(576)

SERIAL C0404

 

RESTAURANT, &c., EMPOLYERS' RETAIL SHOPS (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC1406, 3726, and 5005 of 1999)

 

Before The Honourable Justice Kavanagh

25 May 2001

 

REVIEWED AWARD

 

 

PART A

 

Clause No.      Subject

1.               DEFINITIONS

2.               HOURS

3.               MEAL TIMES AND MEAL ALLOWANCES

4.               RATES OF PAY AND PENALTY RATES FOR CERTAIN ORDINARY HOURS

5.               MONETARY SAVINGS CLAUSE

6.               ENTERPRISE ARRANGEMENTS

7.               ENTERPRISE CONSULTATIVE MECHANISM

8.               FLEXIBILITY OF WORK

9.               COMMITMENT TO TRAINING AND CAREERS

10.             MIXED ENTERPRISE

11.             OVERTIME

12.             SUNDAY WORK

13.             HOLIDAYS

14.             ANNUAL LEAVE

15.             ANNUAL HOLIDAYS LOADING

16.             LONG SERVICE LEAVE

17.             SICK LEAVE

18.             PERSONAL/CARER'S LEAVE

19.             COMPASSIONATE LEAVE

20.             JURY SERVICE

21.             ENGAGEMENT, PAYMENT AND TERMINATION

22.             SPECIAL PROVISIONS FOR SUBSTITUTED LATE SHOPPING NIGHT - GENERAL SHOPS

23.             REST PAUSE

24.             MIXED FUNCTIONS

25.             MISCELLANEOUS AND GENERAL CONDITIONS

26.             TOOL ALLOWANCE - APPRENTICES

27.             RIGHT OF ENTRY

28.             REDUNDANCY

29.             ANTIDISCRIMINATION

30.             SUPPORTED WAGE SYSTEM FOR WORKERS WITH DISABILITIES

31.             DISPUTE SETTLEMENT PROCEDURES

32.             LEAVE RESERVED

33.             RENOVATIONS IN RETAIL SHOPS

34.             AREA INCIDENCE AND DURATION

 

 

Part B

 

MONETARY RATES

 

35. WAGES

 

Table 1 - Wages

Table 2 - Other Rates and Allowances

 

 

1.  DEFINITIONS

 

(i)         "Bar Attendant" shall mean any person employed for more than four hours in any one day or night in supplying, dispensing or mixing of liquor and service of same to waiting staff.

 

(ii)        "Cafeteria Attendant" shall mean an employee, who assists in the kitchen, acts as a counter hand, clears tables and other duties associated with a cafeteria.

 

(iii)       "Cashier" shall mean an employee who is principally employed to be responsible for a cash register in receiving cash and giving change.

 

(iv)       "Casual Employee" shall mean an employee engaged otherwise than as a full-time or part-time employee.

 

(v)        Definition of Cooks - Restaurant Cooks -

 

Chef - An employee engaged in the general supervision of the kitchen and staff employed therein, who orders or causes to be ordered all kitchen stocks and stores and who may carry out the duties of cook in any kitchen department.

 

2nd Cook -

 

(a)        An employee who may be required to perform any working duties, including that of relieving the chef on his rostered days off or when on annual leave; or

 

(b)        A cook in charge of a kitchen where there are two cooks or less employed shall rank as a second cook.

 

Cafeteria Cooks - Head Cook - A cook employed in a cafeteria kitchen and who supervises the duties of other kitchen staff.

 

Other Cooks - A cook employed in any cafeteria kitchen department, e.g., grill or stove cook or as assistant to other cooks.

 

(vi)       "General Hand" shall mean an employee who performs the work of a kitchenhand, pantryhand, useful, cloak room attendant, milk bar attendant or other general work associated with a restaurant or cafeteria.

 

(vii)      "Linenhand" shall mean an employee who is mainly and for the most part of their time engaged in receiving and issuing and/or mending uniforms, table linen and kitchen linen.

 

(viii)     "Part-time employee" shall mean an employee engaged as a part-time employee in accordance with this award.

 

(ix)       "Supervisor" shall mean an employee other than a chef, appointed by the employer as such and who is engaged in supervising the work of other employees and who performs such work when required.

 

(x)        "Uniform" shall mean any special wearing apparel the employer requires the employee to wear whilst on duty.

 

(xi)       "Union" means the Shop, Distributive and Allied Employees’ association, New South Wales and/or the Shop Assistants and Warehouse Employees’ Federation of Australia, Newcastle and Northern New South Wales.

 

(xiii)     "Full-time Employee" shall mean an employee engaged as a full-time employee in accordance with this award.

 

(xiv)     "Rostered Day Off" means the day off arising from the working of ordinary hours in a 19-day/4-week cycle.

 

(xv)      "Long Day" means a day on which ordinary hours exceed 9 hours but shall not exceed 11 hours. 

 

2. Hours

 

(1)

(i)         Weekly Hours - The ordinary hours of work of employees in shops shall not exceed thirty-eight hours per week to be worked in accordance with subclause (II), Rosters for Five-Day Week, of this clause, Monday to Saturday, both days inclusive, and, save for the meal times prescribed, all time between the actual commencing time and the actual ceasing time on any one day shall count and shall be paid for as time worked.

 

(ii)        Commencing Time - The commencing time of the ordinary hours of work shall be 7.00 a.m.

 

(iii)       Ceasing Time - The times for the cessation of the ordinary hours of work by employees shall be Monday, Tuesday, Wednesday, Saturday:  6.00 p.m. and Thursday, Friday:  9.00 p.m.

 

(iv)       Within the commencing and ceasing times prescribed respectively in paragraphs (ii) and (iii) of this subclause, full-time and part-time employees on engagement shall be notified of:

 

(a)        the quantum of ordinary hours to be worked each week;

 

(b)        the days of the week on which such work is to be performed; and

 

(c)        the commencing and ceasing times of such hours of work for each day of the week on which work is to be performed.

 

The above subparagraphs (a), (b) and (c) shall not be changed except:

 

upon not less than seven days' notice or

 

by agreement between the employee and the employer.

 

In the event of an emergency, (b) and (c) above may be changed; the quantum of hours may be increased but not decreased.

 

Provided that where it is alleged by the union that a change in rosters is contrary to the wishes of the majority of employees or operates unfairly or to the disadvantage of employees, the employer shall give in lieu of seven days notice, 14 days notice, during which time there shall be discussions and, where practicable, agreement reached with the union.

 

(v)        Notwithstanding (iv) above, where a full-time or part-time employee is requested to work:

 

before the employee's regular commencing time on any day;

 

after the employee's regular ceasing time on any day;

on a day in substitution for another work day;

 

and for which 7 days notice or, where appropriate, 14 days notice has not been given, and if there is no clear emergency existing to require the extra work, then such extra/other hours of work shall be paid for at overtime rates, unless the employee has expressly agreed to work those extra/other hours as part of a roster change and be paid at ordinary rates of pay.

 

(vi)       Where an employee's roster is changed with the appropriate notice for a once-only event caused by particular circumstances not constituting an emergency, and the roster reverts to the previous pattern in the following week then work done by the employee because of the roster change shall be paid for at the overtime rate of pay.  (This does not apply where an agreed change to a roster is made at the request of the employee.)

 

(vii)      Part-time Employees -

 

(a)        Ordinary hours of work, exclusive of meal times, shall be the same as those prescribed for full-time employees but shall not in any case be less than three hours work per day nor less than twelve hours work per week nor more than 30 hours work per week.

 

Provided that where an employee's regular rostered work is in excess of 30 hours per week then such an employee shall be deemed to be a weekly employee and paid as such.

 

(b)        Save for the meal times prescribed, all time between the actual commencing time and the on any one day shall count and shall be paid for as time worked.

 

(c)        Notwithstanding the provisions of subparagraphs (a) and (b) of this subclause, the union and an employer may agree, in writing, to observe other conditions in order to meet special cases.

 

(II)       Rosters for Five-day Week -

 

(i)         All weekly and part-time employees shall be rostered their ordinary hours of work on any five days of the week, Monday to Saturday, inclusive, on the following basis:

 

(a)        At least once every two weeks an employee shall be granted two consecutive days off which shall not include the 19-day/rostered day off.

 

(b)        There shall not be more than one long day in any week.  A long day is defined as a day exceeding nine ordinary hours of work.  Provided that by written agreement additional long days may apply.

 

(c)        The maximum number of ordinary hours, which may be worked on any one day, shall be 11 hours.

 

(d)        Ordinary hours shall be worked on not more than 5 days in each week, provided that ordinary hours may be worked on 6 days in one week if in the following week ordinary hours are worked on not more than 4 days.

 

(e)        Each full-time employee shall be rostered so that the maximum number of hours that shall constitute an ordinary week's work without the payment of overtime shall not exceed on average 38 per week and may be worked in any of the following forms:

 

(i)         38 hours in one week;

 

(ii)        76 hours in two consecutive weeks;

 

(iii)       114 hours in three consecutive weeks;

 

(iv)       152 hours in four consecutive weeks.

 

(ii)        There shall be not less than a 10-hour break between finishing work (including overtime) on one day or shift and the commencement of work on the next day or shift.

 

(iii)       Provided further that in shops with five or less weekly and part-time employees the rostered days off shall be decided by mutual arrangement between the employer and employees.

 

(iv)       Provided that in shops employing on a regular basis 20 or more employees per week, unless specific written agreement exists to the contrary between an employer and an employee, the employee shall not be required to work ordinary hours on more than 19 days in each 4-week cycle.

 

Where specific written agreement exists between an employer and an employee the employee may be worked on the basis of:

 

not more than 4 hours work on one day in each two-week cycle;

 

not more than 6 hours work on one day per week.

 

(v)        Provided that in shops employing on a regular basis more than 5 employees but less than 20 employees per week, unless specific written agreement exists to the contrary between an employer and an employee, the employee may be worked ordinary hours on one of the following basis at the employer's discretion:

 

not more than 19 days work in each 4-week cycle;

 

not more than 4 hours work on one day in each two-week cycle;

 

not more than 6 hours work on one day in each week.

 

Where specific written agreement exists between an employer and an employee, the employee may be worked on not more than 7.6 hours per day.

 

(vi)       Provided that in shops employing on a regular basis 5 or less employees per week, employees may be worked their ordinary hours on one of the following basis at the employer's discretion.

 

not more than 19 days work in each 4-week cycle;

 

not more than 4 hours work on one day in each two-week cycle;

 

not more than 6 hours work on one day in each week;

 

not more than 7.6 hours work on any day.

 

(vii)      Provided that, for the purposes of this clause, "employing on a regular basis" includes persons of the following types:

 

(a)        employees of the employer engaged on the premises whose terms of employment are not regulated by this award;

 

(b)        employees other than those employed by the employer whose terms of employment are regulated by this award and who regularly work on the premises performing work as demonstrators and the like but not including the employees of a bona fide franchiser operating on the premises.

 

(viii)     Every employer shall, by legible notice which shall bear the date when it is fixed, exhibit and keep exhibited in a place accessible to employees the current starting and finishing times for each employee for each day of the week.  The employer shall retain superseded notices for 12 months.  The roster of hours shall, upon request, be produced for inspection by any person authorised to inspect the same.

 

3. Meal Times And Meal Allowances

 

(i)         An employee who works five ordinary hours or more on any day shall be allowed on such day a meal break of not less than one half hour nor more than one hour, provided that meal breaks shall be given and taken so that no employee shall work more than five consecutive hours without a meal break.

 

(ii)        To meet special cases mutual agreements may be made between an employer and his employees regarding meal times, provided that in each case the union shall be advised in writing of such arrangement.

 

(iii)       An employee who works overtime after 6.30 p.m. shall be paid on such day the amount set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, as a meal allowance or with the prior agreement of the union shall be provided with a suitable meal approved of by the union, provided that in general shops -

 

(a)        an employee who is working their normal ordinary hours after 6.30 p.m. on a Thursday or Friday night shall not become entitled to a meal allowance until that employee works overtime of more than 30 minutes after the completion of such ordinary hours;

 

(b)        an employee who is required to work on Sunday beyond 1.00 p.m. shall be paid on that day the amount set out in the said Item 1 as a meal allowance and if required to work beyond 6.00 p.m. a further sum of the same amount.

 

4. Rates Of Pay And Penalty Rates For Certain Ordinary Hours

 

(i)         Full-time Employees - The minimum rates of pay for full-time employees shall be as set out in the said Table 1.

 

(ii)        Part-Time Employees -

 

(a)        Part-Time employees shall be paid an hourly rate equal to the appropriate weekly rate divided by 38, rounded to the nearest half cent.

 

(b)        The provision of this award with respect to sick leave, holidays and Sunday penalties shall apply to part-time employees.

 

(iii)       Penalty Rates for Certain Ordinary Hours -

 

(a)        All ordinary hours worked by full-time or part-time employees after 6.00 pm on Thursday and Friday shall be paid at the rate of time and one quarter.

 

(b)        All ordinary hours worked by full-time or part-time employees on Saturday shall be paid at the rate of time and one quarter.

 

(iv)       Casual Employees -

 

(a)        Casual employees shall be paid an hourly rate equal to the appropriate weekly rate divided by 38, plus 15 per cent, calculated to the nearest half cent, with a minium payment on any one shift of three hours.

 

(b)        Casual employees working on Saturday shall receive the amounts set out in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, by way of fixed loading, in addition to the day's pay.

 

(c)        Provided further that upon employment, a new casual employee may be engaged for a minimum of two hours for the first two engagements, provided that these engagements shall be for the purpose of training only.

 

(v)        Apprentices -

 

(a)        Apprentices - The minimum rates of wages for four year apprentice cooks shall be as set out in Table 1 - Wages, of Part B, Monetary Rates.

 

(b)        The minimum rates of wages for three and a half year apprentice cooks shall be set out in the said Table 1.

 

(c)        Proficiency Rates -

 

(1)        Should an apprentice in any year pass in each of the subjects prescribed for that year of their apprenticeship course, and attain a standard as certified by the Department of Technical and Further Education of not less than an average of 70 per cent of possible marks allotted at the annual examination conducted by the department in the subjects of trade theory and trade practice prescribed for that year in the relevant course, they shall -

 

(A)       On the first occasion on which they attain such standard, be paid for the next succeeding year the sum set out in Item 4 of the said Table 2 in addition to the prescribed minimum weekly wage.

 

(B)       For the second occasion on which they attain such standard, be paid for the next succeeding year the sum set out in Item 5 of Table 2 in addition to the prescribed minimum weekly wage.

 

(C)       For the third occasion on which they attain such standard, be paid for the next succeeding year the sum set out in Item 6 of Table 2 in addition to prescribed minimum weekly wage.

 

(2)        All allowances prescribed by this clause shall be deemed to be part of the weekly rate of pay for all purposes of this award.

 

(vi)       The penalties and loadings prescribed in this clause shall not be taken into consideration in calculating any payment for overtime or public holidays or for any period of sick leave.

 

5. Monetary Savings Clause

 

(i)         Full-time Employees - Provided that all full-time employees engaged by their employer prior to 27 March 1992 shall continue to be paid for Saturday work in ordinary time at the employee's rate of pay and penalty rate applicable as at 26 March 1992.  No employee shall be disadvantaged by this variation to the award.

 

6. Enterprise Arrangements

 

(i)

(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/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 to the extent that they are contrary provided that:

 

(1)        A majority of employees affected genuinely agree.

 

(2)        Such arrangement is consistent with the current State Wage Case principles.

 

(c)

 

(1)        Before any arrangement requiring variation to the award is signed and processed in accordance with subclause (ii) of this clause, 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 objection.

 

(2)        When an objection is raised, the parties are to confer in an effort to resolve the issue.

 

(ii)        Procedures to be followed - 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)

 

(1)        Where an arrangement is agreed to between the employer and the employees or their authorised representative at an enterprise, such arrangement shall be committed to writing.  Where the arrangement is agreed to between the employer and an absolute majority of permanent employees under this award at an enterprise, such arrangement shall be committed to writing.

 

(2)        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 (1) of paragraph (c) of subclause (i) of this clause and the objection is not resolved, an employer may make application to the Industrial Commission 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 Commission to have the arrangement approved and the award varied in the manner specified in paragraph (g) of this clause.

 

Such applications are to be processed in accordance with the appropriate State Wage Case principles.

 

(g)        Where an arrangement is approved by the Industrial Commission 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 the result of any award changes made as part of the implementation of the arrangement.

 

7. 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 affecting their efficiency and productivity.

 

8. Flexibility Of Work

 

(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.

 

(ii)        Employees shall take all reasonable steps to achieve quality, accuracy and completion of any job or task assigned to the employee.

 

(iii)       Employees shall not impose any restrictions or limitations on a reasonable review of work methods.

 

9. Commitment To Training And Careers

 

(i)         The parties acknowledge that varying degrees of training are provided to employees in the retail industry, both via internal, on the job and through external training providers.

 

(ii)        The parties commit themselves to continuing such training as is regarded by them as appropriate and improving training in cases where this is required.

 

(iii)       It is agreed that the parties will co-operate in ensuring that appropriate training is available for all employees in the retail industry and the parties agree to co-operate in encouraging both employers and employees to avail themselves of the benefits to both from such training.

 

(iv)       The parties are committed to encouraging young people to view the retail industry as one which has the capacity to provide them with an interesting career as they progress not only through junior ranks but also as adults.

 

(v)        The parties agree to continue discussions on issues raised by the unions relating to training.

 

10. Mixed Enterprise

 

(i)         A mixed enterprise is defined as an establishment where the primary operation is not covered by this award to the extent that at least 75 per cent of employees are engaged in an industry other than the retail industry.

 

(ii)        For the purpose of increasing productivity, flexibility and efficiency in mixed enterprises, as well as enhancing opportunities for employees, broad banding may extend, by agreement between an employer and an employee to allow the employee to perform any work in a mixed enterprise within the scope of their skills and competence.  Discussion shall take place at the enterprise with a view to reaching agreement for employees to perform a wider range of tasks, removal of demarcation barriers and participation of employees in additional training.

 

(iii)       Subject to the provisions of subclause (ii) of this clause, employees in a mixed enterprise shall not impose or continue to enforce demarcation barriers between the work employees, provided that it is agreed that the work lies within the scope of the skill and competence of the employee concerned.

 

11. Overtime

 

(i)         All employees shall be paid overtime for all work as follows:

 

(a)        in excess of:

 

(A)       38 hours per week; or

 

(B)       an average of 38 hours per week in accordance with clause 2, Hours;

 

(C)       5 days per week (or 6 days or 4 days pursuant to subparagraph (d) of paragraph (i) of subclause (II) of the said clause 2);

 

(D)       9 hours on any one day; provided that on one day per week up to eleven hours may be worked without the payment of overtime.  By written agreement additional days of up to eleven ordinary hours may be worked without the payment of overtime;

 

(E)        30 hours per week for a part-time employee, where that work is not done on a regular basis;

 

(b)        before an employee's regular commencing time on any one day;

 

(c)        after the prescribed ceasing time on any one day;

 

(d)        outside the ordinary hours of work;

 

(e)        full-time employees who work on their rostered day off or part-time employees who work on any day on which they would not normally work shall be paid at the rate of time and a half for the first two hours and at the rate of double time thereafter with a minimum payment of four hours at the overtime rate;

 

(f)         as prescribed by paragraphs (v) and (vi) of subclause (1) of clause 2.

 

(ii)        The rate of overtime shall be time and one-half for the first two hours one any one day and at the rate of double time thereafter.

 

(iii)       Any portion of an hour less than thirty minutes shall be reckoned as thirty minutes and any portion of an hour over thirty minutes shall be reckoned as one hour except where an employee is required to work after closing time to attend to customers then in the shop, or in connection with the shop including the checking of cash received, when the time actually worked shall count.

 

(iv)       By mutual agreement the rate of overtime may be time off in lieu of overtime provided that:

 

(a)        time off shall be calculated at the penalty equivalent;

 

(b)        the employee is entitled to a fresh choice of payment or time off on each occasion overtime is worked;

 

(c)        time off must be taken within one calendar month of the working of the overtime, or it shall be paid out.

 

12. Sunday Work

 

Work done on any Sunday shall be paid for at the rate of double time with a minimum payment of four hours at such rate.

 

13. Holidays

 

(i)

(a)        The days observed as New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Eight-Hour Day, Christmas Day, Boxing Day and all days proclaimed as Public holidays for the State for a special purpose but observed throughout the State on different days also shall be a holiday.

 

(b)        Every full-time or part-time 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 they would have worked had the day not been a holiday.

 

Provided that any full-time or part-time employee whose roster is changed with the intent of avoiding or reducing payment due or the benefit applicable under this clause and who would, but for the change of roster, have been entitled otherwise to a payment or benefit for a public holiday or holidays shall be paid for such holiday or holidays as if their roster had not been changed.

 

Provided further that where a full-time or part-time employee is rostered so that they do not work their ordinary hours on the same days each week and the employee's rostered day off falls on a day prescribed as a holiday in paragraph (a) of this subclause the employee shall be paid by mutual agreement between the employer and the employee in one of the following methods:

 

(1)        payment of an additional day's wages;

 

(2)        addition of one day to the employee's annual holidays;

 

(3)        another day may be allowed off with pay to the employee within twenty-eight days after the holiday falls, or during the week prior to the holiday.

 

For the purpose of this paragraph "day" means the average number of hours in the full-time or part-time employee's normal roster cycle worked by the full-time or part-time employee prior to the day on which the public holiday falls.

 

(ii)        A full-time or part-time employee absent without leave on the day before or the day after any award holiday shall be liable to forfeit wages for the day of absence as well as for the holiday except where an employer is satisfied that the employee's absence was caused through illness, in which case wages shall not be forfeited for the 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.

 

(iii)       Work done on any of the holidays prescribed in subclause (i) hereof shall be paid for at the rate of double time and one-half with a minimum payment of three hours.

 

(iv)       In addition to the holidays prescribed in subclause (i) of this clause, full-time or part-time employees shall be entitled to an additional holiday without loss of pay and this day shall be known as the picnic day of the appropriate union (namely, the Shop, Distributive and Allied Employees' Association, New South Wales, or the Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales).

 

This day shall be on the first Tuesday of November in any year, or on any other day agreed to by the appropriate union.

 

Where the establishment of an employer remains open and a full-time or part-time employee volunteers to work on the picnic day of the appropriate union, such employee shall then be given another day off without loss of pay.  such alternate day shall be given and taken not later than 28 days after the nominated day on a day mutually agreed between the employer and the employee.

 

Provided that in no circumstances shall an employee forfeit their entitlement to the additional holiday and should such extenuating circumstances arise where the day is not taken as prescribed above it must be given and taken on a day without loss of pay added to the employee's next period of annual leave.

 

Provided further that where a full-time or part-time employee's employment terminates prior to the taking of such alternate day, the employee shall receive an additional day's pay on termination.

 

Provided further that employees on annual leave or long service leave on the day referred to in this subclause shall have an additional day added to their next period of annual leave.

 

14. Annual Leave

 

See Annual Holidays Act 1944.

 

Provided that an employee shall be entitled to not less than a total period of annual leave equivalent to 152 ordinary hours of work in the case of full-time employees and pro rata thereof in the case of part-time employees.

 

15. Annual Holidays Loading

 

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

 

(ii)        Before an employee is given and takes their 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 the 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 (vi) of this clause.)

 

(iii)       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.

 

(iv)       The loading is to be calculated in relation to any period of annual holiday under the Act (but excluding days added to compensate for 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 (NOTE:  See subclause (vi) of this clause as to holidays taken wholly or partly in advance.)

 

(v)        The loading is the amount payable for the period of the separate period, as the case may be, stated in subclause (iv) above at the rate per week of 17 1/2 per cent of the appropriate ordinary weekly rate of pay prescribed by clause 4, Rates of Pay and Penalty Rates for Certain Ordinary Hours, for the classification in which the employee was classified when the loading is paid.  Such wage shall also include payments under paragraph (a) of subclause (iii) of clause 25, Miscellaneous and General Conditions, where applicable, but shall not include other allowances, penalty rates, overtime rates or any other payments prescribed by this award.

 

(vi)       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 they 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 (v) of this clause applying the rate of wages payable on that day.

 

(vii)      Where, in accordance with the Act, an employer's establishment or part of it is temporarily closed down for the purpose of giving an annual holiday or leave without pay to the employees concerned -

 

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

 

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

 

(viii)

(a)        When the employment of an employee is terminated by the 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 they have become entitled after 1 February 1974 they shall be paid a loading calculated in accordance with subclause (v) of this clause for the period not taken.

 

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

 

16. Long Service Leave

 

See Long Service Leave Act 1955.

 

17. Sick Leave

 

(i)         This clause only applies to full-time or part-time employees.

 

(ii)        An employee who, subject to subclause (ii) of this clause, is unable to attend for duty during their ordinary working hours by reason of personal illness or personal incapacity not due to their own serious and wilful misconduct, shall be entitled to be paid at ordinary time rates of pay for the time of such non-attendances subject to the following:

 

(a)        An employee shall not be entitled to sick leave in respect of any period for which they are paid workers' compensation.

 

(b)        An employee shall not be entitled during the first year of continued employment with an employer to sick pay for more than 38 hours and during the second or subsequent years of continued employment with an employer to sick pay for more than 61 hours.  Part-time employees have a pro rata entitlement to sick leave based on the number of hours worked in the week in comparison to 38 hours.

 

Any period of paid sick leave allowed by the employer to an employee in any year of continued employment shall be deducted from the period of sick leave which may be allowed or may be carried forward under this award in or in respect of such year.

 

(c)        The rights under this clause shall accumulate from year to year so long as the employment continues with the employer, whether under this or any other award, so that any part of the entitlement prescribed in paragraph (b) hereof which has not been allowed in any year may be claimed by the employee and shall be allowed by the employer, subject to the conditions prescribed by this clause, in a subsequent year of such continued employment.

 

(iii)       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.

 

(iv)       The granting of sick leave shall be subject to the following conditions and limitations:

 

(a)        The employee shall, within twenty-fours hours of the commencement of such absence, inform the employer of their inability to attend for duty and, as far as possible, state the nature of the illness or injury and the estimated duration of the absence.

 

(b)        The employee shall furnish to the employer such evidence as the employer reasonably may desire that they were unable by reason of such illness or injury to attend for duty on the day or days for which sick leave is claimed.

 

(c)        For the purposes of this clause as it relates to part-time employees "day" shall mean the number of hours the employee would have worked on the day on which he was absent had they not been sick.

 

(v)        For the purpose of this clause continuous service shall be deemed not to have been broken by -

 

(a)        any absence from work on leave granted by the employer; or

 

(b)        any absence from work by reason of personal illness, injury or other reasonable cause, proof whereof shall, in each case, be upon the employee.

 

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

 

(vii)      For the purpose of this clause the word "year" shall mean a period of twelve months commencing on the day on which the employment commenced.

 

(viii)     For the purpose of sick leave accumulated for years prior to 15 June 1992 the term "day" shall mean a period of eight hours or pro rata for part-time employees.

 

18. Personal/Carer's Leave

 

(i)         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 at Clause 17, Sick Leave, for absences to provide care and support, for such persons when they are ill.  Such leave may be taken for part of a single day.

 

(b)        The employee shall, if required, establish either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person.  In normal circumstances, an employee must not take carer's leave under this subclause where another person has taken leave to care for the same person.

 

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

 

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

 

(ii)        the person concerned being:

 

(a)        a spouse of the employee; or

 

(b)        a de facto spouse, who, in relation to a person, is a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person; or

 

(c)        a child or an adult child (including an adopted child, a step child, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

 

(d)        a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or

 

(e)        a relative of the employee who is a member of the same household, where for the purposes of this 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.

 

(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.

 

(ii)        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 (i) who is ill.

 

(iii)       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 above, 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.

 

(iv)       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 date 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.

 

(v)        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.

 

(vi)       Rostered Days Off

 

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

 

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

 

(c)        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.

 

(d)        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.

 

19. Compassionate Leave

 

(i)         An employee, other than a casual employee, shall be entitled to up to three days compassionate leave without deduction of pay on each occasion of the death of a person prescribed in subclause 19(iii) of this clause.  Where the death of a relative named herein occurs outside Australia and the employee does not attend the funeral, he/she shall be entitled to one day only, unless he/she can demonstrate to his/her employer that additional time up to a period of three days is justified.

 

(ii)        The employee must notify the employer as soon as practicable of the intention to take compassionate leave and will, if required by the employer, provide to the satisfaction of the employer proof of death, together with proof of attendance in the case of a funeral outside of Australia.

 

(iii)       Compassionate leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of subclause (i) of clause 18, Personal/Carer's Leave, provided that, for the purpose of compassionate leave, the employee need not have been responsible for the care of the person concerned.

 

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

 

(v)        Compassionate leave may be taken in conjunction with other leave available under subclauses (ii), (iii), (iv) (v) and (vi) of the said clause 18.  In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

 

20. 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.

 

21. Engagement, Payment And Termination

 

(i)         Engagement - An employee may be employed as a weekly, part-time or casual employee.  Provided that no later than three months after 15 June 1992, in a general shop employing 13 or more employees (as provided for in paragraph (vii) of subclause (II) of clause 2, Hours), the total number of hours worked by casual employees shall not exceed 25 per cent of the total hours worked in that shop.  Hours worked by shift work (night fill) employees shall not be included in this calculation.

 

Provided that the 25 per cent limitation on casual hours in general shops shall not apply to:

 

-           tourist resort areas during the tourist extended trading hours;

-           Christmas and Easter; and

 

provided further that any shop which at 15 June 1992 employs casuals to an extent exceeding 25 per cent of total hours worked in the shop may continue to do so, provided that no additional casuals are employed until the limit of hours of 25 per cent is achieved.

 

An employer who is of the opinion that a shop may not operate efficiently with the prescribed limit may seek exemption from this provision by application to the Industrial Commission.

 

(ii)        Proof of Age - Upon the engagement of an employee, such employee, if required to do so, must furnish to the employer a correct statement in writing of his or her age certified to by statutory declaration or birth certificate.  When an employee cannot prove his or her age in the ordinary way a passport, military or naval discharge or Consular document shall be proof of age.

 

(iii)       Time and Payment of Wages - All wages shall be paid weekly in addition to any commission, bonus or premium to which the employee is entitled.  Such payment shall be made on the same day of each week, which shall not be a Friday, Saturday or a Sunday except as herein provided for, and shall be made up to and including at least the third day preceding the day of payment; provided that, in a week where an award holiday falls on the day in which wages are usually paid, payment thereof shall be made not later than the working day immediately preceding the award holiday.  Other arrangements regarding payment may be made by agreement between the employer and the union.  Notwithstanding the foregoing:

 

(a)        Overtime shall be paid not later than a week from the second day succeeding the day on which it was earned.  Provided that where an employee is paid fortnightly in accordance with paragraph (g) hereof then overtime worked in the second week of a pay period may be paid in the following pay period.

 

(b)        Where employment is terminated an employee shall be paid forthwith all ordinary wages due and shall be paid all overtime and other moneys due within seven days of the date of the termination of employment.

 

(c)        In the event of an employer not paying the said overtime and other moneys due at the time on which he has undertaken to pay then the employer shall reimburse the employee all expenses he has incurred in attending to collect the amounts due to him.

 

(d)        Casual employees and part-time employees may elect to be paid on a Friday, Saturday or Sunday, should they so wish.

 

(e)        When an employee is required by an employer to wait beyond the ordinary ceasing times of the employee for payment of ordinary wages, or when an employee is terminated, to wait for payment of ordinary wages after the period of the termination for a period of more than 15 minutes, he shall be paid his ordinary wages for the period during which he is so required to wait.

 

(f)         Wages may be paid by electronic funds transfer.  Provided that where wages are paid by electronic funds transfer additional costs associated with the introduction and operation of electronic funds transfer shall be paid for by the employer.

 

(g)        By agreement between the employer and employee, wages may be paid fortnightly, provided that the employee is paid no later than the third day of the second week of the pay period.

 

(iv)       Termination of Employment -

 

(a)        In the case of misconduct justifying instant dismissal an employee may be instantly dismissed.

 

(b)        In all other cases employment may be terminated by either party -

 

(1)        during the first month of employment by a moment's notice;

 

(2)        thereafter, by one week's notice or by the payment or forfeiture of one week's pay.

 

(c)        Employment shall not be terminated, except for misconduct, while the employee is legitimately absent from duty on accrued sick leave.

 

(d)        Termination Immediately Prior to Holiday - Subject to subclause (i) of clause 13, Holidays, an employee after more than two weeks' employment whose employment is terminated by the employer on the business day preceding a holiday or holidays, other than for misconduct, shall be paid for such holiday or holidays.

 

(e)        Termination Prior to Christmas - Notwithstanding the provisions of paragraph (d) hereof an employee engaged on or after 1 December in any year whose employment finishes before Christmas Day and who is not re-employed within four weeks of Christmas Day by the same employer is not entitled to payment for the Christmas holidays.

 

(f)         Mechanisation and/or Technological Changes -

 

(1)        Where, on account of the introduction or proposed introduction by an employer of mechanisation or technological changes in the industry in which he is engaged, the employer terminates the employment of an employee who has been employed by him for the preceding twelve months, he shall give the employee three months' notice of the termination of his employment; provided that, if he fails to give such notice in full, he shall pay the employee at the ordinary rate of pay applicable under this award for a period equal to the difference between three months and the period of the notice given; and

 

(2)        the period of notice required by this clause to be given shall be deemed to be service with the employer for the purpose of the Long Service Leave Act 1955, the Annual Holidays Act 1944 or any Act amending or replacing either of those Acts; and provided further that the right of the employer summarily to dismiss an employee for malingering, inefficiency, neglect of duty or misconduct shall not be prejudiced by the fact that the employee has been given notice pursuant to this clause of the termination of his employment.

 

(g)        Certificate of Service - An 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 termination.  The Statement shall be the property of the employee and shall be returned to him unnoted by any subsequent employer, within seven days of the engagement.

 

22. Special Provisions For Substituted Late Shopping Night - General Shops

 

(i)         Where a public holiday falls on a Thursday and trading is not permitted, a substituted late night shall apply automatically on the preceding Tuesday.

 

(ii)        Where a public holiday falls on a Friday and trading is not permitted, a substituted late night shall apply automatically on the preceding Wednesday.

 

(iii)       During any week in which a Thursday and/or Friday is substituted for another specified day in accordance with subclause (i) and/or (ii) of this clause then such specified day shall be deemed to be a Thursday and/or Friday, and Thursday and/or Friday shall be deemed to be the specified day for all purposes of this award except as to clause 13, Holidays.

 

(iv)       Provided that where a public holiday pursuant to clause 13, Holidays, falls on a Thursday and/or Friday and Thursday and/or Friday is deemed to be another day, employees shall not receive less time off than they might otherwise have received had the substitution not been made.

 

23. Rest Pause

 

(i)         When and where it can be arranged conveniently by the employer each employee who works more than four hours on any day shall be allowed a rest pause of 10 minutes.

 

(ii)        An employee who works five hours or more on any day shall be allowed both a meal break and one rest pause of ten minutes.  Provided that where such meal break commences on or before the middle of a shift, then the rest pause shall be taken after the meal break and where the meal break commences after the middle of a shift then the rest pause shall be taken before the meal break.

 

(iii)       An employee who works nine hours or more on any day shall be allowed two rest pauses (each of ten minutes duration) if only one meal break is taken; or one rest pause of ten minutes if two meal breaks are taken.

 

Provided that where two rest pauses and one meal break are taken, then one rest pause shall be taken before the meal break and one rest pause shall be taken after the meal break.

 

Provided further that where two meal breaks and one rest pause are taken during any shift then the rest pause shall be taken during the longest unbroken part of such shift.

 

(iv)       No rest pause shall be given or taken within one hour of the employee's commencing or ceasing time or within one hour before or after any meal or crib break.

 

(v)        A rest pause shall be counted and paid for as time worked.

 

24. Mixed Functions

 

An employee engaged for more than two hours during one day on duties carrying a higher rate than his ordinary classification shall be paid the higher rate for such day.  If engaged for two hours or less during one day, he shall be paid the higher rate for the time so worked.

 

25. Miscellaneous And General Conditions

 

(i)         Facilities -

 

(a)        First-aid Outfit - An employer shall provide a first-aid outfit which shall be under the control of the owner or manager or other appointed person.

 

(b)        Lockers - Where practicable, an employer shall provide locker accommodation for each employee.  Lockers, where provided, shall be maintained in good working order.  Any dispute as to the practicability of providing the locker accommodation may be referred by the employer or the union to the Industrial Commission.

 

(c)        Dining Accommodation - Where practicable, an employer shall provide a room containing adequate seating accommodation with a sufficient supply of hot water to allow employees to partake of meals during their lunch hour.

 

Any dispute as to the practicability of providing such a room may be referred by the employer or the union to the Industrial Commission.

 

(d)        Notice Board - An employer shall permit the erection in a prominent position to be decided by the employer on his premises of a notice board of reasonable dimensions or a number of such notice boards reasonable in the circumstances upon which an accredited representative of an industrial union of employees bound by this award shall be permitted to post formal union notices signed by the Secretary of the union concerned.  Provided that such notices shall be referred to the employer before being posted on the notice board.  Any notice posted on a board not so signed or not referred to the employer may be removed by an accredited representative of the union concerned or by the employer.

 

(ii)        Uniforms, Protective clothing - In any shop where an employee wears a uniform, cap, coat, overall or other uniform dress the same shall be provided by the employer and shall be laundered by the employer at the employer's expense.  Provided that, where by mutual agreement the laundering is done by the employee or the employer having refused, neglected or failed to launder the articles and laundering is done by the employee, the employee shall be paid an amount as set out in Item 3 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.  Where articles laundered are made of nylon or other similar material which does not require ironing, employees will be paid an amount as set out in the said Item 3.

 

(iii)       Other Rates and Allowances -

 

(a)        The rates set out in the following Items of Table 2, shall be paid in addition to the appropriate weekly rates prescribed in subclause (i) of clause 4, Rates of Pay and Penalty Rates for Certain Ordinary Hours.

 

                                                               Item No.

                                                               (Table 2)

 

Qualified first-aid attendant               7

 

(b)        An employee who attends an appropriate course of training at a Technical College at the request of his employer shall be reimbursed at the completion of the course, if successful, the fees for such course.

 

(iv)       Cleaning Duties -

 

(a)        It shall be part of employees' duties to perform cleaning functions incidental to their work.  Without limiting the generality of the foregoing, the dusting of shelves and of stock, the sweeping up of string and wrapping around counters, the cleaning of implements and fixtures used in the work, and the cleaning (including vacuum cleaning) of the immediate work area, shall be so included.

 

(b)        An employee shall not be required to wet wash floors, clean lavatories, sweep pavements or clean the exteriors of windows other than for the removal of occasional defacements.

 

(c)        An employee shall not be required to carry out systematic cleaning duties which go beyond the incidental functions as outlined in paragraph (a) of this subclause.

 

(v)        Travelling Time, Expenses, etc. -

 

(a)        If an employee temporarily is transferred from one branch to another he shall be allowed any extra cost of travelling and shall be paid at ordinary rates for any excess time occupied in travelling.

 

(b)        Where an employee is required to work after the ordinary ceasing time prescribed by this award until it is too late to travel by train, omnibus, vessel or other regular conveyance to his or her usual place of residence the employer shall provide either proper conveyance or the fare for such conveyance to the employee's usual place of residence.

 

26. Tool Allowance - Apprentices

 

(i)         Apprentices in cooking shall be paid each week the sum as set out in Item 9 of Table 2 of Part B as a tool allowances.

 

Provided that where the employer supplies the apprentice with all necessary tools of use in his trade (such tools to remain the property of the employer) the provisions of this subclause shall not apply.

 

Provided further where a tool allowance is paid to apprentices, the employer may, from time to time, inspect the tools provided by any apprentices and if not satisfied that reasonable tools are being provided and kept in serviceable condition, having regard to the quantum of tool allowance paid, may furnish or render serviceable such tools and deduct the cost thereof from tool allowance payments thereafter becoming due.

 

(ii)        Any question arising out of the provisions of this clause shall be referred to the Conciliation Committee for determination.

 

27. Right Of Entry

 

See Chapter 5 Part 7 of the Industrial Relations Act 1996

 

28. Redundancy

 

(1)        Application

 

(i)         This clause shall apply in respect of full-time and part-time employees

 

(ii)        This clause shall apply in respect of employers who employ 15 employees or more immediately prior to the termination of employment of employees, in the terms of sub-clause (3), Termination of Employment.

 

(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.

 

(2)        Introduction of Change

 

(i)         Employer's duty to notify -

 

(a)        Where an employer has made a definite decision to introduce major changes in production, 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.

 

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

 

Provided that where the award specified in subclause (1), Application, 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 -

 

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

 

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

 

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

 

(iii)       Discussions before terminations -

 

(a)        Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to subparagraph (a) of paragraph (i) of subclause 2, Introduction of Change, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

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

 

(c)        For the purpose 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.

 

(3) Termination of Employment

 

(i)         Notice for changes in Organisation or structure - This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from Organisation or structure in accordance with subclause 2, Introduction of Change:

 

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

 

Period of continuous service	Period of notice
Less than 1 year	1 week
1 year and less than 3 years	2 weeks
3 years and less than 5 years	3 weeks
5 years and over	4 weeks

 

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

 

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

 

(ii)        Notice for 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 the said subclause 2.

 

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

 

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

 

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

 

(iii)       Time off during the notice period -

 

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

 

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

 

(iv)       Employee leaving during the notice period - If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause 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 Centrelink or its successor - Where a decision has been made to terminate employees, the employer shall notify Centrelink 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)      Employment Separation Certificate - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an Employment Separation Certificate in the form required by Centrelink or its successors.

 

(viii)     Transfer to lower paid duties - Where an employee is transferred to lower paid duties for reasons set out in paragraph (i), Employer's duty to notify, of subclause 2, Introduction of Change, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated, and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary-time rates for the number of weeks of notice still owing.

 

(4)        Severance Pay

 

(i)         Where an employee is to be terminated pursuant to subclause 3, Termination of Employment, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the employee the following severance pay in respect of a continuous period of service:

 

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

 

Years of service	Under 45 years of age entitlement
Less than 1 year	Nil
1 year and less than 2 years	4  weeks
2 years and less than 3 years	7  weeks
3 years and less than 4 years	10  weeks
4 years and less than 5 years	12  weeks
5 years and less than 6 years	14  weeks
6 years and over	16  weeks

 

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

 

Years of service	Over 45 years of age 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

 

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

 

(iii)       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 clause.

 

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

 

(v)        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) if the employer obtains acceptable alternative employment for an employee.

 

(5)        Savings Clause

 

Nothing in this award shall be constructed 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 Industrial Organisation of Employees and any employer bound by this award.

 

29.       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 of 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 affect:

 

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

 

(b)        offering or providing junior rates of pay to person 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 legislation referred to in this clause.

 

30. Supported Wage System For Workers With Disabilities

 

Employees Eligible for a Supported Wage -

 

(a)        Definition - 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.

 

(This 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 award 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 section 10 or section 12A of the said 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:

 

Assessed capacity                 Percentage of prescribed

(subclause (d))                                     award rate

 

10%*                                                     10%

20%                                                        20%

30%                                                        30%

40%                                                        40%

50%                                                        50%

60%                                                        60%

70%                                                        70%

80%                                                        80%

90%                                                        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.

 

(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 this 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 -

 

(a)        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 4 weeks) may be needed.

 

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

 

(c)        The minimum amount payable to the employee during the trial period shall be no less than an amount as set out in subclause (c) of this clause.

 

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

 

(e)        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 clause.

 

31. Dispute Settlement Procedures

 

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

 

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

 

(a)        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.

 

(b)        The grievance 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.

 

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

 

(d)        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 any proposed remedy.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

32. Leave Reserved

 

(ii)        Leave is reserved to the parties to apply in respect of rates and conditions in special and confection shops.

 

(iii)       Leave is reserved to the parties to apply in respect of particular uniform, uniform dress or colour of clothing.

 

(iv)       Leave is reserved to the parties to apply in respect of the requirement for each employee to have a locker.

 

(v)        Leave is reserved to the parties to apply in respect of provisions for termination of employment, technological change and/or redundancy.

 

(vi)       Leave is reserved to the parties to apply in respect of an hourly rate concept.

 

(vii)      Leave is reserved to the parties in respect of classifications under the Restaurant, &c., Employees' Retail Shops (State) Award.

 

33. Renovations In Retail Shops

 

(i)         As soon as practicable after a decision has been made to undertake the renovations of premises the employer shall notify the following:

 

the workplace occupational health and safety committee;

the employees affected;

the appropriated union.

 

(ii)        The employer shall take appropriate measures to minimise and, where possible, eliminate any disabilities caused by the renovations.

 

(iii)       Where an issue or disagreement arises regarding the renovations, such issue or disagreement shall be resolved by taking the matter through the following procedures until it is settled:

 

(a)        Discussion between the union and the company.

 

(b)        Discussions between the union and the Australian Retailers Association - New South Wales.

 

(c)        Referral of the matter to the Industrial Registry and/or to the Occupational Health, Safety and Rehabilitation Council.

 

34. Area Incidence And Duration

 

This award rescinds and replaces the Restaurant, &c., Employees' Retail Shops (State) Award published 6 October 1982 and reprinted 11 October 1991 (265 I.G. 353) as varied, the Restaurant, &c., Employees' Retail Shops (State) Wages Adjustment Award published 28 February 1997 (296 I.G. 1039) as varied and the Restaurant, & c., Employees' Retail Shops Redundancy and Technological Changes (State) Award published 9 February 1996 (290 I.G. 620).

 

It shall apply to all employees in restaurant, tea shops and cafeterias including those used for staff, attached to or carried on in connection with retail shops within the jurisdiction of the Restaurant, &c., Employees (State) Conciliation Committee.

 

This award is varied following a review under section 19 of the Industrial Relations Act 1996 and varies the Restaurant, &c., Employees’ Retail Shops (State) Award published 11 October 1991.

 

The award variation takes effect from the beginning of the first full pay period to commence on or after 25 May 2001 and the variations thereof incorporated herein on the dates set out in the attached schedule.

 

The award, as varied, and now reviewed, remains in force until varied or rescinded, the period for which the said award was made having already expired.

 

 

PART B

 

MONETARY RATES

 

35. Wages

 

The rates of pay in this award include the adjustments payable under the State Wage Case 2000. This adjustment may be offset against:

 

(a)        any equivalent overaward payments, and/or

 

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

 

Table 1 - Wages

 

Adult Basic Wage:  $121.40 per week.

 

	Wage total per week  $
Weekly Employees - Cafeteria (where food and refreshments for consumption on premises are self-served
by customers)
Head Cook	448.20
Other Cooks	441.80
Cashier	433.10
Cafeteria Attendants	431.80
General Hands	431.80
Restaurants -
Where five or more cooks are usually employed -
Chef	473.60
Second Cook	456.70
Grill, stove or relief cook	450.30
Sweets Cook	448.20
Assistant or vegetable cook	442.90
Where four cooks are usually employed -
Chef	461.40
Second Cook	453.70
Grill, stove, relief or sweets cook	448.50
Assistant or vegetable cook	442.90
Where three cooks are usually employed -
Chef	454.10
Second Cook	445.80
Other Cook	441.80
Where two cooks are usually employed -
Chef	448.10
Other cook	441.80
Where one cook is usually employed	447.50
General Employees -
Supervisor	445.30
Storeman	433.20
Bar Attendant	433.10
Cashier	433.10
Butcher or larder cook	450.30
Waiter/Waitress	431.80
Linenhand and seamstress	431.80
General Hand	431.80
Apprentices -
Four year apprentice cooks
1st year	156.20
2nd year	182.70
3rd year	227.70
4th year	271.80
Apprentices - three and a half apprentice cooks
1st year	156.20
2nd year	210.00
3rd year	254.70
4th year	275.00

 

Table 2 - Other Rates and Allowances

 

Item	Clause No.	Brief Description	Amount $
No.
1	3(iii)	Meal Allowance	8.20
2	4(iv)(b)	General Shops - Loading for casual employees working on
		Saturday:
		Engagement up to and including four hours	4.37
		Engagement exceeding four hours	8.89
3	25(ii)	Laundering Allowance
		Full-time and part-time employees	7.40 per week
		Casual employees	2.47 per week
		Maximum payment	7.40 per week
		Laundering allowance for articles which do not require
		ironing:
		Full-time employees	4.40 per week
		Part-time and casual employees	1.46 per week
		Maximum payment	4.40 per week
4	4(v)(c)	Proficiency - 1st occasion	1.67 per week
	(1)(A)
5	4(v)(c)	Proficiency - 2nd occasion	2.68 per week
	(1)(B)
6	4(v)(c)	Proficiency - 3rd occasion	3.43 per week
	(1)(C)

 

 

 

Restaurants, &c., Employees (State) Conciliation Committee

 

Industries and Callings

 

All persons employed in restaurants, tea shops, coffee shops, cafeterias and fish and oyster cafes, including lift attendants; employees of caterers and employees engaged in preparing or serving food or refreshments for consumption on the premises in any class of shops in the State, excluding the County of Yancowinna;

 

Excepting -

 

Employees engaged in the preparing or serving of light refreshments in confectioners, soft drinks, fountain drinks, milk drinks, sundae, fruit and vegetable shops;

 

Engine drivers and firefighters, greasers, trimmers, cleaners and pumpers engaged in or about the driving of engines, and electrical crane, winch, and motor drivers; and

 

Carters, grooms, stablehands, yardhands and drivers of motor and other power propelled vehicles;

 

Excepting also employees of -

 

The Council of the City of Sydney;

The Sydney County Council;

The Broken Hill Proprietary Company Limited;

Australian Wire Industries Pty Limited as its Newcastle Wiremill;

The Australian Gas Light Company;

The North Shore Gas Company Limited;

 

And excepting also -

 

All persons employed in or in connection with hospitals, mental hospitals, public charitable institutions or ambulance work;

Persons employed in any clerical capacity within the meaning of the Clerks (State) Conciliation Committee, other than messengers and cashiers;

Employees under the Club Employees (State) Conciliation Committee;

Employees within the jurisdiction of the Shoalhaven Scheme Conciliation Committee and the Googong Dam Project Conciliation Committee.

 

 

 

T. M. KAVANAGH J

 

____________________

 

 

Printed by the authority of the Industrial Registrar.