PASTRYCOOKS, &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 2249 of 1999)
|
Before The Honourable Justice
Wright, President
The Honourable Justice
Walton, Vice-President
The Honourable Mr
Deputy President Harrison
Commissioner Patterson
|
5 July 2001
|
REVIEWED AWARD
PART 1 - GENERAL
ARRANGEMENT
Clause No. Subject Matter
1. Title
2. Contract
of Employment
3. Definitions
4. Occupational
Superannuation
5. Hours of
Work
6. Overtime
7. Wages
8. Payment
of Wages
9. Leave
10. Personal/Carer's
Leave
11. Public
Holidays
12. Jury
Service
13. Meal
Breaks and Refreshments
14. Relieving
in a Higher Classification
15. Limitations
of Weights
16. Enterprise
Agreements
17. Redundancy
18. Disputes
Procedure
19. Right of
Entry and Inspection
20. Anti-Discrimination
21. Area,
Incidence and Duration
PART 2 - SPECIAL ENTERPRISE AND INDUSTRY PROVISIONS
Appendix 1 - Industry
(Not Elsewhere Specified)
1. Minimum
Award Wage Rates
2. Allowances
Schedule A -Awards and Variations Incorporated
Schedule B - Changes made on Review
1. Title
This Award shall be known as the Pastry Cooks, &c.
(State) Award.
2. Contract Of Employment
(i) Employees
shall be engaged on a full-time, part-time or casual basis.
(ii) Subject to
subclause (iv) and (vi) of this clause, the employment of full-time and
part-time engaged employees may be terminated during the first month of
employment by 1 day's notice on either side and after one month's completed
employment by one week's notice given on either side at any time during the
week, or by the payment of forfeiture, as the case may be, of wages for the
required period of notice. Casual
employees shall be employed on an hourly basis.
(iii) 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 employment and classification of, or the type of work performed, by the
employee.
(iv) Nothing in
this award shall affect the right of the employer to dismiss any employee
without notice for refusal of duty, malingering, inefficiency, neglect of duty
or misconduct and in such cases the wages shall be paid within 30 minutes after
dismissal. Where this is impracticable
due to weekend work, shift work or overtime work situation, then payment is to
be made available to the employee on the next working day.
(v) An employee not
attending for duty shall lose pay for the actual time of such non-attendance,
except where such non-attendance is subject to clause 9, Leave; clause 11,
Public Holidays; and clause 12, Jury Service.
(vi) Subject to
clause 9, Leave; clause 11, Public Holidays; and clause 12, Jury Service, an
employee who is absent without permission from work for a continuous period of
3 days shall be deemed to have abandoned employment.
Termination of employment by abandonment in accordance
with this subclause shall operate as from the date of the last attendance at
work or the last day's absence in respect of which consent was granted,
whichever is the later.
(vii) Employees are
responsible for the care and safekeeping of all issues to them and shall return
each article to the employer on request or on termination of employment.
(viii) Employees
shall perform such duties as the employer shall reasonably require within the
limits of the employee's skill, competence and training.
(ix) This clause
shall not effect the right of an employer to stand down any employee without
pay for any day or part of a day during which an employee cannot be usefully
employed because of any industrial action or any cause for which the employer
cannot be held responsible.
(x) Part-Time Employees
-
(a) Part-time
shall be paid an hourly rate equal to the appropriate weekly rate divided by 40
plus 10 per cent.
(b) All
entitlements of this Award shall apply to a part time employee on a pro-rata
basis.
(xi) Casual Employees
- Casual Employees shall be paid an hourly rate equal to the appropriate weekly
rate divided by 40, plus 10 per cent.
In addition, casual employees are entitled to pro rata:
(a) annual leave
in accordance with subclause (i) of clause 9, Leave;
(b) long service
leave in accordance with subclause (iv) of the said Clause 9.
3. Definitions
(i) Full-time
Employee - means an employee employed by the week to work an average of 40
hours per week.
(ii) Part-time
Employee - means an employee employed by the week to work on a standard roster
of hours of less than 40 per week.
(iii) Casual
Employee - means an employee employed by the hour and engaged and paid as such.
(iv) Tradesperson -
means a person who has (a) completed an indenture as an apprentice pastry cook
or (b) received a certificate of recognition from the Vocational Training Board
under the Industrial and Commercial Training Act 1989.
(v) Apprentice -
means a person who is indentured as an apprentice pastry cook for a period of 4
years.
(vi) Work of a
Pastry Cook - means a person capable of doing each and all of the following -
weighing, mixing, baking, icing, piping or creaming, filling, ornamenting or
rolling paste or dough, by machine or hand, making muffins, crumpets, hot plate
goods, hamburger buns, doughnuts or fermented baked goods.
(vii) Leading Hand -
means an employee appointed as such by the employer and who, while working
under supervision, gives instructions to and/or is responsible for work done by
other employees.
(viii) Union -
means The National Union of Workers, New South Wales Branch.
(ix) Association
- means The Baking Industry Association (New South Wales Employers).
(x) Employer -
means an employer not elsewhere specified in Part 2 of this award.
(xi) Foreperson/Supervisor
- means a person in charge of the bakehouse employees.
(xii) Head Packer
- means the person in charge of the packing room or in charge of packers.
(xiii) Pastry Cook
Group 1 - means a tradesperson who is engaged to do the work of a pastry cook.
(xiv) Pastry Cook
Group 2 - means a person who is not a tradesperson but is engaged to do the
work of a pastry cook.
(xv) Stackerperson -
means a person who is mainly engaged in the transportation, lifting and
stacking of cakes, pastry and other goods by fixed or mobile or mechanical or
electrical appliances.
(xvi) Motor Van
Driver - means a person who is employed in driving or delivering by any motor
or other power driven vehicle.
(xvii) Packer -
means a person who is employed in packing pastry and pastry cook's goods.
(xviii) Assistant
Group 1 - means a person who is engaged washing cartons, trays and boxes.
(xix) Assistant
Group 2 - means a person who is not employed on any work covered by any other
definition.
(xx) Assistant
Group 3 - means a person who is employed icing, piping, creaming or filling by
machine and is not employed as a Pastry Cook.
Notwithstanding anything elsewhere contained in Part 2,
Adult Cleaners may be employed at the rate of pay prescribed in subclause (xvi)
of this clause.
4. Occupational Superannuation
(i) The employer
shall pay on behalf of each full-time employee with 6 months continuous service
3 per cent of the employee's rate of pay per week into a superannuation fund
meeting the requirements set down by the Commissioner for Occupational
Superannuation.
(ii) The employer
shall pay on behalf of each part-time employee with 6 months continuous service
working more than 20 hours per week 3 per cent of the employee's ordinary rate of
pay into a fund meeting the requirements set down by the Commissioner for
Occupational Superannuation.
(iii) Where an
employee is absent, on leave without pay, whether or not such leave is
approved, no contribution from the employer shall be due in respect of that
employee, in respect of the period of unpaid absence.
(iv) The obligation
of the employer to contribute to the fund in respect of an employee shall cease
on the last day of such employee's employment with the employer.
(v) From 6 August
1990 where an employer has failed to make application to participate in an
approved fund, the employer shall make application to participate in such fund
and upon acceptance by the Trustee shall make an initial contribution which
would have been payable under this award, had the employer made application to
participate in such fund and been accepted by the Trustee prior to the
operation of this award after which the employer shall then continue to make
payments as prescribed by this award.
Other than for backpayment of contributions, the employee shall not be
entitled to:
(a) interest on
contributions; and/or
(b) death and
disability cover, until such time as the employer becomes a member of such
fund, that is the date of acceptance by the Trustees.
(vi) An employer
shall not be liable to contribute on behalf of any employee who refuses to sign
an application form as required by the Trust Deed of an approved fund. Such refusal shall be in writing,
notwithstanding that the employee can at any time apply to have contributions
commencing upon becoming a member of the fund; provided further that where an
employee is a member of the Union, such Union shall be notified of the
employee's refusal.
(vii) Any employer
who at the date of variation of this award is already contributing to a
superannuation fund meeting the requirements set down by the Commissioner for
Occupational Superannuation in accordance with the Principle established in the
State Wage Case of December 1987, shall be exempt from this clause.
(NOTATION: Employees covered by this award are also covered
by the provisions of the Superannuation
Guarantee Charge Act, 1992 (Cth.) and the Superannuation Guarantee (Administration) Act 1992 (Cth.) and
complimentary legislation. Nothing in
this notation, however, shall be used to reduce any benefits enjoyed by
employees as at the date of making this award.)
5. Hours Of Work
(a) The ordinary
hours of work shall be 40 per week.
(b) Roster of
Hours - The ordinary hours of work will be notified to each employee and shall
specify the commencing and finishing times.
Any employee's roster shall not be altered without consent unless seven
days' notice is given.
(c) Daily
Limitation of Ordinary Hours -
(i) Full-time: Ordinary hours shall be worked over four,
five or six days and the number of ordinary hours prescribed herein may not be
less than four on any day, or more than twelve on any day.
(ii) Part-time: The ordinary hours of part-time employees shall
not exceed twelve per day with a minimum payment of four hours.
(iii) Casual: The ordinary hours of casual employees shall
not exceed twelve per day with a minimum payment on any day of four hours.
(iv) Details
relating to employees' wages and allowances are specified in Part 2, Overtime
rates are set out in clause 6 below.
6. Overtime
(i) All times
worked in excess of 40 hours per week, or in excess of the daily rostered hours
prescribed by clause 5, Hours of Work, shall be overtime and paid as follows:
(a) Full-time
Employees: Time and one-half for the
first 6 hours and double time thereafter, calculated on a weekly basis.
(b) Part-time and
Casual Employees: Time and one-half for
the first 2 hours and double time thereafter, calculated on a daily basis.
(ii) When overtime
is worked, it shall wherever reasonably practicable, be so arranged that an
employee shall have at least 10 consecutive hours off duty between the work of
successive days.
If on the instruction of the employer such an employee
resumes or continues work without having such 10 consecutive hours off duty the
employee shall be paid at double time until the employee has 10 consecutive
hours off duty without loss of pay for ordinary hours occurring during such
absence.
7. Wages
(a) The rates of
pay in this Award include the first, second and third arbitrated safety net
adjustments ($8 per week each, 8 March 1994; 8 May 1995, 27 April 1998),
payable under the State Wage Case - December 1994 Decision. All the above safety net adjustments may be
offset to the extent of any wage increase received at the enterprise level
since 29th May 1991. Increases made
under previous State Wage Case principles or under the current principles,
excepting those resulting at the enterprise level, are not to be used to offset
arbitrated safety net adjustments.
(b) The rates of
pay in this award include the adjustments payable under the State Wage Case of
May 2000. These adjustments may be
offset against:
(i) any
equivalent overaward payments; and/or
(ii) award wage
increase since 29 May 1991, other than Safety Net, State Wage Case, and Minimum
Rates Adjustments.
8. Payment Of Wages
(i) Each employer
shall fix a pay period of no more than seven days, which shall be common to all
the employer's employees covered by this award and this period shall not be
altered without seven days notice:
Provided that where genuine agreement is reached with a majority of
employees the pay period may be extended, subject to Section 117 of the Industrial Relations Act 1996, as
amended. Such a variation shall be
subject to the consent of the Union, which shall not be unreasonably withheld.
(ii) All wages and
overtime shall be paid not later than three working days after the end of the
pay period, which shall be nominated by the employer and not changed without 7
days notice.
(iii) Any time
exceeding 15 minutes during which an employee is kept waiting for payment shall
be paid for at the ordinary rate of pay.
(iv) Pay Slips:
Refer to section 123 of the Industrial
Relations Act 1996 and clause 6 of the Industrial Relations General
Regulation.
9. Leave
(i) Annual
Leave -
(a) See Annual Holidays Act 1944.
(b) Payment During
Annual Leave: All employees shall
receive payment for annual leave periods calculated at their ordinary rate of
pay in accordance with the provisions of the Annual Holidays Act 1944, and shall, in addition, be paid all shift
or early start allowances, relating to ordinary time which the employee would
have worked if the employee had not been on annual holidays. Such payment shall not include any penalty
payment in respect of a public holiday occurring during the annual holiday
which the employee would have worked an ordinary shift.
(c) During a
period of annual leave an employee shall receive a loading calculated on the
appropriate rate of pay as prescribed.
The loading shall be as follows:
(1) 17 and a half
per cent; or
(2) the shift or
early start allowance an employee would have been entitled in accordance with
paragraph (b) of this subclause provided that entitlement exceeds 17 and a half
per cent.
(d) The
entitlements prescribed in paragraph (c) of this subclause shall not apply to:-
(1) pro rata leave
on termination;
(2) accrued leave on
termination except when the employment of an employee is terminated by the
employer for reasons other than those prescribed in subclauses (iv) and (vi) of
Clause 2, Contract of Employment.
(3) annual leave
taken wholly or partly in advance, provided that the loading shall be paid if
and when an employee's leave entitlement falls due.
(e) In the event
of annual leave close-down an employee shall receive the entitlements
prescribed in paragraphs (b) and (c) of this subclause on a pro rata basis.
(ii) Sick Leave
-
(a) An employee on
weekly hiring who after not less than 3 months' continuous service with the
employer, is unable to attend for duty during the employees ordinary working
hours by reason of personal illness or personal incapacity not due to the
employees 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 conditions and limitations.
(1) 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.
(2) The employee
shall as soon as reasonably practicable immediately notify the employer of an
inability to attend for duty, and as far as practicable, state the nature of
the illness and the estimated duration of the absence.
(3) The employee
shall furnish a doctor's certificate or proof as required by the employer of an
inability on account of such illness or injury, to attend for duty on the day
or days for which sick leave payment is claimed.
(b) For the
purpose of this clause continuous service shall be deemed not to have been
broken by:
(1) any absence
from work on leave granted by the employer;
(2) any absence
from work by reason of personal illness, injury or other reasonable cause
(proof whereof shall fall upon the employee):
Provided that any time so lost shall not be taken into account in
computing the qualifying period of three months.
(c) An employee
shall be entitled to paid sick leave not in excess of:
(1) 3-1/3 hours
for each month of service during the first year of employment;
(2) 48 hours
during the second year of employment;
(3) 64 hours
during the third year of employment;
(4) 80 hours
during the fourth and subsequent year of employment.
(d) Sick leave
shall accumulate from year to year, subject to continuous employment, provided
further than an employee shall not be entitled to accumulate sick leave for
more than 792 hours from the end of the year in which it accrues.
(iii) Bereavement
Leave -
(a) An employee,
other than a casual employee, shall be entitled to up to three days bereavement
leave, without deduction of pay on each occasion of the death in Australia of a
person as prescribed in paragraph (c) of this subclause.
Provided further, an employee, other than a casual
employee, shall be entitled to a maximum of three days leave without loss of
pay on each occasion and on the production of satisfactory evidence of the
death outside Australia of an employee as prescribed in the said paragraph (c)
where such employee travels outside Australia to attend the funeral.
(b) The employee
must notify the employer as soon as practicable of the intention to take
bereavement leave and will, if required by the employer, provide to the
satisfaction of the employer proof of death.
(c) 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 10,
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.
(d) 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.
(e) Bereavement
leave may be taken conjunction with other leave available under subclauses (2),
(3), (4) and (5) of the said Clause 10.
In determining such a request the employer will give consideration to
the circumstances of the employee and the reasonable operational requirements
of the business.
(iv) Long Service
Leave - See Long Service Leave Act 1955.
(v) Parental
Leave - See Industrial Relations Act
1996.
(vi) Workers'
Compensation and Rehabilitation - See: Workers' Compensation and Rehabilitation Act
1987 and the Workplace Injury Management
and Workers' Compensation Act 1998.
10. 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 subclause (ii), Sick
Leave, of clause 9, 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.
11. Public Holidays
(i) The days on
which New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter
Monday, Anzac Day, Queen's Birthday, Christmas Day and Boxing Day or any other
gazetted public holiday are observed and special days appointed by proclamation
as public holidays shall be holidays under this award and no deduction shall be
made from the weekly pay of an employee in which any of the above named
holidays fall if the employee is not required to work on any of such holidays.
(ii) An employee
required to work on any of the holidays named in subclause (i) of this clause
shall for all time worked on any such holidays be paid in accordance with Part
2 of this award.
(iii) An employee
absent without leave on the working day immediately preceding an award holiday
or holidays, or on the working day immediately succeeding such holiday or
holidays, shall forfeit wages for the days of absence including the holiday or
holidays, except where such absence is due to illness of the employee or to
another reasonable cause proof whereof shall be upon the employee.
(iv) Employees'
picnic day shall be a recognised holiday.
It shall be observed on the third Wednesday of February. Where an employer requests an employee to
work on such a day, the employee will nominate an alternative day and notify
the Union at least one month in advance.
(v) A special day
appointed by proclamation as a public holiday shall be a holiday under this
award only within the district specified in the proclamation.
12. Jury Service
(i) An employee
required to attend for jury service during ordinary working hours shall be
reimbursed by the employer an amount equal to the difference between the amount
paid in respect of attendance for such jury service and the amount of wage the
employee would have received in respect of the ordinary time that would have
been worked had the employee not been on jury service.
(ii) An employee
shall notify the employer as soon as possible of the date required to attend
for jury service. Further the employee
shall give the employer proof of attendance, the duration of such attendance
and the amount received in respect of such jury service.
13. Meal Breaks And
Refreshments
(i) Each day's
work shall be worked in an unbroken shift except for meal breaks or
refreshments.
(ii) Non-paid meal
breaks shall be as arranged between the employer and the employee but in no
case shall the meal breaks of an employee exceed one hour in the aggregate in
any one day and not less than half an hour in any one break unless mutually
agreed by the employer and the employee:
Provided that an employee shall not, in general, be required to work
more than five hours without a break for a meal.
(iii) During any
shift of eight hours or more, employees shall be allowed opportunities for a
paid refreshment break or breaks of no more than twenty minutes duration in
aggregate and not less than five minutes for any one break in such manner as to
not interfere with the continuous running of the establishment.
14. Relieving In A Higher
Classification
Any employee performing the work of a higher paid classification
than the employee's usual classification, for one hour or more on any day,
shall be paid at the rate for the higher paid classification for the time the
employee performs such higher paid work.
15. Limitation Of Weights
See Occupational Health
and Safety Act 1983.
16. Enterprise Agreements
(1)
(a) As part of the
Structural Efficiency exercise and as an ongoing process for improvements in
productivity and efficiency, discussion should take place at an enterprise to
provide more flexible working arrangements, improvement in the quality of
working life, enhancement of skills, training and job satisfaction, and
positive assistance in the restructuring process and to encourage consultation
mechanisms across the workplace to all employees in an enterprise and
consideration of a single bargaining unit in all multi-union award
workplaces. Union delegates at the
place of work may be involved in such discussions.
(b) The terms of
any proposed genuine arrangement reached between an employer and employee(s) in
any enterprise shall, after due processing, substitute for the provisions of
this award/agreement to the extent that they are contrary provided that:
(i) A majority of
employees affected genuinely agree;
(ii) Such
agreement is consistent with the current State Wage Case principles.
(c)
(i) Before any
arrangement requiring variation to the award is signed and processed in
accordance with subclause (2), details of such arrangements 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. A union or an employer
association may within 14 days thereof, notify the employer in writing of any
objection to the proposed arrangements, including the reasons for such
objections.
(ii) When an
objection is raised, the parties are to confer in an effort to resolve the
issue.
Procedures to be Followed -
(2) Such
enterprise arrangements shall be processed as follows:
(a) All employees
will be provided with the current prescriptions (e.g. award, industrial
agreement or enterprise arrangement) that apply at the place of work.
(b)
(i) Where an
arrangement is agreed between the employer and the employees, or their
authorised representative at the enterprise, such arrangement shall be
committed to writing.
Where the arrangement is agreed between the employer
and an absolute majority of permanent employees under this award at an
enterprise, such arrangement shall be committed to writing.
(ii) The
authorised representative of employees at an enterprise may include a delegate,
organiser or official of the relevant union if requested to be involved by the
majority of employees at the establishment.
(c) The
arrangement shall be signed by the employer, or the employer's duly authorised
representative, and the employees, or their authorised representative with whom
agreement was reached.
(d) Where an
arrangement is objected to in accordance with subparagraph (i) of paragraph (c)
of subclause (1), and the objection is not resolved, an employer may make
application to the Industrial Relations Commission of New South Wales to vary
the award to give effect to the arrangement.
(e) The union
and/or employer association shall not unreasonably withhold consent to the
arrangements agreed upon by the parties.
(f) 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 arrangement
approved and the award varied in the manner specified in paragraph (g).
Such applications are to be processed in accordance
with the appropriate State Wage Case principles.
(g) Where an
arrangement is approved by the Industrial Relations Commission of New South
Wales and the arrangement is contrary to any provisions of the award, then the
name of the enterprise to which the arrangement applies, the date of operation
of the arrangement, the award provisions from which the said enterprise is
exempt, and the alternative provisions which are to apply in lieu of such award
provisions (or reference to such alternative provisions), shall be set out in a
schedule to the award.
(h) Such
arrangement, when approved, shall be displayed on a notice board at each
enterprise affected.
(i) No existing
employee shall suffer a reduction in entitlement to earnings, award or
overaward, for working ordinary hours of work as a result of any award changes
made as part of the implementation of the arrangement.
17. Redundancy
(i) Application
-
(a) This clause
shall apply in respect of full-time and part-time employees.
(b) This clause
shall only apply to employers who employ 15 or more employees immediately prior
to the termination of employment of employees.
(c) 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.
(d) 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.
(ii) Introduction
of Change -
(a) 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 employer's workforce or in the skills required, the
elimination or diminution of job opportunities, promotion opportunities or job
tenure, the alteration of hours of work, the need for retraining or transfer of
employees to other work or locations and the restructuring of jobs.
Provided that where the award makes provision for
alteration of any of the matters referred to herein, an alteration shall be
deemed not to have significant effect.
(b) 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 (a) above,
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 paragraph (a) of this
subclause.
(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.
(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 sub-paragraph (1) of
paragraph (a) of subclause (ii) above, 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 provision of subparagraph (1) of
this subclause and shall cover, inter alia, any reasons for the proposed
terminations, measures to avoid or minimise the terminations and measures to
mitigate any adverse effects of any termination on the employees concerned.
(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 workers normally employed and the period over which the
terminations are likely to be carried out.
Provided 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 subclause
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 subclause
(ii)(a)(1) above.
(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.
(b) Notice for
Technological Change - This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from
"technology" in accordance with subclause (ii)(a)(1) above:
(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 sub-clause 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 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.
(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 of
Appropriate Government Agency - Where a decision has been made to terminate
employees, the employer shall notify the appropriate government agency 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.
(g) 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.
(h) Transfer to
Lower Paid Duties - Where an employee is transferred to lower paid duties for
reasons set out in paragraph (a) of subclause (ii) above, 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.
(v) Severance
Pay -
(a) Where an
employee is to be terminated pursuant to subclause (iv) above, subject to
further order of the Industrial Relations Commission, 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:
|
Under 45 Years of Age
|
Age Entitlement
|
|
Years of Service
|
|
|
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 provided for in the relevant
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) above.
The Industrial Relations Commission 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 subclause (i) above will have on the employer.
(c) Alternative
Employment - 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) above if the
employer obtains acceptable alternative employment for an employee.
(vi) Savings Clause
- Nothing in this award 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.
18. Disputes Procedure
Subject to the Industrial
Relations Act 1996 any grievance, dispute or claim arising out of or relating
to this award shall be dealt with in the following manner-
(i) Should any
matter arise which gives cause for concern to an employee, the employee shall
raise the matter with the immediate supervisor.
(ii) If the matter
remains unresolved it shall be referred to the Union delegate who shall consult
with the appropriate representative of the employer.
(iii) If the matter
remains unresolved it shall be referred to the Secretary of the Union (or
representative). This official shall
discuss the matter with a senior representative of the employer.
(iv) If the matter
remains unresolved it may be submitted to the Industrial Relations Commission
of New South Wales.
(v) Whilst the
above procedure is being followed, work shall continue as normal in accordance
with this award.
(vi) No party shall
be prejudiced as to final settlement by the continuance of work in accordance
with this clause.
(vii) The parties
shall, at all times, confer in good faith and without undue delay.
19. Right Of Entry And
Inspection
See Chapter 5 Part 7 of the Industrial Relations Act 1996 and Divisions 4 and 5, Part 3 of the Occupational Health and Safety Act 1983.
20. 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,
age and responsibilities as a carer.
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."
21. Area, Incidence And
Duration
(a) This award
shall apply to
(i) Persons
engaged or employed within the jurisdiction of Clause 2 of the Biscuit, Cake
Makers and Pastry Cooks &c. (State) Industrial Committee.
Apprentices to the trade of pastry cooking, being a
trade declared for the purpose of the Industrial
and Commercial Training Act 1989 by the Industrial
and Commercial Training (Declared Trades and Declared Callings) Orders,
1989.
(b) This award is
made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Pastry
Cooks &c. (State) Award published 30 April 1999 (309 I.G. 133) and all
variations thereof.
(c) The award
published 30 April 1999 took effect from the beginning of the first pay periods
to commence on or after 27 April 1998 and the variations thereof incorporated
herein on the dates set out in the attached Schedule A.
(d) The changes
made to the award pursuant to the award Review pursuant to section 19(6) of the
Industrial Relations Act 1996 and
Principle 26 of the Principles for Review of Awards made by the Industrial
Relations Commission of New South Wales on 18 December 1998 (308 I.G. 307) are
set out in the attached Schedule B and take effect on 5 July 2001.
(e) This award
remains in force until varied or rescinded, the period for which it was made
having already expired.
SCHEDULE A
Awards and Variations Incorporated
|
Clause
|
Award/Variation
Serial No.
|
Date of
Publication
|
Date of taking
Effect
|
Industrial
Gazette
|
|
|
|
|
|
Vol.
|
Page
|
|
Pastry Cooks &c. (State) Award
|
B6532
|
30 April 1999
|
First Pay Period From:
27 April 1998
|
309
|
133
|
|
|
Appendices 1, 2
|
B6875
|
18 June 1999
|
First Pay Period From:
6 October 1998
|
309
|
855
|
|
|
Appendices 1, 2
|
B8556
|
20 April 2000
|
First Pay Period From:
6 October 1999
|
315
|
71
|
|
|
15 A
|
B8213
|
28 April 2000
|
First Pay Period From:
3 June 1999
|
315
|
391
|
|
|
7
|
B9039
|
28 April 2000
|
First Pay Period From:
10 December 1998
|
315
|
444
|
|
|
|
|
|
|
|
|
|
SCHEDULE B
Changes Made on Review
Date of Effect: 5 July 2001
Provisions Modified:
PASTRY COOKS &c. (STATE) AWARD
|
CLAUSE
|
Previous Form of Clause
Last Published at:
|
|
|
I.G. Vol.
|
Page
|
|
Award: Pastry Cooks &c. (State) Award
|
|
|
|
1
|
309
|
133
|
|
2
|
309
|
133
|
|
3
|
309
|
133
|
|
4
|
309
|
133
|
|
5
|
309
|
133
|
|
6
|
309
|
133
|
|
7
|
309
|
133
|
|
8
|
309
|
133
|
|
9
|
315
|
444
|
|
10
|
309
|
133
|
|
11
|
309
|
133
|
|
12
|
309
|
133
|
|
13
|
309
|
133
|
|
14
|
309
|
133
|
|
15
|
309
|
133
|
|
16
|
309
|
133
|
|
17
|
309
|
133
|
|
18
|
309
|
133
|
|
19
|
309
|
133
|
|
20
|
315
|
391
|
|
21
|
309
|
133
|
|
Part 2 - Appendix 1
|
315
|
71
|
Provisions Removed
|
Award
|
Clause
|
Previous Form Of Clause
Last Published At:
|
|
|
|
I.G. Vol.
|
Page
|
|
Pastry Cooks &c. (State) Award
|
Appendix 2
|
315
|
71
|
|
|
Subclauses 2(ix),
2(x)
|
309
|
133
|
PART 2 - SPECIAL ENTERPRISE AND INDUSTRY PROVISIONS
APPENDIX 1
INDUSTRY (NOT ELSEWHERE SPECIFIED)
1. Minimum Award Wage Rate
(i) Adults - Any
employee 21 years of age or over shall be paid not less than the rates of pay
set out opposite the classification which the employee is allocated by the employer
under the heading, Minimum Award Wage Rate.
|
Classification
|
Former Award Wage
Rate
(Per Week)
$
6 October 1999
|
Minimum Award Wage
Rate
(Per Week)
$
6 October 2000
|
|
Foreperson/Supervisor
|
471.10
|
486.10
|
|
Baking Tradesperson
|
447.50
|
462.50
|
|
Pastry Group 1, 2 and 3 where only one employed
|
447.50
|
462.50
|
|
Pastry Cook Group 1, 2 and 3 - employed ornamenting
|
445.50
|
460.50
|
|
Pastry Cook - Group 1
|
443.10
|
458.10
|
|
Pastry Cook - Group 2
|
416.90
|
431.90
|
|
Pastry Cook - Group 3
|
396.00
|
411.00
|
|
Head Packer - Group 1
|
455.30
|
470.30
|
|
Head Packer - Group 2
|
405.20
|
420.20
|
|
Stackerperson (Licensed)
|
423.90
|
438.90
|
|
Motor Van Driver
|
407.50
|
422.50
|
|
Packer Group 1
|
402.80
|
417.80
|
|
Packer Group 2
|
383.20
|
398.20
|
|
Assistant Group 1
|
404.80
|
419.80
|
|
Assistant Group 2
|
399.00
|
414.00
|
|
Assistant Group 3
|
394.40
|
409.40
|
|
Assistant Group 4
|
377.40
|
400.40
|
(ii) Juniors - The
minimum rate of pay for all unapprenticed employees under the age of 21 years
shall be ascertained by applying the following percentages to the appropriate
adult rate of pay as prescribed in paragraph (i) of this subclause to the
classification of work to which the junior is allocated by the employer. Junior rates will be calculated to the
nearest 5 cents, any broken part of 5 cents in the result not exceeding 2½
cents to be disregarded.
|
Junior Packer
|
Percentage
|
|
Under 18 years of age
|
56
|
|
At 18 years of age
|
62
|
|
At 19 years of age
|
67
|
|
At 20 years of age
|
77
|
|
Junior Assistant Group 2
|
Percentage
|
|
Under 18 years of age
|
56
|
|
At 18 years of age
|
62
|
|
At 19 years of age
|
67
|
|
At 20 years of age
|
77
|
|
Junior Assistant Group 3
|
Percentage
|
|
Under 18 years of age
|
66
|
|
At 18 years of age and under
|
|
|
21 years of age
|
83
|
(iii) Apprentices: The minimum rate of pay for apprentices shall
be ascertained by applying the rate of pay set out opposite the year of an
apprentices indenture.
|
Classification
|
Former Award Wage
Rate
(Per Week)
6 October 1999
$
|
Minimum Award Wage
Rate
(Per Week)
6 October 2000
$
|
|
1st Year
|
223.55
|
230.50
|
|
2nd Year
|
254.40
|
262.30
|
|
3rd Year
|
289.00
|
297.95
|
|
4th Year
|
355.15
|
366.15
|
Adult Apprentices:
The minimum rate of pay for adult apprentices (21 years of age and over),
shall remain at the second year rate for the first 2 years of the indenture.
2. Allowances -
(i) Early Start-
For all time worked between 6.00 p.m. and 5.00 a.m. an employee shall be paid
at the rate of 30 per cent above the ordinary rate of pay.
(ii) Saturday
Work- All time worked on Saturday shall be paid at the rate of time and
one-half for the first 4 hours and double time thereafter, with a minimum
payment of 4 hours for each start.
(iii) Sunday Work-
All time worked on Sunday shall be paid at the rate of double time; with a
minimum payment of 4 hours for each start.
(iv) Public Holiday
Work - All time worked on a public holiday shall be paid at the rate of double
time and one-half, with a minimum payment of 4 hours for each start.
(v) Easter
Provisions - An employee required to work after the time fixed for the
cessation of the ordinary hours of work during the period commencing 6.00 p.m.
on Tuesday preceding Good Friday in each and every year terminating at 12
midnight on the Thursday preceding Good Friday shall be paid at the rate of
double time for all such hours worked between 6.00 p.m. and 5.00 a.m. on the
Tuesday and Wednesday and 6.00 p.m. and 12 midnight on Thursday.
(vi) Leading Hands-
An employee appointed by the employer as a leading hand shall receive the
following weekly allowance in addition to the appropriate rate of pay for the
employee's classification.
In charge of Per week
(a) 10 employees
or less $15.60
(b) 11 to 20 employees $26.20
(c) 20 employees
or more $33.60
(vii) Freezer - An
employee who during the course of employment is mainly required to work in
freezers shall be paid:
(a) between 0°
Celsius and minus 18° Celsius (inclusive) - $1.63 per day extra;
(b) below minus
18° Celsius - $2.73 per day extra.
In addition an employee required to work in
temperatures below 7.2° Celsius shall be provided with suitable headgear,
gloves and protective clothing.
(viii) First-Aid: An employee appointed by the employer as a
first-aid attendant and who is qualified shall be paid $9.82 per week extra.
(ix) Meal: An employee required to work overtime for
more than 2 hours after finishing time on any day, shall be paid $7.90 for meal
money, unless 24 hours notice has been given.
(x) Laundry: Uniforms where required by the employer
shall be supplied by the employer.
Where the employee is required to wear and launder a uniform, the
employee shall receive $6.47 per week extra.
(xi) Collecting
Monies: An employee employed as a motor
van driver when collecting cash for the employer shall be paid $2.54 per week
extra. In addition the employer shall
provide a suitable cash bag.
(xii) Driving
Licence: After 6 months service an
employee employed as a motor van driver shall be reimbursed by the employer the
fees paid annually for the driving licence.
(xiii) Apprentices: An apprentice who obtains and hands to the
employer a certificate or statement of having passed the yearly technical college
examination shall be paid $4.60 per week for the ensuing 12 months. Every apprentice who successfully completes
the 2½ year trade course shall be paid $12.85 per week.
F. L. WRIGHT J,
President.
M. J. WALTON J,
Vice-President.
R. W. HARRISON D.P.
R. J. PATTERSON, Commissioner.
Biscuit, Cake makers and Pastry Cooks &c. (State) Industrial
Committee
Industries and Callings
1. Employees
in biscuit and cake factories in the State.
2. Pastry Cooks
and assistants, all persons employed in making muffins, crumpets, hot plate
goods and hamburger buns, pastry packers, carters, grooms, stablemen, yardmen
and motor wagon drivers employed in connection therewith in the State,
excluding the County of Yancowinna;
excepting
Engine drivers and firemen, greasers, trimmer, cleaners
and pumpers, engaged in or about the driving of engines, electrical crane,
winch, and motor drivers;
Carters, grooms, stablemen, yardmen, and drivers of
motor and other power-propelled vehicles;
Tinsmiths, and sheet iron workers.
All persons employed by the Sydney County Council;
Employees of the Australian Gas Light Company;
Employees of the North Shore Gas Company Limited.
________________________
Printed by the authority of the Industrial Registrar.