PERISHER BLUE PTY LTD (SKI TUBE) STATE AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by The Australian Rail, Tram and Bus Industry Union, New South Wales, an organisation of employees.

 

(No. IRC 1287 of 2003)

 

 

AWARD

 

1.  Arrangement

 

Clause No.          Subject Matter

 

32.       Acknowledgment of Unique Nature of Ski tube

11.       Additional Day Off

30.       Annual Leave

28.       Anti-Discrimination

33.       Area, Incidence and Duration

1.         Arrangement

22.       Bereavement Leave

28.       Certification

5.         Classification of Employment

36.       Code of Ethics

3.         Contract of Employment

2.         Definitions

6.         Discipline Code for Train Drivers

7.         Disputes Procedure

16.       Dual Role Employment

9.         Hours of Work

25.       Jury Service

21.       Long Service Leave

12.       Meal Break

15.       Mixed Functions

31.       No Publicity Rights

27.       Occupational Health and Safety

14.       Overtime

23.       Parental Leave

8.         Payment of Wages

24.       Personal Carer’s Leave

18.       Public Holidays

34.       Rights of Union Officials

13.       Rates of Pay and Allowances

10.       Shift Work

19.       Sick Leave

35.       Superannuation

26.       Training

17.       Termination, Charge and Redundancy

4.         Termination of Employment

29.       Uniforms, Protective Clothing & Equipment

 

2.  Definitions

 

For the purposes of this award:

 

2.1        “Additional Day Off” means a day off duty with pay pursuant to Clause 11.

 

2.2        “Allowance” means a monetary allowance paid to an employee other than their hourly rate of pay.  An allowance usually is a stand alone ordinary amount, and not subject to overtime penalty rate calculations etc.

 

2.3        “Annual Leave” means leave as prescribed by the Annual Holidays Act 1944.

 

2.4        “Any 5 Days” means any five (5) ordinary working days worked between Monday to Sunday.

 

2.5        “Casual Employee” is an employee engaged on an hourly basis and paid as such.  Casual employees are paid the applicable hourly rate plus twenty percent (20%) to compensate for Sick Leave, Annual Leave and Public Holidays.

 

2.6        “Duty Controller” means a person who:

 

2.6.1     is a Train Driver;

 

2.6.2     has served in the Ski tube Train Operations Department as a Train Driver;

 

2.6.3     has been trained in the additional functions of train controlling;

 

2.6.4     and has spent a minimum period of three (3) months in the control room under supervision.

 

2.7        “Duty Controllers Allowance” is an hourly Allowance paid to an employee who is required to act as a Duty Controller, and who is rostered to work in that capacity.  Duty Controllers Allowance is to be paid for all hours worked as a Duty Controller.

 

2.7.1     An employee who performs the duties of a Duty Controller for at least 1,040 hours during any financial year shall be paid the Duty Controllers Allowance while on annual leave.  This Allowance is only payable on leave taken, not leave paid out on termination.

 

2.8        “Crib Time” means a paid break of twenty (20) minutes duration taken for a tea or meal break.  This paid time shall be paid at the appropriate rate for the work being performed at the time the meal break was taken.

 

2.9        “Dual Role Employment” means an employee who is specifically employed on a full time basis in two different job classifications at two rates of pay as described in Clause 13 of this agreement.

 

2.10      “First Aid Allowance” - leave reserved.

 

2.11      “Permanent Employee” means an employee engaged to work for an average of thirty-eight (38) hours per week and who is not a seasonal employee.

 

2.12      “General Duties” means employees who normally perform various general maintenance duties for the employer.

 

2.13      “Meal Allowance” is an Allowance paid to an employee required to work overtime for more than two (2) hours without being notified on the previous day or earlier that they will be so required to work.  An employee shall either be supplied with a meal by the Employer or paid a Meal Allowance.

 

2.14      “Misconduct” without limiting its ordinary meaning, includes malingering, inefficiency, and neglect of duty, insobriety and unauthorised absenteeism.

 

2.15      “Overtime” means work done outside of or in excess of ordinary hours worked (as prescribed by this agreement).  Work conducted under such conditions shall then be paid at the prescribed rate in Clause 14.

 

2.16      “Pay Week” means seven (7) days from Monday to Sunday.

 

2.17      “Roster” is a list showing when each employee is required for duty.

 

2.18      “Rostered Day Off” means a day shown on a roster as a day off without pay other than the employee’s Additional Day Off.

 

2.19      “Seasonal Employee” means an employee who is employed for a limited period of employment.

 

2.20      “Seven Day Shift Worker” means a permanent employee who is rostered to work shift work and/or weekend work for more than 26 weeks in the period from 1 July to 30 June the next year.  For the purposes of this definition ‘weekend’ work shall mean the commencement and completion of at least one period of ordinary hours of work of 7.6 hours between the hours of 0001 on a Saturday and 2359 on a Sunday.  For the purposes of this definition the commencement and completion of at least 7.6 hours (worked continuously) of shift work during a 38 hour week shall qualify as one week of shift work.

 

2.21      “Shift Work” pertaining to this award, means work performed in accordance with the prescribed shifts of “Afternoon Shift”, “Night Shift” or “Early Morning Shift” as defined in Clause 10.7.

 

2.22      “Shift Worker” means an employee who is required to work on “Shift Work” as defined by definition 2.21 “Shift Work”.

 

2.23      “Ski tube Tunnels” means the underground area between Portal 1 and Portal 2 (Bilston Tunnel) and Portal 3 and Portal 4 (Blue Cow Tunnel).

 

2.24      “Supervisor” means an authorised officer of the Employer to whom an employee is directly responsible.

 

2.25      “Train Driver” means an employee who is in possession of a Certificate of Competency to drive Skitube trains granted pursuant to the Rail Safety Act 2002 or such other legislative instrument governing the operation of railways in New South Wales from time to time.

 

2.26      “Tunnel Allowance” is an hourly Allowance paid to an employee, who is employed under the General Duties classification and who works within the Ski tube Tunnels, (but not including the Perisher Ski tube Terminal, Blue Cow Terminal and platform areas) for all ordinary hours worked within the Ski tube Tunnels.

 

2.27      “Union Official” means a duly authorised person elected, or accredited as an official of the Union, and authorised to act for and on behalf of the Union.

 

2.28      “Union Representative” is a Permanent, Weekly or Seasonal Employee who is elected by a majority of employees who are financial members of the Union.  This person shall represent the employees and the Union and have all rights of a Union Representative in negotiating with management on matters concerning this award, working conditions, or amenities, etc.

 

2.29      “Weekly Employee” means a Permanent or Seasonal Employee engaged by the week to work on a weekly basis.

 

2.30      “Year” for the purposes of this award shall mean a year of employment.

 

3.  Contract of Employment

 

3.1        Employees may be engaged as Permanent Employees, Seasonal Employees or Casual Employees.

 

3.2        All prospective employees shall complete an employment application form prior to each engagement.  The employee must ensure that the information given on the application form is true in every respect as far as reasonably possible and, if subsequently any detail is found to be untrue, the Employer may dismiss the employee without notice.

 

3.2.1     All employees engaged shall be informed in writing of the type of hiring being offered at the time of engagement and the method of payment and conditions of work which apply to the hiring and shall be required to sign in acceptance of the terms and conditions of hiring.

 

3.2.2     Upon engagement a Seasonal Employee shall be advised of the anticipated duration of the season, provided that the employer may vary this period by giving not less than seven (7) days notice in writing to the employee.

 

4.  Termination of Employment

 

4.1        Subject to Clause 17, the employment of Permanent and Seasonal Employees may be terminated by one (1) week’s notice on either side or payment in lieu of notice by the employer or forfeiture of one week’s pay in lieu of notice by the employer.

 

4.2        The employment of Casual Employees may be terminated by one (1) hour’s notice on either side or by one (1) hour’s pay being paid or forfeited, as the case may be, in lieu of notice.

 

4.3        Where an employee has given or been given notice, they shall continue in their employment until the notice date.  If, without reasonable cause (proof of which shall be the employee’s responsibility), the employee is absent from work during such period, they shall be deemed to have abandoned their employment and shall not be entitled to payment for work done by them within that period.

 

4.4        Notwithstanding the provisions of subclauses 4.1, 4.2, 4.3 and clause 17, the employer has the right to summarily dismiss any employee for serious misconduct.

 

5.  Classifications of Employment

 

5.1        Classifications covered by this award are:

 

5.1.1     Trainee Driver - An employee engaged to undertake training to become a Train Driver and who is not yet in possession of a Certificate of Competency to drive Ski tube trains granted pursuant to the Rail Safety Act 2002 or such other legislative instrument governing the operation of railways in New South Wales from time to time.

 

5.1.2     First Level Train Driver - A Train Driver who meets the criteria at Second Level Driver but who is the subject of disciplinary action for misconduct and is reduced to a lower rate of pay.

 

5.1.3     Second Level Train Driver - An employee who is in possession of a Certificate of Competency to drive Ski tube trains granted pursuant to the Rail Safety Act 2002 or such other legislative instrument governing the operation of railways in New South Wales from time to time.

 

5.1.4     Leading Hand Track Inspector - An employee who is an accredited rail safety worker and who is responsible for the inspection and maintenance of track, tunnels and general rail infrastructure as well as the general supervision of staff involved in processes.

 

5.1.5     Track Inspector - An employee who is an accredited rail safety worker and who is responsible for the inspection and maintenance of track, tunnels and general rail infrastructure ally all track and rail lines, to ensure the safe running of railway services.

 

5.1.6     Resort Worker - an employee who performs various maintenance and general duties for the employer.

 

6.  Discipline Code for Train Drivers

 

6.1        Generally, a Train Driver shall be disciplined to a lower rate of pay for a specified period of time, if, in the opinion of the Ski tube Operations Supervisor, and at the final discretion of the Ski tube Manager, the Train Driver has been negligent, inattentive, or lacking in quality of work, which causes an unwarranted and unwanted variance to the operation of the train and/or system, or is deemed to place the Employers property, other employees, and/or patrons in jeopardy of their well-being.

 

6.2        Any Train Driver who believes he/she has been unfairly disciplined has the right of appeal to the Ski tube Manager, General Manager Operations, or the Chief Executive Officer. The Union Official or the Union Representative may represent the Employee.

 

7.  Dispute Procedure

 

7.1        An employee may refer any dispute arising out of employment to his/her nominated representative or the Union Representative may refer any dispute arising out of employment to the Employer Representative appointed for this purpose.

 

7.2        The Union Representative shall refer any dispute arising out of employment to the Employer Representative appointed for this purpose.

 

7.3        Failing settlement between the employer and the Union Representative on the job, the Union Representative shall refer the dispute to the appropriate Union Official who will take the matter up with the Employer.

 

7.4        All efforts shall be made by the Employer and the Union Organiser to settle the matter, but failing settlement both parties shall have the right to refer the matter to the Industrial Commission of NSW.

 

7.5        During the discussions the situation and conditions shall remain as that which existed prior to the dispute and work shall proceed normally.

 

7.6        In the case of a dispute full consultation between both parties must take place as soon as possible and no later than 14 days after the dispute arises.

 

8.  Payment of Wages

 

8.1        Wages will be lodged with the Employees’ bank no later than three (3) days after the end of the pay week for distribution by EFT to employees’ bank accounts.

 

8.2        Wages shall be paid by electronic funds transfer and transferred to the employees’ bank or building society account, as selected by the employee.

 

8.3        On each pay-day, the Employer shall notify each employee in writing the amount of wages to which they are entitled, the amount of deductions made and the net amount due to be paid to the employee.  Such detail shall be given confidentially.

 

9.  Hours of Work

 

9.1        The ordinary hours of work shall be 7.6 hours per day and shall be worked continuously.

 

9.2        Employees shall work in accordance with a weekly roster. Rosters are to be displayed no later than four (4) days prior to the start of the weekly period and shall not be changed except by mutual agreement between the Employer and employee.

 

9.3        Subject to Clause 10, Shift Work, the ordinary hours of work shall be an average of thirty eight (38) per week to be worked on any day between the hours of 6.00 am and 7.00 pm, Monday to Sunday on one of the following basis:

 

9.3.1     38 hours within a work cycle not exceeding seven (7) consecutive days; or

 

9.3.2     76 hours within a work cycle not exceeding fourteen (14) consecutive days; or

 

9.3.3     114 hours within a work cycle not exceeding twenty-one (21) consecutive days; or

 

9.3.4     152 hours within a work cycle not exceeding twenty-eight (28) consecutive days.

 

9.4        A thirty eight (38) hour week may be any one of the following:

 

9.4.1     by employees working 5 equal days of 7.6 hours; OR by the employees working eight (8) hours each day, therefore accruing 24 minutes per day towards an additional day off.

 

9.5        Consultation shall occur on any other method of implementation of the thirty eight (38) hour week with the appropriate union representatives.  However, the final choice as to the method of implementation of the thirty eight (38) hour week shall rest with the Employer.

 

10.  Shift Work

 

10.1      The employer may require its employees to work under a system of shift work with shifts operating twenty four (24) hours per day and seven (7) days in each week.

 

10.2      Subject to the following conditions, shift workers shall work at such times as the Employer may require.

 

10.2.1               Except at the regular changeover of shifts, an employee shall not be required to work more than one shift in each twenty four (24) hour period.

 

10.2.2               Twenty (20) minutes shall be allowed to shift workers each shift for crib that shall be counted as time worked.

 

10.3      The composite rates in this award comprehend shift work and all other aspects of the work of the employees not otherwise expressly addressed in this award.

 

10.4      All persons who were engaged as permanent, seasonal or casual employees in any of the Classifications listed in Clause 5 at 25 August 2003 are to refer to Addendum 1 for their entitlement to shift penalties.

 

10.5      Shift work under this award is to be rostered on a full rotational basis which is to be fair in its application to employees, or on such other roster as may be agreed between the employer and the majority of rostered employees.

 

10.6      Reasonable shift swaps between employees will be permitted with the consent of the employer, such consent will not be unreasonably withheld.

 

10.7      Employees will be rotated through the following shifts in accordance with clause 10.5:

 

10.7.1               “Afternoon Shift” means a shift which employees commence at or between 1200 noon and 6.59 pm.

 

10.7.2               “Night Shift” refers to the hours worked means a shift which employees commence at or between 7.00 pm and 3.59 am.

 

10.7.3               “Early Morning Shift” means a shift which employees commence at or between 4.00 am and 5.59 am.

 

10.8      Unless the contrary intention appears, all provisions of Clause 9 of this award shall apply to the provisions of this clause.

 

11.  Additional Day Off

 

11.1      An employee (excluding Casual Employees) who works an eight hour day accrues twenty-four (24) minutes per day worked towards an Additional Day Off.

 

11.2      Subject to sub-clause 11.5, an employee shall take their Additional Day Off within fourteen (14) days of the employee’s entitlement thereto arising, being accrued or as agreed between the employee and the employer.

 

11.3      In the event of an emergency the Employer may require an employee to work on their additional day off, provided that the employee shall be paid at the overtime rates for that day worked.

 

11.4      Upon termination an employee shall be paid all time accrued which has not been taken by the employee as Additional Days off.

 

11.5      Despite sub-clause 11.2 the entitlement to Additional Day/s Off shall be accumulated during the period of 1 June to 30 September to be taken at the end of the ski season.  The accumulated Additional Day/s Off may, with agreement of the Employer, be deferred and taken together with annual leave entitlements.

 

11.6      The Employer may make payment to an employee in lieu of any Additional Day Off or part thereof to which the employee is entitled at the Employers discretion.

 

12.  Meal Breaks

 

12.1      Employees are entitled to a meal break of between 30 and 60 minutes duration without pay provided they do not work more than 5 consecutive hours without a break.

 

12.2      Where train movements do not allow an unpaid meal break in accordance with clause 12.1, Train Drivers and/or Controllers shall have a paid crib break of 20 minutes which is to be taken between the third and fifth hour.

 

12.3      Where an employee is required to work for more than five hours after the start of ordinary time without a meal break, the employee shall be paid at the overtime rate until such a break is provided.

 

13.  Rates of Pay and Allowances

 

13.1      The following rates of pay shall apply to the classifications and allowances for Skitube workers employed under this award:

 

Rates of Pay	Rate per Hour
Train Drivers
Trainee Driver	$12.6310
Train Driver – Level I	$15.4285
Train Driver – Level II	$16.8000
General Duties
Leading Hand Track Inspector	$15.1626
Track Inspector	$14.6204
Resort Worker	$12.4404
Allowances
Duty Controllers (per hour)	$1.7513
Tunnel Allowance (per hour)	$0.6110
Meal Allowance (see clause 12.3)	$5.1181

 

13.2      The rates stated in this clause are, apart from the allowances, inclusive of compensation for all discomforts and disabilities associated with the normal duties of the job classifications shown in subclause 13.1 above and shall include compensation for shift work and all other aspects of the work of the employees not otherwise expressly addressed in this award.

 

13.3      All 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 over award payments; and/or

 

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

 

13.4      All persons who were engaged as permanent, seasonal or casual employees in any of the Classifications listed in Clause 5 at 25 August 2003 are entitled to the rates of pay, shift penalties and allowances listed in Addendum 1 of this award.

 

14.  Overtime

 

14.1      Subject to Clause 14.2, an employer may require an employee to work reasonable overtime at overtime rates.

 

14.2      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.

 

14.3      For the purposes of clause 14.2 what is unreasonable or otherwise will be determined having regard to:

 

14.3.1               any risk to employee health and safety;

 

14.3.2               the employee's personal circumstances including any family and carer responsibilities;

 

14.3.3               the needs of the workplace or enterprise;

 

14.3.4               the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

 

14.3.5               any other relevant matter.

 

14.4      For all time worked in excess of ordinary hours prescribed in Clause 9 - Hours of Work, and Clause 10, Shift Work, the rates of pay shall be time and one-half for the first two (2) hours and double time thereafter, such double time to continue until the completion of the overtime work.  In calculating overtime, each days work shall stand-alone.

 

14.5      All employees shall have a rest period of at least ten (10) consecutive hours between ceasing the work on one day and recommencing work on the next day.  Employees who do not have a rest period of at least ten (10) consecutive hours shall be paid overtime rates until released from duty for such a rest period.

 

14.6      An employee with the exception of Track Inspectors and Resort Workers recalled to work after leaving the employer’s premises shall be paid for a minimum of two (2) hours work at the appropriate overtime rate. Track Inspectors and Resort Workers will be paid a minimum of four (4) hours at the appropriate overtime rate.  This subclause shall not apply in cases where it is customary for an employee to return to the employer’s premises to perform a specific job outside their ordinary working hours.

 

14.7      An employee working overtime shall be entitled to a crib break of twenty (20) minutes.

 

15.  Mixed Functions

 

15.1      The Employer may requite an employee to perform functions other than the ordinary functions of their classification so long as those functions are within the employee’s competence.  Additionally, the Employer may require an employee to perform work at locations other than the location at which the employee ordinarily works.

 

15.2      An employee engaged during one day or shift on duties carrying a higher rate than their ordinary classification, shall be paid the higher rate only whilst performing those duties.

 

15.3      An employee ordered to lot in or to relieve for another in a lower grade shall not have their rate of pay reduced while so employed, except in cases of disciplinary action (clause 6).

 

15.4      An employee ordered to act in or to relieve for another in a grade shall abide by the conditions of that classification.

 

16.  Dual Role Employment

 

16.1      A person may be employed to carry out two specific job roles on two rates of pay, provided that:

 

16.1.1               The employee is given written notice that they are being employed specifically under the conditions of this clause prior to the commencement of their employment;

 

16.1.2               The employment under each role is for a specified, seasonal period of not less than four months in any one period;

 

16.1.3               The periods of employment be nominated by date prior to commencement of the employment;

 

16.1.4               If the employee is required to act in the higher nominated job role for a period of time while serving in the lower duties role they shall be paid a minimum of one day on the higher rate of pay relevant to that duty (as per clause 13);

 

16.1.5               While the employee is employed under the terms of this clause all Annual Leave shall be paid on the basis of time spent in each job classification;

 

16.1.6               Superannuation contributions shall be deducted weekly from the actual weekly wages earned.  The hourly rates for each job description are detailed in Clause 13 and the percentage of the Superannuation contribution is specified in Clause 35;

 

16.1.7               Clause 13 shall determine the rates of pay for the relevant positions worked; and,

 

16.1.8               When a permanent position becomes vacant in the higher duties classification of the employees dual role classification then this person shall have first option to the position.  An employee shall retain the right of refusal to accept the position.

 

17.  Termination, Change and Redundancy

 

17.1      Application

 

(a)        This clause shall apply in respect of permanent employees.

 

(b)        This clause shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees.

 

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

 

(d)        Notwithstanding anything contained elsewhere in this clause, this clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

17.2      Introduction of Change

 

(a)        Employer’s duty to notify

 

(1)        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.

 

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

 

Provided that where the award makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

(b)        Employer’s duty to discuss change

 

(1)        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 (a) above, 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.

 

(2)        The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in paragraph (a) of this subclause.

 

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

 

17.3      Redundancy

 

(a)        Discussions before terminations:

 

(1)        Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to subparagraph (1) of paragraph (a) of 17.2 above, 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.

 

(2)        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subparagraph (1) of this paragraph 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.

 

(3)        For the purposes 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 workers 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.

 

17.4      Termination of Employment

 

(a)        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 Clause 17.2.

 

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

 

Period of Continuous Service	Period of Notice
Less than 1 year	1 week
1 year and less than 3 years	2 weeks
3 years and less than 5 years	3 weeks
5 years and over	4 weeks

 

(2)        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.

 

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

 

(b)        Notice for Technological Change - This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from "technology" in accordance with Clause 17.2 above:

 

(1)        In order to terminate the employment of an employee the employer shall give to the employee 3 months notice of termination.

 

(2)        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.

 

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

 

(c)        Time off during the notice period

 

(1)        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 purposes of seeking other employment.

 

(2)        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.

 

(d)        Employee leaving during the notice period - If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause had the employee remained with the employer until the expiry of such notice. Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

 

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

 

(f)         Notice to 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.

 

(g)        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.

 

(h)        Transfer to lower paid duties

 

Where an employee is transferred to lower paid duties for reasons set out in Clause 17.2 above, 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 of notice still owing.

 

17.5      Severance Pay

 

(a)        Where the employment of an employee is to be terminated pursuant to Clause 17.4, subject to further order of the Industrial Relations Commission, the employer shall pay the following severance pay in respect of a continuous period of service:

 

(1)        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

 

(2)        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

 

(3)        "Weeks 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 provided for in the relevant award.

 

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

 

The Industrial Relations 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 (a) above will have on the employer.

 

(c)        Alternative Employment - Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (a) above if the employer obtains acceptable alternative employment for an employee.

 

17.6      Savings Clause

 

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

 

18.  Public Holidays

 

18.1      In view of the nature of the Employer’s operations, employees may, from time to time be required to work on Public Holidays, that are gazetted in the State of NSW.

 

18.2      Where an employee is absent from their employment on the working day before or the working day after a Public Holiday, without reasonable excuse or without the consent of the Employer, the employee shall not be entitled to payment of such holiday.

 

18.3      All employees who work on a Public Holiday shall be paid the normal rate for the actual hours worked plus time and one-half.

 

18.4      Where a weekly employee is rostered to work five days in seven and works five days in seven, inclusive of authorised sick leave, and a Public Holiday, as described within clause 18.1 falls on the day or days that the employee is rostered off within the normal seven day week, then the employee will accrue an additional day off, to be taken as paid time off, at normal hours.  This accrued additional day off shall be generally taken consistent with the provisions of clause 11.2 of the award.

 

18.5      Where a seven (7) day shift worker cannot accrue 38 hours during any five day in seven work cycle due to a Public Holiday, as described in clause 18.1, occurring within that cycle, then the employee shall be paid normal hours for that public holiday.

 

19.  Sick Leave

 

19.1      Each Permanent Employee who has completed eight (8) weeks continuous service and who is absent from work on account of personal illness or accident, not being an accident compensated by workers’ compensation, shall be entitled to leave of absence with pay subject to the following conditions and limitations.

 

19.1.1               Permanent Employees shall he entitled to sick leave of five (5) days in the first year of employment and eight (8) days in each subsequent year of continuous employment with the Employer.  Permanent employees shall be entitled to two (2) sick days of their annual entitlement in each year of their employment on full pay without the production of a Doctor’s Certificate, such uncertified entitlement shall not accumulate.

 

19.1.2               The employee shall notify the Employer prior to the beginning of their shift of their inability to attend for duty, and as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.

 

19.1.3               On their return to work, the employee shall furnish evidence as the Employer may reasonably require that the employee was unable, by reason of illness or injury, to attend for duty on the day or days for which sick leave is claimed.

 

19.1.4               Permanent Employees’ shall accumulate the balance of sick leave not taken each calendar year.  The balance of sick leave not taken by an employee is not payable on termination of employment.

 

19.1.5               When an employee who has been on sick leave is ready to return to duty he or she shall notify the Supervisor prior to returning to work in accordance with the Employers ‘Return to Work Policy’.

 

19.2      Seasonal Employees who have completed four (4) weeks continuous service shall be entitled to one (1) day of paid sick leave for every two (2) calendar months.

 

19.2.1               The employee shall, inform the Employer prior to the beginning of their shift of their inability to attend for duty, and as far as is practicable, state the nature of the injury or illness and the estimated duration of the absence.

 

19.2.2               The employee shall furnish such evidence as the employer may reasonably 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.

 

20.  Annual Leave

 

20.1      Subject to Clauses 20.2, 20.3, 20.4 and 20.5 annual leave will be taken in accordance with the Annual Leave Act 1944.

 

20.2      Seven Day Shift Workers (defined in Clause 2.20) shall be entitled to five weeks annual leave.

 

20.3      Loading Annual Leave

 

20.3.1               During a period of annual leave an employee shall receive a loading calculated at the rate of seventeen and one half percent (17.5%) of the ordinary weekly rate described by this Agreement for the classification in which the employee was employed immediately before commencing their annual holiday.

 

20.3.2               Leave loading is not payable on leave paid out termination.

 

20.3.3               The loading on annual leave taken in advance as per clause 20.1 shall not be payable until the actual entitlement.

 

20.4      Employees are required to take annual leave during the period from the 15 October in one year and 31 May of the next year.

 

20.5      The annual leave shall be given and taken as directed by the Employer on the following basis:

 

20.5.1               In one continuous period or

 

20.5.2               In two separate periods, one of which shall be of at least two (2) week duration.

 

21.  Long Service Leave

 

See Long Service Leave Act 1955.

 

22.  Bereavement Leave

 

22.1      An employee on weekly engagement shall, on the death within Australia of a wife, husband, father, mother, brother, sister, child or step-child, mother-in-law, father-in-law, grandfather and grandmother be entitled to be taken in the period up to and including the day of the funeral of such relation, and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in two (2) ordinary days of work.  The employee to the satisfaction of their Employer shall furnish proof of such death.

 

22.2      Provided further an employee, on weekly engagement, shall be entitled to a maximum of three (3) days leave without loss of pay on the production of satisfactory evidence of the death outside Australia of an employee’s mother, father, husband, wife or child where such employee travels outside Australia to attend the funeral.

 

22.3      For the purposes of this clause the words “wife” and “husband” shall include a person who lives with the employee as a de-facto wife or husband.

 

22.4      Provided further that, with the consent of the Employer, which consent shall not be unreasonably withheld, an employee shall, in addition to this entitlement, be paid bereavement leave and also be entitled to up to five (5) working days unpaid leave in respect to the death within Australia or overseas of a relation to whom the clause applies.

 

23.  Parental Leave

 

23.1      Refer to the provisions of the Industrial Relations Act l996

 

24.  Personal Carer’s Leave

 

24.1      Refer to the provisions contained in the Schedule to the State Personal/Carer’s Leave Case (1996) 68 IR 308 and/or in State Personal/Carer's Leave Case [1998] NSWIRComm 652 (10 December 1998).

 

25.  Jury Service

 

25.1      A weekly employee required to attend for jury service during their ordinary working hours shall be reimbursed by the Employer at an amount equal to the difference between the amount paid in respect of their attendance for such jury service and the amount of single time pay the employee would have received had they not been on jury service.

 

25.2      A weekly employee shall notify the Employer as soon as possible of the date upon which they are required to attend for jury service.  Further, the weekly employee shall give the Employer proof of their attendance, the duration of such attendance and the amount received in respect of such jury service.

 

26.  Training

 

In accordance with the provisions of the Rail Safety Act 2003, the employer will provide suitable training to employees.

 

27.  Occupational Health and Safety

 

In accordance with the Occupational Health and Safety Act 2000 (NSW), the parties to this award agree that an Occupational Health and Safety Committee shall be established at the workplace.

 

28.  Certification

 

The Employer may require employees to undertake training, retraining and refresher programs from time to time and to obtain and keep current any licences or certificates required by law or by the appropriate regulatory authorities or reasonably required by the Employer in order for them to fulfil their duties.

 

29.  Uniforms & Equipment

 

29.1      Where uniforms, clothing and/or tools and equipment are issued on a personal basis, such items shall remain the property of the Employer and shall be produced by the employee to the employer when requested or on termination of employment.  Loss and damage due to any cause arising out of neglect or misuse by the employee shall be a charge against the wages of the employee.  The Employer may make a deduction at a reasonable rate from the wages of the employee, provided that no deductions shall be made for reasonable wear and tear.

 

29.2      It is a condition of employment for an employee to use and/or wear such equipment where and as directed by the Employer.

 

30.  Anti-Discrimination

 

30.1      It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 (NSW) to prevent and eliminate discrimination in the workplace.  This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity and age.

 

30.2      It follows that in fulfilling the 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.

 

30.3      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.

 

30.4      Nothing in this clause is taken to affect:

 

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

 

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

 

(c)        any act or practice of a body established to propagate Religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977 (NSW);

 

(d)        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.

 

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

 

NOTES:

 

Employers and Employees may also be subject to Commonwealth anti-discrimination legislation.

 

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

 

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

 

31.  No Publicity Rights

 

31.1      The Employer reserves the right to release any photographs, films, or any form of publicity taken of employees during the execution of his/her normal duties, without any remuneration to employees provided, where the consent of the employee has been gained.

 

 

32.  Acknowledgment of Unique Nature of Ski Tube

 

32.1      The Union and Employer each state and acknowledge that the Employer’ s operation is unique and not associated with any other railway system or industrial operation in New South Wales or elsewhere.

 

32.2      In addition, in recognition of that circumstance the Union undertakes that it will not seek to involve the Employer or any employees engaged under this agreement in any industrial action over matters affecting or relating to other members, or the Union’s membership generally.

 

33.  Area, Incidence and Duration

 

33.1      This award shall apply to the Union and the Employer defined herein and to all persons employed by the Employer in the classifications listed in Clause 13, Rates of Pay of this award.

 

33.2      This award shall take effect from the beginning of the first pay period to commence on or after 11 February 2004 and shall remain in force for a period of one year.

 

33.3      This award shall not be varied during its term for any reason other than with the consent of all parties or in order to implement State Wage Case variations or to give effect to the Occupational Health & Safety Act 2000.

 

34.  Rights of Union Officials

 

34.1      Officials of the Union shall be entitled, with reasonable notice, to enter the Employers premises for the purpose of interviewing Union members and discussing matters of mutual concern.  During such visits normal work will continue without interruption.

 

34.2      The Employer recognises that the Union Representative duly elected by the Union members of the work place, is a legitimate representative of the Union.

 

35.  Superannuation

 

35.1      Subject to the requirements of the relevant legislation superannuation contributions shall be made to the ACP Retirement Fund for permanent employees and to Hostplus for seasonal and casual employees.

 

35.2      The Employer shall pay contributions on behalf of the employee to the superannuation fund in accordance with statutory requirements.  Such contributions made on behalf of the employee shall be based on the ordinary time earnings component of the rates of pay for each classification of employee, as specified in clause 13 of this award.

 

36.  Code of Ethics

 

36.1      The Union agrees to encourage and use its best endeavours to ensure its members:

 

36.1.1               Treat the Employers customers, the public and other employees in a businesslike, courteous and friendly manner.

 

36.1.2               Abide by, at all times, the Employers published policies and work place rules.

 

36.1.3               Carry out their duties to a high standard and at all times to promote work place health and safety standards.

 

36.1.4               Respect and safeguard the property of the Employer, other employees and the public.

 

ADDENDUM

 

Grand parenting Arrangements Over Award Entitlements For Employees Engaged

Prior To 25 August 2003

 

This Addendum reflects the arrangements concluded as part of the interim award made by Commissioner O’Neill on 11 February 2004.

 

Clauses 7 and 8 of that interim award provide as follows:

 

“7.        The employer will “grandparent” all wage rates and conditions under the Enterprise Agreement, as adjusted to date, for all persons who are engaged as permanent, seasonal or casual employees, in any of the classifications under the Enterprise Agreement, as at 25 August 2003.”

 

“8.        The State Wage Case Increase 2003 will be added to the wage rates to be applied in 2004 for all employees the subject of “grand parenting” under Clause 7 above.”

 

The Enterprise Agreement referred to is the Ski Tube Enterprise Agreement between Perisher Blue Pty Limited and the Australian Rail Tram and Bus Industry Union, New South Wales.

 

The rates of pay and allowances applicable for those grand parented employees as over award payments are as follows:

 

Rates of Pay	Rate per Hour
	$
Train Drivers
Trainee Driver	14.5102
Train Driver - Level I	17.6248
Train Driver - Level II	19.1518
General Duties
Leading Hand Track Inspector	17.3288
Track Inspector	16.7251
Resort Worker	14.2980
Allowances
Duty Controllers	2.0083
Tunnel Allowance	0.6463
Meal Allowance	5.4140

 

The rates of pay and allowances include the 2003 State Wage Case Adjustment.

 

The parties agree that they will confer in respect of the application of the 2004 State Wage Case increase, and any dispute in relation to that matter will be referred to the Commission.

 

For ease of reference, Clause 10 of the Enterprise Agreement provides for shift penalties as follows:

 

“10.3    For all paid time on duty, not subject to overtime penalties, employees shall be paid as follows when employed on shift work:

 

10.3.1               Afternoon Shift means a shift which employees commence at or between 12.00 noon and 6.59 pm for which they shall be paid fifteen (15%) percent in addition to the normal hourly rates as described in Clause 13 of the agreement.

 

10.3.2               Night Shift means a shift which employees commence at or between 7.00 pm and 3.59 am. Hours worked within this band will be paid twenty (20%) percent in addition to the normal hourly rate described in Clause 13 of the agreement.

 

10.3.3               Early Morning Shift means a shift which employees commence at or between 4.00 am and 5.59 am for which they shall be paid fifteen (15%) in addition to the normal hourly rates as described in Clause 13 of the agreement.”

 

For all other grand parented terms and conditions, employees should refer to the terms of the Enterprise Agreement.  The grand parented terms and conditions are in satisfaction of all entitlements under this award.

 

 

 

B. W. O'NEILL, Commissioner.

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.