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.