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New South Wales Industrial Relations Commission
(Industrial Gazette)





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WAREHOUSE EMPLOYEES - DRUG (STATE) AWARD
  
Date05/25/2001
Volume324
Part6
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C0102
CategoryAward
Award Code 701  
Date Posted06/12/2002

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(701)

SERIAL C0102

 

WAREHOUSE EMPLOYEES - DRUG (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 851 of 1999)

 

Before The Honourable Justice Kavanagh

21 February 2001

 

REVIEWED AWARD

 

Arrangement

 

Clause No Subject Matter

 

1. Definitions

2. Hours

3. Implementation of 38-Hour Week

4. Contract of Employment

5. Flexibility

6. Twelve Hour Engagements

7. Part-time and Casual Employees

8. Redundancy

9 Shift Work

10. Meal Hours

11. Meal Allowance

12. Wages

13. Supported Wage

14. Overtime

15. Mixed Functions

16. Sunday and Holiday Rates of Pay

17. Time and Payment of Wages

18. Enterprise Arrangements

19. Enterprise Consultative Mechanism

20. Holidays

21. Annual Leave

22. Annual Holidays Loading

23. Sick Leave

24. State Personal/Carer's Leave Case - August 1996

25. Bereavement Leave

26. Long Service Leave

27. Parental Leave

28. Blood Donor Leave

29. Jury Service

30. Right of Entry

31. Union Delegate

32. Trade Union Training

33. Proportion of Improvers

34. Conditions

35. Notice Board

36. Accommodation

37. First-aid Chest

38. Transfer of Employees

39. Superannuation

40. Exemptions

41. Grievance and Dispute Resolution Procedures

42. Anti-Discrimination

43. Leave Reserved

44. Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 Wages

Table 2 Other Rates and Allowances

 

PART A

 

1. Definitions

 

(a) "Departmental Manager" means an employee appointed as such and who is in charge of one or more departments and who is required to control and direct the work of employees in the preparation and/or despatch of orders for assembly or checking and despatch in a drug warehouse.

 

(b) "Departmental Second-in-Charge" means an employee appointed as such and who is the deputy of the departmental manager.

 

(c) "Buyer in Charge" means an employee appointed as such who is in charge of other buyers.

 

(d) "Buyer" means an employee appointed as such who is engaged in the buying of drugs and/or other merchandise for resale.

 

(e) "Section Leader" means an employee appointed as such and who is in charge of one or more sections of a department.

 

(f) "Checker" means an employee principally engaged in checking articles and/or goods against order or stock sheets.

 

(g) "Indoor Salesperson" means an employee principally engaged in actively selling goods and shall not include an employee merely assembling and/or delivering over the counter goods for orders.

 

(h) "Assembler" means an employee engaged in assembling articles and/or goods for orders and shall include picking and marking orders and/or stock cards.

 

2. Hours

 

The ordinary hours of working, excluding shift workers, hereinafter provided for exclusive of meal hours, shall not exceed thirty eight per week, to be worked between the hours of 7 am and 6 pm Monday to Friday inclusive.

 

An employer may with the agreement of the appropriate union commence ordinary hours between 6 am and 7 am. The unions consent shall not be unreasonably withheld.

 

3. Implementation of 38-Hour Week

 

The 38 hour week shall be worked in any of the following ways.

 

(a) Four 8 hour days and one 6 hour day per week.

 

(b) Nine and a half day fortnight.

 

(c) 19 day month with R.D.O.

 

(d) Actually work 7.6 hours per day

 

(e) Where agreement exists between an employer and an employee, an employee may accumulate up to 5 rostered days off. Provided that such accumulated time shall be taken within 6 months of the agreement to defer.

 

Payment shall be made in lieu for any accumulated time which is untaken when an employee ceases employment with an employer.

 

(f) Any other work cycle during which a weekly average of 38 ordinary hours are worked, provided that on any day no more than ten hours ordinary time shall be worked.

 

Provided that:

 

(i) In any establishment where there are ten or more employees, method of implementation shall be by agreement with employees and the relevant union(s). (If there is no agreement, the matter is to be referred to the Industrial Relations Commission of New South Wales).

 

(ii) In any establishment where there are less than ten employees, method of implementation shall be at discretion of the employer.

 

(iii) Once introduced the method of implementation is not to be changed except by agreement, this includes methods in operation prior to this award.

 

4. Contract of Employment

 

(a)

 

(i) In respect of full-time and part-time employees, except in the case of misconduct, the employment of any employee may be terminated by one week's notice on either side or by the payment or forfeiture (as the case may be) of one week's wages in lieu of such notice.

 

(ii) Provided that during the first four weeks of employment, the employment of any employee may be terminated by one hour's notice on either side.

 

(iii) Provided further that the first four weeks of work shall be counted as service with the company for the purposes of occupational superannuation, long service leave, sick leave, annual leave and all other entitlements as defined herein.

 

(iv) Provided that during the first three months of full-time or part-time employment the contract of employment shall be of a probationary nature.

 

(v) Provided further that the employment of an employee shall not be terminated except for misconduct whilst legitimately absent from duty on accrued sick leave.

 

(b)

 

(i) An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote deskilling.

 

(ii) An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment.

 

(iii) Any direction issued by an employer pursuant to subclauses (i) and (ii) shall be consistent with the employer's responsibilities to provide a safe and healthy working environment.

 

(iv) If a dispute arises under this subclause, the union(s) shall be notified, where appropriate, and the provisions of Clause 43, Grievance and Dispute Resolution Procedures, invoked.

 

(c)

 

(i) In the event of a stoppage of work through any cause outside the employer's control, the contract of employment may be continued, in which case the employer's liability for payment shall be suspended for the duration of the stoppage of work; provided that two working days' notice shall be given to employees prior to such suspension.

 

(ii) Subject to the provisions of clause 23, Sick Leave, of this award, an employee whose employment is terminated on the business day preceding a holiday or holidays, otherwise than for misconduct shall be paid for such holiday or holidays but this provisions shall not apply to an employee employed for two weeks or less.

 

(iii) Any employee who has been employed for not less than one month, on leaving or being discharged shall, upon request, be entitled to a statement, in writing, containing the date when the employment began and the date of its termination. The statement shall be the property of the employee and shall be returned to him/her, unnoted by any subsequent employer.

 

(iv) Employees shall not be entitled to be paid wages for any time of absence from duty without permission.

 

5. Flexibility

 

(a) An employee shall perform all tasks which are incidental or related to their normal work.

 

(b) An employer may develop a classification regime for their enterprise in consultation with the appropriate union covered by this award. A classification regime shall be agreed. The agreement shall be recorded in writing and a copy sent to the Industrial Registrar for registration under the Industrial Relations Act 1996. The parties agree such an agreement shall have the force of the award and the union shall not unreasonably withhold its agreement.

 

6. Twelve Hour Engagements

 

Following consultation and agreement in writing with employees and the appropriate union(s), an employer may introduce daily engagements of twelve ordinary hours.

 

7. Part-Time and Casual Employees

 

(a) Part-time Employees:

 

(i) Part-time employees may be employed.

 

(ii) The ordinary hours of work, exclusive of meal times, shall be the same as those prescribed for weekly employees but shall not in any case be less than twenty hours per week.

 

(iii) Part-time employees shall be paid at an hourly rate of pay which shall be at the rate of one thirty eighth of the weekly wage of the appropriate classification.

 

(iv) All other provisions of this award with respect to annual leave, sick leave, holidays, shall apply to part-time employees.

 

(v) An employer may not employ more than 25 per cent of their employees as part-timers.

 

(vi) Notwithstanding the provisions of paragraphs (i) to (v) of this subclause, the union and an employer may agree, in writing, to observe other conditions in order to meet special cases.

 

(vii) Leave is reserved to the parties to apply with respect to this subclause at any time upon notice to the Industrial Registrar and to the other parties.

 

(b) Casual Employees

 

(i) Casual employees shall be paid an hourly rate equal to the appropriate weekly rate divided by 38 plus 17 per cent calculated to the nearest half cent with a minimum payment on any one day of four hours.

 

(ii) An employer may not employ more than 25 per cent of their employees as casuals.

 

(iii) Notwithstanding the provisions of paragraph (i) and (ii) of this subclause the union and employer may agree in writing to observe other conditions in order to meet special cases.

 

(iv) Leave is reserved to the parties to apply with respect to this subclause at any time upon notice to the Industrial Registrar and the other parties.

 

(c) Notwithstanding paragraph (v) of subclause (a) and paragraph (ii) of subclause (b), no more than 25 per cent of the total hours worked by employees covered by this Award in any establishment in any 12-month period shall be worked by part-time and/or casual employees.

 

8. Redundancy

 

(a) Application

 

(i) This clause shall apply in respect of full time and part-time persons employed in the classifications specified in (i) of Table 1 Wages, of Part B, Monetary Rates.

 

(ii) This clause shall also apply in respect of employers who employ more than 15 employees immediately prior to the termination of employment of employees;

 

(iii) Notwithstanding anything contained elsewhere in this clause, this clause shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

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

 

(b) Introduction of Change

 

(i) Employer's duty to notify

 

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

 

(2) 'Significant effects' include termination of employment, major changes in the composition, operation or size of the employers workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

Provided that where the award specified in paragraph (a)(i) makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

(ii) Employer's duty to discuss change

 

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

 

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

 

(3) For the purpose of such discussion, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(c) Redundancy

 

(i) 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 paragraph (i) of subclause (b), Introduction of Change, of this clause, 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 the said paragraph (i) of subclause (b) and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination of the employees concerned.

 

(3) For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and the union to which they belong, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of 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.

 

(d) Termination of Employment

 

(i) 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 paragraph (i) of subclause (b), Introduction of Change, 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 the notice with not less than two years continuous service, shall be entitled to an additional week's notice.

 

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

 

(ii) Notice for technological change This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from "technology" in accordance with paragraph (i) of subclause (b) of this clause.

 

(1) In order to terminate the employment of an employee the employer shall give to the employee 3 months notice of termination.

 

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

 

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

 

(iii) Time off during the notice period

 

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

 

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

 

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

 

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

 

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

 

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

 

(viii) Transfer to lower paid duties Where an employee is transferred to lower paid duties for reasons set out in subclause (i) 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 rates for the number of weeks of notice still owing.

 

(e) Severance Pay

 

(i) Where an employee is to be terminated pursuant to subclause (d), Termination of Employment, 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 old or over, the entitlement shall be in accordance with the following scale:

 

Years of Service

45 Years of Age and

 

Over Entitlement

 

 

Less than 1 year…………………………………...

Nil

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

5 weeks

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

8.75 weeks

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

12.5 weeks

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

15 weeks

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

17.5 weeks

6 years and over…………………………………...

20 weeks

 

(3) 'Weeks pay' means the all purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over award payments, shift penalties and allowances paid in accordance with Clause 12, Wages.

 

(ii) 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 (i) of this subclause.

 

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

 

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

 

(f) Savings 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 arrangement, taken as a whole, between the union and any employer bound by this award.

 

9 - Shift Work

 

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

 

(i) 8 hours in any consecutive 24 hours; or

 

(ii) 38 hours in any one week; or

 

(iii) 76 hours in fourteen consecutive days.

 

Shiftworkers shall be allowed twenty minutes on each shift for crib which shall be counted as time worked.

 

(b) Overtime - Subject to the provisions of subclause (c), Payment for Saturdays and subclause (d), Payment for Sundays and Holidays, of this clause, shift workers shall for all time worked:

 

(i) in excess or outside of the ordinary shift work hours prescribed by this award; or

 

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

 

(iii) on a rostered shift off;

 

be paid at the rate of time and a half for the first two hours and double time thereafter.

 

(c) Payment for Saturdays - Shift workers shall be paid at the rate of time and one-half for ordinary rostered shifts worked on Saturday. This rate shall be in substitution for, and not cumulative upon, the shift allowance prescribed in subclause (e), Shift Allowance, of this clause.

 

(d) Payment for Sundays and Holidays - Shift workers shall be paid at the rate of time and three-quarters for ordinary rostered shifts worked on Sundays and at the rate of double time for work other than on an ordinary rostered shift carried out on Sundays. Shift workers shall be paid at the rate of double time and a half for all work carried out (whether on an ordinary rostered shift or otherwise) on any of the holidays prescribed in clause 20, Holidays. The rates prescribed in this subclause shall be in substitution for and not cumulative upon the shift allowances prescribed in subclause (e), Shift Allowance, of this clause.

 

(e) Shift Allowance

 

(i) Employees engaged on morning of afternoon shifts shall be paid the amount in Item 1 of Table 2 Other Rates and Allowances, of Part B, Monetary Rates, in addition to their appropriate rate of pay.

 

(ii) Employees engaged on night shift shall be paid the amount in Item 2 of the said Table 2, in addition to their appropriate rate of pay.

 

(iii) Shifts as set out hereunder may be worked in the industry:

 

Day shift shall mean a shift worked between the hours of 7.00 am and 6.00 pm.

 

Morning shift shall mean a shift commencing before 7.00 am.

 

Afternoon shift shall mean a shift finishing after 6.00 pm but not later than midnight.

 

Night shift shall mean a shift finishing after midnight but not later than 7.00 am.

 

(iv) Clause 2, Hours; 10 Meal Hours; 14, Overtime; and 16, Sunday and Holiday Rates of Pay, of this award, shall not apply to shift workers.

 

(v) Notwithstanding the provisions of this subclause, Parke Davis and Co. of 32-40 Cawarra Road, Caringbah, is exempted from the said provisions to the extent necessary to allow a night shift to finish not later than 8.00 a.m.

 

10. Meal Hours

 

(a) Not less than 30 minutes nor more than one hour shall be allowed for lunch between the hours of noon and 2.00 p.m. each day, Monday to Friday inclusive.

 

(b) An employee called upon to do work during his/her meal break for lunchtime shall be paid at the rate of time and a half for all time worked during such break and shall be given, in the employer's time, a crib time of not less than twenty minutes to partake of a meal. The said rate of time and a half shall continue until the commencement of the paid crib break or until the employee ceases work for the day, whichever is the earlier.

 

11. Meal Allowance

 

An employee who is required to work overtime for any period in excess of one and one-half hours after the fixed finishing time shall be allowed an amount for a set meal as set out in Item 3 of Table 2 Other Rates and Allowances, of Part B, Monetary Rates, which shall be paid to the employee prior to the meal break.

 

12. Wages

 

(a) Adult Employees The minimum rates to be paid to adult employees shall be as set out in (i) of Table 1 - Wages, of Part B, Monetary Rates.

 

(b) Junior Employees The minimum rates of pay for junior employees shall, subject to the other provisions of the parent award, be the percentages of the weekly rate for the appropriate adult classification as set out in (ii) of the said Table 1.

 

(c)

 

(i) In addition to the rates of pay prescribed in this clause each employee shall receive an additional amount per week as set out in Column B of Table 1, Wages.

 

(ii) The amount prescribed in subclause (a) may be absorbed to the extent of any equivalent amounts in rates of pay (whether award, overaward or enterprise arrangement) in excess of the rates prescribed in Column B of the said Table 1.

 

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

 

(i) any equivalent over award payments, and/or

 

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

 

13. Supported Wage

 

(a) This clause defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award. In the context of this clause, the following definitions will apply:

 

(i) 'Supported Wage System' means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in "Supported Wage System: Guidelines and Assessment Process".

 

(ii) 'Accredited Assessor' means a person accredited by the management unit established by the Commonwealth under the Supported Wage System to perform assessments of an individual's productive capacity within the Supported Wage System.

 

(iii) 'Disability Support Pension' means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, as amended from time to time, or any successor to that scheme.

 

(iv) 'Assessment Document' means the form provided for under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System.

 

(b) Eligibility Criteria Employees covered by this clause will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a Disability Support Pension.

 

(The clause does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers' compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their current employment).

 

The clause does not apply to employers in respect of their facility, program, undertaking, service or the like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider and sheltered employer to people with disabilities who are in receipt of or are eligible for a disability support pension, except with respect to an organisation which has received recognition under s 10 or section 12A of the Act, or if a part only has received recognition, that part.

 

(c) Supported Wage Rates - Employees to whom this clause applies shall be paid the appropriate percentage of the minimum rate of pay prescribed by this award for the class of work which the person is performing according to the following schedule:

 

 

% of Assessed Capacity

(subclause (d))

% Of Prescribed Award

Rate

10*

20

30

40

50

60

70

80

90

10

20

30

40

50

60

70

80

90

 

(Provided that the minimum amount payable shall be not less than $57.60 per week).

 

* Where a person's assessed capacity is 10 per cent, they shall receive a high degree of assistance and support.

 

(d) Assessment of Capacity - For the purpose of establishing the percentage of the award rate to be paid to an employee under this Award, the productive capacity of the employee will be assessed in accordance with the Supported Wage System and documented in an assessment instrument by either:

 

(i) the employer and a union party to the Award, in consultation with the employee or, if desired by any of these;

 

(ii) the employer and an accredited Assessor from a panel agreed by the parties to the award and the employee.

 

(e) Lodgement of Assessment Document

 

(i) All assessment documents under the conditions of this clause, including the appropriate percentage of the award wage to be paid to the employee, shall be lodged by the employer with the Registrar of the Industrial Relations Commission of New South Wales.

 

(ii) All assessment documents shall be agreed and signed by the parties to the assessment, provided that where a union which is party to the Award, is not a party to the assessment, it shall be referred by the Registrar to the union by certified mail and will take effect unless an objection is notified to the Registrar within ten working days.

 

(f) Review of Assessment - The assessment of the appropriate percentage should be subject to annual review or earlier on the basis of a reasonable request for a review. The process of review must be in accordance with the procedures for assessing capacity under the Supported Wage System.

 

(g) Other Terms and Conditions of Employment - Where an assessment has been made, the appropriate percentage will apply to the wage rate only. Employees covered by the provisions of the clause will be entitled to the same terms and conditions of employment as all other workers covered by this Award paid on a pro-rata basis.

 

(h) Workplace Adjustment - An employer wishing to employ a person under the provisions of this clause must take reasonable steps to make changes in the workplace to enhance the employee's capacity to do the job. Changes may involve redesign of job duties, working time arrangements and work organisation in consultation with other workers in the area.

 

(i) Trial Period

 

(i) In order for an adequate assessment of the employee's capacity to be made, an employer may employ a person under the provisions of this clause for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

 

(ii) During the trial period the assessment of capacity must be undertaken and the proposed wage rate for a continuing employment relationship must be determined.

 

(iii) The minimum amount payable to the employee during the trial period shall be no less than $57.60 per week.

 

(iv) Work trials should include induction or training as appropriate to the job being trialed.

 

(v) Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment shall be entered into based on the outcome of assessment under subclause (d) of this subclause.

 

14. Overtime

 

(a) An employee shall be paid overtime at the rate of time and one-half for the first two hours and double time thereafter for:

 

(i) all time worked before the usual commencing time on any day;

 

(ii) all time worked after the usual finishing time on any day;

 

(iii) all time worked in excess of the daily limitation of hours prescribed by clause 2, Hours.

 

(b) In computing overtime any portion of an hour less than thirty minutes shall be reckoned as half an hour and any portion of an hour in excess of thirty minutes shall be reckoned as one hour.

 

(c) An employee required to work overtime on a Saturday shall be paid a minimum payment of four hours.

 

(d) Where an employee, after having worked overtime, finishes work at a time when reasonable means of transport are not available, the employer shall provide him with a conveyance, or pay the cost of such conveyance, to reach a point where reasonable means of transport are available, or, if no such transport is available, to his or her home.

 

(e) An employee recalled to work overtime after leaving his or her employer's business premises (whether notified before or after leaving the premises) shall be paid for a minimum of four hours' work at the appropriate rate for each time he or she is recalled; provided that, except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four hours if the job he or she was recalled to perform is completed within a shorter period.

 

15. Mixed Functions

 

(a) Any employee called up to do work of a higher classification than that in which he/she is working, shall, if so employed for at least one-half hour and less than two hours be paid the rate of pay for such classification for the time so employed. If so employed for two hours or more he/she shall be paid the rate for the higher classification for the whole day.

 

(b) An employee shall not suffer any deduction in wages should he or she be put to work at a classification lower than that under which he or she was engaged or deemed to be working.

 

16. Sunday and Holiday Rates of Pay

 

(a) All time worked on any of the holidays named in clause 20, Holidays, of this award shall be paid for at the rate of double time and one-half with a minimum payment of four hours.

 

(b) All time worked on a Sunday shall be paid for at the rate of double time with a minimum payment of four hours.

 

17. Time and Payment of Wages

 

(a) All wages, excepting overtime, together with any bonus, commission or premium the employer may choose to pay, shall be paid on Thursday each week and shall be made up to and including the day preceding pay day.

 

(b) Overtime shall be paid within a week from the pay day succeeding the day on which it was earned.

 

(c) Wages shall be paid in cash or by Electronic Funds Transfer (EFT) as determined by the employer.

 

Provided that payment by electronic funds transfer shall not be used wherever its use would create harsh or unreasonable circumstances for employees. Provided further that wherever wages are paid by electronic funds transfer, the employer shall meet the following costs:

 

(i) The employee's account establishment cost.

 

(ii) The cost of each deposit of wages in the employee's account including government charges.

 

(iii) The cost of a single withdrawal of each deposit of wages from an employee's account. (This includes both bank and government charges.)

 

Provided further that wherever wages are paid by electronic funds transfer, the employee shall have the option of which financial institution wages are paid into.

 

(d) Nothing in this clause shall change existing site practices for payment by electronic funds transfer which were existing at the date of this variation.

 

18. Enterprise Arrangements

 

a) The Industrial Relations Commission of New South Wales may approve of enterprise arrangements reached in accordance with this clause and the provisions of the Act. Provided that these arrangements are in accordance with the State Wage Case principles, as varied from time to time.

 

b) Industrial unions of employees and industrial unions of employers, or industrial unions of employees and employers, or employees and employers may negotiate enterprise arrangements which, subject to the following provisions, shall prevail over the provision of any award or order of the Industrial Relations Commission of New South Wales that deals with the same matters in so far as they purport to apply to parties bound to the arrangements, provided that where the arrangement is between employees and an employer a majority of employees affected by the arrangement genuinely agree.

 

c) An enterprise arrangement shall be an agreed arrangement for an enterprise, or discrete section of an enterprise, being a business, undertaking or project, involving parties set out in paragraph (b).

 

d) Enterprise arrangements shall be for a fixed term and there shall be no further adjustments of wages or other conditions of employment during this term other than where contained in the arrangement itself. Subject to the terms of the arrangement, however, such arrangement shall continue in force until varied or rescinded in accordance with the Act.

 

e) For the purposes of seeking the approval of the Industrial Relations Commission of New South Wales, and in accordance with the provision of the Act, a party shall file with the Industrial Registrar an application to the Commission to either:

 

(i) vary an award in accordance with the Act; or

 

(ii) make a new award in accordance with the Act.

 

f) On a hearing for the approval of an enterprise arrangement, the Industrial Relations Commission of New South Wales will consider in addition to the industrial merits of the case under the State Wage Case principles:

 

(i) ensuring the arrangement does not involve a reduction in ordinary time earnings and does not depart from Industrial Relations Commission of New South Wales standards of hours of work, annual leave with pay or long service leave with pay; and

 

(ii) whether the proposed award or variation is consistent with the continuing implementation at enterprise level of structural efficiency considerations.

 

g) The operative date for an enterprise arrangement shall be no earlier that the date of approval by the Industrial Relations Commission of New South Wales, except that the Industrial Relations Commission of New South Wales may approve an earlier operative date to achieve consistency with the operative date of an enterprise arrangement which has earlier been approved by the Australian Industrial Relations Commission.

 

h) Where parties to an enterprise arrangement include employees covered by a federal award, an agreement covering those employees may be submitted to the federal tribunal for approval.

 

i) The Industrial Relations Commission of New South Wales is available to assist the parties to negotiations for an enterprise arrangement by means of conciliation and, in accordance with this clause and the Act, by means of arbitration. If any to such negotiation seeks arbitration of a matter relating to an enterprise arrangement such arbitration shall be as a last resort.

 

j) Enterprise arrangements entered into directly between employees and employers shall be processed as follows, subject to the Industrial Relations commission of New South Wales being satisfied in a particular case that departure from these requirements is justified:

 

(i) All employees will be provided with the current prescriptions (eg award, industrial agreement or enterprise agreement) that apply at the place of work.

 

(ii) The arrangement shall be committed to writing and signed by the employer, or the employer’s duly authorised representative, with whom agreement was reached.

 

(iii) Before any arrangement is signed and processed in accordance with this principle, details of such arrangement shall be forwarded in writing to the union or unions with members in that enterprise affected by the changes and the employer association, if any, of which the employer is a member.

 

(iv) A union or employer association may, within 14 days thereof, notify the employer in writing of any objection to the proposed arrangements, including the reasons for such objection and in such circumstances the parties are to confer in an effort to resolve the issue.

 

(v) Where an arrangement is objected to by a union or employer association and the objection is not resolved, an employer may make application to the Industrial Relations Commission of New South Wales to vary an award or create a new award to give effect to the arrangement.

 

(vi) A union and/or employer association shall not unreasonably withhold consent to the arrangements agreed upon by the parties.

 

(vii) If no party objects to the arrangement, then a consent application shall be made to the Industrial Relations Commission of New South Wales to have the matter approved in accordance with paragraph (e) of this principle.

 

(viii) Such arrangement once approved shall be displayed on a notice board at each enterprise affected.

 

19. Enterprise Consultative Mechanism

 

At each enterprise there shall be established a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters effecting their efficiency and productivity.

 

20. Holidays

 

(a) The days observed as New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Eight Hour Day, and all days proclaimed as public holidays for the State shall be holidays, provided that any day proclaimed as a holiday for the State for a special purpose but observed throughout the State on different days shall also be a holiday. Employees within a radius of 32.18 kilometres of the Newcastle Post Office shall be allowed off at 12 noon on the day on which the official opening of the Newcastle Show takes place.

 

(b) In addition to the holiday specified in subclause (a) of this clause one additional holiday (in lieu of Picnic Day) shall apply in each calendar year to an employee on weekly hire. Such holiday shall be on the day prescribed in subclause 7.5 (b), Public Holidays, of the Metal, Engineering and Associated Industries Award 1998 - Part I, as an additional holiday in New South Wales; provided where any other working day is observed as a picnic day by the general body of employees in any establishment, then such day shall be substituted for the additional holiday hereinbefore prescribed. By agreement between any employer and the majority of his or her employees another day may be substituted for the additional holiday prescribed by this subclause in such employer's undertaking.

 

(c) No deduction shall be made from the wages of weekly employees for a week in which any of such holidays fall.

 

(d) Every employee allowed a holiday specified herein shall be deemed to have worked in the week in which the holiday falls the number of ordinary working hours that he or she would have worked had the day not been a holiday. Provided that if an employee is absent on the working day before or the working day after a public holiday, without permission from the employer or without reasonable cause for such absence, he or she shall not be entitled to payment for such holiday; Provided that an employee absent on one day only, either before or after a group of holidays, shall forfeit wages only for one holiday as well as for the period of absence.

 

21. Annual Leave

 

(a) Day workers and six-day shift workers: See Annual Holidays Act 1944.

 

(b) Seven-day Shift Workers

 

(i) In addition to the leave prescribed by the Annual Holidays Act 1944, a further period of seven consecutive days' leave with forty hours pay at ordinary rates shall be allowed annually to employees, after not less than twelve months' continuous service as seven-day shift workers under this award less the period of annual leave.

 

(ii) An employee with twelve months' continuous service who is employed for part of the twelve-monthly period as a seven-day shift worker under this award shall be entitled to have the leave prescribed by the Annual Holidays Act 1944, increased proportionately for each month he or she is continuously employed as aforesaid.

 

(iii) Where the additional leave calculated under this subclause includes a fraction of a day such fraction shall not form part of the leave period and any fraction shall be discharged by payment only.

 

(iv) Annual leave under this subclause shall be given and taken within a period not exceeding six months from the date upon which the right to such leave accrued provided that the giving and taking of such annual leave may be postponed for a further period not exceeding three months in cases where circumstances render it impracticable to give or take it within the said period of six months; nothing in this paragraph shall prevent the employer from allowing annual leave to an employee before the right thereto has accrued, but where leave is taken in such case a further period of annual leave shall not commence to accrue until after the expiration of the twelve months in respect of which such annual leave had been taken before it accrued.

 

(v) After twelve months' continuous service any employee whose employment is terminated by his or her employer, through no fault of his or her own, and/or any employee who leaves his/her employment in circumstances which did not amount to misconduct after six months' continuous service in his or her then current qualifying twelve-monthly period, shall be paid for the proportionate period of annual leave to which he or she would have been entitled if his or her employment had not been so terminated.

 

(vi) The annual leave provided for by this subclause shall be given and shall be taken and, except as provided in paragraphs (iii) and (v) of this subclause, payment shall not be made or accepted in lieu of annual leave.

 

(vii) Service with an employer before the date of coming into force of this award shall count as service for the purpose of the current qualifying twelve-monthly period under this subclause.

 

22. Annual Holidays Loading

 

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

 

(b) Before an employee is given and takes his or 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 or 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 (g) of this clause).

 

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

 

(d) The loading is to be calculated in relation to any period of annual holiday to which the employee becomes or has become entitled to 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) or, where such a holiday is given and taken in separate periods, then in relation to each such separate period.

 

(e) The loading is the amount payable for the period or the separate periods, as the case may be, stated in subclause (b) of this clause at the rate per week of 17 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 or her annual holiday and any regular weekly over-award payment but shall not include other allowances, penalty rates, shift allowances, overtime rate or any other payments prescribed by this award.

 

(f) No loading is payable to an employee who takes an annual holiday wholly or partly in advance; provided that, if the employment of such an employee continues until the day when he or 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 (e) of this clause applying the award rates of wages payable on that day.

 

(g) 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 -

 

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

 

(ii) an employee who is not entitled under the Act to an annual holiday and who is given and takes leave without pay shall be paid in addition to the amount payable to him under the Act such proportion of the loading that would have been payable to him under this clause if he or she had become entitled to an annual holiday prior to the close-down as his or her qualifying period of employment in completed weeks bears to 52.

 

(h)

 

(i) When the employment of an employee is terminated by his or 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 or she became entitled, he or she shall be paid a loading calculated in accordance with subclause (d) of this clause, for the period not taken.

 

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

 

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

 

23. Sick Leave

 

An employee, who is unable to attend for duty during his or her ordinary working hours by reason of personal illness or personal incapacity (including incapacity resulting from injury within the Workers' Compensation Act 1987), not due to his or her own serious and wilful misconduct, shall be entitled to be paid at ordinary time rate of pay for the time of such non-attendance subject to the following:

 

(a) The employee shall not be entitled to paid leave of absence for any period in respect of which he or she is entitled to compensation under the Workers' Compensation Act 1987.

 

(b) The employee should within four hours where practicable, and in any case shall within twenty-four hours, of the commencement of such absence, inform the employer of his or her inability to attend for duty and, as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.

 

(c) The employee shall prove to the satisfaction of his or her employer, by the production of a medical certificate or other satisfactory evidence, that he or she was unable, on account of illness or injury, to attend for duty on the day or days for which sick leave is claimed.

 

(d) Subject to the other provisions of this clause, an employee shall be credited with 76 hours paid sick leave in respect of each year of service. Sick leave granted with pay shall be deducted from such credit.

 

(e) Sick leave entitlements not claimed in any one year shall accumulate from year to year so long as the employment continues with the employer.

 

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

 

(g) The payment for any absence on sick leave in accordance with this clause during the first three months of employment of an employee may be withheld by the employer until the employee completes such three months of employment at which time the payments shall be made. Provided further, an employee shall forfeit any payment for sick leave if the employee terminates the contract of employment within the first three months of employment. Alternatively, if an employer terminates the contract of employment within the first three months, the employer shall pay to employee for any sick leave taken by the employee, to a maximum of seventy-six hours.

 

(h) Notwithstanding the provisions of this sub-clause an employer in consultation and agreement with employees and the appropriate union(s), in writing, may observe other provisions in respect to sick leave. Provided that the quantum of sick leave stipulated in subclause (d) hereof, shall not be reduced by such agreement(s).

 

24. State Personal/Carer's Leave Case - August 1996

 

(a) Use of Sick Leave

 

(i) An employee, other than a casual employee, with responsibilities in relation to a class of person set out subparagraph (2) of paragraph (iii), 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 at clause 23, 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.

 

(ii) 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.

 

(iii) The entitlement to use sick leave in accordance with this subclause is subject to:

 

(1) the employee being responsible for the care of the person concerned; and

 

(2) 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 paragraph:

 

(1) 'relative' means a person related by blood, marriage of 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.

 

(iv) 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.

 

(b) Unpaid Leave for Family Purpose

 

(i) 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 (2) of paragraph (iii) of subclause (a) who is ill.

 

(c) Annual Leave

 

(i) 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.

 

(ii) Access to annual leave, as prescribed in paragraph (i) of this subclause, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

(iii) 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.

 

(d) Time Off in Lieu of Payment for Overtime

 

(i) 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.

 

(ii) 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.

 

(iii) If, having elected to take time as leave in accordance with paragraph (i) of this subclause, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry date of the 12 month period or on termination.

 

(iv) Where no election is made in accordance with paragraph (i), the employee shall be paid overtime rates in accordance with the award.

 

(e) Make-up Time

 

(i) 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.

 

(ii) 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.

 

(f) Rostered Days Off

 

(i) An employee may elect, with the consent of the employer, to take a rostered day off at any time.

 

(ii) An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

 

(iii) An employee may elect, with the consent of the employer, to accrue some or all rostered days off for purpose of creating a bank to be drawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.

 

(iv) This subclause is subject to the employer informing each union which is both party to the award and which has members employed at the particular enterprise of its intention to introduce an enterprise system of RDO flexibility, and providing a reasonable opportunity for the union(s) to participate in negotiations.

 

25. Bereavement Leave

 

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

 

(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 leaves shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leaves as set out in subparagraph (2) of paragraph (iii) of subclause (a) of clause 24, State Personal/Carer's Leave Case - August 1996, 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 subclause (b), (c), (d), (e) and (f) of the said clause 24. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable optional requirements of the business.

 

26. Long Service Leave

 

See Long Service Leave Act 1955.

 

27. Parental Leave

 

See Chapter 2, Part 4, Division 1 of the Industrial Relations Act 1996.

 

28. Blood Donor Leave

 

Where blood donation facilities are made available at an employer's establishment covered by this award, or at some other nearby place, an employee who donates blood at such facility during his or her ordinary working hours shall be entitled to one hour's paid leave on each occasion for that purpose: provided that, before making payment for such leave, the employer may require satisfactory proof of the employee's blood donation. Production of the relevant Blood Bank card or certificate, properly completed, shall constitute such satisfactory proof.

 

29. 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 fees received and the employee's award rate of pay as if working.

 

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.

 

30. Right of Entry

 

See Chapter 5, Part 7 of the Industrial Relations Act 1996.

 

31. Union Delegate

 

An employee appointed union delegate in the shop or department in which he or she is employed shall upon notification thereof to his or her employer be recognised as the accredited representative of the Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern New South Wales or the Shop, Distributive & Allied Employees' Association, New South Wales.

 

32. Trade Union Training

 

(a) Authorised delegates of any of the unions party to this award who are nominated by the secretary of their union to attend a training course or programme conducted under the auspices of Trade Union Training Australia, or sponsored by the Australian Council of Trade Unions, the State Branch of the Australian Council of Trade Unions or by a union party to this award shall be granted leave of absence while attending such course or courses provided that:

 

(i) at least two weeks prior to attendance at the course or courses the employer receives written notice of the nomination from the union secretary setting out the times, dates, content and venue of the course;

 

(ii) nominations shall not involve absences from work of more than two delegates from each union per establishment (for a maximum of three days for each nominee) in each calendar year and, for the purpose of this subclause, a calendar year shall mean the period from January 1 to December 31 inclusive;

 

(iii) leave of absence granted shall be counted as time worked for the purposes of annual leave, sick leave and long service leave. Delegates attending shall receive their normal rate of pay whilst on such leave including shift allowances, but other allowances, penalty rates or any other daily or hourly payments prescribed by this award shall not be payable. The rate of pay for such leave shall be shared equally between the employer and the union concerned.

 

33. Proportion of Improvers

 

The proportion of juniors to adults shall not be more than one junior to three adults or portion thereof.

 

34. Conditions

 

(a) Employees covered by this award shall not be required to wash, scrub, mop or polish floors except to maintain cleanliness and safety due to breakages or spillages.

 

(b) Employees shall not be required to scrub floors or to clean lunchrooms, dressing rooms or lavatories or to engage in any other work of a major cleaning nature.

 

(c) Where an employee has been notified that he or she is to take his or her annual leave at a specified time and that time thereafter is altered by the employer the employee shall be reimbursed any out-of-pocket expenses which he or she has incurred in relation to the booking of accommodation for holidays; provided that the employer may require proof of such expenses from the employee.

 

(d) Where the nature of the work performed by employees necessitates suitable industrial clothing, including dust coats, aprons, overalls, work boots, work shoes, gloves, etc., they shall be provided, maintained and laundered at the employer's expense and shall remain the property of the employer.

 

(e) A separate dining room sufficient to accommodate the staff shall be provided by the employer. Such dining room shall contain sufficient table and seating accommodation. Hot water shall be provided, without cost, for the employees and reasonable provisions shall be made for the care of employees' luncheons.

 

(f) An employee who is appointed as a first-aid attendant shall be paid an additional payment at the rate set in Item 4 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.

 

(g) Where an employee is required to perform work of an unusually dirty, dusty and/or offensive nature or to work in temperatures of abnormal heat or cold, the employer shall provide for the use of such employees, showers or baths with hot and cold water. Such employees shall be paid the amount set in Item 5 of the said Table 2, whilst engaged on such work. Such employees shall be allowed ten minutes off prior to ceasing time for cleansing purposes.

 

(h) No deductions shall be made from any leave due or from ordinary weekly wages due for time off required by employees to sit for examinations relevant to their employment.

 

(i) Employees shall be allowed a rest pause of ten minutes in the first half and in the second half of each day or shift at a time to be mutually arranged. The employer shall provide hot water during such rest pauses for the purpose of making tea or coffee.

 

(j) Where an employee is required by the employer to wear stockings during the course of work such stockings shall be supplied and paid for by the employer.

 

(k) Compensation to the extent of the damage sustained shall be made where in the course of work, clothing and/or optical glasses are damaged or destroyed by, or through the use of corrosive, explosive, inflammable or poisonous substances.

 

35. Notice Board

 

An employer shall permit a notice which has been duly authorised by the union secretary to be posted on the notice board.

 

36. Accommodation

 

NOTE: As to welfare facilities for employees, see Factories, Shops and Industries Act 1962, and regulations thereunder.

 

37. First-Aid Chest

 

NOTE: As to first-aid chest, see Factories, Shops and Industries Act 1962, and regulations thereunder.

 

38. Transfer of Employees

 

(a) When an employee is required to report for work at a place other than his or her usual place of work he or she shall be paid all fares reasonably incurred in excess of those he or she normally would incur attending at his or her usual place of work and returning home and shall be paid all travelling time in excess of that taken to reach his or her usual place of work and returning home.

 

(b) Travelling time shall be paid for at ordinary rates of pay.

 

(c) The foregoing subclauses shall apply only to an employee temporarily transferred from his or her usual place of work. A temporary transfer shall mean periods of employment at places other than the usual place of work up to a maximum of three consecutive weeks.

 

(d) An employee transferred from working place to working place during ordinary working hours shall be paid for the time spent in travelling as for time worked and shall receive reimbursement of fares incurred in such transfer.

 

(e) Where transfer involves an employee being absent from his or her normal place of abode he or she shall be reimbursed for reasonable expenses incurred for accommodation together with first class rail fares to and from the place of transfer.

 

39. Superannuation

 

(a) Definitions In this clause:

 

(i) "ASSET" means the Australian Superannuation Savings Employment trust constituted by a deed made 14 October, 1987, and includes any superannuation scheme which may be made in succession thereto.

 

(ii) "CARE" means the Clerical Administrative Retail Employees' occupational superannuation fund constituted by a deed made 18 September 1986, and includes any superannuation scheme which may be made in succession thereto.

 

(iii) "Eligible employee" means:

 

(a) a weekly employee (including a part-time employee) who has had 4 weeks' continuous service with the employer; or

 

(b) a casual employee who has had 76 hours or 4 weeks' service with the employer, whichever period is the longer.

 

(iv) "Service with the employer" means employed to work in an establishment where such employment is governed by the terms of this award.

 

(v) "Ordinary time earnings" means:

 

(1) In the case of a weekly employee, his or her classification's weekly rate of pay, plus, where applicable, special rates, shift allowance rates, or first-aid attendant rate for ordinary hours of labour.

 

(2) In the case of a part-time employee the number of ordinary hours worked in each week multiplied by the appropriate hourly rate for the classification of the employee, plus, where applicable, special rates, shift allowance rates, or first-aid attendant rate for ordinary hours of work.

 

(3) In the case of a casual employee the number of ordinary hours worked in each week multiplied by the appropriate hourly rate for the classification of the employee for ordinary hours of work (including, where applicable, special rates, shift allowance rates, and first-aid attendant rate) plus 17% of that sum, for ordinary hours of work.

 

(vi) "Classification's rates of pay" and "special rates" shall mean the relevant amounts prescribed in Clause 12, Wages.

 

(vii) "Shift allowance rates" shall mean the relevant amounts and/or premium prescribed in sub-clauses (c) and (d) of Clause 9, Shift Work.

 

(viii) "First aid attendant rate" shall mean the relevant amounts prescribed in subclause (f) of clause 35, Conditions.

 

(ix) Ordinary time earnings shall also include any "overaward payment".

 

"Overaward payment" means the amount (whether it be termed "overaward payment", "attendance bonus", "service increment", or any term whatsoever) which an employee would receive in excess of the award rate of pay for the classification in which such an employee is engaged. Provided that such payment shall exclude payments related to overtime, shift premiums, penalty rates and meal money allowance and any other ancillary payment of a like nature prescribed by this award.

 

(x) "Union" means The Shop Distributive and Allied Employees' Association, New South Wales Branch and/or the Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales.

 

(xi) "The fund" means as follows:

 

(1) An approved superannuation fund to which an employer, prior to 21 February 1989, was making contributions on behalf of employees, where such contributions were intended to be in satisfaction of the superannuation principle adopted by the State Wage Case 1986, as varied from time to time by subsequent State Wage Case decisions, provided that this provision shall not be applicable to an employer unless such employer, on or before 14 July 1989, files with the Industrial Registrar an election to adopt such fund and such election is not disallowed by order of the Commission after hearing the employer and the relevant union.

 

An election under this paragraph shall set out the name and date of inception of the fund and the extent of contributions per employee, together with information relevant to establishing that the fund is an approved fund and that contributions were intended to be in satisfaction of the superannuation principle.

 

(2) Notwithstanding the above where an employer prior to 21 February 1989 is not making the contributions specified in subclause (c) of this clause, then it shall be ASSET or CARE as determined by the majority of the Award covered employees.

 

(3) For the purpose of this subclause an approved superannuation scheme means a scheme approved in accordance with the Commonwealth Operational Standards for Occupational Superannuation funds.

 

(xii) "Trustee" means either the trustee of the approved superannuation fund referred to in subparagraph (1) of paragraph (xi) of this subclause or the Trustee of ASSET or CARE (whichever is the case).

 

(b) Enrolment

 

(i) Each employer shall

 

(1) As soon as practicable, if they have not already done so, after 21 February 1989, enter into a Deed of Adoption or a Deed of Adherence (whichever is the case) with the Trustee acknowledging itself to be bound by the fund trust deed; and

 

(2) Take all necessary steps to ensure that each of his or her eligible employees becomes a member of the fund.

 

(ii) Each eligible employee shall join the fund.

 

(c) Employer Contributions - Each employer shall pay to the Trustee in respect of each eligible employee an amount equal to three per-centum of the employee's ordinary time earnings from 21 February 1989.

 

(d) Remitting Payments - Each employer shall remit to the Trustee of the fund all payments due in respect of his or her employees immediately at the conclusion of each calendar month or at such other times and in such other manner as may be agreed in writing between the Trustee and the employer.

 

(e) Records - The employer shall retain all records relating to the calculation of payments due to the fund in respect of each employee and such records shall be retained for a period of six years. They shall be available for inspection by -

 

(i) the officials of the Union; or

 

(ii) representatives of the Trustee.

 

(f) Statement of Contributions The employer shall provide to each employee a statement setting out the amount of contributions made on the employee's behalf into the fund together with details of any authorised employee contributions made in accordance with subclause (j), Employee Contributions, of this clause.

 

In the case of persons employed on a seasonal basis only, such statement shall be provided at the completion of the relevant season.

 

In the case of other employees, such statement shall be provided yearly, at the anniversary of their membership of the fund or employment.

 

(g) Unpaid Contributions - Where an employer has failed, pursuant to subparagraph (1) of paragraph (i) of subclause (b), Enrolment, of this clause, to make application to participate in the fund, the employer shall make application to participate in the fund and upon acceptance by the Trustees shall make an initial contribution to the fund, in respect of each eligible employee, equivalent to the contributions which would have been payable under subclause (c), Employer Contributions, had the employer made application to participate in the fund and been accepted by the Trustee after which the employer shall then continue to make payments as prescribed by this subclause. Other than for backpayment of contributions, the employee shall not be entitled to death and disability cover until such time as the employer becomes a member of the fund, that is, the date of acceptance by the Trustees. Provided that the employer's protection in relation to death and disability cover shall be limited for a period of six months from 21 February 1989.

 

(h) Exemptions

 

(i) Notwithstanding the provisions of paragraph (xi) of subclause (a) of this clause the fund in the case of Soul Pattinson Laboratories Pty Ltd, Soul Manufacturing Pty Ltd and Washington H Soul Pattinson Ltd shall be the Retail Employees' Superannuation Fund.

 

(ii) Notwithstanding the provisions of paragraph (xi) of subclause (a) of this clause the Fund in the case of Astra Pharmaceuticals Pty Ltd shall be the Astra Pharmaceuticals Productivity Superannuation Fund.

 

(iii) R and C Products Pty Limited, is exempt from this clause.

 

(iv) Merck Sharp and Dohme Australia Pty Limited, is exempt from this clause 40.

 

(v) Notwithstanding the provisions of paragraph (xi) of subclause (a) of this clause the Fund in the case of Abbott Australasia Pty Ltd shall be the Abbott Employees Superannuation Fund. Provided that in the event that the Abbott Employees Superannuation Fund ceases to be an approved superannuation scheme - as defined by subparagraph (2) of paragraph (xi) of subclause (a), Definitions, of this clause, then Abbott Australasia Pty Ltd shall cease to be exempt for the said subparagraph (2).

 

(j) Employee Contributions - Employees employed in the industry who may wish to make contributions to the fund additional to those being paid pursuant to subclause (c), Employer Contributions, of this appendix shall be entitled to authorise his or her employer to pay into the fund from the employee's wages, amounts specified by the employee in accordance with the fund trust deed and rules.

 

(k) Statement of Service - For the purpose of ensuring that an employee may prove his or her service in the industry so as to become an eligible employee, each employer shall, if requested by an employee, provide such an employee with a written statement setting out the dates of employment with the employer.

 

40. Exemptions

 

(a) Johnson and Johnson Pty. Limited is exempted from the terms of this award in respect of its employees at the Botany plant covered by Industrial Agreement No. 7128 and any variation thereof, filed with the Industrial Registrar on the 14 February 1984 and made between the company and the Shop, Distributive & Allied Employees' Association, New South Wales; and in respect of its employees at the Campbelltown plant covered by Industrial Agreement No. 7075 and any variation thereof, filed with the Industrial Registrar on the 9 December 1983 and made between the company and the Shop, Distributive & Allied Employees' Association, New South Wales.

 

(b) Richardson-Merrell Pty. Ltd. is exempted from the terms of the award in respect of its employees covered by Industrial Agreement No. 5828, made between the company and the Australian Workers' Union and filed with the Industrial Registrar on 19 August 1977, or by any industrial agreement made in substitution therefor.

 

41. Grievance and Dispute Resolution Procedures

 

The procedures for the resolution of grievances and industrial disputation concerning matters arising under this award shall be in accordance with the following procedural steps:

 

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

 

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

 

(ii) The 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.

 

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

 

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

 

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

 

(vi) The employee may be represented by an industrial organisation of employees for the purpose of each procedure.

 

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

 

(i) 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.

 

(ii) Reasonable time levels must be allowed for discussion at each level of authority.

 

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

 

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

 

42. 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.

 

43. Leave Reserved

 

Leave is reserved to any union party to this award to apply as it may be advised during the currency of the award in respect of medical examinations, part-time employees, Reserve Forces leave, charge hands and rates of pay.

 

44. Area, Incidence and Duration

 

This award rescinds and replaces the Warehouse Employees Drug (State) Award published 30 May 1997 (298 IG 807), as varied.

 

It shall apply to employees of the classifications mentioned herein, in drug warehouses and/or drug factories engaged in or in connection with the handling, reception, sale and/or delivery of drugs, galenicals, pharmaceutical goods, cosmetics, perfumes, toilet preparations, medicinal or household chemicals, in the State, excluding the County of Yancowinna, within the jurisdiction of the Drug Employees (State) Industrial Committee.

 

This award shall take effect from the beginning of the first full pay period to commence on or after 21 February 2001and shall remain in force for a period of 12 months.

 

PART B

 

MONETARY RATES

 

Table 1 Wages

 

(i) Adult Employees

 

 

Classification

SWC

1998

$

SWC

1999

$

SWC

2000

$

Total rate per week

$

Checker (first 3 months)

14.00

12.00

15.00

439.65

Assembler (first 3 months)

14.00

12.00

15.00

439.65

Checker

14.00

12.00

15.00

460.50

Assembler

14.00

12.00

15.00

460.50

Indoor Salesperson

14.00

12.00

15.00

458.80

Section Leader

14.00

12.00

15.00

479.30

Buyer

14.00

12.00

15.00

479.30

Buyer in charge

14.00

12.00

15.00

492.20

Department Manager - Second in Charge

 

14.00

 

12.00

 

15.00

 

492.20

Department Manager

14.00

12.00

15.00

533.95

 

This table represents the total rate for each classification after the minimum rates adjustment process is completed.

 

 

(ii) Junior Employees

 

 

Percentage of the appropriate adult classification per week

Age

 

Under 17 years of age……………………………………………………….

60

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

70

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

90

At 19 years of age and over…………………………………………………

100

 

Such minimum rates shall be calculated to the nearest 5 cents, any broken part of 5 cents in the result not exceeding 2.5 cents to be disregarded.

 

Table 2 Other Rates and Allowances

 

Item No.

Clause No.

Brief Description

Amount

$

1

9(e)(i)

Morning or Afternoon Shift Allowance

12.37 per shift

2

9(e)(ii)

Night Shift Allowance

16.70 per shift

3

11

Meal Allowance

8.20 per meal

4

35(f)

First-aid

1.86 per shift

5

35(g)

Dirty Work, etc.

0.36 per hour

 

Drug Employees (State) Industrial Committee

 

Industries and Callings

 

Employees in drug warehouses and/or drug factories, engaged in or in connection with the making, preparing, handling, putting up, reception, sale or delivery of drugs, galenicals, pharmaceutical goods, and medicinal or household chemicals, and all employees engaged in or in connection with the making, preparing, handling, putting up, reception, sale or delivery of cosmetics, perfumes, and toilet preparations and all employees other than in hospitals engaged in or in connection with the making, sale or delivery of surgical, medical and/or hygienic dressings and the preparing and putting up of catgut and the making of catgut preparations within the State, excluding the County of Yancowinna;

 

excepting -

 

Storemen and packers;

Watchmen, caretakers, cleaners, left attendants and porters;

Clerks;

Carters, grooms, stablemen, yardmen and drivers of motor and other power propelled vehicles;

Employees of Sydney Electricity and the Council of Newcastle;

Employees engaged in the manufacture of tartaric acid, cream of tartar, or any by-product thereof;

Employees engaged in and about the grinding of drugs;

 

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

 

Pharmacists (State);

Retail Employees (State);

Textile Employees (State).

 

 

 

T. M. KAVANAGH J.

 

 

 

___________________

 

 

 

Printed by the authority of the Industrial Registrar.

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