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New South Wales Industrial Relations Commission
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TOYMAKERS' EMPLOYEES (STATE) AWARD
  
Date06/08/2001
Volume325
Part2
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C0084
CategoryAward
Award Code 669  
Date Posted05/29/2002

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(669)

SERIAL C0084

 

TOYMAKERS' EMPLOYEES (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Notices of Award Reviews pursuant to Section 19 of the Industrial Relations Act 1996 and another matter.

 

(No. IRC 2951, 2954 and 5692 of 2000)

 

Before The Honourable Justice Kavanagh

12 December 2000

 

REVIEWED AWARD

 

Arrangement

 

Clause No.      Subject Matter

 

 1.        Anti-Discrimination and Harassment

 2.        Hours

 3.        Wages

 4.        Overtime

 5.        Time Off in lieu of Overtime

 6.        Rest Period and Overtime

 7.        Meal Hours and Meal Money

 8.        Holidays

 9.        Saturday Rates for Shift Workers

10.       Sunday and Holiday Pay

11.       Annual Leave

12.       Annual Leave Loading

13.       Sick Leave

14.       Personal/Carer’s Leave

15.       Long Service Leave

16.       Bereavement Leave

17.       First-aid

18.       Mixed Functions

19.       Redundancy

20.       Contract of Employment

21.       Payment of Wages

22.       Jury Service

23.       Superannuation

24.       Area, Incidence and Duration

 

1.  Anti Discrimination and Harassment

 

(i)         It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 (NSW) to prevent and eliminate discrimination in the workplace on the grounds of race, sex, marital status, disability, homosexuality, transgender identity and age.

 

(ii)        It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects.  It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

(iii)       Under the Anti-Discrimination Act 1977 (NSW) it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

 

(iv)       Nothing in this clause is to be taken to affect:

 

(a)        any conduct or act which is specifically exempted from anti-discrimination legislation.

 

(b)        offering or providing junior rates of pay to persons under 21 years of age.

 

(c)        Any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977 (NSW)

 

(d)        A party to this award from pursuing matters of unlawful discrimination in any state or federal jurisdiction.

 

(v)        This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.

 

Note:

 

(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 effects...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."

 

2.  Hours

 

(i)         Day Workers - The ordinary working hours of day workers shall be forty (40) hours per week, to be worked eight hours per day, Monday to Friday, inclusive, between the hours of 7.30 a.m. and 5.00 p.m., or such other starting and/or ceasing times as may be agreed to between the employer and The Australian Workers’ Union, New South Wales and confirmed subsequently in writing to the secretary of the union.

 

(ii)        Shift Workers -

 

(a)        The hours of shift workers shall not exceed:

 

(1)        8 hours during any consecutive 24 hours;  or

 

(2)        40 hours per week;  or

 

(3)        80 hours in 14 consecutive days;  or

 

(4)        120 hours in 21 consecutive days;  or

 

(5)        160 hours in 28 consecutive days.

 

(b)        Twenty minutes each shift, which shall be counted as time worked, shall be allowed to shift workers for crib.

 

(c)        As far as possible shifts shall be rostered so as to provide for a weekly change of shift.

 

 

(d)        Notwithstanding anything herein contained time worked by any shift worker between 11 p.m. and midnight on any Sunday or holiday shall not be deemed to be worked on a Sunday or a holiday, or as overtime.

 

(e)        Subject to paragraph (a) of this subclause, the roster of an employee shall not be changed from one shift roster to another without seven (7) days' notice of such change being given and in the absence of such notice overtime rates shall be paid.

 

3.  Wages

 

(i)         Adults - The minimum rates of pay for the classifications in this Award are set out hereunder.

 

(a)        Employees engaged in the manufacture or preparation of soft toys and or dolls of all descriptions (including clay, rubber and sawdust) shall be paid the following rates of pay:

 

 

 

 

Classification

 

Base Rate

$50 per week increase from 12th December 2000

$50 per week increase from 1st February 2001

$40 per week increase from 30th August 2001

$31.10 per week increase from 10th December 2001

Cutter - out

$237.60

$287.60

$337.60

$377.60

$408.70

Press operator -all materials except cloth

$235.60

$285.60

$335.60

$375.60

$406.70

Mould reproducer

$233.20

$283.20

$332.20

$372.20

$403.30

Spray gun operator

$233.20

$283.20

$332.20

$372.20

$403.30

Grinder or buffer

$231.00

$281.00

$331.00

$371.00

$402.10

All other adult employees

$229.30

$279.30

$329.30

$369.30

$400.40

 

 

(b)        Employees engaged in the manufacture and/or preparation of wooden toys shall be paid the following rates of pay:

 

 

 

Classification

 

Base Rate

$50 per week increase from 12th December 2000

$50 per week increase from 1st February 2001

$40 per week increase from 30th August 2001

$31.10 per week increase from 10th December 2001

Sawyer

$237.60

$287.60

$337.60

$377.60

$408.70

Sanding machine operator

$233.20

$283.20

$332.20

$372.20

$403.30

Spray gun operator

$233.20

$283.20

$332.20

$372.20

$403.30

All other employees

$229.30

$279.30

$329.30

$369.30

$400.40

 

(ii)        Casual Employees - Casual employees shall be paid 15 per centum in addition to the rate of pay prescribed herein for the class of work on which they are employed.

 

(iii)       Part-Time employees -

 

(a)        An employee may be engaged on a part time basis.  A part time employee shall mean a weekly employee engaged to work regular days and regular hours, either of which are less than the number of days or hours worked by a full time employee.

 

(b)        A part time employee is entitled to a minimum start per occasion of 3 continuous hours, except:

 

(A)      where the employer and the employee concerned agree that there shall be a start of 2 continuous hours on two or more days per week, provided that:

 

i.           a 2 hour start is sought by the employee to accommodate the employee’s personal circumstances, which must be specified;  or

 

ii.          the place of work is within a distance of 5 kilometres of the employee’s place of residence.

 

(c)        A part time employee may work up to 40 hours per week without the payment of overtime.

 

(d)        A part time employee will be paid per hour 1/40 of the weekly rate of pay prescribed for a full time employee of the same classification contained in subclause (i) of this clause.

 

(e)        Any hours worked by a part time employee outside the ordinary hours of work as set out in clause 2, or in addition to the 40 hours per week shall be paid at overtime rates.

 

(f)         Subject to this clause, all the provisions of the award shall apply to a part time employee on a pro rata basis.

 

(iv)      

 

(a)        Subject to clauses 9, Saturday Rates for Shift Workers, and 10, Sunday and Holiday Pay, of this award, shift workers on rotating shift work shall be paid shift allowances as follows:

 

(1)        When employed on afternoon shift, 10 per cent of the ordinary rate in addition.

 

(2)        When employed on night shift, 15 per cent of the ordinary rate in addition.

 

(b)        Subject to clauses 9, Saturday Rates for Shift Workers, and 10, Sunday and Holiday Pay, of this award, shift workers on non-rotating shift work shall be paid shift allowances as follows:

 

(1)        When employed on afternoon shift, 12.5 per cent of the ordinary rate in addition.

 

(2)        When employed on night shift, 20 per cent of the ordinary rate in addition.

 

(v)        The shift allowances prescribed by subclause (iii), of this clause, shall not be added to the rates otherwise paid under this award when calculating overtime payments.

 

(vi)       Juniors - The minimum rates of wages for junior employees shall be the undermentioned percentages of the weekly rate of pay for the classification All Other Adult Employees, from time to time effective, calculated to the nearest 5 cents, any part of 5 cents in the result less than 2 cents to be disregarded:

 

Percentage of the weekly rate of pay for the classification

Percentage

All Other Adult Employees

%

 

 

At 16 years of age and under  ………………………………………...

65

At 17 years of age  ……………………………………………………

70

At 18 years of age  ……………………………………………………

80

At 19 years of age  ……………………………………………………

90

At 20 years of age  ……………………………………………………

100

 

4.  Overtime

 

(i)         Day Workers - All time worked before the usual commencing time or after the usual ceasing time each day or in excess of 38 hours per week shall be overtime and shall be paid for at the rate of time and one-half for the first two hours and at the rate of double time thereafter.

 

(ii)        Shift Workers - All time worked -

 

(a)        in excess of or outside the ordinary working hours;

 

(b)        on more than eleven shifts in twelve consecutive days;

 

(c)        on a rostered shift off, shall be paid for at the rate of double time, provided that time worked on a Saturday, a Sunday, or a holiday in excess of eight hours shall be paid for at the rate of double time.  This subclause shall not apply when the time worked is:

 

(1)        by arrangement between the employees themselves;

 

(2)        for the purpose of effecting the customary rotation of shifts.

 

(iii)       An employee recalled to work after leaving his/her employer's premises shall be paid for four (4) hours, at least, at the appropriate rate.

 

(iv)       An employee working overtime, but finishing work when the usual means of transport are not available, shall be entitled to any additional outlay properly incurred in reaching his/her home by reasonable means of transport.

 

5.  Time Off in Lieu of Payment for Overtime

 

(i)         Subject to genuine agreement between an employer and employee(s), an employee may elect to take time off in lieu of payment for hours worked outside and/ or in excess of the ordinary hours of work prescribed by this award.

 

(ii)        In such cases the time off shall be calculated on the basis of the penalty prescribed for work outside and/or in excess of the ordinary hours of work prescribed by this award.

 

(iii)       Provided that such time off shall be taken within four weeks of becoming due or payment for such work shall be made by the employer.

 

(iv)       Provided further that the time of taking the time off in lieu is subject to mutual agreement between the employer and employee and where agreement cannot be reached the matter shall be dealt with via the Dispute Settlement Procedure.

 

6.  Rest Period and Overtime

 

(i)         When overtime work is necessary it shall, where reasonably practicable, be so arranged that employees have at least eight consecutive hours off duty between work on consecutive days.

 

(ii)        An employee who works so much overtime between his/her usual finishing time on one day and the commencement of his/her ordinary work on the next day that he/she has not had at least eight consecutive hours off duty between those times shall, subject to this clause, be released after completion of such overtime until he/she has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

 

(iii)       If on the specific instructions of his/her employer, such employee resumes or continues work without having had such eight consecutive hours off duty he/she shall be paid at double rates until he/she is released from duty for such period and he/she then shall be entitled to be absent until he/she has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

 

7.  Meal Hours and Meal Money

 

(i)         Employees, other than shift workers, shall be allowed a meal break of not less than thirty minutes, not more than one hour, Monday to Friday, inclusive.

 

(ii)        An employee called upon to work during his/her regular meal break shall be paid at overtime rates for such time worked.

 

(iii)      

 

(a)        An employee working overtime shall be allowed a crib time of twenty (20) minutes without deduction of pay, after each four hours of overtime worked if the employee continues working after such crib time.

 

(b)        Unless the period of overtime is less than one and one-half hours an employee, before starting overtime after ordinary be allowed a crib time of twenty minutes which shall be paid for at ordinary rates.  The employer and employee may agree to any variation of this provision to meet the circumstances of the work in hand; provided that the employer shall not be required to make any payment in respect of any time allowed in excess of twenty minutes.

 

(iv)      

 

(a)        An employee required to work overtime for more than two hours after his/her ordinary ceasing time, without being notified before leaving his/her work on the previous day that he/she would be required to work overtime, shall be provided free of cost, with a suitable meal or shall be paid the sum of $5.00 and $3.90 for each subsequent meal.

 

(b)        If an employee, pursuant to such notice, has provided a meal or meals and is not required to work overtime or is required to work less than the amount advised he/she shall be paid, as prescribed by paragraph (a) of this subclause, for meals he/she has provided but which are surplus.

 

(v)        No employee shall work for longer than five hours without a break for a meal.

 

8.  Holidays

 

(i)         Subject to the provisions of this clause employees, shall be entitled to the following public holidays without loss or ordinary pay, that the employee would normally receive, viz., New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day, and Boxing Day and other public holidays proclaimed for the State.

 

(ii)        The first Monday in March of each year shall be a holiday as the picnic day of The Australian Workers' Union, New South Wales provided that a picnic is held.  The employer may require any employee to work on such picnic day and unless reasonable excuse exists the employee shall work in accordance with such requirement at the rates prescribed by clause 10, Sunday and Holiday Pay, of this award.  The employer may require from an employee evidence of his/her attendance at the picnic and the production of the butt of the picnic ticket issued for the picnic shall be sufficient evidence of attendance.  Where such evidence is requested by the employer payment need not be made unless the evidence is produced.

 

(iii)       Any employee who is absent without leave or reasonable excuse on the working day preceding or the working day succeeding a holiday shall not be entitled to payment for such holiday.

 

9.  Saturday Rates for Shift Workers

 

The minimum rates to be paid to any shift worker for work performed between midnight on Friday and midnight on Saturday shall be time and a half; the excess over ordinary rates to be in lieu of the shift allowances prescribed by subclause (iii) of clause 3, Wages, of this award.

 

10.  Sunday and Holiday Pay

 

(i)        

 

(a)        Day Workers and five-day shift workers shall be paid at the rate of double time for work done on a Sunday.

 

(b)        Day Workers and five-day shift workers shall be paid at the rate of double time and one-half for work done on a public holiday.

 

(ii)        A seven-day shift worker shall be entitled to the rate of double time for his ordinary shift worked on a Sunday, he/she shall  be entitled to the rate of double time and one half for his/her ordinary shift worked on Good Friday and on Christmas Day, and to the rate of double time for his ordinary shift worked on the other public holidays prescribed in clause 8, Holidays. of this award.

 

(iii)       The  excess over the ordinary rates prescribed in subclause (ii) of this clause shall be in lieu of the shift allowances  prescribed in subclause (iv) of clause 3, Wages, of this award.

 

(iv)       Where a seven-day shift worker is rostered off work on a public holiday as prescribed by clause 8, Holidays, of this award, and is not required to work on that day he shall be paid for eight hours at the ordinary rate of pay prescribed by subclause (i),of clause 3, Wages, of this award.  Juniors shall be paid the ordinary rate of pay prescribed by subclause (v) of the said clause 3.

 

(v)        All employees required to work on a Sunday or a public holiday shall receive a minimum of four (4) hours' pay.

 

11.  Annual Leave

 

(i)         See Annual Holidays Act 1944

 

(ii)        Seven-day Shift Workers:

 

(a)        In addition to the benefits provided by section 3 of the Annual Holidays Act 1944, an employee who, during the year of his/her employment with the employer with respect to which he becomes entitled to the said annual holidays, gives service to his employer as a seven-day shift worker under subclause (ii) of clause 2, Hours, of this award, shall be entitled to the additional leave as hereunder specified:

 

(1)        if, during the year of his employment, he/she has served his/her employer continuously as such seven-day shift worker - the additional leave with respect to that year shall be one week;

 

(2)        Subject to subparagraph (4), of this paragraph, if, during the year of his/her employment, he/she has served for only portion of it as such seven-day shift worker  - the additional leave shall be one day for every thirty-six ordinary shifts worked as a seven-day shift worker.

 

(3)        Subject to subparagraph (4) of this paragraph, the employee shall be paid for such additional leave at the same rate and under the same conditions as provided in the  Annual Holidays Act 1944, for his/her annual holiday of three weeks.

 

(4)        Where the additional leave calculated under this subclause is or includes a fraction of a day such fraction shall not form part of the leave period and any such fraction shall be discharged by payment only and such payment shall be at the rate outlined in subparagraph (3) of this paragraph.

 

(5)        In this clause reference to one week and one day shall include holidays and non-working days.

 

(b)        Where the employment of a worker has been terminated and he thereby becomes entitled under section 4 of the Annual Holidays Act 1944, to payment in lieu of an annual holiday, with respect to a period of employment, he/she also shall be entitled to an additional payment for three and one-third hours at the annual leave rate of pay with respect to each twenty-one shifts of service as such seven-day shift worker which he has rendered during such period of employment.

 

(c)        In the case of an employee who was, at the commencement of his/her annual leave, employed as a seven-day shift worker, as defined herein, one day shall be added to his annual leave period in respect of any holiday prescribed by this award which falls within the period of annual leave to which he/she is entitled under this award.

 

12.  Annual Leave Loading

 

(i)         In this clause the Annual Holidays Act 1944, is referred to as "the Act".

 

(ii)        Before an employee is given and takes his/her annual holiday, or, where by agreement between the employer and employee, the annual holiday is given and taken in more than one separate period, then before each of such separate periods, the employer shall pay his 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 (vii)).

 

(iv)       The loading is payable in addition to the pay for the period of holiday given and taken and due to the employee under the Act and this award.

 

(v)        The loading is to be calculated in relation to any period of annual holiday to which the employee becomes entitled under the Act and this award (but excluding days added to compensate for public or special holidays worked or public or special holidays falling on an employee's rostered day off not worked) and, where such a holiday is given and taken in separate periods, then in relation to each such separate period.  (NOTE:  See subclause (vii) as to holidays taken wholly or partly in advance).

 

(vi)       The loading is the amount payable for the period or the separate period, as the case may be, stated in subclause (v) at the rate per week of 17.5 per cent of the appropriate ordinary weekly time rate of pay prescribed by this award for the classification in which the employee was employed immediately before commencing his annual holiday.

 

(vii)      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 he/she 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 (vi) of this clause applying the award rates of wages payable on that day.  This subclause applies where an annual holiday has been taken wholly or partly in advance.

 

(viii)     Where, in accordance with the Act, the employer's establishment or part of it is temporarily closed down for the purpose of giving an annual holiday on leave without pay to the employees concerned -

 

(a)        an employee who is entitled under the Act to an annual holiday and who is given and takes such a holiday shall be paid the loading calculated in accordance with subclause (vi) of this clause;

 

(b)        an employee who is not entitled under the Act to an annual holiday and who is given and takes leave without pay  shall be paid in addition to the amount payable to him under the Act such proportion of the loading that would have been payable to him/her under this clause if he/she had become entitled to an annual holiday prior to the closedown as his/her qualifying period of employment in completed weeks bears to.

 

(ix)      

 

(a)        When the employment of an employee is terminated by his/her employer for a cause other than misconduct and at the time of the termination, the employee has not been given and has not taken the whole of an annual holiday to which he/she became he/she shall be paid a loading calculated in accordance with subclause (vi) for the period not taken.

 

(b)        Except as provided by paragraph (a) of this subclause no loading is payable on the termination of an employee's employment.

 

(x)        This clause extends to an employee who is given and takes an annual holiday and who would have worked as a shift worker if he/she had not been on holiday; provided that, if the amount to which the employee would have been entitled by way of shift work allowances and weekend penalty rates for the ordinary time (not including time on a public or special holiday) which the employee would have worked during the period of the holiday exceeds the loading calculated in accordance with this clause, then that amount shall be paid to the employee in lieu of the loading.

 

13.  Sick Leave

 

(i)         An employee with not less than one month's continuous service with an employer, who is absent from his/her work by reason of personal illness or injury shall be entitled to leave of absence and such leave of absence to be paid at the ordinary time rates of pay and in addition the service payment which would have been payable if he/she had attended for duty, subject to the following conditions and limitations:

 

(a)        He/She shall, within twenty-four hours of the commencement of such absence inform the employer of  his inability to attend for duty and, as far as practicable, state the nature of the illness or injury and the estimated duration of his/her absence.

 

(b)        He/She shall furnish to the employer such evidence as the employer may desire that he/she was unable, by reason of such injury or illness, to attend for duty on the day or days for which sick leave is claimed.

 

(ii)        Subject to paragraphs (i) and (iii) of his clause an employee shall be entitled to the following sick leave:

 

(a)        An employee  in his/her first year of service shall be entitled to five (5) days' sick leave per year.

 

(b)        An employee in his/her second and subsequent years of  service shall be entitled to eight (8) days' sick leave per year.

 

(iii)       For the purpose of  this clause continuous service shall be deemed not to have been broken by:

 

(a)        any absence from work on leave granted by the employer;

 

(b)        any absence from work by reason of personal illness, injury, industrial dispute, or other reasonable cause proof whereof shall, in each case, be upon the employee.

 

(iv)       Sick leave shall accumulate for an unlimited period, and shall accumulate only whilst the employee remains in the service of the same employer.

 

14.  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 13, 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.

 

15.  Long Service Leave

 

See Long Service Leave Act 1955.

 

16.  Bereavement Leave

 

(i)         An employee, other than a casual employee, shall be entitled to up to two days compassionate leave without deduction of pay, up to and including the day of the funeral, on each occasion of the death of a person within Australia as prescribed in subclause (iii) of this clause.

 

(ii)        The employee must notify the employer as soon as practicable of the intention to take compassionate leave and will provide to the satisfaction of the employer proof of death.

 

(iii)       Compassionate leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of subclause (1) of clause 14, Personal/Carer’ s Leave, provided that, for the purpose of compassionate leave, the employee need not have been responsible for the care of the person concerned.

 

(iv)       An employee shall not be entitled to compassionate leave under this clause during any period in respect of which the employee has been granted other leave.

 

(v)        Compassionate leave may be taken in conjunction with other leave available under subclauses (2), (3),  (4) and (5) of the said clause 14.  In determining such a request, the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

17.  First-Aid

 

(i)         A suitable first-aid outfit shall be provided and shall be maintained by the employer.

 

(ii)        An employee appointed by the employer to perform first-aid duty shall be paid $1.34 per shift in addition to his ordinary rates.

 

18.  Mixed Functions

 

(i)         An employee, who is required to do work carrying a higher rate than his ordinary classification for more than two hours during any one work period, shall be paid at the higher rate for the whole of the time so worked.

 

(ii)        An employee, who, on any day or shift, is required to do work carrying a lower rate than his ordinary classification for less than one hour, shall suffer no reduction in consequence thereof.

 

19.  Redundancy

 

(1)        Application -

 

(i)         This clause shall apply in respect of full-time and part- time persons employed in the classifications structure specified by Clause 3, Wages.

 

(ii)        This clause shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees, in the terms of subclause (4), Termination of Employment.

 

(iii)       Notwithstanding anything contained elsewhere in this award, this award 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.

 

(iv)       Notwithstanding anything contained elsewhere in this award, this award 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.

 

(2)        Introduction of Change -

 

(i)         Employer's Duty to Notify -

 

(a)        Where an employer has made a definite decision to introduce major changes in production, programme, organisation, structure, mechanisation 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.

 

(b)       "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 this award makes provision for alteration of any of the matters referred to herein, such alteration shall be deemed not to have significant effect.

 

(ii)        Employer's Duty to Discuss Change -

 

(a)        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 (i) of this subclause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

(b)       The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in the said paragraph (i).

 

(c)        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.

 

(3)        Redundancy - Discussions Before Terminations -

 

(a)        Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to subparagraph (a) of paragraph (i) of subclause (2), Introduction of Change, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(b)        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of paragraph (a) of this subclause and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

 

(c)        For the purpose of the discussions the employer shall, as soon as practicable, provide to the employees concerned and the union to which they belong, all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(4)        Termination of Employment -

 

(i)         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 changes to production, programme, organisation or structure, in accordance with subparagraph (a) of paragraph (i) of subclause (2), Introduction of Change:

 

(a)        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

 

(b)       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.

 

(c)        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.

 

(ii)        Notice for Mechanisation and/or Technological Change - This subclause sets out the notice provisions to be applied to termination by the employer for reasons arising from "technology" in accordance with subparagraph (a) of paragraph (i) of subclause (2), Introduction of Change:

 

(a)        In order to terminate the employment of an employee (provided the employee has 12 months' service), the employer shall give to the employee three months' notice of termination.

 

(b)       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.

 

(c)        The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts.

 

(iii)       Time Off During the Notice Period -

 

(a)        During the period of notice of termination given by the employer, an employee shall be allowed up to one day's time off without loss of pay during each week of notice, to a maximum of five weeks, for the purpose of seeking other employment.

 

(b)       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.

 

(iv)       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 as those to which the employee would have been entitled 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.

 

(v)        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.

 

(vi)       Notice to Centre Link or any relevant successor entity - Where a decision has been made to terminate the employment of employees, the employer shall notify Centre Link 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.

 

(vii)      Centrelink Employment Separation Certificate - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an Employment Separation Certificate in the form required by Centrelink.

 

(viii)     Transfer to Lower Paid Duties - Where an employee is transferred to lower paid duties for reasons set out in paragraph (i) of subclause (2), Introduction of Change, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated, and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary-time rates for the number of weeks of notice still owing.

 

(5)        Severance Pay -

 

(i)         Where the employment of an employee is to be terminated pursuant to subclause (4), Termination of Employment, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the employee the following severance pay in respect of a continuous period of service:

 

(a)        If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:

 

 

Years of service

 

Under 45 years of age entitlement

Less than 1 year

Nil

1 year and less than 2 years

4 weeks

2 years and less than 3 years

7 weeks

3 years and less than 4 years

10 weeks

4 years and less than 5 years

12 weeks

5 years and less than 6 years

14 weeks

6 years and over

16 weeks

 

(b)       Where an employee is 45 years of age or over, the entitlement shall be in accordance with the following scale:

 

Years of service

 

45 years of age and over entitlement

Less than 1 year

Nil

1 year and less than 2 years

5 weeks

2 years and less than 3 years

8.75 weeks

3 years and less than 4 years

12.5 weeks

4 years and less than 5 years

15 weeks

5 years and less than 6 years

17.5 weeks

6 years and over

20 weeks

 

(c)        "Week's pay" means the all-purpose rate for the employee concerned at the date of termination and shall include, in addition to the ordinary rate of pay, overaward payments, shift penalties and allowances paid in accordance with Clauses 3, Wages;  4, Overtime;  9, Saturday Rates for Shift Workers;  and 10, Sunday and Holiday Pay, of this Award.

 

(ii)        Incapacity to Pay - Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) of this subclause.  The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in the said paragraph (i) will have on the employer.

 

(iii)       Alternative Employment - Subject to an application by the employer and further order of the Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in the said paragraph (i) if the employer obtains acceptable alternative employment for an employee.

 

20.  Contract of Employment

 

(i)         After the first two weeks' continuous service employment shall be by the week and may be terminated by a week's notice on either side or by the payment or forfeiture of one weeks wages in lieu of notice.

 

(ii)        The employer shall not be required to pay for any time an employee cannot be employed usefully because of any strike or through any breakdown in machinery or any stoppage of work through any cause for which the employer reasonably cannot be held responsible.

 

(iii)       The employer may dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct and in such cases wages shall be paid up to the time of dismissal only.

 

21.  Payment of Wages

 

(i)         All wages shall be paid weekly not later than Thursday; provided that when a public  holiday falls on a Thursday or public holidays fall in such sequence in any pay week as to render the payment of wages on Thursday impracticable the wages may be paid not later than Friday.

 

(ii)        All employees shall be entitled to be paid in the employer's time.  An employee not so paid shall be entitled to his ordinary rate of wage until payment has been made.

 

(iii)       Upon termination of employment wages due to an employee shall be paid to him/her on the day of such termination or shall be forwarded to him/her by post on the next working day.

 

(iv)       On or prior to pay day the employer shall state to each employee, in writing, the amount of wages to which he/she is entitled, the amount of deductions made therefrom and the net amount being paid to him/her.

 

22.  Jury Service

 

(i)         An employee shall be allowed leave of absence during any period when required to attend for jury service.

 

(ii)        During such leave of absence, an employee shall be paid the difference between the jury service fees received and the employee's award rate of pay.

 

(iii)       An employee shall be required to produce to the employer proof of jury service fees received and proof of requirement to attend and attendance on jury service and shall give the employer notice of such requirements as soon as practicable after receiving notification to attend for jury service.

 

23.  Superannuation

 

(i)         The subject of superannuation is dealt with extensively by federal legislation including the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act 1993, the Superannuation (Resolution of Complaints) Act 1993 and s124 of the Industrial Relations Act 1996 (NSW).  This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties.

 

(ii)        Subject to the requirements of this legislation, superannuation contributions may be made to:

 

(1)        ASSET (Australian Superannuation Savings Employment Trust);  or

 

(2)        Such other funds that comply with the requirements of this legislation.

 

24.  Area, Incidence and Duration

 

This award rescinds and replaces the Toymakers' Employees (State) Award published 19 June 1974 and reprinted 9 May 1984 (233 I.G. 904), as varied, and the Toymakers’ Employees Superannuation (State) Award published 31 May 1991 (262 I.G. 1101), as varied.

 

It incorporates changes as a result of a review under section 19 of the Industrial Relations Act 1996.

 

It shall take effect from the first full pay period to commence on or after the 12th December 2000 and shall remain in force thereafter for a period of 12 months.

 

 

 

T. M. KAVANAGH  J.

 

 

 

____________________

 

 

 

Toymakers' Employees (State) Conciliation Committee

 

Industries and Callings

 

Employees engaged in the manufacture of  toys (other than those made of sheet metal) in the State, excluding the County of Yancowinna;

 

Excepting -

 

Storemen and/or packers.

 

 

 

____________________

 

 

 

Printed by the authority of the Industrial Registrar.

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