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New South Wales Industrial Relations Commission
(Industrial Gazette)




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LANDSCAPE GARDENERS, &c. (STATE) AWARD
  
Date05/25/2001
Volume324
Part6
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C0093
CategoryAward
Award Code 420  
Date Posted06/12/2002

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(420)

SERIAL C0093

 

LANDSCAPE GARDENERS, &c. (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.

 

(No. IRC 1202, 5945 and 5948 of 1999 and 5962 of 2000)

 

Before Commissioner McKenna

15 and 21 December 2000

 

REVIEWED AWARD

 

Arrangement

 

PART A

 

Clause No.      Subject Matter

 

1.         Anti-Discrimination

2.         Rates of Pay

3.         Definitions

4.         Hours

5.         Overtime

6.         Meal Allowances

7.         Working in the Rain

8.         Tools

9.         First-aid

10.       Sick Leave

11.       Personal/Carer's Leave

12.       Holidays

13.       Sunday and Holiday Work

14.       Country Work

15.       Travelling Expenses and Time

16.       Annual Leave

17.       Annual Holiday Loading

18.       Long Service Leave

19.       Payment of Wages

20.       Bereavement Leave

21.       Jury Service

22.       Mixed Functions

23.       Recall

24.       Other Conditions - Apprentices

25.       Consultative Mechanism

26.       Labour Flexibility

27.       Sett1ement of Disputes Procedure

28.       Superannuation

29.       Training Wage

30.       Redundancy

31.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 ¾ Rates of Pay

Table 2 - Other Rates and Allowances

 

 

PART C

 

TRAINING WAGE

 

Table 1A ¾ Industry/Skill Level A

Table 1B ¾ Industrial/Skill Level B

Table 1C ¾ Industry/Skill Level C

Table 1D ¾ School Based, Traineeship

Table 1E - Hourly Rates for Trainees who have left School

Table 1F - Hourly Rates for School-Based Traineeships

 

Appendix A ¾ Industry/Skill Levels

 

PART A

 

1.  Anti-Discrimination

 

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

 

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

 

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

 

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

 

(a)        any conduct or act which is specifically exempted from anti‑discrimination legislation;

 

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

 

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

 

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

 

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

 

NOTES:

 

(a)        Employers and employees may also be subject to Commonwealth anti­-discrimination legislation.

 

(b)        Section 56(d) of the Anti-Discrimination Act 1977 provides

 

"Nothing in the Act affects ... any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion."

 

2.  Rates of Pay

 

(i)         The minimum rate of pay for adult weekly employees in the undermentioned classifications shall be as set out in Table 1 - Rates of Pay, of Part B, Monetary Rates.

 

(ii)        Leading Hand ¾  An employee appointed as a leading hand shall be paid an amount as set out in Item 1 of Table 2 ¾ Other Rates and Allowances, of the said Part B.

 

(iii)       Part‑time Employees ¾ A part‑time employee shall be paid an hourly rate ascertained by dividing the weekly rate payable for the appropriate classification as set out in the said Table 1 by 38.  The provisions of this award shall apply to all part‑time employees provided that, where applicable, daily and/or weekly benefits shall apply on a pro rata basis.

 

(iv)       Casual Employees - A casual employee shall mean an employee who is engaged and paid by the hour for a minimum of four hours. The hourly rate shall be ascertained by dividing the weekly rate payable for the appropriate classification under Table 1 by thirty‑eight plus fifteen per cent.

 

(v)        Juniors - Juniors may be employed in the proportion of one junior to one adult male on the site being landscaped. The minimum rates of wages to be provided to juniors shall, subject to the other provisions of this award, be the percentages of the wage for adult employees from time to time effective (calculated to the nearest 5 cents, any broken part of 5 cents in the result not exceeding 5 cents to be disregarded) as set out in Table 1.

 

(vi)       Apprentices ¾ The minimum rates of wages for four‑year apprentices shall be as set out in Table 1.

 

All wages shall be on a weekly basis; provided that it shall be an implied term in any contract of apprenticeship that an employer shall be at liberty to deduct from the weekly wage of an apprentice an amount proportionate to the time lost by an apprentice arriving late for work.

 

Employees at present classified as indentured apprentices shall be paid the rates of pay of this award and the conditions of employment of this award shall apply to them until the completion of their term of indenture.

 

(vii)      The rates of pay in this award include all arbitrated safety net adjustments and the adjustments payable under the State Wage Cases of 1998, 1999 and 2000.  These adjustments may be offset against:

 

(a)        any equivalent overaward payments; and/or

 

(b)        award wage increases since 29 May 1991 other than safety net, State Wage Case and minimum rates adjustments.

 

3.  Definitions

 

Landscape Gardener is a person who has qualified from a recognised T.A.F.E. College in the trade of Landscape Gardener and is qualified to perform the duties as contained in the National Core Curriculum of that trade, as varied from time to time.

 

Landscape Gardener (Assistant) shall mean any employee who is capable of and required to understand and carry out the work required as specified in landscape plans and specifications.

 

4.  Hours

 

(i)         Subject to subclause (vii), the ordinary hours of work, exclusive of meal time shall not exceed 38 per week.

 

(ii)        The ordinary hours, shall be worked between the hours of 5.00 a.m. and 6.00 p.m., Monday to Friday, and 5.00 am to 12.00 pm (noon) on Saturday. Ordinary hours of work on Saturday shall be paid at time and one-quarter.

 

(iii)       The ordinary hours of work, exclusive of meal  time shall not exceed 10 on any day.

 

(iv)       A meal break of not less than 30 minutes or more than one hour shall be allowed to employees.

 

(v)        A meal break should be provided four hours after the commencement of work, and in any event no employee shall work more than five hours without a break for a meal.

 

(vi)       If the employer and the majority of employees agree, the spread of hours may be extended by three hours in the p.m. of the day to suit the circumstances of the business. Such arrangement of hours shall be in writing.

 

(vii)      Rostered Days Off -

 

(a)        By arrangement, a Rostered Day Off System shall be implemented in any one of the following ways:

 

(1)        by employees working an average 38-hour week over 9 working days per two week work cycle; or

 

(2)        by employees working an average 38 hour week over 19 working days per four-week work cycle; or

 

(3)        any other method of implementation by agreement between the employer and the majority of employees, provided that it is within a four week work cycle.

 

(b)        Where a rostered day off system is implemented, the method of implementation in subclause (vii) (a) shall be at the discretion of the employer, and may not be varied without giving at least 7 days notice of the variation, or a shorter period of notice by mutual consent.

 

(c)        By agreement between the employer and an employee, a rostered day off may be substituted for another day.

 

(d)        In the event of an employee's rostered day off falling on a public holiday, the employer shall nominate an alternative day off duty as a substitute.

 

(e)        Employees are not eligible for paid sick leave in respect of absences on rostered days off, as such absences are outside their ordinary hours of work.

 

5.  Overtime

 

(i)         All time worked in excess of and/or outside ordinary working hours shall be paid for at the rate of time and one‑half for the first two hours and double time thereafter.

 

(ii)        When an apprentice is required to work during a meal break, he/she shall be paid at overtime rates until he/she is allowed a meal break of the usual period.

 

6.  Meal Allowances

 

(i)         Any employee required to work overtime for more than one and one-half hours after the ordinary ceasing time, without being notified on the previous day, shall be provided with a meal or paid an amount as set out in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, for such meal and after the completion of each two hours on continuing overtime shall be paid the same amount for each subsequent meal in addition to his/her overtime payment.

 

(ii)        If an employee, pursuant to 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 subclause (i) of this clause, for the meals which he/she has provided but which are surplus.

 

7.  Working in the Rain

 

When employees are required to work in the rain, the employer shall provide, free of charge, protective clothing; such clothing shall be cared for by the employee and shall remain the property of the employer.

 

8.  Tools

 

All tools required by employees in the performance of their work shall be provided free of charge by the employer.  Such tools shall be cared for by the employee and shall remain the property of the employer and shall be returned by the employee in the event of the employment being terminated.

 

9.  First-Aid

 

Any employee appointed by the employer to perform first-aid duties shall be paid per week the amount as set out in Item 3 of Table 2 ¾ Other Rates and Allowances, of Part B, Monetary Rates, in addition to his/her ordinary rate.

 

NOTATION:

 

A first-aid kit is to be provided by the employer in accordance with the Occupational Health and Safety (First Aid) Regulation 1989.

 

10.  Sick Leave

 

(i)         Each employee on weekly hiring who has completed three months' continuous service and who is absent from work on account of personal illness or injury by accident arising out of and in the course of his/her employment, shall be entitled to leave of absence with pay, subject to the following conditions and limitations:

 

(a)        The employee shall, within two hours where possible and definitely within twenty‑four hours of the commencement of such absence, inform the employer of his/her inability for duty and, as far as practicable, state the nature of the illness or injury and the estimated duration of the absence.

 

(b)        The employee shall prove to the satisfaction of the employer (or, in the event of a dispute, the Industrial Relations Commission of New South Wales) that the employee is or was unable on account of such illness or incapacity to attend for duty on the day or days for which payment under this clause is claimed.

 

(c)        Subject to subclause (ii) of this clause, an employee in the first year of service shall be entitled to five days' sick leave per year, whereas in the second and subsequent years of service he/she shall be entitled to eight days sick leave per year.

 

(d)        On completion of three months continuous service with the employer, an employee shall be entitled to be reimbursed for any such leave taken during that time, pursuant to the terms of this clause.

 

(e)        The employee shall not be entitled to paid leave of absence for any period in respect of which the employee is entitled to workers' compensation. Where a claim for workers' compensation is made by an employee, payment of sick leave under this clause shall not be payable in respect of the period covered by the said award until such claim has been disposed of.

 

(ii)        Sick leave shall accumulate from year to year for a maximum period of 12 years so that any balance of the period specified in subclause (i) of this clause, which in any one year has not been allowed to an employee by an employer as paid sick leave, may be claimed by the employee and, subject to the conditions hereinbefore prescribed, shall be allowed by that employer in any subsequent year without diminution of the sick leave prescribed in respect of that year.

 

(iii)       Service with the employer before the date of coming into force of this award shall be counted as service for the purpose of qualifying thereunder.

 

11.  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 10, 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.

 

12.  Holidays

 

(i)         The following public holidays shall be granted without deduction of pay: New Year's Day; Australia Day; Good Friday; Easter Monday; Anzac Day; Queen's Birthday; Labour Day; Christmas Day; Boxing Day, and any other day proclaimed and/or gazetted as a holiday throughout the State.

 

(ii)        The first Monday in December each year shall also be a holiday as a Picnic Day of The Australian Workers' Union, New South Wales Branch, provided that a picnic is held.

 

(iii)       The employer and employees may reach agreement to substitute any other day for the day or days listed above.  Such an agreement shall be in writing.

 

13.  Sunday and Holiday Work

 

When an employee is required to perform work on a Sunday, he/she shall be paid at the rate of double time with a minimum of not less than four hours for each start.  An employee required to work on a public holiday shall be paid at the rate of double time and a half with a minimum of not less than four hours for each start.

 

14.  Country Work

 

(i)         Country work shall mean employment at a place which requires the employee to live away from his/her usual place of residence.

 

(ii)        All employees sent by the employer from the city to the country or from one country centre to another country centre or from a country centre to the city shall have their fares provided by the employer and, on remaining until the completion of the job or until the special work which they were sent to perform is completed and no other work is provided by the employer, shall be entitled to fares back to the place of engagement.

 

(iii)       Any person selected for work and sent by an employer or his/her agent, including a Government Employment Bureau or a private employment agency, from the city to the country or from one country centre to another or from a country centre to the city, shall have the necessary fares provided by the employer.

 

(iv)      

 

(a)        Where employees are sent from one place to another, as prescribed by this clause, the employer shall provide reasonable board and lodging or shall pay an allowance as set out in Item 4 of Table 2 ¾ Other Rates and Allowances, of Part B, Monetary Rates, per week of seven days, but such allowance shall not be wages.

 

(b)        In the case of broken parts of a week, the allowance shall be all living expenses actually and reasonably incurred but not exceeding the amount referred to in paragraph (a) of this subclause, provided that the foregoing allowance shall not be paid by the employer where camping facilities are provided.

 

(v)        Time occupied in travelling to and from country work shall be paid for at ordinary rates in addition to wages otherwise earned, provided that no employee shall be paid more than an ordinary day's wages for any time not exceeding twenty‑four hours spent in travelling.

 

(vi)       Where employees are sent from one place to another, as prescribed by this clause, they shall be allowed the amount as set out in Item 5 of Table 2 for each meal whilst travelling or waiting en route and if required to spend the night at some place en route shall be allowed the amount as set in the said Item 5. These provisions also shall apply to the return journey.

 

(vii)      If employees are transferred to another job, at their own request, they shall not be entitled to fares or any allowances under this clause.

 

15.  Travelling Expenses and Time

 

(i)         An employee who on any day or from day to day is required to work on a job away from the depot shall, at the direction of the employer, present himself/herself for work on such job at the usual starting time, but for all time reasonably spent in reaching and returning from such job (in excess of the time normally spent in travelling from his/her home and returning), he/she shall be paid travelling time, and also fares reasonably incurred in excess ',of those normally incurred in travelling between his/her home and such depot.

 

(ii)        The employer shall pay to the employee all fares reasonably incurred by the employee when he/she is required to travel to and from various locations during his/her working period in addition to paying for the time incurred in such travel. In the alternative to the foregoing the employer may provide transport for such travel.

 

16.  Annual Leave

 

(i)         Day workers and five‑day shift workers - For annual leave provisions see Annual Holidays Act 1944.

 

(ii)        Seven‑day Shift Workers:

 

(a)        In addition to the benefits provided by Section 3 of the Annual Holidays Act 1944, with regard to an annual holiday of four weeks, an employee who, during the year of his/her employment with the employer with respect to which he/she becomes entitled to the said annual holiday of four weeks, gives service to the employer as a seven day shift worker, shall be entitled to the additional leave as hereunder specified.

 

(1)        If, during the year of his/her employment he/she has served the 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 36 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 amended, for his/her annual holidays 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/she thereby becomes entitled under Section 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 21 shifts of service as such seven‑day shift worker which he/she 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/her 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.

 

17.  Annual Holiday Loading

 

(i)         This clause applies only in relation to annual holidays to which employees become or have become entitled.

 

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

 

(iii)       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/her 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) of this clause.)

 

(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 or has become entitled under the Act and this award (but excluding days added to compensate for public or special holidays worked or public or special holidays falling on an employee's rostered day off not worked), and where such, a holiday is given and taken in separate periods, then in relation to each such separate period.  (NOTE: See subclause (vii) of this clause 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) of this clause, at the rate per week of 17.5 per cent of the appropriate ordinary weekly time rate of pay prescribed by this award for the classification in which the employee was employed immediately before commencing his/her annual holiday, together with the allowance prescribed in subclause (ii) of clause 2, Rates of Pay.

 

(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 or leave without pay to the employees concerned:

 

(a)        An employee who is entitled under the Act to an annual holiday and who is given and takes such a holiday shall be paid the loading calculated in accordance with subclause (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/her 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.

 

(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 entitled, he/she shall be paid a loading calculated in accordance with subclause (vi) of this clause 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.

 

18.  Long Service Leave

 

See Long Service Leave Act 1955.

 

19.  Payment of Wages

 

(i)         Wages shall be paid in cash not later than Friday of each week or, with the agreement of the employee (or majority of employees on the site), be paid by means of electronic funds transfer (EFT).

 

(ii)        Any employee kept waiting after the normal ceasing time for payment of wages in cash shall be paid at overtime rates for the period from the normal ceasing time until payment is made.  This excludes employees receiving their wages through EFT who have access to their personal accounts in their own time, and provided the employer has arranged for the bank transfer of such wages to enable the employees' personal accounts to be credited by the recognised pay time.

 

20.  Bereavement Leave

 

(i)         An employee, other than a casual employee, shall be entitled two days bereavement leave without deduction of pay, on each occasion of the death of a person within Australia as prescribed in subclause (iii) of this clause.  Where the death of a person as prescribed by the said subclause (iii) occurs outside Australia the employee shall be entitled to two days bereavement leave where the employee travels outside of Australia to attend the funeral.

 

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

 

(iii)       Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of subclause (1) of clause 11 Personal/Carer's Leave, provided that, for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

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

 

(v)        Bereavement leave may be taken in conjunction with other leave available under subclauses (2), (3), (4), (5) and (6) of the said clause 11.  In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

21.  Jury Service

 

An employee shall be allowed leave of absence during any period when required to attend for jury service. During such leave of absence an employee shall be paid the difference between the jury service fee received and the employee's award rate of pay as if worked.

 

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.

 

22.  Mixed Functions

 

(i)         An employee who is required to do work of a higher paid classification for two hours or more on any one day shall be paid for the whole day at the rate prescribed for such higher paid classification.

 

(ii)        An employee who is required to do work of a higher paid classification for a period of less than two hours shall be paid the higher rate for the time he/she is so engaged.

 

23.  Recall

 

Employees recalled to work overtime after leaving their employer's property shall be paid for a minimum of four hours work at the appropriate rate each time they are so recalled; provided that, except in the case of unforeseen circumstances, employees shall not be required to work a full four hours if the job they were recalled to perform is completed within a shorter period.

 

24.  Other Conditions ¾ Apprentices

 

(i)         Apprentices - Trades - Apprentices may be indentured to the trade of landscape gardening.

 

(ii)        Term of Apprenticeship:

 

(a)        The period of apprenticeship shall be four years.

 

(b)        The apprentice shall, for every day of absence during any year of the said term without the consent of the employer, serve one day at the end of the calendar year of any such year of his/her apprenticeship if required so to do by the employer and the calendar period of the next succeeding year of his/her apprenticeship shall be deemed not to begin until the said additional day. or days have been served.  Provided that, in calculating the extra time to be so served the apprentice shall be credited with time which he/she worked during the relevant year in excess of his/her ordinary hours of service.

 

NOTATION:  The relevant Vocational Training Order and/or Vocational Training Direction under the Industrial and Commercial Training Act 1989 shall determine the term of an apprenticeship.  To the extent of any inconsistency, the terms of the said Order and/or Direction shall prevail over the terms of this subclause.

 

(iii)       Proportion ¾ Proportion of apprentices to adult employees, shall not exceed one apprentice to one landscape gardener as defined in this award.

 

25.  Consultative Mechanism

 

Enterprises covered by this award shall establish, between the employer and employee(s) and/or the Union, if the employees so desire, a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters affecting their efficiency and productivity.

 

26.  Labour Flexibility

 

(i)         Wider range of tasks - Employees shal1 perform work which is incidental or peripheral to their main tasks or functions and is within the scope of their skills and competence.

 

(ii)        Mixed Enterprise:

 

(a)        A mixed enterprise is defined as a single establishment where the primary operation is not covered by this award.

 

(b)        For the purpose of increasing productivity, flexibility and efficiency in a mixed enterprise, as well as enhancing opportunities for workers, multiskilling may extend to allow the workers to perform any work in a mixed enterprise within the scope of their skills and competence.

 

(c)        Discussion shall take place at the enterprise with the view to allowing workers to perform a wider range of tasks and the removal of demarcation barriers.

 

(d)        Workers in a mixed enterprise shall not impose or continue to enforce demarcation barriers between the work of workers, provided that it is agreed that the work lies within the scope of the skill and competence of the worker concerned.

 

27.  Settlement of Disputes Procedure

 

The procedural steps are:

 

(i)         Procedure relating to a grievance of an individual employee:

 

(a)        The employee is required to notify (in writing or otherwise) the employer as to the substance of the grievance, request a meeting with the employer for bilateral discussions and state the remedy sought.

 

(b)        A grievance must initially be dealt with as close to the source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(c)        Reasonable time limits must be allowed for discussion at each level of authority.

 

(d)        At the conclusion of the discussions, the employer must provide a response to the employee's grievance, if the matter has not been resolved, including reasons for not implementing any proposed remedy.

 

(e)        While a procedure is being followed, normal work must continue.

 

(f)         The employee may be represented by an industrial organisation of employees.

 

(ii)        Procedure for a dispute between an employer and the employees:

 

(a)        A question, dispute or difficulty must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(b)        Reasonable time limits must be allowed for discussion at each level of authority.

 

(c)        While a procedure is being followed, normal work must continue.

 

(d)        The employer may be represented by an industrial organisation of employers and the employees may be represented by an industrial organisation of employees for the purpose of each procedure.

 

(iii)       It is a purpose of this procedure that normal work continues while the above is being followed.  No party shall be prejudiced as to final settlement by the continuance of work in accordance with the procedure.

 

(iv)       The procedure shall not apply to any dispute on a safety issue.

 

28.  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 s 124 of the Industrial Relations Act 1996.  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)        A.S.B.A (The Australian Small Business Association Superannuation Fund); or

 

(2)        Australian Public Superannuation Fund; or

 

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

 

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

 

29.  Training Wage

 

(i)         Application -

 

(a)        Subject to paragraph (c) of this subclause this clause shall apply to persons who are undertaking a traineeship (as defined) and is to be read in conjunction with this award, or any former industrial agreement of the Industrial Relations Commission of New South Wales which covers the terms and conditions of employment of persons performing work covered by the award.

 

(b)        Notwithstanding (a), this clause shall apply provisionally for an interim period:

 

(i)         Starting upon the commencement date as recorded on a valid "Application to Establish a Traineeship" signed by both the employer and the Trainee, which has been lodged with the Relevant NSW Training Authority; and

 

(ii)        Ending upon the expiry of one calendar month period immediately following the employer's receipt of the Indenture Papers from the Relevant NSW Training Authority.

 

In any case, the duration for which this clause may provisionally apply shall be no longer than two calendar months, or such longer period as may be required to accommodate a delay in processing the "Application to Establish a Traineeship" which is beyond the control of the employer.

 

(c)        The terms and conditions of the award or any former industrial agreement of the Industrial Relations Commission of New South Wales shall apply, except where inconsistent with the award.

 

(d)        Notwithstanding the foregoing, this clause shall not apply to employees who were employed by an employer under the award prior to the date of approval of a traineeship relevant to the employer, except where agreed upon between the employer and the relevant union(s).

 

(e)        This clause does not apply to the apprenticeship system or any training program which applies to the same occupation and achieves essentially the same training outcome as an existing apprenticeship in an award as at 27 April 1998 or in an award that binds the employer.

 

(f)         At the conclusion of the traineeship, this clause shall cease to apply to the employment of the trainee.

 

(ii)        Objective - The objective of this clause is to assist in the establishment of a system of traineeships which provides approved training in conjunction with employment in order to enhance the skill levels and future employment prospects of trainees, particularly young people, and the long term unemployed.  The system is neither designed nor intended for those who are already trained and job ready.  It is not intended that existing employees shall be displaced from employment by trainees.  Nothing in this clause shall be taken to replace the prescription of training requirements in the award.

 

(iii)       Definitions - The Award means the Landscape Gardeners (State) Award, as varied.

 

Structured Training means that training which is specified in the Training Plan which is part of the Training Agreement registered with the relevant NSW Training Authority. It includes training undertaken both on, and off‑the‑job in traineeship scheme and involves formal instruction, both theoretical and practical, and supervised practice. The training reflects the requirements of a Traineeship approved by the relevant NSW Training Authority and leads to a qualification set out in paragraph (f) subclause (iv).

 

Relevant Union means a union party to the making of the Award and which is entitled to enrol the Trainee as a member.

 

Trainee is an individual who is a signatory to a training agreement registered with the relevant NSW Training Authority and is involved in paid work and structured training which may be on or off the job.  A trainee can be full‑time, part‑time or school‑based.

 

Traineesbip means a system of training which has been approved by the relevant NSW Training Authority, and includes full time traineeships and part time traineeships including school‑based traineeships.

 

Training Agreement means an instrument which establishes a Traineeship under the Industrial and Commercial Act 1989.  (NOTE: Under the Industrial and Commercial Training Act a training agreement is also referred to as an indenture).

 

Training Plan means a programme of training which forms part of a Training Agreement registered with the Relevant NSW Training Authority.

 

School‑Based Trainee is a student enrolled in the Higher School Certificate, or equivalent qualification, who is undertaking a traineeship which forms a recognised component of their HSC curriculum, and is endorsed by the relevant NSW Training Authority and the NSW Board of Studies as such.

 

Relevant NSW Training Authority means the Department of Education and Training, or successor organisation.

 

Year 10 For the purposes of this clause any person leaving school before completing Year 10 shall be deemed to have completed Year 10.

 

(iv)       Training Conditions

 

(a)        The Trainee shall attend an approved training course or training program prescribed in the Training Agreement or as notified to the trainee by the Relevant NSW Training Authority in an accredited and relevant traineeship.

 

(b)        A Traineeship shall not commence until the relevant Training Agreement, has been     signed by the employer and the trainee and lodged for registration with the Relevant NSW Training Authority.

 

(c)        The employer shall ensure that the Trainee ~is permitted to attend the training course or program provided for in the Training Agreement and shall ensure that the Trainee receives the appropriate on‑the‑job training.

 

(d)        The employer shall provide a level of supervision in accordance with the Training Agreement during the traineeship period.

 

(e)        The employer agrees that the overall training program will be monitored by officers of the Relevant NSW Training Authority and that training records or work books may be utilised as part of this monitoring process.

 

(f)         Training shall be directed at:

 

(i)         the achievement of key competencies required for successful participation in the workplace (e.g. literacy, numeracy, problem solving, team work, using technology) and an Australian Qualification Framework Certificate Level l.

 

This could be achieved through foundation competencies which are part of endorsed competencies for an industry or enterprise; and/or

 

(ii)        the achievement of key competencies required for successful participation in an industry or enterprise (where there are endorsed national standards these will define these competencies) as are proposed to be included in an Australian Qualification Framework Certificate Level II or above.

 

(v)        Employment Conditions -

 

(a)        A Trainee shall be engaged as a full‑time employee for a maximum of one year's duration or a part‑time trainee for a period no greater than the equivalent of one year full-time employment.

 

For example, a part‑time trainee working 2½ days per week (including the time spent in approved training) works (and trains) half the hours of a full-time trainee and therefore their traineeship, could extend for a maximum of two years.

 

In any event, unless the Relevant NSW Training Authority directs, the maximum duration for a traineeship shall be 36 months.

 

By agreement in writing, and with the consent of the relevant NSW Training Authority, the relevant employer and the Trainee may vary the duration of the Traineeship and the extent of approved training provided that any agreement to vary is in accordance with the relevant Traineeship.

 

(b)        A trainee shall be subject to a satisfactory probation period of up to one month which may be reduced at the discretion of the employer.

 

(c)        Where the trainee completes the qualification in the Training Agreement, earlier than the time specified in the Training then the traineeship may be concluded by mutual agreement.

 

(d)        A traineeship shall not be terminated before its conclusion, except in accordance with the Industrial and Commercial Training Act 1989, or by mutual agreement.

 

An employer who chooses not to continue the employment of a trainee upon the completion of the traineeship shall notify in writing, the Relevant NSW Training Authority of their decision.

 

(e)        The Trainee shall be permitted to be absent from work without loss of continuity of employment and/or wages to attend the approved training in accordance with the Training Agreement.

 

(f)         Where the employment of a Trainee by an employer is continued after the completion of the traineeship period, such traineeship period shall be counted as service for the purposes of the award or any other legislative entitlements.

 

(g)       

 

(i)         The Traineeship Agreement may restrict the circumstances under which the Trainee may work overtime and shiftwork in order to ensure the training program is successfully completed.

 

(ii)        No Trainee shall work overtime or, shiftwork on their own unless consistent with the provisions of the award.

 

(iii)       No Trainee shall work shiftwork unless the relevant parties to the award agree that such shiftwork makes satisfactory provision for approved training.  Such training may be applied over a cycle in excess of a week, but must average over the relevant period no less than the amount of training required for non-shiftwork Trainees.

 

(iv)      The Trainee wage shall be the basis for the calculation of overtime and/or shift penalty rates prescribed by the award.

 

(h)        All other terms and conditions of the award that are applicable to the Trainee or would be applicable to the Trainee but for this clause shall apply unless specifically varied by this clause.

 

(i)         A Trainee who fails to either complete the Traineeship or who cannot for any reason be placed in full time employment with the employer on successful completion of the Traineeship shall not be entitled to any severance payment.

 

The following employment conditions apply specifically to part-time and school-based trainees

 

(j)         A part time trainee shall receive, on a pro rata basis, all employment conditions applicable to a full time trainee. All the provisions of clause shall apply to part time trainees except as specified in. this subclause.

 

(k)        A part time trainee may, by agreement, transfer from a part time to a full time traineeship position should one become available.

 

(1)        The minimum daily engagement periods applying to part‑time employees specified in the award shall also be applicable to part time trainees.

 

Where there is no provision for a minimum daily engagement period in the Parent Award(s) or other industrial instrument(s) applying to part-time employees, then the minimum start per occasion shall be 3 continuous hours, except in cases where it is agreed that there shall be a start of 2 continuous hours, on 2 or more days per week

 

(i)         a 2 hour start is sought by the employee to accommodate the employee's personal circumstances, or

 

(ii)        the place of work is within a distance of 5 km from the employee's place of residence.

 

(m)       School-based trainees shall not be required to attend work during the interval starting four weeks prior to the commencement of the final year Higher School Certificate Examination period and ending upon the completion of the individual's last HSC examination paper.

 

(n)        For the purposes of this clause, a school based trainee shall become an ordinary trainee as at January 1 of the year following the year in which they ceased to be a school student.

 

(vi)       Wages

 

Wages - Full-Trainees

 

(a)        The weekly wages payable to full time trainees shall be as prescribed in Part C of the award, as follows:

 

 

Industry/Skill Level A

Table 1A

Industry/Skill Level B

Table 1B

Industry Skill Level C

Table 1C

School-Based Trainees

Table 1D

 

(b)        These wage rates will only apply to Trainees while they are undertaking an approved Traineeship which includes approved training as defined in this clause.

 

(c)        The wage rates prescribed in this clause do not apply to complete trade level training which is covered by the Apprenticeship system.

 

(d)        The rates of pay in this clause include the adjustments payable under the State Wage Case of 2000.  These adjustments may be offset against:

 

(i)         any equivalent overaward payments; and/or

 

(ii)        award wage increases since 29 May 1991 other than safety net, State Wage Case, and minimum rates adjustments.

 

(e)        Appendix A sets out the skill level of a traineeship. The industry/skill levels contained in Appendix A are, illustrative of the appropriate levels but are not determinative of the actual skill levels (i.e., skill levels A, B or C) that may be contained in a traineeship scheme. The determination of the appropriate skill level for the purpose of determining the appropriate wage shall be based on the following criteria:

 

(i)         Any agreement of the parties or submission by the parties

 

(ii)        The nature of the industry

 

(iii)       The total training plan

 

(iv)      Recognition that training can be undertaken in stages

 

(v)       The exit skill level in the award contemplated by the traineeship.

 

In the event that the parties disagree with such determination, it shall be open to any party to the award to seek to have the matters in dispute determined by the Industrial Relations Commission of New South Wales.

 

(f)         For the purposes of this provision, "out of school" shall refer only to periods out of school beyond Year 10, and shall be deemed to

 

(i)         include any period of schooling beyond Year 10 which was not part of nor contributed to a completed year of schooling;

 

(ii)        include any period during which a Trainee repeats in whole or part a year of schooling beyond Year 10;

 

(iii)       not include any period during a calendar year in which a year of schooling is completed; and

 

(iv)      have effect on an anniversary date being January 1 in each year.

 

Wages for Part‑time and School-Based Trainees

 

(a)        This clause shall apply to trainees who undertake a traineeship on a part time basis by working less than full-time ordinary hours and by undertaking the approved training at the same or lesser training time than a full-time trainee.

 

(b)        Table 1E - Hourly Rates for Trainees Who Have Left School and Table 1F - Hourly Rates for School-based Traineeships of Part B, Monetary Rates are the hourly rates of pay where the training is either fully off-the-job or where 20% of time is spent in approved training.  These rates are derived from a 38-hour week.

 

(c)        The hours for which payment shall be made are determined as follows:

 

(i)         Where the approved training for a traineeship (including a school based traineeship) is provided off-the-job by a registered training organisation, for example at school or at TAFE, these rates shall apply only to the total hours worked by the part time trainee on-the-job.

 

(ii)        Where the approved training is undertaken on-the-job or in a combination of on-the-job and off-the-job, and the average proportion of time to be spent in approved training is 20% (i.e. the same as for the equivalent full-time traineeship):

 

(1)        If the training is solely on-the-job, then the total hours on-the-job shall be multiplied by the applicable hourly rate, and then 20 per cent shall be deducted.

 

(2)        If the training is partly on-the-job and partly off-the-job, then the total of all hours spent in work and training shall be multiplied by the applicable hourly rate, and then 20 per cent shall be deducted.

 

NOTE: 20 per cent is the average proportion of time spent in approved training which as been taken into account in setting the wage rates for most full time traineeships.

 

(iii)       Where the normal full-time weekly hours are not 38 the appropriate hourly rate may be obtained by multiplying the rate in the table by 38 and then dividing by the normal full time hours.

 

(d)        For traineeships not covered by clause 8 (b) above, the following formula for the calculation of wage rates shall apply:

 

The wage rate shall be pro‑rata the full time rates based on variation in the amount of training and/or the amount of work over the period of the traineeship which may also be varied on the basis of the following formula:

 

Wage = Full time wage rate

x

Trainee hours ‑ average weekly training time

 

 

30.4*

 

*Note: 30.4 in the above formula represents 8 ordinary full time hours less the average training time for full time trainees (i.e. 20%) a pro rata adjustment will need to be made in the case where the Parent Award specifies different ordinary full time hours: for example where the ordinary weekly hours are 40, 30.4 will be replaced by 32.

 

(i)         "Full time wage rate" means the appropriate rate as set out in Table 1A ¾ Industry/Skill Level A, Table 1B ¾ Industry/Skill Level B, Table 1C ¾ Industry/Skill Level C and Table 1D ¾ School-based Traineeships of Part B, Monetary Rates.

(ii)        "'Trainee hours" shall be the hours worked per week including the time spent in approved training. For the purposes of this definition, the time spent in approved vocational training may be taken as an average for that particular year of the traineeship.

 

(iii)       "Average weekly training time" is based upon the length of the traineeship specified in the traineeship agreement or training agreement as follows:

 

Average Weekly Training Time =

7.6  x  12

 

length of the traineeship in months

 

Note 1: 7.6 in the above formula represents the average weekly training time for a full time trainee whose ordinary hours are 38 per week a pro rata adjustment will need to be made in the case where the Parent Award specifies different ordinary time hours for example, where the ordinary weekly hours are 40, 7.6 will be replaced by 8.

 

Note 2: The parties note that the traineeship agreement will require a trainee to be employed for sufficient hours to complete all requirements of the traineeship, including the on the job work experience and demonstration of competencies the parties also note that this would result in the equivalent of a full day's on the job work per week.

 

Example of the calculation for the wage rate for a part time traineeship)

 

A school student commences a traineeship in year 11 the ordinary hours of work in the Parent Award are 38. The training agreement specifies two years (24 months) as the length of the traineeship.

 

"Average weekly training time" is therefore 7.6 x 12/24 = 3.8 hours.

 

Trainee hours" totals 15 hours; these are made up of 11 hours work which is worked over two days of the week plus 1-½ hours on the job training plus 2½ hours off the job approved training at school and at TAFE.

 

So the wage rate in year 11 is:

 

$181 x 15 ‑ 3.8 = $66.68 plus any applicable penalty rates under the Parent Award.

30.4

 

The wage rate varies when the student completes year 11 and passes the anniversary date of 1 January the following year to begin year 12 and/or if "trainee hours" changes.

 

30.  Redundancy

 

(i)         Application -

 

(a)        This clause shall apply in respect of full-time and part-time persons employed in the classifications specified in this award.

 

(b)        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 (iv) of this clause.

 

(c)        Notwithstanding anything contained elsewhere in this award, this clause shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be not more than to give such employees an indication of the impending redundancy at the fast reasonable opportunity and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable employment.

 

(d)        Notwithstanding anything contained elsewhere in this award, this clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

(ii)        Introduction of Change -

 

(a)        Employees Duty to Notify -

 

(1)        Where an employer has made a definite decision to introduce major changes in production, programme, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the union to which they belong.

 

(2)        "Significant effects" include termination of employment, major changes in the composition, operation or size of the employees 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, an alteration shall be deemed not to have significant effect.

 

(b)        Employees Duty to Discuss Change -

 

(1)        The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in paragraph (a) of this subclause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

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

 

(3)        For the purposes of such discussions, 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 the employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(iii)       Redundancy -

 

(a)        Discussions Before Terminations -

 

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

 

(2)        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of subparagraph (1) of this paragraph and shall cover, inter alia, any reason for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

 

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

 

(iv)       Termination of Employment -

 

(a)        Notice for Changes in Production, Programme, Organisation or Structure - This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, programme, organisation or structure, in accordance with subparagraph (1) of paragraph (a) of subclause (ii) of this clause.

 

(1)        In order to terminate the employment of an employee the employer shall give to the employee the following notice:

 

Period of Continuous Service

Period of Notice

 

 

Less than 1 year………………………………….

1 week

1 year and less than 3 years……………………...

2 weeks

3 years and less than 5 years……………………..

3 weeks

5 years and over………………………………….

4 weeks

 

(2)        In addition to the notice above, employees over 45 years of age at the time of the giving of notice, with not less than two years continuous service, shall be entitled to an additional week's notice.

 

(3)        Payment in lieu of notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof!.

 

(b)        Notice of Technological Change - This paragraph sets out the notice provision to be applied to terminations by the employer for reasons arising from technology in accordance with subparagraph (1) of paragraph (a) of subclause (ii) of this clause.

 

(1)        In order to terminate the employment of an employee the employer shall give to the employee three months notice of termination.

 

(2)        Payment in lieu of notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

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

 

(c)        Time Off During the Notice Period -

 

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

 

(2)        If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.

 

(d)        Employee Leaving during the Notice Period - If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause had the employee remained with the, employer until the expiry of such notice.  Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

 

(e)        Statement of Employment - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee.

 

(f)         Notice to Centrelink - Where a decision has been made to terminate employees, the employer shall notify Centrelink thereof as soon as possible, given relevant information, including the number and categories of employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(g)        Centrelink ¾ Separation Certificate - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an Employment Separation Certificate in the form required by the Centrelink.

 

(h)        Transfer to Lower Paid Duties - Where an employee is transferred to lower paid duties for reasons set out in subparagraph (1) of paragraph (a) of subclause (ii) of this clause, 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 rate for the number of weeks notice still owing.

 

(v)        Severance Pay -

 

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

 

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

 

Years of Service

Under 45 Years of Age Entitlement

 

 

Less than 1 year…………………………………….

Nil

1 year and less than 2 years………………………...

4 weeks

2 years and less than 3 years………………………..

7 weeks

3 years and less than 4 years………………………..

10 weeks

4 years and less than 5 years………………………..

12 weeks

5 years and less than 6 years………………………..

14 weeks

6 years and over…………………………………….

16 weeks

 

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

 

Years of Service

45 Years of Age and Over Entitlement

 

 

Less than 1 year…………………………………….

Nil

1 year and less than 2 years………………………...

5 weeks

2 years and less than 3 years………………………..

8.75 weeks

3 years and less than 4 years………………………..

12.5 weeks

4 years and less than 5 years………………………..

15 weeks

5 years and less than 6 years………………………..

17.5 weeks

6 years and over…………………………………….

20 weeks

 

(3)        "Week's pay" means the all-purpose rate for the employee concerned at the date of termination and shall include in addition to the ordinary rate of pay, overaward payments, shift penalties and allowances paid in accordance with this award.

 

(b)        Incapacity to Pay - Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (a) of this subclause.

 

The Industrial Relations Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in the said paragraph (a) will have on the employer.

 

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

 

(vi)       Saving Clause - Nothing in this clause shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions which an employee may be entitled to under any existing redundancy agreement, taken as a whole, between the union and any employer bound by this award.

 

31.  Area, Incidence and Duration

 

This award is made following a Section 19 review pursuant to the Industrial Relations Act 1996 and rescinds and replaces the Landscape Gardeners, &c. (State) Award published 18 February 1994 (278 I.G. 553) and all variations: thereof, the Landscape Gardeners, &c., Training Wage Award published 8 December 1995 (289 I.G. 1129) and all variations thereof, and the Landscape Gardeners &c., Redundancy (State) Award published 13 April 1995 (285 I.G. 18).

 

It shall apply to all persons who are employees of landscape or master gardeners engaged in designing, preparing, planting and/or maintaining lawns, gardens, parklands, recreation areas, and paths in connection therewith in the State, excluding the County of Yancowinna; excepting employees of:

 

The Council of the City of Sydney;

The Council of the City of Newcastle, and all municipal, shire and county councils;

The Australian Gas Light Company;

The Broken Hill Proprietary Company Limited at Newcastle;

Australian Wire industries Pty Ltd at its Newcastle Wiremill;

The Commissioner for Main Roads engaged in the maintenance of the Sydney Harbour Bridge, other than employees engaged in the maintenance of the pavement of the roadway and footpaths of the bridge;

 

and excepting employees in or about coal mines north of Sydney, in or about coat mines in the South Coast district, in or about coal mines and shale mines west of Sydney; and excepting also -

 

Rockchoppers, sewer miners;

Surveyors' labourers;

Labourers employed in or in connection with the manufacture of cement, monier and/or concrete pipes by hand or machines in factories;

Labourers employed in the erection, alteration, or demolition of buildings;

Carters, grooms, stablemen, yardmen and drivers of motor and other power-propelled vehicles; Labourers employed in the maintenance of privately‑owned railways;

 

and excepting also employees within the jurisdiction of the following Industrial Committees

 

Crown Employees (General); Race Clubs, &c., Employees (Cumberland and Newcastle); Race Clubs, &c. (Country); Showground, &c., Employees (State); Smelting and Fertilizer Manufacturing (Sulphide Corporation Pty Limited and Greenleaf Fertilizers Limited).

 

This award shall take effect on or after 21 December 2000, except in relation to increases granted under the State Wage Case 2000 as appears in Part B, Monetary Rates, which shall take effect from the first full pay period to commence on or after 22 December 2000, and this award shall continue for a nominal term of twelve months.

 

PART B

 

MONETARY RATES

 

Table 1 ¾ Rates of Pay

 

Classification

Base Rate

Per Week

$

SWC

2000

$

Total Rate

Per Week

Landscape Gardener

477.20

15.00

492.20

Landscape Gardener (Assistant Tradesperson)

 

443.80

 

15.00

 

458.80

Labourer

406.30

15.00

421.30

 

 

 

Juniors

Percentage of the Adult Labourer’s

Rate Per Week

 

At 18 years of age under

80

At 19 years of age

90

At 20 years of age

100

 

Apprentices

 

Percentage of Tradesperson Rate

 

1st year

55

2nd  year

65

3rd year

75

4th year

90

 

Table 2 ¾ Other Rates and Allowances

 

Item No.

CLAUSE NO.

BRIEF DESCRIPTION

AMOUNT

$

1

2(ii)

Leading hand allowance

14.50 per week

2

6(i)

Meal allowance

8.80 per week

3

9

First-aid allowance

8.90 per week

4

14(iv)(a)

Country work allowance

271.50

5

14(vi)

Travelling allowance:

Meals

Accommodation

 

8.80 per meal

39.70 per night

 

PART C

 

Table 1A ¾ Industry/Skill Level a

 

Where the accredited training course and work performed are for the purposes of generating skills which have been defined for work at industry/skill level A.

 

From the first full pay period to commence on or after 21 December 2000.

 

Highest Year of Schooling Completed

 

 

 

 

 

Year 10

Year 11

Year 12

 

$

$

$

 

 

 

 

School Leaver

165.00

198.00

241.00

Plus 1 year out of school

198.00

241.00

281.00

Plus 2 years

241.00

281.00

327.00

Plus 3 years

281.00

327.00

374.00

Plus 4 years

327.00

374.00

 

Plus 5 years or more

374.00

 

 

 

From the first full pay period to commence on or after 21 June 2001.

 

 

Highest Year of Schooling Completed

 

 

 

 

 

Year 10

Year 11

Year 12

 

$

$

$

 

 

 

 

School Leaver

171.00

205.00

249.00

Plus 1 year out of school

205.00

249.00

290.00

Plus 2 years

249.00

290.00

337.00

Plus 3 years

290.00

337.00

386.00

Plus 4 years

337.00

386.00

 

Plus 5 years or more

386.00

 

 

 

Table 1B ¾ Industry/Skill Level B

 

Where the accredited training course and work performed are for the purpose of generating skills which have been defined for work at industry/skill level B.

 

From the first full pay period to commence on or after 21 December 2000.

 

Highest Year of Schooling Completed

 

 

 

 

 

Year 10

Year 11

Year 12

 

$

$

$

 

 

 

 

School Leaver

165.00

198.00

231.00

Plus 1 year out of school

198.00

231.00

266.00

Plus 2 years

231.00

266.00

312.00

Plus 3 years

266.00

312.00

356.00

Plus 4 years

312.00

356.00

 

Plus 5 years or more

356.00

 

 

 

From the first full pay period to commence on or after 21 June 2001.

 

Highest Year of Schooling Completed

 

 

 

 

 

Year 10

Year 11

Year 12

 

$

$

$

 

 

 

 

School Leaver

171.00

205.00

239.00

Plus 1 year out of school

205.00

239.00

275.00

Plus 2 years

239.00

275.00

323.00

Plus 3 years

275.00

323.00

368.00

Plus 4 years

323.00

368.00

 

Plus 5 years or more

368.00

 

 

 

Table 1C ¾ Industry/Skill Level C

 

Where accredited training course and work performed are for the purpose of generating skills which have been defined for work at industry/skill level C.

 

From the first full pay period to commence on or after 21 December 2000.

 

Highest Year of Schooling Completed

 

 

 

 

 

Year 10

Year 11

Year 12

 

$

$

$

 

 

 

 

School Leaver

165.00

198.00

221.00

Plus 1 year out of school

198.00

221.00

248.00

Plus 2 years

221.00

248.00

278.00

Plus 3 years

248.00

278.00

311.00

Plus 4 years

278.00

311.00

 

Plus 5 years or more

311.00

 

 

 

From the first full pay period to commence on or after 21 June 2001.

 

Highest Year of Schooling Completed

 

 

 

 

 

Year 10

Year 11

Year 12

 

$

$

$

 

 

 

 

School Leaver

171.00

205.00

230.00

Plus 1 year out of school

205.00

230.00

258.00

Plus 2 years

230.00

258.00

289.00

Plus 3 years

258.00

289.00

323.00

Plus 4 years

289.00

323.00

 

Plus 5 years or more

323.00

 

 

 

Table 1D ¾ School Based Traineeship

 

From the first full pay period to commence on or after 21 December 2000.

 

 

Year of Schooling

 

 

 

 

Year 11

Year 12

 

($)

($)

 

 

 

 

School Based Traineeships

 

 

 

Skill Levels A, B and C

181.00

198.00

 

 

 

From the first full pay period to commence on or after 21 June 2001.

 

 

 

 

 

Year 11

Year 12

 

$

$

 

 

 

 

School based traineeships skill levels A, B and C.

187.00

205.00

 

 

 

 

Table 1E ¾ Hourly Rates for Trainees Who Have Left School

 

From the first full pay period to commence on or after 21 December 2000.

 

Skill Level A

 

 

 

 

Year 10

$

Year 11

$

Year 12

$

School leaver

5.43

6.51

7.93

Plus 1 year after leaving school

6.51

7.93

9.24

Plus 2 years

7.93

9.24

10.76

Plus 3 years

9.24

10.76

12.30

Plus 4 years

10.76

12.30

 

Plus 5 years or more

12.30

 

 

Skill Level B

 

 

 

 

Year 10

Year 11

Year 12

School leaver

5.43

6.51

7.60

Plus 1 year after leaving school

6.51

7.60

8.75

Plus 2 years

7.60

8.75

10.26

Plus 3 years

8.75

10.26

11.71

Plus 4 years

10.26

11.71

 

Plus 5 years or more

11.71

 

 

Skill Level C

 

 

 

 

Year 10

Year 11

Year 12

School leaver

5.43

6.51

7.93

Plus 1. Year after leaving school

6.51

7.93

8.16

Plus 2 years

7.93

8.16

9.14

Plus 3 years

8.16

9.14

10.23

Plus 4 years

9.14

10.23

 

Plus 5 years or more

10.23

 

 

 

From the first full pay period to commence on or after 21 June 2001.

 

Skill Level A

 

 

 

 

Year 10

Year 11

Year 12

School leaver

6.15

6.74

8.19

Plus 1 year after leaving school

6.74

8.19

9.54

Plus 2 years

8.19

9.54

11.09

Plus 3 years

9.54

11.09

12.70

Plus 4 years

11.09

12.70

 

Plus 5 years or more

12.70

 

 

Skill Level B

 

 

 

 

Year 10

Year 11

Year 12

School leaver

6.15

6.74

7.86

Plus 1 year after leaving school

6.74

7.86

9.05

Plus 2 years

7.86

9.05

10.63

Plus 3 years

9.05

10.63

12.11

Plus 4 years

10.63

12.11

 

Plus 5 years or more

12.11

 

 

Skill Level C

 

 

 

 

Year 10

Year 11

Year 12

School leaver

6.15

6.74

7.57

Plus 1 year after leaving school

6.74

7.57

8.49

Plus 2 years

7.57

8.49

9.51

Plus 3 years

8.49

9.51

10.63

Plus 4 years

9.51

10.63

 

Plus 5 years or more

10.63

 

 

 

Table 1F ¾ Hourly Rates for School-Based Traineeships,

 

From the first full pay period to commence on or after 21 December 2000.

 

 

Year schooling

 

Year 11

Year 12

Skills levels A, B and C

5.95

6.51

 

From the first full pay period to commence on or after 21 June, 2001.

 

 

Year of schooling

 

Year 11

Year 12

Skills levels A, B and C

6.15

6.74

 

APPENDIX A ¾ INDUSTRY/SKILL LEVELS

 

Industry/Skill Level A ¾ Office Clerical

 

Commonwealth Public Sector Clerical

State Public Sector Clerical

Local Government Clerical

Finance, Property and Business Services

 

Industry/Skill Level B ¾ Wholesale and Retail

 

Recreation and Personal Services

Transport and Storage

Manufacturing

 

Industry/Skill Level C ¾ Community Services and Health

 

Pastoral

Environmental

Wholesale and Retail

 

 

 

D. S. McKENNA, Commissioner.

 

 

 

____________________

 

 

 

Printed by the authority of the Industrial Registrar.

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