ENGINE DRIVERS GENERAL (STATE) AWARD

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

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

(Nos. IRC 2116, 2118 and 2122 of 2000)

Before the Honourable Justice Kavanagh 

23 May 2001

REVIEWED AWARD

PART A

1.         TITLE

This award shall be known as the Engine Drivers General (State) Award

2.         ARRANGEMENT

PART A

PART B

MONETARY RATES

Table 1 - Rates of Pay

Table 2 - Other Rates and Allowances

3.         ANTI-DISCRIMINATION

3.1        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.

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

3.3        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.

3.4        Nothing in this clause is to be taken to affect:

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

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

(c)        any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977;a party to this award from pursuing matters of unlawful discrimination in any State or federal jurisdiction.

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

NOTES

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

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

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

4.         DEFINITIONS

In this award except where otherwise clearly intended:

4.1        "Electric motor attendant" means a person who attends to an electric motor or motors of 20 kilowatts or more in the aggregate, and performs any duties of oiling or cleaning or attending to commutators, brushes, fuses, or switches.

4.2        "Engine driver" means any person who operates or drives any engine or engines, the motive power of which is either steam, gas, oil, water, compressed air, or electricity, and includes any person who is called upon in the ordinary course of their duty to do engine driver's work other than simply stopping or starting an engine under the supervision of an engine driver.

4.3        "Engine driver in charge of plant" means -

(a)        when two or more drivers are employed at the plant at one time the engine driver who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility;  or

(b)        an engine driver who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility over one or more non-certificated firemen;  or

(c)        when the employee is the only person of their class employed on the plant the engine driver who does the general repair work of the plant in addition to the work of engine driving, but not when the employee merely assists a fitter or engineer to do such work;  or

(d)        where shifts are worked the engine driver who is directed to carry out the general repair work of the plant in addition to the work of engine driving but not when the employee merely assists a fitter or engineer to do such work.

4.4        "Boiler attendant or fireman - first class" means a boiler attendant or fireman who attends to two or more boilers or two or more suction gas generators, or one boiler the evaporation capacity of which, attributed thereto by the maker exceeds 5.44 but less than 45.36 tonnes of steam per hour, or one gas generator supplying a total engine load capacity, attributed thereto by the maker, of not less than 746 Kw, and includes the boiler attendant or fireman of a steam navvy or excavator.

4.5        "Fireman or greaser in charge of plant" means a fireman or greaser who is the only person of their class employed on the plant and who does the general repair work of the plant in addition to the work of firing or greasing, but not when assisting a fitter, engine driver or engineer to do such work of a greaser assisting fireman to do such work.

4.6        "Greaser or oiler" shall mean and include any person substantially engaged in greasing or oiling any engine, machinery or shafting.

4.7        "Greaser or oiler - first class" means a greaser or oiler who under the supervision of the engine driver stops or starts an engine or engines, but does not include any greaser or oiler who does so only in cases of necessity or emergency.

4.8        "Leading boiler attendant or fireman - first class" means -

(a)        the boiler attendant or fireman employed at a plant where three or more firemen are employed at the same time who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility but does not include any boiler attendant or fireman where an engine driver is charged with being in charge of plant in accordance with paragraph 4.3(b) of this clause;

(b)        the boiler attendant or fireman employed at a plant where three or more boiler attendants or firemen are employed at the same time whose duty it is to attend to the water of boilers that are fired by two or more of the other boiler attendants or firemen;

4.9        "Leading boiler attendant or fireman - second class" means -

(a)        the boiler attendant or fireman employed at a plant where two boiler attendants or firemen are employed at the same time who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility but does not include any boiler attendant or fireman where an engine driver is charged with being in charge of plant in accordance with subclause 2.3(b);

(b)        the boiler attendant or fireman employed at a plant where two boiler attendants or firemen are employed at the same time and whose duty it is to attend to the water of the boilers that are fired by the other fireman.

4.10      "Special class boiler attendant or fireman" means a boiler attendant or fireman in charge of boilers with an evaporation capacity of 45.36 tonnes or more per hour.

4.11      "Lofty crane - first class" means a lofty crane on a building in the course of erection or demolition where the driving platform is more than 30.48 metres above the ground.

4.12      "Lofty crane - second class" means a lofty crane on a building in the course of erection or demolition where the driving platform is from 6.096 to 30.48 metres above the ground.

4.13      "Lofty crane - third class" means a lofty crane outside buildings not in the course of erection where the driving platform is more than 6.096 metres from the level of the ground, but does not include an overhead traverser crane.

4.14      "Steam engine - first class" means a turbine or an engine or engines having a single cylinder with a bore of 0.304 8 metres in diameter or over, or having singly or together two or more cylinders the sum of the area of whose bores equals or exceeds the area of a circle 0.304 8 metres in diameter.

4.15      "Steam engine - second class" means an engine or engines having a single cylinder with a bore less than 0.304 8 metres in diameter or having singly or together two or more cylinders the sum of the area of whose bores is less than the area of a circle 0.304 8 metres in diameter.

4.16      "Year" means a year commencing 1 January.

4.17      "Continuous Work" means work carried on with consecutive shifts of men throughout the twenty-four hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.

5.         RATES OF PAY

5.1        Subject to the exceptions and exemptions prescribed in this clause, an adult employee in a classification or class of work specified in the table set out in paragraph (ii) of this subclause shall be paid at the respective award wage rate per week assigned to that classification or class of work set out in Table 1 - Rates of Pay, of Part B, Monetary Rates.

Where an employee attends two or more motors, the employee shall be paid at a rate calculated on the aggregate power of such motors.

Forklifts -

Where two or more forklifts or cranes are engaged on any one lift, the drivers thereof shall be paid an additional amount at the rate per day as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, for each day so occupied.

(f)         Boiler Attendants (Firemen):

Boiler attendant (fireman)                                                                                 12C

Boiler attendant (fireman first class)                                                               12A

Leading boiler attendant or fireman first class                                              11B

Leading boiler attendant or fireman second class                                        11C

Special class boiler attendant or fireman                                                        11B

Locomotive fireman                                                                                           12C

(g)        Greasers, etc.:

Greaser or oiler                                                                                                   13A

Greaser or oiler - first class                                                                               12C

Trimmer                                                                                                                13B

Fuel man                                                                                                              13B

Engine cleaner                                                                                                    13B

Boiler cleaner                                                                                                      13B

Provided that any person engaged inside the gas or water space of any boiler, flu or economiser in cleaning or scraping work shall, whilst so employed, be paid an amount as set out in Item 2 of the said Table 2 per hour in addition to their /her ordinary or overtime rate of pay.

(h)        Mechanical Plant Drivers or Operators:

Group 1                                                                                                                12B

Group 2                                                                                                                11C

Group 3                                                                                                                11B

Group 4                                                                                                                11A(ii)

Group 5                                                                                                                11A(ii)

Group 6                                                                                                                10B

Index to Groups

Group 1

•       Pneumatic tyred tractor not using power operated attachments 35 kW brake power and under.

Group 2

•       Pneumatic tyred tractor not using power operated attachments over 35 kW power up to 70 kW brake power.

•       Crawler tractor not using power operated attachments up to and including Class 3.

•       Pneumatic tyred tractor using power operated attachments up to 35 kW brake power.

•       Crawler tractor using power operated attachments up to and including Class 2.

•       Road roller powered vibrating under 4 tonnes.

•       Road roller powered under 8 tonnes.

•       Second driver - navvy and dragline or dredge type excavation.

•       Pile driving machine.

Group 3

•       Pneumatic tyred tractor not using power operated attachments over 70 kW and up to 110 kW brake power.

•       Pneumatic tyred tractor using power operated attachments over 35 kW and up to 70 kW brake power.

•       Crawler tractor not using power operated attachments Class 3 and 4.

•       Road roller, powered 8 tonnes and over.

•       Road roller, powered vibrating 4 tonnes and over.

•       Loaders up to and including 0.75 cubic metres.

Group 4

•       Pneumatic tyred tractor using power operated attachments over 70 kW and up to 110 kW brake power.

•       Crawler tractor not using power operated attachments above Class 5.

•       Crawler tractor using power operated attachments Class 5 and 6.

•       Excavator up to and including 0.5 cubic metre capacity.

•       Grader, power operated below 35 kW brake power.

•       Loaders, front end or overhead, 0.75 cubic metre up to and including 2.25 cubic metres.

Group 5

•       Pneumatic tyred tractor using power operated attachments in excess of 110 kW brake power.

•       Crawler tractor using power operated attachments Class 7 and 8.

•       Excavator up to and including 0.5 cubic metre capacity.

•       Grader, power operated below 35 kW brake power.

•       Loaders, front end and overhead, 2.25 cubic metres up to and including 4.5 cubic metres.

Group 6

•       Crawler tractor using power operated attachments Class 9.

•       Excavator 2.5 cubic metres.

•       Grader power operated over 70 kW brake horsepower.

•       Loaders, front end or overhead, 4.5 cubic metre capacity.

NOTE: Crawler tractors are classified in accordance with Australian Standard D4-1964 "Classification of Crawler Tractor by Weight" as follows:

Class                                      Shipping Weight Tonnes

1                                          up to 1.36

2                                          over 1.36 up to 2.72

3                                          over 2.72 up to 4.54

4                                          over 4.54 up to 6.80

5                                          over 6.80 up to 11.34

6                                          over 11.34 up to 18.14

7                                          over 18.14 up to 27.22

8                                          over 27.22 up to 36.29

9                                          over 36.29

5.2        Special Work - A driver operating a tractor fitted with a blade and using such blade in breaking trail in heavy sidling country shall be paid an additional allowance as set out in Item 3 of Table 2.

5.3        Additions to Wages - An engine driver or fireman engaged as specified below shall be paid the additional amounts per week as set out in Table 2:

(a)        Attending to refrigerating compressors -

Attending to electric generator or dynamo

exceeding 10 kilowatt capacity

In charge of plant (other than at Gordon

Edgell Pty Ltd and International Canners Pty Ltd

Provided further that an engine driver employed by Gordon Edgell Pty Ltd and International Canners Pty Ltd required to do repairs, shall be paid not less than the rate for classification Level 9C.

Provided that, except as to dragline excavators and tractors, these additional rates shall not be cumulative to the extent of increasing the minimum rate of an employee above classification Level 9C.

And provided further, that an engine driver attending a refrigeration compressor or compressors shall be paid a total minimum rate (other than Yallourn) of not less than the undermentioned classifications:

Where the capacity is 88 kW or less                                                  10B

Where the capacity is over 88 kW                                                      10A

(b)        Attending to switchboard where the generating capacity is 350 kW or over, as set out in Item 5 of Table 2.

(c)        Ship Repairing - Employees engaged on ship repairing shall be paid an additional amount as set out in Item 6 of Table 2.

6.         SPECIAL RATES

6.1        Boiler Cleaning - Any person engaged inside the gas or water space of any boiler, flue or economizer, in cleaning or scraping work shall, whilst so employed be paid an amount as set in Item 2 of Table 2, in addition to their ordinary or overtime rate of pay.

6.2        Cold Places - An employee working more than one hour in places where the temperature is reduced by artificial means below 0 degrees C shall be paid an amount as set in Item 7 of Table 2. Where work continues for more than two hours such employee shall be entitled to a rest period of twenty minutes every two hours without loss of pay.

6.3        Wet Places - An employee required to work in such a place as would render them liable to become wet shall be paid an amount as set in Item 8 of Table 2, extra for all such time worked unless protective clothing is provided in accordance with clause 36.4 (Protective Clothing).

6.4        Work which a foreman and workman shall agree is of an unusually dirty or offensive nature - an amount as set in Item 11 of Table 2. In the case of disagreement between the foreman and workman, the workman or a shop steward on their behalf shall be entitled, within 24 hours to ask for a decision on the workman's claim by the employer's industrial officer (if there be one), or otherwise by the employer or the executive officer responsible for the management or superintendence of the plant concerned. In such case a decision shall be given on the workman's claim within 48 hours of its being asked for (unless that time expires on a non-working day, in which case it shall be given during the next working day), or else the said allowance shall be paid. Any dispute arising under this subclause as to whether the work is of an unusually dirty or offensive nature shall be determined by the appropriate Industrial Committee.

6.5

(a)        Construction Allowance - Australian Iron and Steel Project Port Kembla - Employees of contractors bound by this award engaged on construction site (in existence on 20 October 1971), of Australian Iron and Steel Proprietary Limited at Port Kembla and Commonwealth Steel Company Limited at Unanderra shall be paid an amount as set in Item 9 of Table 2. This payment shall be made in compensation for the particular disabilities experienced on these sites.

(b)        An employee in receipt of the construction allowance prescribed by paragraph (a) of this subclause shall not be entitled to any of the other special rates prescribed by this clause.

(c)        The construction allowance prescribed by paragraph (a) of this subclause shall be paid for all purposes of the award.

6.6        Employees of Quarries Pty Ltd engaged in the operation of mechanical shovels to dig and load blast furnace slag at No. 4 Blast Furnace and No. 21 Dump, Australian Iron and Steel Pty Ltd, Port Kembla, shall be paid an amount as set in Item 10 of Table 2, whilst so engaged.

7.         TRAVELLING AND CAMPING ALLOWANCES

Employees shall be allowed the same conditions as to fares, travelling time, travelling allowances, country work, camping allowances, as are prescribed by award, determination or industrial agreement - Commonwealth or State - for the general body of employees of the industry in which they are employed.

8.         EXTRA RATES NOT CUMULATIVE

Extra rates prescribed, except the rates prescribed in 24.1, Sunday and Holiday Work, or work done on public holidays, are not cumulative to exceed the maximum of double the ordinary rates.

9.         PAYMENT OF WAGES

Wages shall be paid as follows:

9.1        In the case of an employee whose ordinary hours of work are arranged in accordance with 20.2 (a) or (b], so that the employee works 38 ordinary hours each week, wages shall be paid weekly or fortnightly according to the actual ordinary hours worked each week or fortnight.

9.2        Subject to subclauses 9.3 and 9.4 of this clause, in the case of an employee whose ordinary hours of work are arranged in accordance with clause 30.2(c) or (d), so that the employee works an average of 38 ordinary hours each week during a particular work cycle, wages shall be paid weekly or fortnightly according to a weekly average of ordinary hours worked even though more or less than 38 ordinary hours may be worked in any particular week of the work cycle.

9.3        Special Note - Explanation of Averaging System

(a)        As provided in 9.2 an employee whose ordinary hours may be more or less than 38 in any particular week of a work cycle, is to be paid their wages on the basis of an average of 38 ordinary hours so as to avoid fluctuating wage payments each week. An explanation of the averaging system of paying wages is set out below:

(i)         20.2 (c) and (d) provides that in implementing a 38-hour week the ordinary hours of an employee may be arranged so that the employee is entitled to a day off, on a fixed day or rostered day basis, during each work cycle. It is in these circumstances that the averaging system would apply.

(ii)        If the 38-hour week is to be implemented so as to give an employee a day off in each 28 day cycle this would be achieved if the employee's ordinary hours were arranged on the basis that:

(1)        for three of the four weeks the employee works eight hours per day each day Monday to Friday a total of 40 ordinary hours each week; and

(2)        in the fourth week the employee works eight hours per day four days between Monday and Friday, a total of 32 ordinary hours in the week.

(iii)       The weekly wage rates for ordinary hours of work shall be the average weekly rates set out for the employee's classification in clause 10, Hours - Other than Shift Work. This amount shall be paid each week even though more or less than 38 ordinary hours are worked that week. In effect the employee accrues a "credit" each day the employee works actual ordinary hours in excess of the daily average which would otherwise be 7 hours 36 minutes. 

This "credit" is carried forward so that in the week of the cycle that the employee works on only four days, their actual pay would be for an average of 38 ordinary hours even though, that week, the employee works a total of 32 ordinary hours. Consequently, for each day an employee works 8 ordinary hours the employee accrues a "credit" of 24 minutes (0.4 hours). The maximum "credit" the employee may accrue under this system is 0.4 hours on 19 days; that is, a total of 7 hours and 36 minutes.

(iv)      As provided in subclause (iii) of this clause, an employee will not accrue a "credit" for each day the employee is absent from duty other than on annual leave, long service leave, public holidays, paid sick leave, workers' compensation, bereavement leave or jury service.

When an employee is absent from duty because of annual leave, long service leave, public holidays, paid sick leave, workers' compensation, bereavement leave or jury service, their entitlement is determined in accordance with the appropriate award provision dealing with such entitlements.

9.4        Absences from Duty

(a)        An employee whose ordinary hours are arranged in accordance with clause 20.2 (c) or (d) and who is paid wages in accordance with subclause (ii) of this clause and is absent from duty (other than on annual leave, long service leave, public holidays, paid sick leave, workers' compensation, bereavement leave or jury service) shall, for each day the employee is so absent, lose average pay for that day calculated by dividing this average weekly wage rate by 5. An employee who is so absent from duty for part of a day shall lose average pay for each hour the employee is absent by dividing their average daily pay rate by 8.

(b)        Provided, when such an employee is absent from duty for a whole day the employee will not accrue a "credit" because the employee would not have worked ordinary hours that day in excess of 7 hours 36 minutes for which the employee would otherwise have been paid. Consequently, during the week of the work cycle the employee is to work less than 38 ordinary hours the employee will not be entitled to average pay for that week. In that week, the average pay will be reduced by the amount of the "credit" the employee does not accrue for each whole day during the work cycle the employee is absent.

(c)        The amount by which an employee's average weekly pay will be reduced when the employee is absent from duty (other than on annual leave, long service leave, public holidays, paid sick leave, workers' compensation, bereavement leave or jury service) is to be calculated as follows:

Total of "credits" not accrued x average weekly pay during cycle

38

Examples: (An employee's ordinary hours are arranged so that the employee works 8 ordinary hours on five days of each week for 3 weeks and 8 ordinary hours on four days of the fourth week).

Example 1  Employee takes one day off without authorisation in first week of cycle.

Week of Cycle                                                  Payment

1st week                                                average weekly pay less one day's pay (i.e. less 1/5).

2nd and 3rd week                                average weekly pay each week.

4th week                                                average pay less credit not accrued on day of absence calculated as follows

average pay less 0.4 hours x average weekly pay.

38

Example 2. An Employee takes each of the 4 days off without authorisation in the 4th week.

Week of Cycle                                                  Payment

1st, 2nd and 3rd weeks                       average pay each week.

4th week                                                average pay less 4/5ths of average pay for the four days absent than less total of credits not accrued that week.

1/5 average pay less 4 x 0.4 hours x average weekly pay

38

1/5 average pay less 1.6 hours x average weekly pay

38

9.5        Wages to be paid during working hours

Subject to subclause 9.6 where the majority of employees in a particular establishment are employed under the terms of this award, wages shall be paid during ordinary working hours and if an employee is kept waiting for their wages on pay day after the usual time for ceasing work, the employee shall be paid at overtime rates for the period the employee is kept waiting. Where the majority of employees in a particular establishment are not employed under the terms of this award, an employee kept waiting for their wages on pay day for more than six minutes after the usual time for ceasing work shall be paid at overtime rates after the six minutes.

9.6        Day off coinciding with Pay Day

In the event that an employee, by virtue of the arrangement of their ordinary working hours, is to take a day off on a day, which coincides with pay day, such employee shall be paid no later than the working day immediately following pay day. Provided that, where the employer is able to make suitable arrangements, wages may be paid on the working day preceding pay day.

9.7        Payment by Cheque or Electronic Transfer

Where an employer and employee agree, the employee may be paid their /her wages by cheque or direct transfer into the employee's bank (or other recognised financial institution) account. Notwithstanding this provision, if the employer and the majority of employees agree, all employees may be paid their wages by cheque or direct transfer into an employee's bank (or other recognised financial institution) account, provided that in the case of employees paid by cheque, the employer shall, on pay day, if it is required by the employee, have a facility available during ordinary hours for the "encashment" of the cheque.

9.8        Payment during first week of employment

On the first pay day occurring during their employment, an employee shall be paid whatever wages are due to them up to the completion of their work on the previous day: Provided that this subclause shall not apply to employees who make a practice of allowing advances approximating wages due.

9.9        Termination of Employment

Upon termination of the employment wages due to an employee shall be paid to them on the day of such termination or forwarded to them by post on the next working day.

9.10      Provided that in the case of an employee whose ordinary hours are arranged in accordance with 20.2(c) and (d) and who is paid average pay and who has not taken the day off due to them during the work cycle in which their employment is terminated, the wages due to that employee shall include the total of credits accrued during the work cycle as detailed in 7.3.

9.11      Details of payments to be given.

Section 123 of the Act which requires that when an employer pays remuneration to an employee, the employer must supply the employee with written particulars regarding the payment shall read as a provision of this award.

9.12      Calculation of Hourly Rate

Except as provided in 9.2 hourly rates shall be calculated by dividing the appropriate weekly rate by 38.

10.       EMPLOYER RECORDS

Section 129 the Act which requires that an employer must ensure that certain records are kept in relation to employees of the employer shall be read as a provision of this Award

11.       TRAINING

1.1        The parties to this award recognise that in order to increase the efficiency, productivity and international competitiveness of industry, a greater commitment to training and skill development is required. Accordingly the parties commit themselves to:

(a)        developing a more highly skilled and flexible workforce;

(b)        providing employees with career opportunities through appropriate training to acquire additional skills;  and

(c)        removing barriers to the utilisation of skills acquired.

11.2      Following proper consultation in accordance with clause 10 - Structural Efficiency, or through the establishment of a training committee, an employer shall develop a training program consistent with:

(a)        the current and future skill needs of the enterprise;

(b)        the size, structure and nature of the operations of the enterprise;

(c)        the need to develop vocational skills relevant to the enterprise and/or industry through courses conducted by accredited educational institutions and providers.

11.3      Where it is agreed a training committee be established that training committee should be constituted by equal numbers of employer and employee representatives and have a charter which clearly states its role and responsibilities, for example:

(a)        formulation of a training program and availability of training courses and career opportunities to employees;

(b)        dissemination of information on the training program and availability of training courses and career opportunities to employees;

(c)        the recommending of individual employees for training and re-classification;

(d)        monitoring and advising management and employees on the ongoing effectiveness of the training.

11.4      (a)        Where as a result of consultation in accordance with clause 10 or through a training committee and with the employee concerned, it is agreed that additional training in accordance with the program developed pursuant to clause 11.2 should be undertaken by an employee, that training may be undertaken either on or off the job. Provided that if the training is undertaken during ordinary working hours the employee concerned shall not suffer any loss of pay. The employer shall not unreasonably withhold such paid training leave.

(b)        Any costs associated with standard fees for prescribed courses and prescribed textbooks (excluding those textbooks which are available in the employer's technical library) incurred in connection with the undertaking of training shall be paid for by the employer upon production of evidence of such expenditure.

Provided that reimbursement shall also be on an annual basis subject to the presentation of reports of satisfactory progress.

(c)        Travel costs incurred by an employee undertaking training in accordance with this clause which exceed those normally incurred in travelling to and from work shall be reimbursed by the employer.

(d)        Subclauses (b), (c) and (d) shall operate as interim provisions and shall be reviewed after nine months operation. In the meantime, the parties shall monitor the effectiveness of those interim provisions in encouraging the attainment of the objectives detailed in subclause (a).

(e)        In this connection, the unions reserved the right to press for the mandatory prescription of a minimum number of training hours per annum, without loss of pay, for an employee undertaking training to meet the needs of an individual enterprise.

(f)         Any disputes arising in relation to 11.2 and 11.3 shall be subject to the provisions of clause 31 Dispute Settlement Procedure.

12.       STRUCTURAL EFFICIENCY

12.1      The parties to this award are committed to co-operating positively to increase efficiency, productivity and international competitiveness where appropriate and to enhance the career opportunities and job security of employees covered by this award.

12.2      At each enterprise, the parties shall establish a consultative mechanism and procedures appropriate to the size, structure and needs of that enterprise. Measures raised by the parties for consideration consistent with the objectives of 12.1 shall be processed through that consultative mechanism.

12.3      Measures raised for consideration consistent with subclause 12.2 shall be related to implementation of the new classification structure, the facilitative provisions contained in this award and, subject to matters concerning training.

12.4      Without limiting the rights of either an employer or a Union to arbitration, any measure designed to increase flexibility on a site within an enterprise sought by any party shall be implemented by agreement subject to the following requirements.

(a)        the changes sought shall not affect provisions reflecting national standards;

(b)        the majority of employees affected by the change at the site or enterprise must genuinely agree to the change;

(c)        no employee shall lose income as a result of the change;

(d)        the relevant Union must be a party to the agreement and the Union will not unreasonably withhold its consent;

(e)        any agreement shall be subject, where appropriate, to approval by the Industrial Commission and, if approved, shall operate as a Schedule to the award to take precedence over any provision of this award to the extent of any inconsistency.

(f)         Award restructuring should be given its wider meaning, and award restructure should not be confined to the restructuring of classifications but may extend to the review of other restrictive provisions which currently operate. To that end, such restrictive provisions will be reviewed on an ongoing basis.

12.5      The parties to this award recognise that in order to increase the efficiency, productivity and international competitiveness of industry, a greater commitment to training and skill development is required.

Accordingly, the parties commit themselves to:

(a)        developing a more highly skilled workforce;

(b)        providing employees with career opportunities through appropriate training to acquire additional skills; and

(c)        removing barriers to the utilisation of skills acquired.

12.6      Any disputes arising in relation to the implementation of this clause shall be subject to the provisions of the Settlement of Disputes Clause.

13.       ENTERPRISE AGREEMENTS

The Union and its members employed in a particular enterprise will participate in restructuring agreements which cover their relevant areas of work in that enterprise: provided -

13.1      that the Union will be involved in the negotiations leading to such agreements and, if those agreements require variations to this award, the Union will not unreasonably oppose those variations;  and

13.2      where the Union is not involved in those negotiations, all of its rights shall be reserved.

14.       CONTRACT OF EMPLOYMENT

14.1      Except as provided by clause 17, Casual Labour, employment shall be by the week. An employee to become entitled to payment on a weekly basis shall except as provided by clause 25, Mixed Functions, perform such work as the management shall from time to time require on the days and during the hours usually worked by the class of employees affected.

14.2      An employee not attending for duty shall, except as provided by clause 19, Sick Leave, lose their pay for the actual time of such non-attendance.

14.3             TERMINATION OF EMPLOYMENT

(a)        Employment shall be terminated by a week's notice on either side, such notice to be given at any time during the week or by the payment or forfeiture of a week's wages as the case may be, except where the circumstances of termination of employment fall within the provisions of clause 35 Redundancy and Technological Change.

(b)        Nothing in this clause shall not affect the right of the management to

(i)         dismiss any employee without notice for malingering, inefficiency, neglect of duty, or misconduct, and in such cases wages shall be paid up to the time of dismissal only, or

(ii)        to deduct payment for any day the employee cannot be usefully employed because of any strike by the applicant union (of employees) or any other union or through any breakdown of machinery or any stoppage of work by any cause for which the employer cannot reasonably be held responsible.

(c)        Provided that where an employer orders employees not to work on any day because of the state of the weather such order shall not deprive the employees of their claim for payment under their weekly engagements, but if such employees cease work in any day because of the state of the weather without being ordered to do so they shall not be entitled to payment for time so lost.

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

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

(c)        Any direction issued by an employer pursuant to 14.1 or 14.2 shall be consistent with the employer's responsibility to provide a safe and healthy working environment.

15.       JUNIOR LABOUR

The minimum rates of wages to be paid to juniors working as greasers or oilers other than on shafting, or as cleaners or as motor drivers or attendants where the motor does not exceed 50 horse power in all shall be the undermentioned percentages of the ordinary weekly wage (basic wage plus margin) prescribed by this award for a greaser or oiler:

Percentage of ordinary weekly wage for a greaser or oiler

If under 16 years of age                                                                                    33

16 years of age                                                                                                   43

17 years of age                                                                                                   64.5

18 years of age                                                                                                   76

19 years of age but under 20 years                                                                 89

15.2      If a cleaner, greaser or oiler sometimes under the supervision of an engine driver, stops or starts an engine the employee shall be paid an amount set in Item 12 of Table 2.

15.3      The total wage shall be calculated to the nearest five cents.

16.       PART-TIME EMPLOYMENT

16.1      An employee may be engaged by the week on a part-time basis for a constant number of hours which having regard to the various ways of arranging ordinary hours shall average less than 38 hours per week.

16.2      An employee so engaged shall be paid per hour one-thirty-eighth of the weekly rate prescribed by clause 5 for the classification in which the employee is engaged.

16.3      An employee engaged on a part-time basis shall be entitled to payments in respect of annual leave, public holidays and sick leave arising under this award on a proportionate basis. calculated as follows

(a)        Annual Leave

Subject to the provisions of clause 18, Annual Leave, of this award:

Where the employee has completed twelve months' continuous service - four weeks' leave at the number of ordinary hours which would otherwise have been worked during the period of leave.

Where the employee is entitled to pro rata leave on termination or at a close down in accordance with this award the employee shall receive 2.923 hours paid at the appropriate rate of wage for each 38 ordinary hours worked.

(b)        Public Holidays

Where the normal paid hours fall on a public holiday and work is not performed by the employee, such employee shall not lose pay for the day.

Where the employee works on the holidays, such employee shall be paid in accordance with clause 14, Holidays.

(c)        Sick Leave - First year of Employment

(i)         During the first year of any period of service with an employer the employee shall be entitled to sick leave equivalent to the average number of hours worked each week in accordance with clause 17, Sick Leave.

(ii)        During the first five months of any period of service with an employer, sick leave shall accrue at the rate of one- fifth of the average number of hours worked each week for every completed month of service. Provided further that on application by the employee during the sixth month of employment and subject to the availability of an unclaimed balance of sick leave the employee shall be paid for any sick leave taken during the first five months and in respect of which payment was not made.

(d)        Sick Leave - Second or Subsequent Years of Employment

(i)         During the second or subsequent years of any period of service with an employer the employee shall not be entitled to leave in excess of an amount calculated as follows:

Average Number of hours worked each week x 8

5

16.4      Overtime

A part-time employee who works in excess of the hours fixed under the contract of employment shall be paid overtime in accordance with clause 13, Overtime.

17.       CASUAL LABOUR

17.1      A casual employee is one engaged and paid as such.

17.2      A casual employee for working ordinary time be paid per hour one thirty-eighth of the weekly rate prescribed by this award for the work the employee performs plus 20 per cent.

18.       HOURS - OTHER THAN SHIFT WORK

18.1      For an employee not working on shift the ordinary working hours per week and per day respectively shall be of the same number as those worked by the majority of the employees not working on shift work in the particular workshop, factory or working place. Provided that the number of hours worked shall not exceed on average thirty-eight per week nor seven hours and thirty-six minutes in any one day.

18.2      The ordinary hours of work prescribed may be worked on any day or all of the days of the week, Monday to Friday.

18.3      The ordinary hours of work shall be worked continuously, except for meal breaks at the discretion of the employer between 6.00 a.m. and 6.00 p.m. Provided that

(a)        the actual ordinary hours of work shall be determined by agreement between an employer and the majority of employees in the plant or work section or sections concerned.

(b)        work done prior to the spread of hours fixed in accordance with this subclause for which overtime rates are payable shall be deemed for the purpose of this subclause to be part of the ordinary hours of work.

18.4      The ordinary hours of work shall not exceed twelve on any day. Provided that:

(a)        in any arrangement of ordinary hours where the ordinary working hours are to exceed eight on any day, the arrangement of hours shall be subject to agreement between an employer and the majority of employees in the plant or work section or sections concerned; and

(b)        by arrangement between an employer, or the majority of employees in the plant or work section or sections concerned and their union, ordinary hours not exceeding twelve on any day may be worked subject to:

(i)         the employer and the employees concerned being guided by occupational health and safety provisions, including those in the ACTU Code of Conduct on twelve hour shifts;

(ii)        proper health monitoring procedures being introduced;

(iii)       suitable roster arrangements being made; and

(iv)       proper supervision being provided.

19.       SHIFT WORK

19.1      Shifts - Other than Continuous

This subclause shall apply to shift workers not upon continuous work as defined.

(a)        Subject to clause 18, Implementation of 38-Hour Week, the ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases:

(i)         38 hours within a period not exceeding seven consecutive days; or

(ii)        76 hours within a period not exceeding fourteen consecutive days; or

(iii)       114 hours within a period not exceeding 21 consecutive days; or

(iv)       152 hours within a period not exceeding 28 consecutive days.

(b)        the ordinary hours shall be worked continuously subject to the following:

(i)         An employee shall not be required to work for more than five hours without a break for a meal. The time at which the meal break is taken shall be at the discretion of the employer.

(ii)        Except at regular changeover of shifts an employee shall not be required to work more than one shift in each 24 hours.

(iii)       The ordinary hours of work shall not exceed twelve hours on any day.

(iv)      In any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any shift the arrangement of hours shall be subject to agreement between the employer and the majority of employees in the plant or work section or sections concerned; and

(v)       By agreement between an employer and the majority of employees in the plant, work section or sections concerned and their union, ordinary hours not exceeding twelve on any day may be worked subject to:

(1)        the employer and the employees concerned being guided by occupational health and safety provisions including the ACTU Code of Conduct on twelve hour shifts;

(2)        proper health and monitoring procedures being introduced;

(3)        suitable roster arrangements being made;

(4)        proper supervision being provided.

19.2      Shifts - Continuous Work Shifts

This subclause shall apply to shift workers on continuous work as defined.

(a)        The ordinary hours of shift workers shall average 38 per week inclusive of crib time and shall not exceed 152 hours in 28 consecutive days. Provided that, where the employer and the majority of employees concerned agree, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days. Subject to the following conditions, such shift workers shall work at such times as the employer may require.

(b)        A shift shall consist of not more than twelve hours inclusive of crib time. Provided that:

(i)         in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any shift the arrangement of hours shall be subject to agreement between the employer and the majority of employees in the plant or work section or sections concerned; and

(ii)        by agreement between an employer, the majority of employees in the plant, work section or sections concerned and their union, ordinary hours not exceeding twelve on any day may be worked subject to:

(1)        the employer and the employers concerned being guided by occupational health and safety provisions including those of the ACTU Code of Conduct on twelve hour shifts;

(2)        proper health and monitoring procedures being introduced;

(3)        suitable roster arrangements being made; and

(4)        proper supervision being provided.

(5)        except at the regular changeover of shifts an employee shall not be required to work more than one shift in each 24 hours.

(6)        twenty minutes shall be allowed to shift workers each shift for crib, which shall be counted as time worked.

(c)        There shall be roster of shifts which shall -

(i)         provide for rotation unless all the employees concerned desire otherwise;

(ii)        provide for not more than eight shifts to be worked in any nine consecutive days; and

(iii)       not to be changed until after four weeks' notice;

(iv)      Provided that an employee's place on such roster shall not be changed except on one week's notice of such change or payment of penalty rates.

(v)       So far as employees present themselves for work in accordance therewith shifts shall be worked according to the roster.

19.3      An employee on shift engaged to work at a site where the majority of employees work shifts not in accordance with either subclause 19.1 or 19.2, the employee may be required by their employer to work shifts similar in length, roster conditions and crib times to those of the majority. This subclause shall not apply when such shifts exceed in the aggregate 152 hours in any period of four consecutive weeks.

19.4      For work done by a shift worker outside the ordinary hours of their shift double time shall be paid. This shall not apply to arrangements between the employees themselves or in cases due to rotation of shift or when the relief does not come on duty at the proper time. For all time of duty after the employee has finished their ordinary shift such unrelieved employee shall be paid time and one-half for the first seven hours and 36 minutes and double time thereafter. Provided that the employee been given at least 7 hours and 36 minutes' notice.

19.5      "Day shift" means any shift starting at or after 6 a.m. and before10 a.m.

"Afternoon shift" means any shift starting at or before 10 a.m. and before 8 p.m.

"Night shift" means any shift starting at or after 8 p.m. and before 6 a.m.

(a)        Afternoon and Night Shift Work

(i)         Shift workers while working on afternoon or night shifts shall be paid 15 per cent more than the ordinary rate for such shifts.

(ii)        A Shift workers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights in a five-day workshop or for a least six successive afternoons or nights in a six-day workshop shall be paid at the rate of time and a half for the first three hours and then double time for each shift.

(b)        Night Shift Work

(i)         An employee shall be paid thirty percent in addition to their ordinary hourly rate if:

(1)        during a period of engagement on shift, works night shift only;

(2)        remains on night shift for a longer period than four consecutive weeks; or

(3)        works on a night shift which does not rotate or alternate with any shift or with day work so as to give them at least one-third of their working time off night shift in each shift cycle,

(c)        Weekend and Public Holiday Shift Work.

(i)         Employees working shifts shall be paid for work performed between midnight on Friday and midnight on Saturday at the minimum rate of time and one-half.

(ii)        Employees working shifts shall be paid for all work performed between midnight on Saturday and midnight on Sunday, or on a Public Holiday at the rate of double time.

(iii)       The extra rates shall be in substitution for and not cumulative upon the shift premiums prescribed in the preceding paragraphs of this subclause.

19.6      An employee on shift engaged to work at a site where the majority of working on shift receive shift premiums in excess of those provided by 19.5, such employee shall be paid such higher shift premiums.

19.7      An employee on shift engaged to work at a site where the majority of working on shift receive compensation by way of annual leave or otherwise for working Saturday, Public Holidays and/or Sunday shifts, such employee shall be given compensation for working such shifts.

19.8      A shift worker whose rostered day off falls on a public holiday shall be paid in accordance with 24.3(a).

20.       IMPLEMENTATION OF 38-HOUR WEEK

20.1      The ordinary hours of work shall be an average of 38 per week as provided in clause 18, Hours - Other Than Shift Work; and

20.2      Except as provided in subclauses 20.5 and 20.6, the method of implementation of the 38 hour week may be any one of the following:

(a)        by employees working less than 8 ordinary hours each day; or

(b)        by employees working less than 8 ordinary hours on one or more days each week; or

(c)        by fixing one weekday on which all employees will be off during a particular work cycle; or

(d)        by rostering employees off on various days of the week during a particular work cycle so that each employee has one weekday off during that cycle.

(e)        for the purposes of clause 18 any other work cycle during which a weekly average of 38 ordinary hours are worked as may be agreed in accordance with clause 18.

20.3      In each plant, an assessment should be made as to which method of implementation bests suits the business and the proposal shall be discussed with the employees concerned.

20.4      In the absence of agreement at plant level, the procedure for resolving special, anomalous or extraordinary problems shall be applied in accordance with clause 35 Dispute Resolution Procedure, of this award. The procedure shall be applied without delay.

20.5      Subject to the provisions of clause 18, Hours - Other Than Shift Work, and clause 19, Shift Work, of this award, the employer and the majority of employees in the plant or section or sections concerned may agree that the ordinary working hours are to exceed eight on any day, thus enabling a weekday off to be taken more frequently than would otherwise apply.

20.6      Circumstances may arise where different methods of implementation of a thirty-eight hour week apply to various groups or sections of employees in the plant or establishment concerned.

20.7      Notice of Days Off - Except as provided in 20.8(a) and (b), in cases where, by virtue of the arrangement of their /her ordinary hours, an employee, in accordance with 20.2(c) and (d) hereof is entitled to a day off during their /her work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday the employee is to take off; provided that a lesser period of notice may be agreed by the employer and the majority of employees in the plant or section or sections concerned.

20.8      Substitute Days -

(a)        An employer, with the agreement of the majority of employees concerned, may substitute the day an employee is to take off in accordance with 20.2(a) and (b) of this clause, for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.

(b)        An individual employee, with the agreement of their employer may substitute the day the employee is to take off for another day.

20.9      Flexibility in Relation to Rostered Days Off - Notwithstanding any other provision in this clause, where the hours of work of an establishment, plant or section are organised in accordance with 20.2 (c) and (d) hereof an employer, the union or unions concerned and the majority of employees in the establishment, plant, section or sections concerned may agree to accrue up to a maximum of five rostered days off in special circumstances such as where there are regular and substantial fluctuations in production requirements in any year.

20.10    Where such agreement has been reached the accrued rostered days off must be taken within 12 months.

It is understood between the parties that the involvement of the union or unions concerned would be necessary in cases where it or they have members in the plants concerned and not in non-union establishments.

20.11           PROCEDURE FOR IN PLANT DISCUSSIONS

(a)        Procedures shall be established for in-plant discussions, the objective being to agree on the method of implementing a 38-hour week in accordance with the award, and entailing an objective review of current practices to establish where improvements can be made and implemented.

(b)        The procedures should make suggestions as to the recording of understandings reached and methods of communicating agreements and understandings to all employees, including and overcoming of language difficulties.

(c)        The procedures should allow for the monitoring of agreements and understandings reached in plant.

(d)        in cases where agreement cannot be reached in plant in the first instance or where problems arise after initial agreements or understandings have been achieved in plant, a formal monitoring procedure shall apply.

(e)        Separate to these procedures the employer organisations may provide assistance and guidance to their members on the subject matters to be dealt with in-plant discussions and on other relevant matters.

21.       OVERTIME

21.1      (a)        For the purposes of this clause, ordinary hours shall mean the hours of work fixed in an establishment in accordance with clauses 18, 19 or 20, of this award, overtime shall be paid at the rate of time and one-half for the first three hours and double time thereafter, such double time to continue until the completion of the overtime work:

Provided, however, that where in any particular workshop, factory or working place at which an employee is engaged, the majority of employees working to receive the rate of double time before the expiry of three hours worked, such employee shall be paid the overtime rate applying to such majority. The hourly rate,

(i)         when computing overtime, shall be determined by dividing the appropriate weekly rate by 38, even in cases where an employee works more than 38 ordinary hours' in a week.

(ii)        For work done by a shift worker outside the ordinary hours of their shift, overtime rates shall be paid as prescribed by subclause 19.4, of this award.

21.2      RECALL

(a)        An employee recalled to work overtime after leaving their employer's business premises (whether notified before or after leaving the premises), or a day worker required to work overtime on a Saturday, shall be paid for a minimum of four hours' work at the appropriate rate for each time the employee is so recalled.

(b)        Except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four hours if the job the employee was recalled to perform is completed within a shorter period.

(c)        This subclause (21.2) shall not apply in cases where:

(i)         it is customary for an employee to return to their employer's premises to perform a specific job outside their ordinary working hours;  or

(ii)        where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time, or on a Saturday when overtime commenced on the day previous.

(d)        Overtime worked in the circumstances specified in this subclause shall not be regarded as overtime for the purposes of subclause (v) of this clause where the actual time worked is less than four hours on such recall or on each of such recalls.

21.3      An employee occasionally required to hold himself in readiness either at their home, their place of work or elsewhere, to work before or after ordinary hours or on a Saturday which is not an ordinary working day, or on a Sunday or Public Holiday, shall be paid standing-by time at their ordinary rate of wages for the time from which the employee is told to hold himself in readiness until released.

21.4      Where an employee finishing overtime work or in order to commence overtime work has to travel at a time when reasonable means of transport are not available, the employer shall provide them with a conveyance to or from their home or pay them at their ordinary rate of wage for the time occupied in reaching their home or travelling from their home to work respectively.

21.5      (a)        When overtime work is necessary it shall, wherever reasonably practicable, be so arranged that employees have at least ten consecutive hours off duty between the work of successive days or shifts.

(b)        An employee (other than a casual employee) who:

(i)         works so much overtime between the termination of their ordinary work on any day or shift and the commencement of their ordinary work on the next day or shift that the employee has not had at least ten consecutive hours off duty between these times;  or

(ii)        on Saturdays, Sundays and Public Holiday’s, not being ordinary working days or on a rostered day off without having had ten consecutive hours off duty in the twenty-four hours preceding their ordinary commencing time on their next ordinary day or shift,

shall, subject to this subclause, be released after completion of such overtime until the employee has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(c)        If on the instructions of their employer such an employee resumes or continues work without having had such ten consecutive hours off duty the employee shall be paid at double rates until the employee is released from duty.  The employee shall then be entitled to be absent until the employee has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(d)        The provisions of this subclause shall apply in the case of shift workers as if eight hours were substituted for ten hours when overtime is worked:

(i)         for the purpose of changing shift rosters;  or

(ii)        where a shift worker does not report for duty and a day worker or a shift worker is required to replace such shift worker;  or

(iii)       where a shift is worked by arrangement between the employees themselves.

21.6      (a)        An employer may require any employee to work reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirement.

(b)        The applicant union shall not in any way whether directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of this subclause.

(c)        The assignment of overtime by an employer to an employee shall be based on specific work requirements and the practice of "one-in, all in" overtime shall not apply.

22.       MEAL INTERVALS

22.1      An employee shall not be required to work for more than five hours without a break for a meal. Provided that:

(a)        in cases where canteen or other facilities are limited to the extent that meal breaks must be staggered and as a result it is not practicable for all employees to take a meal break within five hours an employee shall not be required to work for more than six hours without a break for a meal; and

(b)        by agreement between an employer and the majority of employees in the plant, work section or sections concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at ordinary rates of pay without a meal break.

22.2      The time of taking a scheduled meal break or rest break by one or more employees may be altered by an employer if it is necessary to do so in order to meet a requirement for continuity of operations.

22.3      An employer may stagger the time of taking a meal and rest break to meet operational requirements.

22.4      Subject to the provisions of subclause 22.1, an employee employed as a regular maintenance man shall work during meal breaks at ordinary rates of pay whenever instructed to do so for the purpose of making good breakdown of plant or upon routine maintenance of plant which can only be done while such plant is idle.

22.5      Except as provided in subclauses 22.1 and 22.4 hereof, and except where any alternative arrangement is entered into, time and a half rates shall be paid for all work done during meal hours and thereafter until a meal break is taken.

22.6      Meal breaks shall be between half and one hour duration as otherwise agreed between the employer and the majority of employees in the plant or section/s and shall not be counted as time worked.

23. MEAL INTERVAL DURING OVERTIME

23.1      Employees shall be allowed the same conditions as to the meals and meal intervals to be allowed whilst working overtime as are prescribed by award, determination or industrial agreements - Commonwealth or State - for the general body of employees of the industry in which they are employed. Where no such alternative provision exist the terms of this clause shall apply.

23.2      Crib Breaks

(a)        An employee required to work in excess of one and a half hours of overtime shall be allowed a meal break of 20 minutes, to be paid at ordinary rates, before the commencement of such overtime.

(b)        An additional crib break of 20 minutes shall be allowed after each four hours of overtime if the

overtime is to continue.

(c)        Where a day worker on a five-day week is required to work overtime on a Saturday the first meal break time, if occurring between 10 a.m. and 1 p.m., shall be paid at ordinary rates.

(d)        An employer and employee may agree to any variation of this provision to meet the circumstances of the work in hand; provided that the employer shall not be required to make any payment in respect of any time allowed in excess of twenty minutes.

23.3      Meal Allowance

(a)        An employee required to work overtime for more than two hours without being notified on the previous day or earlier that the employee shall be so required to work shall either be supplied with a meal by the employer or paid an allowance as specified in item 12 of table 2 for the first meal and each subsequent meal.

(b)        Such payment need not be made to employees living in the same locality as their workshops who can reasonably return home for meals.

(c)        Unless the employer advises an employees on the previous day or earlier that the amount of overtime to be worked will necessitate the taking of a second or subsequent meal (as the case may be), the employer shall provide such second and/or subsequent meals or make payment in lieu thereof as above prescribed.

(d)        If an employee pursuant to notice has provide a meal or meals and is not required to work overtime or is required to work less than the amount advised the employee shall be paid as prescribed for meals which the employee has provided but which are surplus

24.       WORK ON SUNDAYS AND PUBLIC HOLIDAYS

24.1      All work, other than shift work, performed on Sundays shall be paid for at the rate of double time and on Public Holidays shall be paid at the rate of double time and one-half.

24.2      Employees, other than on shift or engaged in maintaining the continuity of electric light and power required to work on Sundays or public holidays shall be paid for a minimum of three hours' work.

24.3      (a)        An employee who works continuous work and who by the circumstances of the arrangement of their ordinary hours of work is entitled to a rostered day off which falls on a public holiday prescribed by clause 24 shall, at the discretion of the employer, be paid for that day 7 hours and 36 minutes at ordinary rates or have an additional day added to their annual leave. This provision shall not apply when the holiday on which the employee is rostered off falls on a Saturday or Sunday.

(b)        In the case of an employee whose ordinary hours of work are arranged in accordance with paragraphs 20.2 (c) or (d) or subclause 20.5, the weekday to be taken off shall not coincide with a public holiday fixed in accordance with clause 26, Public Holidays: Provided that, in the event that a public holiday is prescribed after an employee has been given notice of their weekday off in accordance with subclause 20.7 and the public holiday falls on the weekday the employee is to take off, the employer shall allow the employee to take the day off on an alternative weekday.

25.       MIXED FUNCTIONS

25.1      Where the employment or work involves functions of a mixed character, the minimum wages to be paid to the employee for the day or part of a day the employee is so employed shall be calculated as if the employee performed such only of the said functions as involve the highest rate of wages under this award. If so employed for any part of a day the employee shall be paid at the highest rate for the whole of such day.

25.2      Engine drivers, whilst in charge of their engines, shall only be required to perform such work as may be within the scope of or incidental to engine driving and the generation, use and application of engine power: Provided that engine drivers in charge of engines supplying power to any intermittent process involving regular stoppages, may during such stoppages be required to perform any work necessary or incidental to such intermittent process.

26.       PUBLIC HOLIDAYS

All employees shall be entitled to the same holidays as are observed by the general body of employees of the industry in which they are employed:

26.1      Provided that an employee shall be entitled in any case to the following holidays:

(a)        An employee shall be granted the following holidays without deduction of pay: New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labor Day, Anzac Day, Queen's Birthday, Christmas Day and Boxing Day, and such other days gazetted as a Public Holiday for the State of New South Wales.

(b)        In addition to the public holidays prescribed in paragraph (a) of this subclause, one additional public holiday shall be observed on the same date as the Metal Industry additional holiday for New South Wales the date of which is specified in the Metal, Engineering and Associated Industries Award, 1998 (Print M1319) at clause 7.5.1(b)(ii) (as varied).

26.2      For the purpose of this award -

(a)        Where Christmas Day falls on a Saturday or on a Sunday, the following Monday and Tuesday shall be observed as Christmas Day and Boxing Day respectively.

(b)        Where Boxing Day falls on a Saturday, the following Monday shall be observed as Boxing Day.

(c)        Where New Year's Day falls on a Saturday or on a Sunday the following Monday shall be observed as New Year's Day; and the said Saturday and/or Sunday shall be deemed not to be holidays.

27.       SICK LEAVE

27.1      Employees shall be entitled to and shall be allowed sick leave to the same extent and subject to the same conditions as prescribed by award, determination or agreement - Commonwealth or State - for the general body of employees in the industry in which they are employed: Provided that an employee shall be entitled in any case to sick leave not less than is after provided.

27.2      In any case where 27.1 does not apply an employee other than a casual employee who is absent from their work on account of personal illness or account of injury by accident, other than covered by workers compensation, shall be entitled to a leave of absence, without deduction of pay, subject to the following conditions:

(a)        the employee shall, as soon as reasonably practicable and during the ordinary hours of the first day or shift of such absence, inform the employer of their inability to attend for duty and, as far as practicable, state the nature of the injury or illness and the estimated duration of the absence. If it is not reasonably practicable to inform the employer during the ordinary hours of the first day or shift of such absence the employee shall inform the employer within 24 hours of such absence.

(b)        He shall prove to the satisfaction of their employer (or, in the event of dispute, of the Industrial Commission of New South Wales) that the employee was unable on account of such illness or injury to attend for duty on the day or days for which sick leave is claimed.

(c)        First Year of Employment

(i)         An employee the employee shall not be entitled during their first year of any period of service with an employer to leave in excess of five days of ordinary working time. In cases where the employee normally works more than 8 ordinary hours in any day, the employee shall not be entitled to leave in excess of 40 hours of ordinary working time:

(ii)        Provided that during the first five months of the first year of a period of service with an employer the employee shall be entitled to sick leave which shall accrue on a pro rata basis of one day of ordinary working time for each month of service completed with that employer to a maximum of 40 ordinary hours.

(iii)       On application by the employee during the sixth month of employment and subject to the availability of an unclaimed balance of sick leave the employee shall be paid for any sick leave taken during the first five months and in respect of which payment was not made.

(d)        Second or Subsequent Years of Employment

An employee shall not be entitled during the second or subsequent year of any period of service with an employer to leave in excess of 8 days of ordinary working time or in excess of 64 hours of ordinary working time in the case of an employee who normally works more than 8 ordinary hours on any day.

(e)        Part Day Absences

In the case of employees whose hours of work are fixed in accordance with 20.2 (c) or (d), sick pay entitlements for part day absences shall be calculated on a proportionate basis as follows:

duration of sick leave absence

ordinary hours normally worked that day

times

appropriate weekly rate

5

In the case of employees whose hours of work are fixed in accordance with 20.2 (a) or (b), sick pay entitlements for part day absences shall be calculated on a proportionate basis as follows:

duration of sick leave absence

times

appropriate weekly rate

38

(f)         Sickness on Day Off

Where an employee is sick or injured on the weekday the employee is to take off in accordance with paragraphs 20.2 (c) or (d), the employee shall not be entitled to sick pay nor will their sick pay entitlement be reduced as a result of their sickness or injury that day.

(g)        Alternative Methods of Payment

Where the employer and the majority of employees concerned agree, an alternative method of calculating sick leave entitlements to that provided for in this clause may be introduced.

27.3      Single Day Absence

(a)        In the case of an employee who claims to be allowed paid sick leave in accordance with this clause for an absence of one day only, such employee, if in the year the employee has already been allowed paid sick leave on more than one occasion for one day only, shall not be entitled to payment for the day claimed unless the employee produces to the employer a certificate of a duly qualified medical practitioner that in their, the medical practitioner's, opinion the employee was unable to attend for duty on account of personal illness or on account of injury by accident.

(b)        An employer may agree to accept from the employee a Statutory Declaration, stating that the employee was unable to attend for duty on account of personal illness or on account of injury by accident in lieu of a certificate of a duly qualified medical practitioner as prescribed by this subclause.

(c)        Nothing in this subclause shall limit the employer's right under paragraph 27.2(c).

27.4      Accumulation of Sick Leave

(a)        Sick leave shall accumulate from year to year so that any balance of the period specified in paragraphs 27.2 (d) or (e) of this clause which has in any year not been allowed to an employee by an employer as paid sick leave may be claimed by the employee and subject to the conditions before prescribed shall be allowed by the employer in a subsequent year without diminution of the sick leave prescribed in respect of that year.

(b)        Sick leave which accumulates pursuant to this subclause shall not exceed 640 hours and shall be available to an employee for a period of twelve years but for no longer from the end of the year in which it accrues.

27.5      If an employee is terminated by their employer and is re-engaged by the same employer within a period of six months, then the employee's unclaimed balance of sick leave shall continue from the date of re-engagement. In such a case the employee's next year of service will commence after a total of twelve months has been served with that employer, excluding the period of interruption in service, from the date of commencement of the previous period of employment or the anniversary of the commencement of the previous period of employment, as the case may be.

28.       PERSONAL/CARER'S LEAVE

28.1      Use Of Sick Leave

(a)        An employee with responsibilities in relation to a class of person set out in subparagraph 28.1(c)(ii) who needs their care and support shall be entitled to use, in accordance with this subclause, any sick leave entitlement which accrues after 15 September 1995 for absences to provide care and support for such persons when they are ill.

(b)        The employee shall, if required, establish by production of a medical certificate or statutory declaration, the illness of the person concerned.

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

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

(ii)        the person concerned being:

(1)        a spouse of the employee; or

(2)        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

(3)        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

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

(5)        a relative of the employee who is a member of the same household, where for the purposes of this paragraph:

(A)       "relative" means a person related by blood, marriage or affinity;

(B)       "affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

(c)        "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 their 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 first day of absence.

28.2      Unpaid Leave For Family Purpose.

An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in 28.1(c) (ii) above who is ill.

28.3      Annual Leave

(a)        To give effect to this Clause, but subject to the Annual Holidays Act 1944, an employee may elect, with the consent of the employer, to take annual leave not exceeding five days in any calendar year at a time or times agreed by the parties.

(b)        Access to annual leave, as prescribed in paragraph 28.3(a) 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.

28.4      Time Off in Lieu of Payment for Overtime

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within 12 months of the said election.

(b)        Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

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

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

28.5      Make-up Time

(a)        An employee may elect, with the consent of the employer, to work "make-up time", under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

(b)        An employee on shift work may elect, with the consent of the employer, to work "make-up time" (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate, which would have been applicable to the hours taken off.

28.6      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 the 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.

29.       BEREAVEMENT LEAVE

29.1      An employee, other than a casual employee, shall be entitled to a maximum of two days bereavement leave without deduction of pay, on each occasion of the death of a person in Australia prescribed in subclause 29.3. Where the death of a person as prescribed by the said subclause 29.3 occurs outside Australia, the employee shall be entitled to two days bereavement leave where the employee travels outside Australia to attend the funeral.

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

29.3      Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of Personal/Carer’s Leave subparagraph 28.1(c) (ii), Personal/Carer’s Leave, provided that, for the purpose of Bereavement Leave, the employee need not have been responsible for the care of the person concerned.

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

29.5      Bereavement leave may be taken in conjunction with other leave available under subclauses 27.2, 27.3, 27.4, 27.5 27.6. In determining such a request, the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

30.       JURY SERVICE

30.1      An employee on weekly hiring required to attend for jury service during their ordinary working hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of their attendance for such jury service and the amount of wage the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.

30.2      An employee shall notify their employer as soon as possible of the date upon which the employee is required to attend for jury service. Further the employee shall give their employer proof of their attendance, the duration of such attendance and the amount received in respect of such jury service.

31.       ANNUAL LEAVE

31.1      Employees shall be entitled to and shall be allowed annual leave to the same extent and subject to the same conditions as are prescribed by statute, award, determination or industrial agreement - Commonwealth or State - for the general body of employees in the industry in which they are employed: Provided that an employee shall be entitled in any case to annual leave not less than hereinafter provided.

31.2      Period of Leave - A period of twenty-eight consecutive days' leave, including non-working days, shall be allowed annually to an employee after twelve months' continuous service (less the period of annual leave) as an employee on weekly hiring in any one or more of the occupations to which the award applies. An employee on weekly hiring shall accrue annual leave at a rate of 2.923 hours for each 38 ordinary working hours worked.

31.3      In addition to the leave hereinbefore prescribed seven-day shift workers, that is shift workers who are rostered to work regularly on Sundays and holidays, shall be allowed seven consecutive days' leave including non-working days. Where an employee with twelve months' continuous service is engaged for part of the twelve- monthly period as a seven-day shift worker he or she shall be entitled to have the period of leave to which he is entitled as prescribed in subclause (ii) of this clause, increased by half a day for each month he is continuously engaged as aforesaid.

31.4      Subject to this subclause the annual leave prescribed by this clause shall be exclusive of any of the holidays prescribed by clause 26, Holidays, and if any such holiday falls within an employee's period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day there shall be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday. Where a holiday falls as aforesaid and the employee fails without reasonable cause, proof whereof shall be upon him, to attend for work at his ordinary starting time on the working day immediately following the last day of the period of his annual leave he shall not be entitled to be paid for any such holiday.

31.5      "Broken leave - Annual leave shall be given and taken in one, two, three or four continuous periods.  Provided that an employee may, with the consent of his or her employer, take short term annual leave, not exceeding four days in any calendar year

31.6      For the purpose of this clause service shall be deemed to be continuous notwithstanding:

(a)        Any interruption or determination of the employment by the employer if such interruption or determination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;

(b)        Any absence from work on account of personal sickness or accident or on account of leave lawfully granted by the employer; or

(c)        Any absence with reasonable cause, proof whereof shall be upon the employee. In cases of personal sickness or accident or absence with reasonable cause the employee to become entitled to the benefit of this subclause shall inform the employer, in writing if practicable, within twenty-four hours of the commencement of such absence of his or her inability to attend for duty and as far as practicable the nature of the illness, injury or cause and the estimated duration of his or her absence. A notification given by an employee pursuant to clause 27 - Sick Leave shall be accepted as a notification under this subclause.

Any absence from work by reason of any cause being not a cause specified in this subclause shall not be deemed to break the continuity of service for the purposes of this clause unless the employer during the absence or within fourteen days of the termination of the absence notifies the employee in writing that such absence will be regarded as having broken the continuity of service.

In cases of individual absenteeism such notice shall be given in writing to the employee concerned, but in cases of concerted or collective absenteeism notice may be given to employees by the posting up of a notification in the plant, in the manner in which general notifications to employees are usually made in the plant and by posting to each union whose members have participated in such concerted or collective absenteeism a copy of it not later than the day it is posted up in the plant. A notice to an individual employee may be given by delivering it to him or her personally or by posting it to his or her last recorded address, in which case it shall be deemed to have reached him or her in due course of post.

Calculation of Continuous Service - In calculating the period of twelve months' continuous service the following absences shall be taken into account and counted as time worked:

(1)        up to 152 ordinary working hours in a twelve-monthly period in the case of sickness or accident;

(2)        long service leave taken by an employee in accordance with the Long Service Leave Act of New South Wales;

Providing that for the purpose of this clause in calculating continuous service for periods of less than twelve months such absences due to sickness or accident shall be taken into account and counted as time worked on a pro rata basis of 152 ordinary hours for twelve months' service. Other absences from work shall not be taken into account and shall not count as time worked in calculating the period of twelve months' continuous service.

31.7      Calculation of Service - Service before the date of this award shall be taken into consideration for the purpose of calculating annual leave but an employee shall not be entitled to leave or payment in lieu thereof for any period in respect of which leave or payment in lieu thereof has been allowed. The period of annual leave to be allowed under this subclause shall be calculated to the nearest day with any broken part of a day in the result not exceeding half a day to be disregarded.

Where the employer is a successor or assignee or transmittee of a business, if an employee was in the employment of the employer's predecessor at the time when he became such successor or assignee or transmittee, the employer in respect of the period during which he was in the service of the predecessor shall, for the purpose of this clause, be deemed to be in the service of the employer.

31.8      Leave to be Taken - The annual leave provided by this clause shall be allowed and shall be taken and except as provided by subclause 32.13 and 31.14 hereof payment shall not be made or accepted in lieu of annual leave.

31.9      Time of Taking Leave - Annual leave shall be given at a time fixed by the employer within a period not exceeding six months from the date when the right to annual leave accrued and after not less than four weeks' notice to the employee.

Provided that by agreement between an employer and an employee, and ratified by the Industrial Registrar pursuant to section 3(4) of the Annual Holidays Act, annual leave may be taken at any time within a period of twelve months from the date at which it falls due and with less than four weeks notice to the employee.

31.10    Leave Allowed Before Due Date

(a)        An employer may allow an employee to take annual leave either wholly or partly in advance before the right thereto has accrued due. In such case a further period of annual leave shall not commence to accrue until after the expiration of the twelve months in respect of which the annual leave or part thereof had been taken before it accrued.

(b)        Where annual leave or part thereof has been granted pursuant to paragraph (a) of this subclause before the right thereto has accrued due and the employee subsequently leaves or is discharged from the service of the employer before completing the twelve months' continuous service in respect of which the leave was granted; and the amount paid by the employer to the employee for the annual leave or part so taken in advance exceeds the amount which the employer is required to pay to the employee under subclause 29.13 of this clause the employer shall not be liable to make any payment to the employee under the said subclause 29.13 and shall be entitled to deduct the amount of excess from any remuneration payable to the employee upon the termination of employment.

31.11    Each employee before going on leave shall be paid the wages he or she would have received in respect of the ordinary time he or she would have worked had he or she not been on leave during the relevant period.

Subject to subclause 31.12 hereof each employee shall, where applicable, have the amount of wages to be received for annual leave calculated by including the following where applicable:

31.12    The rate applicable to him or her as prescribed by clauses 5, Rates of Pay, 15, Junior Labour; and

(a)        Subject to subclauses (a) and (b) the rate prescribed for work in ordinary time by clause 19, Shift Work, according to the employee's roster or projected roster including Saturday and Sunday shifts;

(b)        The rate payable pursuant to clause 25, Mixed Functions, calculated on a daily basis which the employee would have received for ordinary time during the relevant period whether on a shift roster or otherwise;

(c)        Any other rate to which the employee is entitled in accordance with his or her contract of employment for ordinary hours of work; provided that this provision shall not operate so as to include any payment which is of a similar nature to or is paid for the same reasons as or is paid in lieu of those payments prescribed by clause 6, Special Rates, clause 21, Overtime, and clause 7, Travelling and Camping Allowances, nor any payment which might have become payable to the employee as reimbursement for expenses incurred.

During a period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by subclause 31.11 of this clause, subject to the provisions of paragraph 31.2, of this subclause. The loading shall be as follows:

(a)        Day Workers - An employee who would have worked on day work only had he or she not been on leave - a loading of 17.5 per cent.

(b)        Shift Workers - An employee who would have worked on shift work had he or she not been on leave - a loading of 17.5 per cent: Provided that where the employee would have received shift loading prescribed by clause 19, Shift Work, of this award, had he or she not been on leave during the relevant period and such loadings would have entitled him or her to a greater amount than the loading of 17.5 per cent, then the shift loadings shall be included in the rate of wage prescribed by subclause 31.11 in lieu of the 17.5 per cent loading: Provided further that if the shift loading would have entitled him or her to a lesser amount than the loading of 17.5 per cent shall be added to the rate of wage prescribed by subclause 31.11 in lieu of the shift loading.

31.13    An employee on weekly hiring who -

(a)        After one week's continuous service in his or her first qualifying twelve monthly period with an employer, lawfully leaves the employment of the employer or his or her employment is terminated by the employer through no fault of the employee; or

(b)        Proportionate Leave on Termination - After 12 months' continuous service with an employer, leaves the employment of the employer or his or her employment is terminated by the employer for any reason; shall be paid 2.923 hours for each 38 ordinary hours worked and in respect of which leave had not been granted under this clause at the appropriate rate of wage calculated in accordance with subclause 31.11 of this clause and calculated in accordance with subclause 31.11 of clause 7, Payment of Wages.

31.14    Annual Close Down - Where an employer closes down his or her plant, or a section or sections thereof, for the purposes of allowing annual leave to all or the bulk of the employees in the plant, or section or sections concerned, the following provisions shall apply:

(a)        He or she may by giving not less than 4 weeks' notice of his or her intention so to do, stand off for the duration of the close down all employees in the plant, or section or sections concerned and allow to those who are not then qualified for a full entitlement to annual leave for twelve months' continuous service, pursuant to subclause 31.2 of this clause, paid leave on a proportionate basis at the appropriate rate of wage as prescribed in subclause 31.11 and 31.12 of this clause for 2.923 hours for each 38 ordinary hours worked. The hourly rate shall be calculated in accordance with subclause 31.11 of clause 7, Payment of Wages.

(b)        An employee who has then qualified for a full entitlement to annual leave for twelve months' continuous service pursuant to subclause 31.2 of this clause, and has also completed a further week or more of continuous service shall be allowed his or her leave, and shall subject to subclause 31.7 of this clause, also be paid at the appropriate rate of wage as prescribed by subclause 31.11 and 31.12 of this clause 2.923 hours for each 38 ordinary hours worked since the close of his or her last twelve monthly qualifying period. The hourly rate shall be calculated in accordance with subclause 31.11 of clause 7, Payment of Wages.

(c)        The next twelve monthly qualifying period for each employee affected by such close down shall commence from the day on which the plant, or section or sections concerned is re- opened for work: Provided that all time during which an employee is stood off without pay for the purposes of this subclause shall be deemed to be time of service in the next twelve monthly qualifying period.

(d)        If in the first year of his or her service with an employer an employee is allowed proportionate annual leave under paragraph (a) of this subclause, and subsequently within such year lawfully leaves his or her employment or his or her employment is terminated by the employer through no fault of the employee, he or she shall be entitled to the benefit of subclause 31.13 of this clause subject to adjustment for any proportionate leave which he or she may have been allowed as aforesaid.

(e)        An employer may close down his or her plant for one or two separate periods for the purpose of granting annual leave in accordance with this subclause. If the employer closes down his or her plant in two separate periods one of those periods shall be for a period of at least 21 consecutive days, including non-working days.

Provided, that where the majority of employees concerned agree, an employer may close down the plant, work section/s in one, two or three separate periods for the purpose of granting annual leave in accordance with this subclause.

Provided further, that if an employer closes down his or her plant on more than one occasion, one of those periods shall be for a period of at least fourteen consecutive days including non-working days. In such cases, the employer shall advise the employees concerned of the proposed dates of each close-down before asking them for their agreement.

29.14    Nothing in this clause shall affect the operations of subclause 19.7 and any annual leave required to be given under that subclause shall be given in addition to the annual leave prescribed by this clause.

32.       LONG SERVICE LEAVE

See Long Service Leave Act 1955.

33.       DISPUTES SETTLEMENT PROCEDURE

33.1      Where an employee or the workplace delegate has submitted a request concerning any matter directly connected with employment to a foreperson or a more senior representative of management and that request has been refused, the employee may, if they so desire, ask the workplace delegate to submit the matter to management and the matter shall then be submitted by the workplace delegate to the appropriate executive of the employer concerned.

33.2      If not settled at this stage, the matter shall be formally submitted by the State Secretary of the union to the employer.

33.3      If not settled at this stage, the matter shall then be discussed between such representatives of the union, as the union may desire and the employer, who may be accompanied by or represented by such officers or representatives of an association of employers as the employer may desire, including, where agreed, processing the dispute through locally organised boards or committees set up by the parties for this purpose.

33.4      If the matter is still not settled, it shall be submitted to the Industrial Relations Commission of New South Wales.

33.5      Where the above procedures are being followed, work shall continue normally.  No party shall be prejudiced as to final settlement by the continuance of work in accordance with this subclause.

33.6      Notwithstanding anything contained in the previous five (5) paragraphs, the respondents shall be free to exercise their rights if the dispute is not finalised within seven (7) days of notification.

33.7      This clause shall not apply to any dispute as to a bona fide safety issue.

34.       RIGHT OF ENTRY

NOTE - See section 298 of the Industrial Relations Act 1996.

35.       UNION DELEGATE

A union delegate appointed by the employees in each workshop or place of work shall be allowed the necessary time during working hours to interview the employer or their representative on matters affecting employees whom the employee represents: Provided that this clause shall not apply in any case in which at the one place an employer employs five or less employees to whom this award applies.

36.       MISCELLANEOUS

36.1      Boiling Water

Employers shall provide boiling water for employees at meal times.

36.2      Crib Facilities

Each employer shall make suitable provision to enable their employee’s to keep and eat their cribs free from dust unless the employee proves to the satisfaction of the Industrial Commission of New South Wales that it is impracticable to do so.

36.3      Damage to Clothing

Compensation to the extent of the damage sustained shall be made where in the course of the work clothing is damaged or destroyed by fire or molten metal or through the use of corrosive substances.

36.4      Drinking Water

Employers shall provide for use of employees in workshops a sufficient supply of wholesome cool drinking water.

36.5      First-Aid Outfit

In each workshop and at other places where employees are regularly employed, the employer shall provide and continuously maintain at a place or places reasonably accessible to all employees an first-aid outfit in accordance with the Occupational Health and Safety Regulation 2001.

36.6      Protective Clothing

Where an employee is required to work in a place where in the absence of protective clothing or boots their clothing or boots would become wet such employee shall be provided with waterproof clothing and boots unless the special rate prescribed by subclause 6.3 is being paid.

36.7      Protective Glasses

Any crane driver who during the course of their work passes over oxy-welding or electric welding shall on application to the employer be supplied by the employer with suitable glasses for the protection of the eyes, which glasses shall at all times remain the property of the employer.

36.8      Radiators

Each crane cabin shall, unless otherwise heated, be equipped with a radiator which the employer shall install and maintain in good order and condition.

36.9      Respirators

Respirators shall be supplied to persons engaged inside the gas or water space of any boiler, flue or economizer in cleaning or scraping work; provided that if an employee does not wear the respirator supplied it may be recalled by the employer.

37.       SUPERANNUATION

37.1      Definitions

In this clause

(a)        ‘eligible employee’ means

(i)         a weekly employee who has 4 week continuous service in the industry

(ii)        a casual employee who has had 76 hours or four weeks service in the industry, whatever period is the greater.

(b)        ‘service in the industry’ means an employee whose employment is covered by the terms of this award.

(c)        ‘Ordinary time earnings’ means:

(i)         in the case of a weekly employee, the employee’s classification weekly rate of pay plus, where applicable, allowances, shift allowance or overaward payments for ordinary hours of labour

(ii)        in the case of a casual employee, earnings for the employees classification during ordinary working hours (including 20% casual loading), plus where applicable, allowances, shift allowance or over award payments for ordinary hours of labour.

(d)        ‘Classification rate of pay’ shall mean the relevant amounts prescribed in clause 5 of this award.

(e)        ‘Allowances’ shall mean the relevant amounts prescribed in clause 4 where paid regularly for all purposes. Provided that the allowance prescribed in clause 24.3(a) is excluded.

(f)         ‘The fund’ shall means

(i)         CTRF - the Combined Trade Union retirement fund

(ii)        ARF - Australian Retirement Fund

(iii)       another industry superannuation scheme established in accordance with the commonwealth Superannuation Guarantee Legislation which is agreed to by the employees, the employer and the union (if applicable’). The union and an employer may agree to an alternative fund. Provided that where no agreement is reached an employer may make application to the NSW Industrial Relations Commission for approval of an alternative fund.

(g)        ‘Trustee’ means the trustee of the fund as may be appointed from time to time.

37.2      Enrolment

(a)        Each employer shall

(i)         enter into a formal agreement with the trustee acknowledging itself as being bound by the funds deed

(ii)        take all reasonable steps so that each of the employer employees becomes a member of the fund.

(b)        Each employee shall join the fund.

37.3      Employer Contributions

(a)        Each employer shall at the time payment is made pursuant to subclause 37.4 pay to the trustee in respect of each eligible employee the amount prescribed by the commonwealth superannuation guarantee legislation.

(b)        When an employee becomes and eligible employee the employer shall pay contributions for the qualifying period.

37.4      Remitting Payments

             Each employer shall remit to the Trustee all payments due in respect of their employees immediately at the conclusion of each calendar month or at other such times and in such a manner as may be agreed in writing between the Trustee and the employer.

37.5      Statement of Service

For the purposes of ensuring that an employee may prove their service in the industry so as to become an eligible employee, each employer shall, if requested by an employee, provide to the employee a written statement setting out the dates of employment with the employer.

37.6      Unpaid Contributions

Where an employer has failed to enter into a formal deed with a fund the employer shall make application and enter into a formal deed with the fund. Upon entering into a deed with the trustee the employer shall make equivalent contributions to those which would have been payable under subclause 25.3. After which time the employer shall continue to make contributions in accordance with this clause.

37.7      Employee Contributions

Subject to the rules of the fund, employees of a respondent employer who wish to make contributions to the fund additional to those being made by the employer shall be entitled to do so. Such an employee may either forward their own contributions directly to the Trustee or, where it is practicable to do so, authorise the employer to pay into the fund from the employee’s wage an amount specified by the employee.

38.       REDUNDANCY AND TECHNOLOGICAL CHANGE

38.1      Application

(a)        This clause shall apply in respect of full-time and part-time persons employed in the classifications specified in clause 3, Rates of Pay.

(b)        In resect to employers who employ more than 15 employees immediately prior to the termination of employment of employees, in the terms of subclause 38.4.

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

(d)        Notwithstanding anything contained elsewhere in this award, this award 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.

38.2      Introduction Of Change

(a)        Employer's Duty To Notify

(i)         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.

(ii)        "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 clause 5, Avoidance of Industrial Disputes, makes provision for alteration of any of the matters referred to  , an alteration shall be deemed not to have significant effect.

(b)        Employer's Duty To Discuss Change

(i)         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 subclause 38.2(a), 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.

(ii)        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 subclause 38.2 (a) of this clause.

(iii)       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 effect 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.

38.3      Redundancy

(a)        Discussions Before Terminations

(i)         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 38.2 (a) (i), 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.

(ii)        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 38.3(a) and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

(iii)       For the purposes of the discussions 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.

38.4      Termination Of Employment

(a)        Notice for Changes in Production, Program, Organisation or Structure - This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from "production", "program", "organisation" or "structure" in accordance with subparagraph 38.2(a)(i).

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

(ii)        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.

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

(b)        Notice for Technological Change

This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from technology in accordance with subparagraph 38.2 (a)(i):

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

(ii)        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.

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

(c)        Time Off During the Notice Period

(i)         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.

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

(d)        Employee Leaving During the Notice Period

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

(e)        Statement of Employment

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

(f)         Notice to Employment National

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

(g)        Department of Social Security Employment Separation Certificate

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

(h)        Transfer to Lower Paid Duties

Where an employee is transferred to lower paid duties for reasons set out in paragraph 38.2 (a) of this clause, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rates of pay and the new ordinary-time rates for the number of weeks of notice still owing.

38.5      Severance Pay

(a)        Where an employee is to be terminated pursuant to subclause 38.4, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the following severance pay in respect of a continuous period of service:

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

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

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

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

(ii)        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.

(b)        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.

38.6      Savings Clause

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

39.       EXEMPTIONS

39.1      Employers who, at the instance of the Federated Engine Drivers and Firemen's Association of Australasia (Coast District), are, or who may subsequently come under an award or agreement under the jurisdiction of the Commonwealth Conciliation and Arbitration Commission, are exempted from this award in respect to employees who are members of the said union while subject to such an award or agreement.

39.2      The Public Works Department, Commissioner for Main Roads, Water Conservation and Irrigation Commission, Metropolitan Meat Industry Board, the City of Newcastle Gas and Coke Co. Pty Ltd, Newcastle Chemical Company, Stewarts and Lloyds (Aust.) Proprietary Ltd, Lysaghts Works Proprietary Ltd at Port Kembla, are exempted from the provisions of this award.

39.3      For the purposes of the Australasian Conference Association Limited at Cooranbong the words "Friday" (other than in the expression "Good Friday"), "Saturday" (other than in the expression "Easter Saturday"), "Sunday" and "Monday" (other than in the expression "Easter Monday"), wherever appearing in this award, are to be read, respectively, as "Thursday", "Friday", "Saturday" and "Sunday".

39.4      The hours worked by shift employees of the Association at Cooranbong from 10 p.m. to 12 midnight on Saturdays and/or holidays shall not be considered as worked on Saturdays and/or holidays so as to entitle the employees to Saturday or holiday rates. Where, however, a shift commences at 10 p.m. on the day immediately preceding a holiday and extends into the holiday the employees shall be entitled to holiday rates for the whole shift.

39.5      Shell Refining (Australia) Pty Limited is exempted from this award with regard to employees at the Clyde Refinery, Granville.

39.6      This award shall not apply to the following employers:

Murray Publishers Pty Ltd

Kosciusko Thredbo Pty Ltd

Mt Blue Cow Ski Bowl Pty Ltd

Guthega Development Pty Ltd

Mt Selwyn Snowfield Pty Ltd

Charlotte's Pass Village Pty Ltd

who are covered by the Ski Industry (State) Award.

39.7      Exclusion - Unilever Australia Limited (Unifoods Division) - Employees of Unilever Australia Limited, Unifoods Division, Concord, employed on the Concord site shall be excluded from the terms and conditions of this award so long as they are employees under the terms and conditions of the Industrial Agreement registered pursuant to section 11 of the Industrial Arbitration Act 1940, or any agreement replacing it.

40.       AREA, INCIDENCE AND DURATION

40.1      This award has been reviewed pursuant to section 19 of the Industrial Relations Act 1996.  Variations to this award made pursuant to that review shall come into effect from 23 May 2001.

40.2      The variation to this award made pursuant to the section 19 review rescinds and replaces the Engine Drivers, &c., General Superannuation (State) Award published 3 October 1990 (260 I.G. 259), and all variations thereof, and the Engine Drivers, &c., General (State) 1996 Wages Adjustment and Redundancy Award published 9 August 1996 (294 I.G. 238), and all variations thereof.

40.3      This award rescinds and replaces the Engine Drivers, &c., General (State) Award published 15 January 1960 and reprinted 29 October 1980 and further reprinted 11 January 1984 and 10 January 1992 (267 I.G. 51), and all variations thereof.

40.4      This Award shall apply to all employees of the classifications set out in Clause 3 of this Award in the State of NSW excluding the Municipality of Broken Hill. It shall not apply to:

(a)        The driving of any internal combustion engine of 22 or less kW brake power on any engine or electric motor or any pump, air compressor, pneumatic or small hoist on which no engine driver or fireman or greaser is employed as such, but the starting and stopping of and attention to which is done by an employee, the greater part of whose time is taken up with other work; or

(b)        the operation of pneumatic and small hoists and two motion electric man-power cranes; or

(c)        the driving of footpath rollers of 1 525 kg and under; or

(d)        plant operators on construction work covered by the Plant, &c., Operators on Construction (State) Award.

40.5      This Award shall not apply to employees of

State Rail Authority of New South Wales;

The Commissioner for Motor Transport;

The Metropolitan Water, Sewerage and Drainage Board;

The Hunter District Water Board;

The Electrolytic Refining and Smelting Company of Australia

Proprietary Limited, the Metal Manufactures Limited, and the

Australian Fertilizers Limited, at Port Kembla;

Australian Wire Industries Pty Ltd at its Sydney Wiremill;

Blue Circle Southern Cement Limited;

The Council of the City of Sydney, Shires, Municipal Councils and County Councils;

The Sydney County Council;

The Broken Hill Proprietary Company Limited at Newcastle;

Australian Iron and Steel Proprietary Limited within the jurisdiction

of the Iron and Steel Works Employees (Australian Iron & Steel

Proprietary Limited) Conciliation Committee;

South Maitland Railways Pty Limited;

Australian Wire Industries Pty Ltd at its Newcastle Wiremill;

Commissioner for Main Roads engaged in the maintenance of the Sydney Harbour Bridge;

Electric Light and Power Supply Corporation Limited;

Parramatta-Granville Electric Supply Company Limited;

The Council of the City of Newcastle;

The Electricity Commission of New South Wales;

The Australian Gas Light Company;

The North Shore Gas Company Limited;

And excepting also those employed -

In or about coal and shale mines and metalliferous mines;

In the Dredge Services of the Maritime Services Board of New South

Wales, and of the Department of Works and Local Government;

In Wheaten Flour Mills;

And excepting employees within the jurisdiction of the following

Industrial Committees -

Glass Makers (State);

Carters, &c., (State);

Cement Workers, &c., (State);

Quarries, Gravel and Sand Pits (State);

Storemen and Packers, General (State);

Storemen and Packers, Wholesale Paint, Varnish, Oil and Colour Stores (State);

Storemen and Packers, Wholesale Oil and Petroleum Products (State);

Storemen and Packers, Bond and Free Stores (State);

Storemen and Packers, Wharf Stores (State);

Coal Lumpers, &c., (State);

Special Steels and Steel Products Manufacture (Commonwealth Steel Company Limited);

Tubemakers of Australia Limited, Newcastle;

Labourers, Railway and Road Construction, &c., (State);

John Lysaght (Australia) Pty Ltd, Port Kembla;

John Lysaght (Australia) Pty Ltd, Newcastle;

Australian Wire Industries Pty Ltd - Newcastle Ropery;

Commonwealth Steel Company Limited, Unanderra;

Tubemakers of Australia Limited, Yennora;

Smelting and Fertilizer Manufacturing (Sulphide Corporation Pty

Limited and Greenleaf Fertilizers Limited);

Sugar Manufacturers (State);

Maritime Services Board (Cargo Handling Operations);

Breweries, &c., (State);

Milk Treatment, &c., and Distribution (State);

Shoalhaven Scheme;

Googong Dam Project

PART B

MONETARY RATES

Table 1 - Rates of Pay

Table 2 - Other Rates and Allowances

T. M. KAVANAGH,  J.

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Printed by the authority of the Industrial Registrar.