WINDSCREENS O'BRIEN (METALS) ENTERPRISE
BARGAINING
1995 AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notice
of award review pursuant to section 19 of the Industrial Relations Act 1996.
(No. IRC 5907
of 1999)
Before the Honourable Justice Kavanagh
|
8 May 2001
|
REVIEWED AWARD
1. Arrangement
Clause No
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Subject Matter
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1.
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Arrangement
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2.
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Title
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3.
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Parties Bound
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4.
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Date and Period of Operation
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5.
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Relationship to Parent Award
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6.
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Probationary Period
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7.
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Improvements in Productivity and New Work Practices
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8.
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Wages
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9.
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Hours of Work
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10.
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Employee Meetings
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11
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Sick Leave
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12.
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Personal Carer's Leave
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13.
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Bereavement Leave
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14.
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No Further Claims
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15.
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Disputes Procedure
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16.
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Redundancy
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17.
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Anti - Discrimination
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18.
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Area and Incidence
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2. Title
This award shall be known as the "Windscreens O'Brien
(Metals) Enterprise Bargaining 1995 Award".
3. Parties Bound
This award shall be binding upon O'Brien Glass Industries
Ltd., trading as Windscreens O'Brien, the Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union, New South Wales Branch
(AMFEP&KIU) and employees eligible to be members of the AMFEP&KIU.
4. Date and Period of Operation
The award published 21 June 1996 (293 I.G. 513), as varied,
took effect from the first pay period commencing on or after 13 February
1997. This award has been reviewed in
accordance with section 19 of the Industrial
Relations Act 1996 (NOTE: See
clause 18, Area, Incidence and Duration.
5. Relationship to Parent Award
The terms and conditions of this award shall be read in
conjunction with the terms and conditions of the Metal, Engineering and
Associated Industries (State) Award, as varied, except that where an
inconsistency occurs, the terms and conditions of this award shall prevail to
the extent of the inconsistency over the parent award.
6. Probationary Period
Consistent with a competency-based skill and knowledge
classification structure and utilising objective criteria, the parties agree to
implement a formalised three-month probationary employment period for all new
employees. At the satisfactory completion
of the three-month period, the Company will confirm with the employee ongoing
full or part-time employment (whichever is applicable) under normal award and
contract of employment conditions.
It is agreed that during the three-month probationary
period, employees will receive appropriate award rates of pay and will be
counselled on an ongoing basis regarding their overall performance throughout
this period.
7. Improvements in Productivity
and New Work Practices
In making this award the parties are undertaking to
collectively and positively work towards creating the most efficient means of
manufacturing windscreens and distribution of auto glass and associated
products.
This will be achieved through employee co-operation in
improving productivity and actively participating in the introduction of new
work practices and technologies.
8. Wages
The minimum wage for all employees will not be lower than
the wages provided in the Metal,
Engineering and Associated Industries (State) Award, as varied, from time
to time.
9. Hours of Work
The parties agree that the ordinary hours of work of an
employee shall be an average of 38 per week, to be worked on the following
bases:
A nine-day fortnight
Rostered days off (RDOs) may be scheduled on any weekday, providing
that it is not on the Manufacturing RDO and no more than one employee shall
take their RDO on any one weekday.
It is agreed that, because of the demands of maintenance and
tooling work, there may be situations where an employee is required to work on
a scheduled RDO and/or perform a callback.
10. Employee Meetings
Where a meeting of employees is scheduled, it is agreed that
the meeting shall be held during lunchbreaks or outside of ordinary hours and,
therefore, not disrupting manufacturing maintenance operations.
11. Sick Leave
On 1 July of each year, an employee shall be credited an
entitlement of 38 hours sick leave.
Unused sick leave accrued prior to the new sick leave year shall be
carried over into the next sick leave year. A doctor's certificate must be
produced for each day or days for which sick leave is claimed.
"Sick leave year" shall mean the year commencing
on 1 July.
12. Personal Carer's Leave
(a) Use of Sick
Leave
(i) An employee, other than a casual
employee, with responsibilities in relation to a class of person set out in
subparagraph (ii) of paragraph (c), who
needs the employee's care and support, shall be entitled to use, in accordance
with this subclause, any current or accrued sick leave entitlement, provided
for in clause 11, Sick Leave, for absences to provide care and support, for
such persons when they are ill. Such
leave may be taken for part of a single day.
(ii) The employee shall, if required,
establish either by production of a medical certificate or statutory
declaration, the illness of the person concerned and that the illness is such
as to require care by another person.
In normal circumstances, an employee must not take carer's leave under
this subclause where another person has taken leave to care for the same
person.
(iii) The entitlement to use sick leave in accordance with this
subclause is subject to:
(1) the employee being responsible for the care of the person
concerned; and
(2) the person concerned being:
(A) a spouse of the employee; or
(B) a de facto spouse, who, in relation to a
person, is a person of the opposite sex to the first mentioned person who lives
with the first mentioned person as the husband or wife of that person on a bona
fide domestic basis although not legally married to that person; or
(C) a child or an adult child (including an adopted child, a step child, a
foster child or an ex nuptial child), parent (including a foster parent and
legal guardian), grandparent, grandchild or sibling of the employee or spouse
or de facto spouse of the employee; or
(D) a same sex partner who lives with the
employee as the de facto partner of that employee on a bona fide domestic
basis; or
(E) a relative of the employee who is a
member of the same household, where for the purposes of this subparagraph:
1. "relative"
means a person related by blood, marriage or affinity;
2. "affinity" means a
relationship that one spouse because of marriage has to blood relatives of the
other; and
3. "household"
means a family group living in the same domestic dwelling.
(iv) An employee shall, wherever practicable,
give the employer notice prior to the absence of the intention to take leave,
the name of the person requiring care and that person's relationship to the
employee, the reasons for taking such leave and the estimated length of
absence. If it is not practicable for
the employee to give prior notice of absence, the employee shall notify the
employer by telephone of such absence at the first opportunity on the day of
absence.
(b) Unpaid Leave
for Family Purpose
(i) An employee may elect, with the consent
of the employer, to take unpaid leave for the purpose of providing care and
support to a member of a class of person set out in subparagraph (ii) of
paragraph (c) of subclause (1) who is ill.
(c) Annual Leave
(i) An employee may elect with the consent
of the employer, subject to the Annual
Holidays Act 1944, to take annual leave not exceeding five days in single
day periods or part thereof, in any calendar year at a time or times agreed by
the parties.
(ii) Access to annual leave, as prescribed in
paragraph (a) of this subclause, shall be exclusive of any shutdown period
provided for elsewhere under this award or the parent award.
(iii) An employee and employer may agree to
defer payment of the annual leave loading in respect of single day absences,
until at least five consecutive annual leave days are taken.
(d) Time Off in
Lieu of Payment for Overtime
(i) An employee may elect, with the consent
of the employer, to take time off in lieu of payment for overtime at a time or
times agreed with the employer within 12 months of the said election.
(ii) Overtime taken as time off during
ordinary time hours shall be taken at the ordinary time rate, that is an hour
for each hour worked.
(iii) If, having elected to take time as leave
in accordance with paragraph (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.
(iv) Where no election is made in accordance
with the said paragraph (a), the employee shall be paid overtime rates in
accordance with the award.
(e) Make-up Time
(i) An employee may elect, with the consent
of the employer, to work "make-up
time", under which the employee takes time off ordinary hours, and works
those hours at a later time, during the spread of ordinary hours provided in
the award, at the ordinary rate of pay.
(ii) An employee on shift work may elect,
with the consent of the employer, to work
"make-up time" (under which the employee takes time off
ordinary hours and works those hours at a later time), at the shift work rate,
which would have been applicable to the hours taken off.
(f) Rostered
Days Off
(i) An employee may elect, with the consent of the employer, to
take a rostered day off at any time.
(ii) An employee may elect, with the consent
of the employer, to take rostered days off in part day amounts.
(iii) An employee may elect, with the consent
of the employer, to accrue some or all rostered days off for 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.
(iv) This subclause is subject to the employer
informing each union which is both party to the award and which has members
employed at the particular enterprise of its intention to introduce an
enterprise system of RDO flexibility, and providing a reasonable opportunity
for the union(s) to participate in negotiations.
13. Bereavement Leave
(a) An employee, other than a casual
employee, shall be entitled to two days bereavement leave without deduction of
pay, up to and including the day of the funeral, on each occasion of the death
of a person within Australia as prescribed in subclause (c) of this clause.
Where the death of a person as prescribed by the said subclause (c) occurs
outside Australia, the employee shall be entitled to two days bereavement
leave.
(b) 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.
(c) Bereavement leave shall be available to
the employee in respect to the death of a person prescribed for the purposes of
personal/carer's leave as set out in subclause (a)(iii)(B) of clause 12,
Personal Carer's Leave, provided that, for the purpose of bereavement leave,
the employee need not have been responsible for the care of the person concerned.
(d) An employee shall not be entitled to
bereavement leave under this clause during any period in respect of which the
employee has been granted other leave.
(e) Bereavement leave may be taken in
conjunction with other leave available under subclauses (a), (b), (c), (d), (e)
and (f) of the said clause 12. In determining such a request, the employer will
give consideration to the circumstances of the employee and the reasonable
operational requirements of the business.
14. No Further Claims
It is agreed by the parties that there shall be no further
claims made upon the Company for wage, superannuation or any other allowance
increases during the life of this award.
15. Disputes Procedure
(a) Procedures relating
to grievances of individual employees -
(i) The employee is required to notify (in
writing or otherwise) the employer as to the substance of the grievance,
request a meeting with the employer for bilateral discussions and state the
remedy sought.
(ii) A grievance must initially be dealt with
as close to its source as possible, with graduated steps for further discussion
and resolution at higher levels of authority.
(iii) Reasonable time limits must be allowed for discussion at each
level of authority.
(iv) At the conclusion of the discussion, the
employer must provide a response to the employee's grievance, if the matter has
not been resolved, including reasons for not implementing any proposed remedy.
(v) While a procedure is being followed, normal work must
continue.
(vi) The employee may be represented by an
industrial organisation of employees and the employer may be represented by an
industrial organisation of employees.
(b) Procedures
relating to disputes, etc., between employers and their employees -
(i) A question, dispute or difficulty must
initially be dealt with as close to its source as possible with graduated steps
for further discussion and resolution at higher levels of authority.
(ii) Reasonable time limits must be allowed for discussion at each
level of authority.
(iii) While a procedure is being followed, normal work must
continue.
(iv) The employer may be represented by an
industrial organisation of employers and the employees may be represented by an
industrial organisation of employees for the purposes of each procedure.
16. Redundancy
(a) Application
-
(i) This clause shall apply in respect of full-time and
part-time employees.
(ii) This clause shall apply in respect of employers
who employ 15 employees or more immediately prior to the termination of
employment of employees, in the terms of subclause (d), Termination of
Employment, of this clause.
(iii) Notwithstanding anything contained
elsewhere in this award, this clause shall not apply to employees with less
than one year's continuous service, and the general obligation on employers
shall be no more than to give such employees an indication of the impending
redundancy at the first reasonable opportunity, and to take such steps as may
be reasonable to facilitate the obtaining by the employees of suitable
alternative employment.
(iv) Notwithstanding anything contained
elsewhere in this award, this clause shall not apply where employment is
terminated as a consequence of conduct that justifies instant dismissal,
including malingering, inefficiency or neglect of duty, or in the case of
casual employees, apprentices or employees engaged for a specific period of
time or for a specified task or tasks or where employment is terminated due to
the ordinary and customary turnover of labour.
(b) Introduction
of Change -
(i) Employer's duty to notify -
(A) Where an employer has made a definite
decision to introduce major changes in production, program, organisation,
structure or technology that are likely to have significant effects on
employees, the employer shall notify the employees who may be affected by the
proposed changes and the union to which they belong.
(B) "Significant effects" include
termination of employment, major changes in the composition, operation or size
of the employer's workforce or in the skills required, the elimination or
diminution of job opportunities, promotion opportunities or job tenure, the
alteration of hours of work, the need for retraining or transfer of employees
to other work or locations and the restructuring of jobs.
Provided that where this award
makes provision for alteration of any of the matters referred to herein, an
alteration shall be deemed not to have significant effect.
(ii) Employer's duty to discuss change -
(A) The employer shall discuss with the
employees affected and the union to which they belong, inter alia, the
introduction of the changes referred to in subclause (b)(i), the effects the
changes are likely to have on employees and measures to avert or mitigate the
adverse effects of such changes on employees, and shall give prompt
consideration to matters raised by the employees and/or the union in relation
to the changes.
(B) The discussions shall commence as early
as possible after a definite decision has been made by the employer to make the
changes referred to in subclause (b)(i).
(C) For the purpose of such discussions, the
employer shall provide to the employees concerned and the union to which they belong
all relevant information about the changes, including the nature of the changes
proposed, the expected effects of the changes on employees and any other
matters likely to affect employees, provided that any employer shall not be
required to disclose confidential information the disclosure of which would
adversely affect the employer.
(c) Redundancy -
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 subclause (b)(i)(A) 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 subclause (c)(i), and shall cover, inter alia, any
reasons for the proposed terminations, measures to avoid or minimise the terminations
and measures to mitigate any adverse effects of any termination on the
employees concerned.
(iii) For the purpose of the discussion the
employer shall, as soon as practicable, provide to the employees concerned and
the union to which they belong all relevant information about the proposed
terminations, including the reasons for the proposed terminations, the number
and categories of employees likely to be affected, and the number of employees
normally employed and the period over which the terminations are likely to be
carried out. Provided that any employer
shall not be required to disclose confidential information the disclosure of
which would adversely affect the employer.
(d) Termination
of Employment -
(i) Notice for changes in production, programme,
organisation or structure - This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from production,
programme, organisation or structure, in accordance with subclause (b)(i)(A),
of this clause:
(A) In order to terminate the employment of an
employee, the employer shall give to the employee the following notice:
Period of
continuous service
|
Period of notice
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Less than 1 year
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1 week
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1 year and less than 3 years
|
2 weeks
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3 years and less than 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
(B) In addition to the notice above,
employees over 45 years of age at the time of the giving of the notice, with not
less than two years' continuous service, shall be entitled to an additional
week's notice.
(C) Payment in lieu of the notice above shall
be made if the appropriate notice period is not given. Provided that employment may be terminated
by part of the period of notice specified and part payment in lieu thereof.
(ii) Notice for technological change - This subclause sets out the notice
provisions to be applied to terminations by the employer for reasons arising
from technology in accordance with subclause (b)(i)(A).
(A) In order to terminate the employment of an
employee, the employer shall give to the employee three months' notice of
termination.
(B) Payment in lieu of the notice above shall
be made if the appropriate notice period is not given. Provided that employment may be terminated
by part of the period of notice specified and part payment in lieu thereof.
(C) The period of notice required by this
subclause to be given shall be deemed to be service with the employer for the
purposes of the Long Service Leave Act
1955, the Annual Holidays Act 1944,
or any Act amending or replacing either of these Acts.
(iii) Time off during the notice period -
(A) During the period of notice of termination
given by the employer, an employee shall be allowed up to one day's time off
without loss of pay during each week of notice, to a maximum of five weeks, for
the purpose of seeking other employment.
(B) If the employee has been allowed paid
leave for more than one day during the notice period for the purpose of seeking
other employment the employee shall, at the request of the employer, be
required to produce proof of attendance at an interview or the employee shall
not receive payment for the time absent.
(iv) Employee leaving during the notice period
- If the employment of an employee is terminated (other than for misconduct)
before the notice period expires, the employee shall be entitled to the same
benefits and payments under this clause to which the employee would have been
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.
(v) Statement of employment - The employer shall, upon receipt of a
request from an employee whose employment has been terminated, provide to the
employee a written statement specifying the period of the employee's employment
and the classification of or the type of work performed by the employee.
(vi) Notice to Centrelink - Where a decision
has been made to terminate employees, the employer shall notify Centrelink
thereof as soon as possible, giving relevant information, including the number
and categories of the employees likely to be affected and the period over which
the terminations are intended to be carried out.
(vii) Employment Separation Certificate - The
employer shall, upon receipt of a request from an employee whose employment has
been terminated, provide to the employee an Employment Separation Certificate
in the form required.
(viii) Transfer to lower-paid duties - Where an
employee is transferred to lower-paid duties for reasons set out in subclause
(b)(i), the employee shall be entitled to the same period of notice of transfer
as the employee would have been entitled to if the employee's employment had
been terminated, and the employer may, at the employer's option, make payment
in lieu thereof of an amount equal to the difference between the former
ordinary-time rate of pay and the new ordinary-time rates for the number of
weeks of notice still owing.
(e) Severance
Pay -
(i) Where an employee is to be terminated
pursuant to subclause (d), Termination of Employment, of this clause, the
employer shall pay the employee the following severance pay in respect of a
continuous period of service:
(A) If an employee is under 45 years of age,
the employer shall pay in accordance with the following scale:
Years of service
|
Under 45 years of age entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
4 weeks
|
2 years and less than 3 years
|
7 weeks
|
3 years and less than 4 years
|
10 weeks
|
4 years and less than 5 years
|
12 weeks
|
5 years and less than 6 years
|
14 weeks
|
6 years and over
|
16 weeks
|
(B) Where an employee is 45 years of age or
over, the entitlement shall be in accordance with the following scale:
Years of service
|
45 years of age and over entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
5 weeks
|
2 years and less than 3 years
|
8.75 weeks
|
3 years and less than 4 years
|
12.5 weeks
|
4 years and less than 5 years
|
15 weeks
|
5 years and less than 6 years
|
17.5 weeks
|
6 years and over
|
20 weeks
|
(C) "Week's pay" means the all-purpose
rate for the employee concerned at the date of termination and shall include,
in addition to the ordinary rate of pay, overaward payments, shift penalties
and allowances paid in accordance with this award.
(ii) Incapacity to pay - Subject to an
application by the employer and further order of the Industrial Relations
Commission of New South Wales, an employer may pay a lesser amount (or no
amount) of severance pay than that contained in paragraph (i) of this subclause.
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 paragraph (i) of this subclause, will have on the employer.
(iii) Alternative employment - Subject to an
application by the employer and further order of the Commission, an employer
may pay a lesser amount (or no amount) of severance pay than that contained in
paragraph (i) of this clause, if the employer obtains acceptable alternative
employment for an employee.
17. Anti-Discrimination
(a) It is the intention of the parties bound
by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent
and eliminate discrimination in the workplace.
This includes discrimination on the grounds of race, sex, marital
status, disability, homosexuality, transgender identity, age and carer's
responsibility.
(b) 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.
(c) 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.
(d) Nothing in
this clause is to be taken to affect:
(i) any conduct or act which is specifically exempted from
anti-discrimination legislation.
(ii) offering or providing junior rates of pay to persons under 21
years of age.
(iii) any act or practice of a body established
to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977.
(iv) a party to this award from pursuing
matters of unlawful discrimination in any state or federal jurisdiction.
(e) 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
(i) Employers
and employees may also be subject to Commonwealth anti-discrimination
legislation.
(ii) 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."
18. Area and Incidence
(a) This award is to be read in conjunction
with the Metal, Engineering and Associated Industries (State) Award, as varied,
except that where an inconsistency exists between this award and the Metal,
Engineering and Associated Industries (State) Award, to the extent of the
inconsistency, this award shall prevail.
(b) This award is to apply to employees
under the Metal, Engineering and Associated Industries (State) Award at the
Padstow enterprise of Windscreens O'Brien, a division of O'Brien Glass
Industries Ltd. This award is made following a review under section 19 of the Industrial Relations Act 1996 and
rescinds and replaces the Windscreen O'Brien (Metals) Enterprise Bargain
Agreement 1995 Award published 21 June 1996 (293 I.G. 513), and all variations
thereof. The award published 21 June
1996 took effect from the first pay period commencing on or after 13 February
1996.
(c) The changes made pursuant to the award
pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle
26 of the Principles for Review of Awards made by the Industrial Relations
Commission of New South Wales on 18 December 1998 (308 IG 307) are set out in
the attached Schedule A and take effect on 23 April 2001.
(d) The award remains in force until varied
or rescinded, the period for which it was made having already expired.
Schedule A
Changes Made on Review
Date of Effect: 23 April 2001
WINDSCREENS O'BRIEN
(METALS) ENTERPRISE BARGAINING 1995 AWARD
Unreviewed Award Clause
|
CHANGES
|
1. ARRANGEMENT
|
Rename 12 as 'Personal Carer's Leave'
Add new clause '13 Bereavement Leave'
Renumber '13' as '14'
Renumber '14' as '15'
Add new clause '16 Redundancy'
Add new clause '17 Anti Discrimination'
Renumber '15' as '18'
|
4. DATE AND PERIOD OF OPERATION.
|
Delete reference to 1991 Act and insert reference to s19
review under 1996 Act
|
5. RELATIONSHIP TO PARENT AWARD.
|
Update name of parent award
|
8.WAGES
|
Obsolete provisions removed
|
9. HOURS
|
Delete 2nd paragraph - obsolete reference to a trial
period.
|
12. STATE PERSONAL/CARER'S LEAVE CASE - AUGUST 1996
|
Rename as Personal Carer's Leave
|
13. NO FURTHER CLAIMS
|
Renumber as clause 14
|
14. DISPUTE PROCEDURE
|
Delete clause, insert new clause and renumber as clause 15
|
15. AREA AND DURATION
|
Amend to reflect s19 review and renumber as clause 18
|
NEW CLAUSES INSERTED
|
Add new clause '13 Bereavement Leave' from parent award
Add new clause '16 Redundancy' from parent award
Add new clause '17 Anti Discrimination' from parent award
|
T. M.
KAVANAGH J.
____________________
Printed by the authority of the Industrial Registrar.