HORTICULTURAL INDUSTRY (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.
(No. IRC 5728 of 2003)
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Before Mr Deputy
President Grayson
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30 December 2003
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REVIEWED AWARD
1. Arrangement
Clause No. Subject Matter
1. Arrangement
2. Hours of
Work
3. Classification
Structure
4. Superannuation
5. Wage
Rates
6. Safety
Net Commitments
7. Anti-Discrimination
8. Piecework
9. Saturday and
Sunday Ordinary Time
10. Public
Holidays
11. Sick Leave
12. Personal
Carer’s Leave
13. Annual
Leave
14. Annual
Holiday Loading
15. Long
Service Leave
16. Payment of
Wages
17. Terms of
Engagement
18. Mixed
Functions
19. Protective
Clothing
20. Standing-by
21. Accommodation
& Keep
22. Travelling
Time and Allowances
23. Wet Work
24. Tools
25. First-aid
26. Jury
Service
27. Bereavement
Leave
28. Employee
Facilities
29. Redundancy
30. Training
Wage
31. Dispute
Procedure
32. Deduction
of Union Membership Fees
33. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1 - Wage Rates
Table 2 - Allowances
2. Hours of Work
(1) Ordinary Hours
(a) The ordinary
hours of work shall not exceed 38 per week, nor a maximum of ten hours per day and
except for Bunchy Top Detectors, shall be worked between the hours of 5.00 a.m.
and 8.00 p.m., Monday to Sunday inclusive, and shall be continuous except for
meal breaks.
(b) The ordinary
hours may be worked in any of the following ways:
(i) Five equal
days of five and one-half days per week.
(ii) 19 equal days
in a 20-day cycle.
(iii) Four equal
days and one short day per week.
(iv) No more than 20
days are worked in a 28 consecutive day period.
Provided that the method of working ordinary hours shall
be consistent with subclause (a) above.
(c) The employer
may vary the method of implementing the ordinary hours of work in accordance
with subclause (b) of this clause by giving at least seven days written notice
of the variation or a shorter period by mutual consent. Where the change in roster is proposed to
take effect in seven or more days, notice may be verbal.
(d) The ordinary
hours for Bunchy Top Detectors shall be between 7.00 a.m. and 5.00 p.m., Monday
to Friday, inclusive.
(2) Overtime
(a) Except as
hereinafter provided, for all time worked in excess of ordinary hours shall be
paid for at the rate of time and one-half for the first two hours and double
time or double rates thereafter in the case of time workers or pieceworkers
respectively.
(b) Sunday
Overtime - The rate for overtime work on a Sunday shall be double time (T2) or
double rates for pieceworkers, with a minimum of not less than four hours each
start.
(c) Provided that
time off in lieu of overtime may be taken in accordance with the provisions of
Clause 12(4).
(3) Meal Allowance
and Rest Periods
(a) Meal Breaks
(i) A meal break
of not less than 30 minutes nor more than one hour shall be allowed during each
working day.
(ii) No employee
shall be required to work continuously on any day for more than five hours
without a meal break.
(iii) All work
performed on the instructions of an employer in an agreed meal break shall be
paid for at overtime rates, such payment continuing until the employee is
released for a meal break.
(iv) Rest and
Refreshment Breaks - In addition to a meal break, employees shall be entitled
20 minutes rest per day which shall be counted as time worked.
(b) Meal Allowance
(i) Unless an
employee has been notified on the previous working day of the requirement to
work overtime in excess of one hour after the scheduled finishing time, the
employer shall either provide a meal at no charge, or shall pay the employee an
amount as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B,
Monetary Rates.
(ii) If the
employee has prepared a meal in accordance with prior notification of overtime
and that scheduled overtime is cancelled, the employee shall be paid the amount
as set out in the said Item 1 of Table 2.
(4) Reasonable
Overtime
(a) Subject to
paragraph (b) below, an employer may require an employee to work reasonable
overtime at overtime rates or as otherwise provided for in this award.
(b) An employee
may refuse to work overtime in circumstances where the working of such overtime
would result in the employee working hours which are unreasonable.
(c) For the
purposes of paragraph (b) above, what is unreasonable or otherwise will be
determined having regard to:
(i) any risk to
employee health and safety;
(ii) the
employee's personal circumstances including any family and carer
responsibilities;
(iii) the needs of
the workplace or enterprise;
(iv) the notice (if
any) given by the employer of the overtime and by the employee of his or her
intention to refuse it; and
(v) any other relevant
matter.
3. Classification
Structure
Farm Employee Level Six:
Quality Inspector
Farm Employee Level Five:
Rural Tradesperson:
A person who has been employed for a period of not less
than 3 years on an establishment which is involved in rural industry and has
completed the Rural Trades Course at TAFE or similar course or courses approved
by the Rural Apprenticeship Training Committee upon application.
Leave is reserved to the union and employers to make application
in relation to the definition of Rural Tradesperson.
Farm Employee Level Four:
An employee at this level performs the following
tasks:
Understanding of and ability to apply quality
standards.
Ability to blend and class product within class or
quality standards.
Understanding of causes of variation in quality of
product.
Farm Employee Level Three:
An employee at this level performs any of the following
tasks:
Operation of tractors above 70kw engine capacity
including potato harvester.
Licensed Fork Lift Operations.
On farm manufacture of packaging equipment.
Boiler and Furnace operator.
Classing and Blending of Product.
Minor Maintenance of plant and equipment.
Use of measuring instruments.
Loading and Unloading of produce onto transport.
Prepares Deep Shafts (over 2.4m) and other structures
required for production.
Farm Employee Level Two:
An employee at this level performs any of the following
tasks:
Operation of powered tools or implements including
picking or harvesting equipment and fork lifts not requiring license or ticket.
Operation of irrigation equipment and associated
chemical equipment.
Operation of tractors drawing power-operated
attachments/tillage implements with engine capacity of up to 70kw.
Farm Employee Level One with at least twelve months
experience in the industry.
Farm Employee Level One responsible for supervising the
work of others.
Farm Employee Level One:
An employee at this level performs any of the following
tasks:
Picking of product.
Planting of seedlings and plants.
Pruning and care of trees and plants.
Cultivation of soil, trees and plants including with
manually operated tools and equipment.
Basic Sorting and grading of product.
Repair and use of packaging equipment.
Incidental Tasks involved in getting product to packing
shed including packing and assisting in transport.
General Labouring Duties.
4. Superannuation
(a) The subject of
superannuation contributions is dealt with extensively by legislation including
the Superannuation Guarantee (Administration) Act, 1992, the Superannuation
Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act
1993 and the Superannuation (Resolution of Complaints) Act 1993. The legislation,
as varied from time to time, governs the superannuation rights and obligations
of the parties.
(b) The employer
shall be a participating employer in any of the following funds:
Australian Public Superannuation (APS)
Australian Superannuation Savings Employment Trust
(ASSET)
Australian Primary Industry Superannuation Fund (APISF)
and shall participate in accordance with the Trust Deed
of that fund.
(c) Employer
contributions under relevant legislation are set at 9% from 1 July 2002.
(d) The employer
shall provide each employee upon commencement of employment with membership
forms of the fund and shall forward the completed membership form to the fund
within 14 days.
(e) An employee
may make contributions to the fund in addition to those made by the employer.
(f) An employee
who wishes to make additional contributions must authorise the employer in
writing to pay into the fund from the employee’s wages a specified amount in
accordance with the Trust Deed and the rules of the fund.
(g) An employee
may vary his or her additional contributions by a written authorisation and the
employer must alter the additional contributions within 14 days of the receipt
of the authorisation.
(h) All
contributions shall be made at the completion of each calendar month.
(i) Ordinary time
earnings shall be defined as including:
(i) Award
classification rate.
(ii) overaward
payment.
(iii) Shift loading
- including weekend and public holiday penalty rates earned by shift employees
on normal rostered shifts forming the ordinary hours of duty not when worked as
overtime.
(iv) Casual loading
in respect to casual employees including 1/12 Annual Holiday Loading.
Ordinary time earnings does not include bonuses,
commission, payment for overtime or other extraordinary payment, remuneration
or allowance.
5. Wage Rates
(a) Section 1 -
Adult Employees - The minimum rates of wages for any classification shall,
subject to the other provisions of this award, be the weekly rate for the
classification appearing in Table 1 - Wage Rates, of Part B, Monetary Rates.
(b) Section 2 -
Leading Hands -
(i) An employee
appointed to be in charge of more than 2 and not more than 10 persons shall be
paid as prescribed in Section 2 of Table 1, in addition to the appropriate rate
of pay prescribed in Section 1, Adult Employees, of the said Table 1.
(ii) An employee
appointed to be in charge of ten or more persons shall be paid as set out in
Section 2 of Table 1, in addition to the appropriate rate of pay as set out in the
said section 1.
(c) Section 3 -
Junior Employees - The minimum rates of wages to be paid to junior employees
shall, subject to the other provisions of this award, be the percentage of the
appropriate rate for adults set out in Section1 of Table 1, calculated to the
nearest 10 cents, any broken part of 10 cents in the result not exceeding 5
cents to be disregarded.
(d) Section 4 -
Part-time Employees - A part-time employee shall be paid an hourly rate
ascertained by dividing the appropriate total weekly rate payable as set out in
Table 1 by 38. A part time employee shall be engaged or paid for a minimum of
three hours per day.
(e) Section 5 -
Casual Employees - A casual employee shall mean an employee who is engaged by
the hour and paid by the hour. The
hourly rate for a casual employee shall be ascertained by dividing the
appropriate total weekly rate as set out in Table 1 by 38, plus 15%.
NOTE - In addition to the hourly rate thus ascertained,
a casual employee shall be paid a one-twelfth loading in lieu of annual leave,
in accordance with the Annual Holidays Act 1944. This loading shall be payable only on gross
ordinary-time earnings and must be recorded separately in employment records.
No employee shall suffer a reduction in earnings as a
result of this award coming into effect.
6. Safety Net
Commitments
The rates of pay in this award include the adjustments
payable under the State Wage Case 2003. These adjustments may be offset
against:
(a) any equivalent
overaward payments, and/or
(b) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustments."
7. Piecework
Piecework rates may be fixed by agreement between the
employer and employee at such rates as will enable the average competent employee,
working the ordinary hours prescribed by this award, to earn at least 15 per
cent above the prescribed time work rate.
Such piecework rates shall, when fixed, be paid in lieu of the said time
work rates.
8. 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 (NSW) to prevent and
eliminate discrimination in the workplace on the grounds of race, sex, marital
status, disability, homosexuality, transgender identity, age or responsibility
as a carer.
(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 (NSW) 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 (NSW).
(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.
9. Saturdays and
Sundays Ordinary-Time
(a) Saturday - The
rate for ordinary time worked on a Saturday shall be time and one-quarter
(T1+.25) or rate and one-quarter for pieceworkers where hours are worked in
accordance with subclauses (1) and (2) of clause 2, Hours.
(b) Sunday - The
rate for ordinary time worked on a Sunday shall be time and one-half (T1+.5) or
rate and one-half for pieceworkers where hours are worked in accordance with
the said subclauses (1) and (2).
10. Public Holidays
(a) Permanent
employees shall be entitled to the following public holidays without loss of
pay:
New Year’s Day
Australia Day
Good Friday
Easter Saturday
Easter Monday
Anzac Day
Queen’s Birthday
Labour Day
Christmas Day
Boxing Day
and any other day proclaimed as a holiday for the State
and observed generally.
The employer and the employees may reach agreement to
substitute any other day for the day or days described above.
NOTATION: (e.g., If an employee is normally rostered
for duty on a day that a public holiday falls and that duty would have been
nine and one-half hours except for the public holiday, the employee shall be
paid nine and one-half hours for the public holiday.)
(b) An employee
absent without leave on the full working day before or the full working day
after a public holiday or holidays shall forfeit wages for the holiday as well
as for the day or part day of absence, except where an employer is satisfied
that the absence was due to illness or other reasonable cause supported by a
medical certificate or other evidence.
(c) When an employee
is required to perform work on a holiday they shall be paid at the rate of
double time and one-half with a minimum of not less than four hours each start.
11. Sick Leave
(a) Where the
employee is unable to attend for duty, the employee will endeavour to inform
the employer within 2 hours of the commencing time, in order to allow the
employer to engage a replacement.
(b) Each permanent
employee who has completed three months continuous service and who is absent
from work on account of personal illness or on account of injury by accident
arising out of and in the course of the employee’s employment, shall be
entitled to leave of absence with pay, subject to the following conditions and
limitations:
(i) The employee
shall, within twenty-four hours of the commencement of such absence, inform the
employer of the employee’s inability to attend for duty and, as far as
practicable, state the nature of the illness or injury and the estimated
duration of the absence.
(ii) The employee
shall furnish such evidence as the employer reasonably may require that the
employee was unable, by reason of such illness or injury, to attend for duty on
the day or days for which sick leave is claimed.
(iii) Subject to
subclause (c) of this clause, the employee shall be entitled to the quantum of:
5 days in the first year of service;
8 days in the second and subsequent years of service.
(iv) An employee
shall not be entitled to paid leave of absence for any period in respect of
which workers’ compensation payments are being received.
(c) Sick leave
shall accumulate from year to year so that any balance of the period specified
in subclause (b) of this clause, which had in any one 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 herein before prescribed, shall be allowed by
that employer in any subsequent year without diminution of the sick leave
prescribed in respect of that year.
Provided that sick leave which accumulates, pursuant to this subclause,
shall be available to the employee for a period of twelve years, but for no
longer, from the end of the year in which it accrues and sick leave shall
accumulate in accordance with this subclause only whilst the employee remains
in the service of the same employer.
12. Personal Carers’
Leave
(1) Use of Sick
Leave
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) of paragraph (c), who needs the employee’s care
and support, shall be entitled to use, in accordance with this subclause, any
current or accrued sick leave entitlement, provided for in 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.
(b) The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person.
In normal circumstances, an employee must not take carer’s leave under
this subclause where another person has taken leave to care for the same
person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
(a) a spouse of
the employee; or
(b) a de facto
spouse, who, in relation to a person, is a person of the opposite sex to the
first mentioned person who lives with the first mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
(c) a child or an
adult child (including an adopted child, a step child, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee; or spouse or de factor
spouse of the employee; or
(d) a same sex
partner who lives with the employee as the de factor partner of that employee
on a bona fide domestic basis; or
(e) a relative of
the employee who is a member of the same household, where for the purposes of
this paragraph:
(1) ‘relative’
means a person related by blood, marriage or affinity;
(2) ‘affinity’
means a relationship that one spouse because of marriage has to blood relatives
of other; and
(3) ‘household’
means a family group living in the same domestic dwelling.
(d) An employee
shall, wherever practicable, give the employer notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person’s relationship to the employee, the reasons for taking such leave and
the estimated length of absence. If it
is not practicable for the employee to give prior notice of absence, the
employee shall notify the employer by telephone of such absence at the first
opportunity on the day of absence.
(2) Unpaid Leave
for Family Purpose
(a) An employee
may elect, with the consent of the employer, to take unpaid leave for the purpose
of providing care and support to a member of a class of person set out in
clause 12(1)(c)(ii) who is ill.
(3) Annual Leave
(a) An employee
may elect with the consent of the employer, subject to the Annual Holidays
Act 1944, to take annual leave not exceeding five days in single day
periods or part thereof, in any calendar year at a time or times agreed by the
parties.
(b) Access to
annual leave, as prescribed in paragraph (a) of this subclause 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.
(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 twelve
(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 twelve (12) month period
or on termination.
(d) Where no
election is made in accordance with the said paragraph (a), the employee shall
be paid overtime rates in accordance with the award.
(5) Make-up Time
(a) An employee
may elect, with the consent of the employer, to work ‘make-up time’, under
which the employee takes time off ordinary hours, and works those hours at a
later time, during the spread of ordinary hours provided in the award, at the ordinary
rate of pay.
(b) An employee on
shift work may elect, with the consent of the employer, to work ‘make-up time’
(under which the employee takes time off ordinary hours and works those hours
at a later time), at the shift work rate which would have been applicable to
the hours taken off.
(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.
13. Annual Leave
See Annual Holidays Act 1944.
14. Annual Holiday
Loading
(a) This clause
applies only in relation to annual holidays to which employees become or have
become entitled after 31 December 1973.
(b) In this clause
the Annual Holidays Act 1944 is referred to as "the Act".
(c) Before any
employee is given and takes an annual holiday or where by agreement between the
employer and employee the annual holiday is given and taken in more than one
separate period, then before each of such separate periods the employer shall
pay the employee a loading determined in accordance with this clause. (NOTE: The obligation to pay in advance does
not apply where an employee takes an annual holiday wholly or partly in advance
- see subclause (g).)
(d) The loading is
payable in addition to the pay for the period of holiday given and taken and
due to the employee under the Act.
(e) The loading is
to be calculated in relation to any period of annual holiday to which the
employee becomes or has become entitled since 31 December 1973, or where such a
holiday is given and taken in separate periods, then in relation to each such
separate period. (NOTE: See subclause
(g) as to holidays taken wholly or partly in advance after 31 December 1973.)
(f) The loading
is the amount payable for the period or the separate period, as the case may be,
stated in subclause (e) at the rate per week of 17.5 per cent of the
appropriate ordinary weekly time rate of pay prescribed by this award for the
classification in which the employee was employed immediately before commencing
such annual holiday, together with the allowance prescribed in subclause (b) of
clause 5, Wage Rates, if applicable.
(g) No loading is
payable to an employee who takes an annual holiday wholly or partly in advance,
provided that, if the employment of such an employee continues until the day
when the employee would have become entitled under the Act to an annual
holiday, the loading then becomes payable in respect of the period of such
holiday and is to be calculated in accordance with subclause (e) of this
clause, applying the award rates of wages payable on that day. This subclause applies where an annual
holiday has been taken wholly or partly in advance after 31 December 1973.
(h) Where, in
accordance with the Act, the employer’s establishment or part of it is
temporarily closed down for the purpose of giving an annual holiday or leave
without pay to the employee concerned:
(i) An employee
who is entitled under the Act to an annual holiday and who is given and takes
such a holiday shall be paid the loading calculated in accordance with
subclause (f) of this clause.
(ii) An employee
who is not entitled under the Act to an annual holiday and who is given and
takes leave without pay shall be paid, in addition to the amount payable to the
employee under the Act, such proportion of the loading that would have been
payable to the employee under this clause if the employee had become entitled
to an annual holiday.
(i)
(i) When the
employment of an employee is terminated by the employer for a cause other than
misconduct and at the time of the termination the employee has not been given
and has not taken the whole of an annual holiday to which the employee became
entitled after 31 December 1973, the employee shall be paid a loading
calculated in accordance with subclause (f) for the period not taken.
(ii) Except as
provided by paragraph (i) of this subclause, no loading is payable on the
termination of an employee’s employment.
15. Long Service
Leave
See Long Service Leave Act 1955.
16. Payment of Wages
(a) All wages and
overtime shall be paid, in the employer’s time, not later than Friday in each
week. Wages shall be paid by either
cash, cheque or electronic funds transfer.
(b) Where wages
are paid by cheque or electronic funds transfer the following conditions shall
apply:
(i) Payment by
cheque or electronic funds transfer will not involve any of the employees in
any banking costs.
(ii) Time will be granted
to the employees to cash their weekly wage cheques during normal banking hours
in their normal pay day without loss of pay.
(iii) The employees
shall, if necessary, be allowed to leave the employer’s premises to cash the
said cheques.
(iv) Should any
employee request to have the weekly wages paid into the employee’s bank
account, credit union or building society account, the employer shall comply
with such request.
(c) Where an
employee’s services are terminated by the employer, the employee shall be paid
all wages due immediately or, failing immediate payment, he/she shall be paid
at the rate of the classification under which he/she was last employed for all
time until he/she is paid.
17. Terms of
Engagement
(a) In order to
terminate the employment of an employee the employer must give to the employee
the following notice, (subject to
Clause 29 Redundancy)
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Period of Service
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Period of Notice
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1 year or less
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1 week
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1 year and up to the completion of 3 years
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2 weeks
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3 years and up to the completion of 5 years
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3 weeks
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5 years and over
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4 weeks
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(b) In addition to
the notice in (a) employees over 45 years of age at the time of giving of the notice
with not less than two years service, are entitled to an additional week’s
notice.
(c) Payment in
lieu of the notice prescribed in (a) and (b) must 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.
(d) In calculating
any payment in lieu of notice, the wages an employee would have received in
respect of the ordinary time he or she would have worked during the period of notice,
had their employment not been terminated, must be used.
(e) The period of
notice in this clause does not apply in the case of dismissal for serious
misconduct, or in the case of casual employees or employees engaged for a
specified period of time or for a specific task or tasks.
(f) A casual
employee is one paid by the hour and employed as such.
18. Mixed Functions
Should an employee be transferred temporarily from a higher
paid to a lower paid class of work such employee shall be paid not less than
the rate of wage prescribed for the higher class of work during such temporary
employment; provided that an employee transferred temporarily to a higher paid
class of work for two hours or more on any one day shall be paid the higher
rate of wage for the whole of such day.
19. Protective
Clothing
The employer shall provide, free of charge, all necessary
protective clothing, including gum boots, for the use of permanent employees if
required by them. Such clothing shall
be issued in good condition and shall be retained by the employees during the
period of employment but shall remain the property of the employer. It shall be renewed by the employer when
required.
Overalls shall be provided for employees engaged in
spraying, dipping fruit, crimping, cleaning and/or cleaning down machinery and
fumigation.
Protective equipment shall include, subject to the job
requirements, rubber, boots, safety boots, aprons, gloves, respirators or gas
masks.
20. Standing-By
An employee ordered to stand by for duty shall be paid at
ordinary rates for the whole period of such stand by until the employee is
released or until the employee commences work.
21. Accommodation and
Keep
(a) Where the
employer provides the employee and the employees family with "live-in"
accommodation, the employer may make a charge for the use of such premises as
agreed to in writing by both parties at the commencement of employment.
(b) Where an
employer provides the employee with keep at the employee's request, the food shall
be of good quality, correctly prepared and cooked, of sufficient quantity and
properly served.
(c) The amount
charged for keep shall be agreed to by the employer and the employee, and shall
not exceed an amount equal to one-fifth of the weekly gross wage prescribed for
the employee.
22. Travelling Time
and Allowances
(a) Where
employees are required by the employer to travel from one place of work to
another, the time occupied in travelling shall be counted as time worked and
shall be paid for as such.
(b) Employees
compelled by their duties to spend the night away from their home or the
property on which they are employed, whichever is their normal place of
sleeping during their employment, shall be paid an additional amount as set out
in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates
for such night. In addition the
employee shall be paid a meal allowance as set out in the said Item 1 of Table
2. Provided however, an employer may
elect to either pay the allowances herein prescribed or may provide a suitable
meal and accommodation.
23. Wet Work
In addition to the wages provided for elsewhere in this
award, the following special rates and/or allowances shall be paid and/or the
special conditions of employment set out hereunder shall be observed:
(a) Definitions: A
wet place shall mean a place where the clothing of the employee becomes wet or
a place where the employee has to stand in water or slush so that the
employee's feet become wet.
(b) Where an
employee, on any one day, works in a wet place as herein defined, the employee
shall be paid each day an amount as detailed in Item 3 of Table 2 - Allowances,
of Part B, Monetary Rates, unless provided with adequate protective clothing.
24. Tools
All tools required by employees in the performance of their
work shall be provided free of charge by the employer and shall remain the
property of the employer.
Employees shall be responsible to ensure that tools not in
use are kept in a safe place so as to minimise the risk of the tools becoming
lost or stolen.
25. First-Aid
(a) The employer
shall provide and maintain a suitably equipped first-aid outfit at all places
of work to which this award applies.
(b) Any employee
appointed by the employer to perform first-aid duties shall be paid a daily
rate as detailed in Item 4 of Table 2 -- Allowances, of Part B, Monetary Rates,
in addition to his/her ordinary rate.
(c) In the event
of any serious accident happening to an employee whilst at work or, if living on
the employer's property, when travelling between his/her place of residence and
place of work or return the employer shall, at his/her own expense, provide
transport facilities to the nearest hospital or doctor.
26. Jury Service
(a) A permanent
employee shall be allowed leave of absence during any period when required to
attend for jury service.
(b) During such
leave of absence the employee shall be paid the difference between the jury
service fees received and their award rate of pay.
(c) The employee
shall be required to produce to the employer proof of jury service fees
received and proof of requirement to attend and attendance on jury service and
shall give the employer notice of such requirements as soon as practicable
after receiving notification to attend for jury service.
27. Bereavement Leave
(a) An employee
other than a casual employee shall be entitled to up to two days bereavement
leave without deduction of pay on each occasion of the death of a person
prescribed in subclause (c) of this clause.
(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 Clause
12(1)(c)(ii), Personal Carer’s Leave, provided that for the purposes 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 the other leave available under
subclauses (2), (3),(4),(5) and (6) of the said Clause 12. In determining such
a request the employer will give special consideration to the circumstances of
the employee and the reasonable operational requirements of the business.
28. Employee
Facilities
(a) Employers
shall provide boiling water for employees at meal times.
(b) Employers
shall make suitable provision to enable employees to eat their meals free from
dust and to keep their cribs free from same.
(c) Employers shall
provide for the use of employees a sufficient supply of wholesome, cool
drinking water.
(d) Employers
shall, at some reasonably convenient place on their premises, provide suitable
hanging facilities which afford reasonable protection for the employees'
clothes.
(e) Employers
shall provide proper and sufficient washing and sanitary conveniences and, in
addition, in the case of asparagus cutters, hot and cold shower baths which
shall be situated away from the closets.
29. Redundancy
(a) Application -
(i) This clause
shall apply in respect of full-time and part-time persons employed in the
classifications specified by clause 3, Classification Structure.
(ii) In respect to
employers who employ more than 15 employees immediately prior to the termination
of employment of employees, in the terms of paragraph (i) of subclause (d) 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 not 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 effect 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 matter referred to herein, an alteration shall be
deemed not to have significant effect.
(ii) Employer's
Duty to Discuss Change -
(a) The employer
shall discuss with the employees affected and the union to which they belong,
inter alia, the introduction of the changes referred to in paragraph (i) of
this subclause, the effects the changes are likely to have on employees and
measures to avert or mitigate the adverse effects of such changes on employees,
and shall give prompt consideration to matters raised by the employees and/or
the union in relation to the changes.
(b) The discussions
shall commence as early as practicable after a definite decision has been made
by the employer to make the changes referred to in the said paragraph (i).
(c) For the
purposes 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 the 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 -
(i) Discussions
before Terminations -
(a) Where an
employer has made a definite decision that the employer no longer wishes the
job the employee has been doing done by anyone pursuant to subclause (b) -
Introduction of Change, and that decision may lead to the termination of
employment, the employer shall hold discussions with the employees directly
affected and with the union to which they belong.
(b) The discussions
shall take place as soon as is practicable after the employer has made a
definite decision which will invoke the provisions of subparagraph (a) of this
paragraph and shall cover, inter alia, any reason for the proposed
terminations, measures to avoid or minimise the terminations and measures to
mitigate any adverse effects of any termination on the employees concerned.
(c) For the
purpose of the discussion the employer shall, as soon as is 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, 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 clause 29(b)(i)(a).
(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
|
|
|
|
|
1 year or less
|
1 week
|
|
1 year and less than 3 years
|
2 weeks
|
|
3 years and less than 5 years
|
3 weeks
|
|
5 years and over
|
4 weeks
|
(b) In addition to
the notice above, employees over 45 years of age at the time of the giving of
notice, with not less than two years continuous service, shall be entitled to
an additional week’s notice.
(c) Payment in lieu
of 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 of
Technological Change - This paragraph sets out the notice provision to be
applied to terminations by the employer for reasons arising from technology in
accordance with clause 29(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 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
notice period -
(a) During the
period of notice of termination given by the employer, an employee shall be
allowed up to one day’s time off without loss of pay during each week of
notice, to a maximum of five weeks, for the purpose of seeking other employment.
(b) If the employee
has been allowed paid leave for more than one day during the notice period for
the purpose of seeking other employment the employee shall, at the request of the
employer, be required to produce proof of attendance at an interview or the
employee shall not receive payment for the time absent.
(iv) Employee
leaving during the Notice Period - If the employment of an employee is
terminated (other than for misconduct) before the notice period expires, the
employee shall be entitled to the same benefits and payments under this clause
had the employee remained with the employer until the expiry of such notice.
Provided that in such circumstances the employee shall not be entitled to
payment in lieu of notice.
(v) Statement of
Employment - The employer shall, upon receipt of a request from an employee
whose employment has been terminated, provide to the employee a written
statement specifying the period of the employee’s employment and the
classification of or the type of work performed by the employee.
(vi) Notice to
Centrelink - 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 employees likely to be
affected and the period over which the terminations are intended to be carried
out.
(vii) Centrelink
Separation Certificate - The employer shall, upon receipt of a request from an
employee whose employment has been terminated, provide to the employee an
Employment Separation Certificate in the form required by Centrelink.
(viii) Transfer to
Lower Paid Duties - Where an employee is transferred to lower paid duties for
reasons set out in subparagraph (a) of paragraph (i) of subclause (b) 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 rate of pay and the new ordinary-time rate for the number of
weeks notice still owing.
(e) Severance Pay
-
(i) Where the
employment of an employee is to be terminated pursuant to subclause (d) of this
clause, 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.
(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 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 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 the said
paragraph (i) will have on the employer.
(iii) Alternative Employment
- 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 the said paragraph (i)
if the employer obtains acceptable alternative employment for an employee.
(f) 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 agreement, taken as a
whole, between the union and any employer bound by this award.
30. Training Wage
See the Rural Traineeships (State) Consolidated Award published
16 June 2000 (316 IG 605) as varied or any successor to that award.
31. Dispute Procedure
The procedure for the resolution of industrial disputation
will be in accordance with the Industrial Relations Act 1996. These procedural steps are:
(a) Procedure
relating to a grievance of an individual employee:
(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 the 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 discussions, 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.
(b) Procedure for
a dispute between an employer and the employees:
(c) 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.
(d) Reasonable
time limits must be allowed for discussion at each level of authority.
(e) While a
procedure is being followed, normal work must continue.
(f) 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.
32. Deduction of Union
Membership Fees
(a) The employer
shall deduct Union membership fees (not including fines or levies) from the pay
of any employee, provided that:
(i) the employee
has authorised the employer to make such deductions in accordance with
subclause (b) herein;
(ii) the Union
shall advise the employer of the amount to be deducted for each pay period
applying at the employer’s workplace and any changes to that amount,
(iii) deduction of
union membership fees shall only occur in each pay period in which payment has
or is to be made to an employee; and
(iv) there shall be
no requirement to make deductions for casual employees with less than two
months’ service (continuous or otherwise).
(b) The employee’s
authorisation shall be in writing and shall authorise the deduction of an
amount of Union fees (including any variation in that fee effected in
accordance with the Union’s rules) that the Union advises the employer to
deduct. Where the employee passes any
such written authorisation to the Union, the Union shall not pass the written
authorisation on to the employer without first obtaining the employee’s consent
to do so. Such consent may form part of
the written authorisation.
(c) Monies so
deducted from employees’ pay shall be remitted to the Union on either a weekly,
fortnightly, monthly, or quarterly basis at the employers election, together
with all necessary information to enable the reconciliation and crediting of
subscriptions to employees’ membership accounts, provided that:
(i) where the
employer has elected to remit on a weekly or fortnightly basis, the employer
shall be entitled to retain up to 5 per cent of the monies deducted; and
(ii) where the
employer has elected to remit on a monthly or quarterly basis, the employer
shall be entitled to retain up to 2.5 per cent of the monies deducted.
(d) Where an
employee has already authorised the deduction of union membership fees in
writing from his or her pay prior to this clause taking effect, nothing in this
clause shall be read as requiring the employee to make a fresh authorisation in
order for such deductions to commence or continue.
(e) The Union
shall advise the employer of any change to the amount of membership fees made
under its rules, provided that this does not occur more than once in any
calendar year. Such advice shall be in the form of a schedule of fees to be
deducted specifying either weekly, fortnightly, monthly or quarterly as the
case may be. The union shall give the employer a minimum of two months’ notice
of any such change.
(f) An employee
may at any time revoke in writing an authorisation to the employer to make
payroll deductions of Union membership fees.
(g) Where an
employee who is a member of the Union and who has authorised the employer to make
payroll deductions of Union membership fees resigns his or her membership of
the Union in accordance with the rules of the Union, the Union shall inform the
employee in writing of the need to revoke the authorisation to the employer in
order for payroll deductions of Union membership fees to cease.
(h) The above
variations shall take effect:
(i) In the case
of employers which currently deduct union membership fees, or whose payroll
facilities are carried out by way of an outsourcing arrangement, or whose
payroll calculations are made through the use of computerised means, from the
beginning of the first full pay period to commence on or after 11 April 2003;
(ii) In the case
of employers who do not fall within subparagraph (i) above, but who currently
make deductions, other than union membership fees deductions or mandatory
deductions (such as for taxation instalments or superannuation contributions)
from employees pay, or have in place facilities to make such deductions, from
the beginning of the first full pay period to commence on or after 1 May 2003;
(iii) For all other
employers, from the beginning of the first full pay period to commence on or
after 1 August 2003.
33. Area, Incidence
and Duration
This award rescinds and replaces the Potato Growers (State)
Award published 29 August 1997 (300 IG 983), as varied, the Horticultural and
Garden Employees (State) Award published 24 June 1994 (280 IG 679) as varied
and the Horticultural and Garden Employees (Wages) (State) Award published 4
April 1997 (297 IG 680) as varied and the Fruit Growing Industry Employees
(State) Award published 18 August 1995 (287 IG 399) as varied and the Fruit
Growing Industry Employees Superannuation (State) Award published 26 June 1992
(270 IG 252) as varied.
This award shall take effect from the first full pay period
to commence on or after 30th August 1999 and remain in force for a period of
three years thereafter.
This award was reviewed pursuant to section 19 of the Industrial
Relations Act 1996 on 30 December 2003. This award remains in force until
varied or rescinded, the period for which it was made having already expired.
Industries and
Callings
It shall apply to all employees who are employed in
classifications in this award:
(a) upon farms,
orchards, agricultural holdings, flower or vegetable market gardens in
connection with the sowing, raising, harvesting or treating of horticultural
products and crops, without limiting the generality of the foregoing including
fruit, vegetables, and potatoes; or
(b) at clearing,
fencing, trenching, draining or otherwise preparing land for any of the abovementioned purposes;
within the State, excepting persons performing work
within the jurisdiction of the:
Wine Industry Consolidated (State) Award
Nurseries Employees (State) Award
Fruit Packing Houses Employees (State) Award
Mushroom Industry (State) Award
Pastoral Industry (State) Award
Cotton Ginning Employees (State) Award
Cotton Growing Employees (State) Award
Oyster Farms Employees (State) Award
PART B
MONETARY RATES
Section 1 - Adult Employees
|
Farm
|
Wage Rate
|
Ordinary Time
|
Casual
|
Casual
|
Casual
|
|
Employee
|
per week
|
Base
|
Ordinary Time
|
Ordinary
|
Ordinary
|
|
|
|
|
|
|
Time
|
|
|
|
Hourly Rate
|
Incl.
|
Time
|
Sunday
|
|
|
|
|
1/12 loading
|
Saturday
|
|
|
|
$
|
$
|
$
|
$
|
$
|
|
Level 6
|
548.40
|
14.43
|
17.98
|
22.48
|
26.97
|
|
Level 5
|
542.20
|
14.27
|
17.78
|
22.23
|
26.67
|
|
Level 4
|
519.00
|
13.66
|
17.02
|
21.28
|
25.53
|
|
Level 3
|
511.00
|
13.45
|
16.76
|
20.95
|
25.14
|
|
Level 2
|
490.20
|
12.90
|
16.07
|
20.09
|
24.11
|
|
Level 1
|
469.30
|
12.35
|
15.39
|
19.24
|
23.09
|
Section 2 - Leading Hands
|
Leading Hand Allowance:
|
$
|
$
|
|
More than 2 and not more than 10 employees
|
22.80 per week
|
23.55 per week
|
|
10 or more employees
|
34.30 per week
|
35.40 per week
|
Table 2 - Allowances
|
Item
|
Clause
|
Brief Description
|
SWC 2002 Amount
|
SWC 2003 Amount
|
|
No
|
No
|
|
$
|
$
|
|
1
|
2(c)
|
Meal Allowance (per meal)
|
9.15 per meal
|
9.40 per meal
|
|
2
|
22(b)
|
Sleeping away from home (per night)
|
44.80 per night
|
46.85 per night
|
|
3
|
23(b)
|
Wet Money (per day)
|
3.40 per day
|
3.50 per day
|
|
4
|
25
|
First-aid Allowance (per day)
|
2.10 per day
|
2.15 per day
|
NOTE -
These allowances are contemporary for expense related
allowances as at 30 March 2003 and for work related allowances are inclusive of
adjustment in accordance with the May 2003 State Wage Case decision of the
Industrial Relations Commission of New South Wales.
J. P. GRAYSON D.P.
____________________
Printed by
the authority of the Industrial Registrar.