LONG SERVICE LEAVE (OIL COMPANIES) (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notice of award review pursuant to section 19 of the Industrial Relations Act 1996.
(No. IRC 1115 of 2001)
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Before the Honourable Justice Marks
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27 July 2001
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REVIEWED AWARD
1.
ARRANGEMENT
1. Arrangement
2. Incidence
of Award
3. Definitions
4. Right to
Leave
5. Amount of
Leave
6. Payment for
Period of Leave
7. Taking
Leave
8. Granting
Leave in Advance
9. Restriction
Upon Employment While on Leave
10. Payment on
Termination for Leave Not Taken
11. Benefits to
be Brought Into Account
12. Transmission
of Business
13. Records to
be Kept
14. Counterpart
Award
15. Area and
Duration
SCHEDULE "A"
SCHEDULE "B"
2. INCIDENCE OF
AWARD
2.1 This award
shall be binding on the employers named in Schedule "A" and their
employees who are:
(a) engaged on
work in or in connection with the production, manufacture or wholesale
distribution of petroleum products, and who are employed in processing plants,
offices, refineries, terminals, installations, airfields or depots in the State
of New South Wales, and;
(b) are bound by
the awards named in Schedule "B" and any awards that succeed or
replace those awards.
2.2 This award
shall be read in conjunction with the awards named in Schedule "B".
Where there is any inconsistency between this award and the awards listed in
schedule "B" this award shall apply..
3. DEFINITIONS
3.1 In this
award, unless the context otherwise indicates or requires:
"actual rate of pay" means the total amount an
employee would have received for performing ordinary hours of work but shall
not include overtime, shift premiums, penalty rates and other extraneous
payments of a like nature;
"business" has the same meaning as
"employer" in this award, and includes a part of such business;
"employer" means any company named in Schedule
"A" to this award:
"employee" means any person employed by an
employer under the terms of clause 2 of this award, but does not include persons
employed as casual employees;
"service with an employer" for the purposes of
this award means the period during which an employee has served an employer
under an unbroken contract of employment, provided that:
(1) A contract of
employment shall be deemed not to have been broken by reason only of any
interruption or determination thereof, if the interruption or determination:
(a) has been made
by an employer with the intention of avoiding any obligation imposed by this
award or by any State law dealing with long service leave; or
(b) has arisen,
either directly or indirectly, from an industrial dispute concerning industrial
matters, and an employee returns to duty with the same employer in accordance
with the terms of settlement of the said dispute; or
(c) has been made
by an employer by reason of slackness of trade, and the employee is re-employed
by the same employer within six months of such interruption or determination;
or
(d) has been made
by an employer for any reason other than those referred to in subparagraphs
(a), (b) and (c) of this subclause, and the employee is re-employed by the same
employer within two months of such interruption or determination.
(2) Any period of
interruption or determination of the contract of employment referred to in
paragraph (1) of this definition shall not, except in the case referred to in
subparagraph (a) of paragraph (1), be taken into account in calculating the
period of service.
(3) Any period of
service by an employee as a member of the navy, military or air forces of the
Commonwealth (otherwise than as a permanent member of such forces) shall be
deemed to be service with the employer by whom the employee concerned was last
employed before the employee commenced to serve as such member for the purposes
of this award.
(4) Service with
the employer before the commencement of this award shall, subject to the
provisions of subclause 5.2 of this award, as well as service with the employer
after such commencement, be taken into account for the purposes of this award.
"Transmission" includes transfer, conveyance,
assignment, or succession whether by agreement or by operation of law, and
"transmitted" has a corresponding meaning.
4. RIGHT TO
LEAVE
4.1 An employee
shall be entitled to, and, subject to clause 7 of this award, an employer shall
grant long service leave with pay in respect of service with an employer as
provided by this award.
4.2 Except as
provided by this award, payment in lieu of long service leave shall not be made
by an employer, or accepted by an employee.
5. AMOUNT OF
LEAVE
5.1 Subject to the
provisions of subclause 5.2 of this clause, the amount of long service leave to
which an employee shall be entitled shall be:
(1) In the case of
an employee who has completed at least ten years' service with an employer-
(a) in respect of
ten years' service so completed, thirteen consecutive weeks' leave; and
(b) in respect of
each ten years' service with an employer completed since the employee last
became entitled to long service leave, thirteen consecutive weeks' leave; and
(c) on the
termination of the employee's employment, in respect of the number of years'
service with an employer since the employee became entitled to an amount of
long service leave, a proportionate amount on the basis of thirteen consecutive
weeks' leave for ten years' service; and
(2) In the case of
an employee who has completed at least five years' service with an employer and
whose employment is terminated for any cause, other than the employee's serious
or wilful misconduct, a proportionate amount on the basis of thirteen
consecutive weeks' leave for ten years' service.
5.2 In the case of
an employee whose service with an employer commenced before 1 January 1985 and
whose service would have provided an entitlement to long service leave under
this award, the amount of long service leave to which such employee shall be
entitled shall be the sum of the following amounts -
(1) An amount
calculated on the basis of thirteen consecutive weeks' leave for twenty years'
service in respect of the employee's service with the employer -
(a) in New South
Wales, before 1 April 1963;
(b) in Queensland,
before 11 May 1964;
(c) in Victoria,
before 1 January 1965;
(d) in South
Australia, before 1 January 1966;
(e) in Western
Australia, before 1 October 1964;
(f) in Tasmania,
before 17 December 1964;
(g) in the
Australian Capital Territory, before 11 May 1964; and
(h) in the Northern
Territory, subject to the provisions of the Long Service Ordinance 1965 before
11 May 1964; and
(2) An amount
calculated on the basis of thirteen consecutive weeks' leave for fifteen years'
service in respect of the period of the employee's service with the employer -
(a) in New South
Wales on and from 1 April 1963;
(b) in Queensland
on and from 11 May 1964;
(c) in Victoria on
and from 1 January 1965;
(d) in South
Australia on and from 1 January 1966;
(e) in Western
Australia on and from 1 October 1964; (in Tasmania on and from 17 December
1964;
(f) in the
Australian Capital Territory on and from 11 May 1964;
(g) in the Northern
Territory on and from 11 May 1964; and
(3) An amount
calculated on the basis of thirteen consecutive weeks' leave for ten years
service in respect of the period of the employee's service with the employer -
(a) in South
Australia on and from 1 January 1972;
(b) in the Northern
Territory on and from 30 September 1974.
6. PAYMENT FOR
PERIOD OF LEAVE
6.1 Subject to the
provisions of subclause 6.3 of this clause, the rate of payment to which an
employee on leave shall be entitled shall be the employee's actual rate of pay,
as defined in subclause 3.1 of this award.
6.2 Payment shall
be made in one of the following ways :
(a) in advance for
the whole of the period when the employee commences the period of leave, at the
rate calculated in accordance with the provisions of subclause 6.1 of this
clause; or
(b) by agreement
with the employee, at the same time as payment would have been made if the
employee had remained on duty, in which case payment shall, if the employee, in
writing, so requires, be made by cheque posted to an address specified by the
employee; or
(c) in any other
way agreed between the employer and the employee.
6.3 Where, during
the period of leave, a variation occurs to an employee's actual rate of pay,
the rate of payment to which the employee shall be entitled, for the leave
period, shall include the varied rate from the date of such variation.
6.4 Where payment
has been made in advance to an employee, in accordance with this clause, the
employer shall, upon the employee's return to duty, adjust such advance payment
to include the varied rate of pay.
7. TAKING LEAVE
7.1 Where an
employee has become entitled to long service leave pursuant to this award, such
leave shall be granted by the employer as soon as practicable having regard to
the needs of the establishment, or as provided by subclause 7.3 of this clause,
at such time, or times, as may be agreed between the employer and the employee.
7.2 Except where
an employee agrees otherwise, the employer shall give an employee at least
twenty-eight days' notice of the date from which leave is to be taken.
7.3 The leave
prescribed by this award shall be granted, and taken, in one continuous period,
or if the employer and the employee so agree, in not more than three separate
periods.
7.4 The long
service leave prescribed by this award shall be exclusive of annual leave and
all other holidays prescribed by an award, industrial agreement, or other
statutory enactment applicable to the employee's contract of employment
occurring during the taking of any period of long service leave. If any such
holiday, to which an employee is entitled, falls within the employee's period
of long service 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 long service leave, time equivalent to the ordinary time which the
employee would have worked if such a day had not been a holiday.
8. GRANTING
LEAVE IN ADVANCE
8.1 An employee
may, by mutual agreement with the employer, be granted long service leave
before the right to such leave has accrued due.
8.2 Where leave is
taken in accordance with subclause 8.1 of this clause, the employee shall not
become entitled to any further leave under this award for the period in respect
of which such leave was taken before it accrued due.
8.3 Where leave
has been granted to an employee, pursuant to subclause 8.1 of this clause,
before the right thereto has accrued due, and the employment is subsequently
terminated, the employer may deduct from any remuneration payable to the
employee on the termination of employment such amount as represents payment for
any period for which the employee has been granted, and has taken, leave to
which the employee was not entitled at the date of termination of the
employee's employment.
9. RESTRICTION
UPON EMPLOYMENT WHILE ON LEAVE
9.1 An employee shall
not engage in any employment for hire or reward during any period of long
service leave pursuant to this award.
10. PAYMENT ON
TERMINATION FOR LEAVE NOT TAKEN
10.1 Where the
employment of an employee is terminated, otherwise than by the employee's death,
and any long service leave -
(a) to which the
employee was entitled has not been taken; and/or
(b) accrues to the
employee on such termination,
the employer shall immediately pay, in full, to the
employee, the amount in respect of such leave, calculated at the date of the
termination in the manner set out in subclause 6.1 of this award, less any
amount already paid to the employee in respect of that leave.
10.2 Where an
employee dies, and any long service leave -
(a) to which the
employee was entitled has not been taken; and/or
(b) accrues upon
termination of the employment by reason of the employee's death,
the employer shall, upon request by the employee's
personal representative, pay, in full, to the employee's personal
representative, the amount in respect of such leave calculated as at the date
of the death of the employee in the manner set out in subclause 6.1 of this
award, less any amount already paid to the employee in respect of that leave.
11. BENEFITS TO BE BROUGHT INTO ACCOUNT
11.1 Any long
service leave allowed, or payment in lieu thereof made before 1 January 1985,
shall be taken into account, and shall be deemed to have been leave granted,
and taken, in satisfaction of any entitlement to leave due under this award -
(a) in the case of
leave with pay - to the extent of the period of such leave; and
(b) in the case of
payment in lieu thereof-to the extent of a period of leave equivalent to the
amount of payment at the date thereof.
12. TRANSMISSION
OF BUSINESS
12.1 Where, whether
before or after the commencement of this award, a business or part thereof is
transmitted from an employer (called "the transmittor") to another
employer (called "the transmittee") and an employee who, at the time
of such transmission, was an employee of the transmittor in that business or
part thereof, becomes an employee of the transmittee -
(a) the continuity
of the contract of employment of the employee shall be deemed not to have been
broken by reason of such transmission; and
(b) the period of
service which the employee has had with the transmittor, or any prior
transmittor, shall be deemed to be service with the transmittee,
and the employee shall be entitled to long service
leave as if the employee had, during the whole period of service, been employed
with the one employer at the date at which the employee's entitlement to long
service leave accrues.
12.2 Nothing in
subclause 12.1 of this clause shall be construed as entitling an employee to
leave, or payment in lieu thereof, more than once in respect of any period of
service.
13. RECORDS TO BE
KEPT
13.1 An employer
shall keep or cause to be kept long service leave records in the manner
required by the Long Service Leave Act
1955 and the regulations thereto.
13.2 The records
referred to in subclause 13.1 of this clause shall be open for inspection by a
duly authorised officer of an industrial union of employees in accordance with
the requirements of the New South Wales Industrial
Relations Act 1996.
14. COUNTERPART
AWARD
14.1 This award is
intended to be and is made as a counterpart in all respects to the Oil Industry
(Long Service Leave) Award 2000 of the Australian Industrial Relations
Commission made on 4 November 1985 (Print No. S8308) and any differences
between them are formal only and exist so that this award complies with
relevant New South Wales legislation.
15. AREA AND
DURATION
This award is made following a review under section 19 of
the Industrial Relations Act 1996 and replaces the Long Service Leave (Oil
Companies) (State) Award 1985 published on 24 December 1986 (243 I.G. 1398).
The award published on 24 December 1986 took effect from the
first full pay period commencing on or after 12 December 1985.
The changes made to the award pursuant to the Award Review pursuant
to section 19 (6) of the Industrial
Relations Act 1996 and Principle 26 of the Principles for Review of Award
made by the Industrial Relations Commission of the New South Wales on 18
December 1998 (308 IG 307) take effect on and from 27 July 2001.
This award remains in force until varied or rescinded, the
period for which it was made having already expired.
SCHEDULE "A"
Ampol Limited
Australian Oil Refining Pty Limited
Australian Lubricating Oil Refinery Limited
BP Australia Limited
BP Oil Distribution Limited
Esso Australia Limited
Mobil Oil Australia Limited
The Shell Company of Australia Limited
Shell Chemical (Australia) Pty Ltd
Shell Refining (Australia) Pty Ltd
SCHEDULE "B"
Awards
Canteen Workers (State) Award, published 16 July 1999 (314
IG 155)
Miscellaneous Workers General Services (State) Award
published 1 October 1999 (310 IG 1060)
Occupational Health Nurses (State) Award, published 15
October 1993 (276 IG 1080)
Security Industry (State) Award, published 19 August 1991
(269 IG 1314)
F. MARKS J.
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Printed by the authority of the Industrial Registrar.