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New South Wales Industrial Relations Commission
(Industrial Gazette)




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ADVERTISING SALES REPRESENTATIVES (STATE) AWARD
  
Date05/11/2001
Volume324
Part4
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C0074
CategoryAward
Award Code 749  
Date Posted06/12/2002

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(749)

SERIAL C0074

 

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.

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