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.