|
|
Variation
|
Publication
|
Effect
|
Gazette
|
|
Serial No.
|
|
|
Vol Page
|
Advertising
|
B6213
|
7 August 1998
|
First Pay period From
|
306
|
1
|
Sales
|
|
|
3 March 1998
|
|
|
Representatives
|
|
|
|
|
|
(State) Award
|
|
|
|
|
|
6, Table 1
|
B6593
|
5 February 1999
|
First Pay Period From
|
308
|
266
|
|
|
|
26 October 1998
|
|
|
17
|
B6683
|
1 April 1999
|
First Pay Period From
|
308
|
839
|
|
|
|
10 December 1998
|
|
|
23A
|
B7714
|
18 February 2000
|
First Pay Period From
|
313
|
532
|
6, Table 1
|
B8564
|
17 March 2000
|
First Pay Period From
|
314
|
215
|
|
|
|
26 October 1999
|
|
|
6, Table 1
|
B9608
|
1 December 2000
|
First Pay Period From
|
320
|
1037
|
|
|
|
26 October 2000
|
|
|
SCHEDULE B
Changes Made on
Review
Date of Effect: 19
February 2001
(1) Provisions
Modified
ADVERTISING SALES REPRESENTATIVES (STATE) AWARD
CLAUSE
|
Previous Form of
Clause
|
|
Last Published at:
|
|
Vol. Page
|
AWARD: Advertising
Sales
|
|
|
Representatives (State) Award
|
|
|
1
|
306
|
1
|
2
|
306
|
1
|
3
|
306
|
1
|
4
|
306
|
1
|
5
|
306
|
1
|
6
|
320
|
1037
|
7
|
306
|
1
|
8
|
306
|
1
|
9
|
306
|
1
|
10
|
306
|
1
|
11
|
306
|
1
|
12
|
306
|
1
|
13
|
306
|
1
|
14
|
306
|
1
|
15
|
306
|
1
|
16
|
306
|
1
|
17
|
308
|
839
|
18
|
306
|
1
|
19
|
306
|
1
|
20
|
306
|
1
|
21
|
306
|
1
|
22
|
306
|
1
|
23
|
306
|
1
|
23A
|
313
|
532
|
24
|
306
|
1
|
25
|
306
|
1
|
26
|
306
|
1
|
27
|
306
|
1
|
(2) Provisions
Removed
AWARD
|
CLAUSE
|
PREVIOUS FORM OF
CLAUSE
|
|
|
LAST PUBLISHED AT:
|
|
|
Vol. Page
|
ADVERTISING SALES
|
|
|
|
REPRESENTATIVES (STATE)
|
7(F)
|
306
|
1
|
AWARD
|
|
|
|
|
|
|
|
|
22(d)
|
306
|
1
|
PART B
MONETARY RATES
Basic Wage for Adult
Males: $121.40 per week.
Table 1-- Rates of Pay
|
Former
|
Minimum Award
|
|
Award Rate
|
Wage Rate
|
Classification
|
(Per Week)
|
(Per Week)
|
|
26.10.1999
|
26.10.2000
|
|
$
|
$
|
Representative
|
456.50
|
471.50
|
Probationary Representative
|
421.20
|
436.20
|
At 17 years of age
|
223.10
|
230.00
|
At 18 years of age
|
267.40
|
275.70
|
At 19 years of age
|
311.80
|
321.50
|
At 20 years of age
|
356.50
|
367.60
|
Table 2 - Other Rates and Allowances
Item No.
|
Clause No.
|
Brief Description
|
Amount
|
|
|
|
$
|
1
|
5(c)
|
Living away from home allowance -
|
|
|
|
|
|
|
|
Representative
|
39.90 per week
|
|
|
Probationary
Representative
|
36.10 per week
|
2
|
11(a)
|
Motor vehicle allowance -
|
|
|
|
|
|
|
|
Standing
charge
|
186.70 per week
|
|
|
Kilometres
travelled per week
|
0.184 per kilometre
|
M. SCHMIDT J.
Advertising Sales
Representatives (State) Industrial Committee
Industries and Callings
All persons in the State, excluding the County of
Yancowinna, employed substantially away from the employer's place of business
in soliciting orders for advertising space in newspapers, journals or
periodicals, howsoever described;
excepting -
employees performing substantially clerical duties;
and excepting also -
employees within the jurisdiction of the following
Industrial Committees:
Advertising Sales Representatives (Sydney Daily Newspapers);
Commercial Travellers (State).
____________________
Printed by the authority of the Industrial Registrar.