POULTRY INDUSTRY LIVESTOCK (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 4579 of 2004)

 

 

REVIEWED AWARD

 

1.          Delete word "brining" in the third paragraph of subclause (v) of clause 2, Definitions, of the award published 8 February 2002 (331 I.G. 93) and insert in lieu thereof the following:

 

bringing

 

2.          Delete last paragraph of the said subclause (v) and insert in lieu thereof the following:

 

In addition, the employer may appoint a person who has the appropriate qualifications to a position of leading hand for the purposes of acting as a first-aid attendant.

 

3.          Delete subclauses (vi), (vii) and (viii) of the said clause 2 and insert in lieu thereof the following:

 

(vi)       Leading Hand - Small Group, means a leading hand with duties as defined in subclause (v) of this clause, supervising ten employees or less.

 

(vii)      Leading Hand - Large Group, means a leading hand with duties as defined in subclause (v) of this clause, supervising in excess of ten employees.

 

(viii)     Certified Rural Tradesperson means an employee who is employed for a period of not less than four years in an establishment coming within the definition of Rural Industries in subclause (ix), and who has completed the Rural Trades Course at TAFE or similar course or courses approved by the Rural Apprenticeship Training Committee upon application.

 

4.          Delete the reference to subclause (c) of clause 19, Contract of Employment, in the third paragraph of paragraph (vii)(d) of clause 4, Integrated Wage Structure, and insert in lieu thereof the following:

 

paragraph (iii)(c) of clause 19, Contract of Employment

 

5.          Delete subclause (i) of clause 5, Protective and Safety Clothing and Equipment, and insert in lieu thereof the following:

 

(i)         Employees shall be provided with protective clothing to ensure that personal clothing shall be protected from the product.

 

6.          Delete the second paragraph of subclause (iii) of the said clause 5 and insert in lieu thereof the following:

 

No personal clothing, including jewellery or other effects including lunches, cigarettes, tissues, etc., shall be taken onto the farm or facility except if it is passed through an ultra violet light bacteria control system or similar process of control.

 

7.          Delete subclause (vi) of clause 8, Overtime, and insert in lieu thereof the following:

 

(vi)       A meal need not be provided nor payment made therefore if the employee is permitted to and can reasonably return home for a meal.

 

8.          Delete the reference to subclause (iv) in paragraph (iii)(a) of clause 9, Saturdays, Sundays, Public Holidays and Union Picnic Day, and insert in lieu thereof the following:

 

subclause (v)

 

9.          Delete the word "part-time employee" in paragraph (iii)(b) of the said clause 9 and insert in lieu thereof the following:

 

part-time employees

 

10.        Delete the reference to paragraphs (b) and (c) in subclause (v) and of the said clause 9 and insert in lieu thereof the following:

 

paragraph (a)

 

11.        Delete the word "an" before the words "annual leave without pay" in subclause (vii) of clause 11, Annual Leave Loading.

 

12.        Delete subclauses (iii) and (iv) of clause 14, Bereavement Leave, and insert in lieu thereof the following:

 

(iii)       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 subparagraph (i)(c)(2) of clause 12, 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.

 

(iv)       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.

 

Bereavement leave may be taken in conjunction with the other leave available under subclauses (ii), (iii), (iv), (v) and (vi) 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.

 

13.        Delete clause 16, Personal/Carer’s Leave, and insert in lieu thereof the following:

 

16.  Personal/Carer’s Leave

 

(i)         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 (c)(2) of this subclause, 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 12, 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:

 

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

 

(2)        the person concerned being:

 

(A)       a spouse of the employee; or

 

(B)       a de facto spouse who, in relation to a person, is a person of the opposite sex to the first-mentioned person who lives with the first-mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person; or

 

(C)       a child or an adult child (including an adopted child, a stepchild, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

 

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

 

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

 

1.          "relative" means a person related by blood, marriage or affinity;

 

2.          "affinity" means a relationship that one spouse, because of marriage, has to blood relatives of the other; and

 

3.          "household" means a family group living in the same domestic dwelling.

 

(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.

 

(ii)        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 subparagraph (i)(c)(2) who is ill.

 

(iii)       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, 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.

 

(iv)       Time Off in Lieu of Payment for Overtime

 

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

 

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

 

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

 

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

 

(v)        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.

 

(vi)       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.

 

14.        Delete the acronym "EFT" in subclause (i) of clause 18, Payment of Wages, and insert in lieu thereof the following:

 

Electronic Funds Transfer (EFT)

 

15.        Renumber the last subclause in clause 19, Contract of Employment, to read as subclause (vi).

 

16.        Delete subclause (v) of clause 22, Deduction of Union Membership Fees, and insert in lieu thereof the following:

 

(v)        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 deductions, as the case may be.  The Union shall give the employer a minimum of two months' notice of any such change.

 

17.        Delete subclause (viii) of the said clause 22 and insert in lieu thereof the following:

 

(viii)     This clause shall take effect:

 

(a)        In the case of employers who 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 pay period to commence on or after 11 April 2003.

 

(b)       In the case of employers who do not fall within paragraph (a) above, but who currently make deductions, other than Union membership fee 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 pay period to commence on or after 11 July 2003.

(c)        For all other employers, from the beginning of the first pay period to commence on or after 11 October 2003.

 

18.        Delete clause 27, Superannuation, and insert in lieu thereof the following:

 

27.  Superannuation

 

(i)         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.

 

(ii)        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)

 

Such other funds that comply with the requirements of the legislation

 

and shall participate in accordance with the Trust Deed of that fund.

 

Notation: Employer contributions under relevant legislation are set at 9% until 1 July 2002.

 

(iii)       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.

 

(iv)       An employee may make contributions to the fund in addition to those made by the employer.

 

(v)        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.

 

(vi)       An employee may vary additional contributions by a written authorisation and the employer must alter the additional contributions within 14 days of the receipt of the authorisation.

 

(vii)      All contributions shall be made at the completion of each calendar month.

 

(viii)     Ordinary-time earnings shall be defined as including:

 

(a)        award classification rate;

 

(b)        over-award payment;

 

(c)        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;

 

(d)        casual loading in respect to casual employees including 1/12 annual holiday loading.

 

Ordinary-time earnings do not include bonuses, commission, payment for overtime or other extraordinary payment, remuneration or allowance.

 

19.        Delete clause 28, Anti-Discrimination, and insert in lieu thereof the following:

 

28.  Anti-Discrimination

 

(i)         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, age and responsibilities as a carer.

 

(ii)        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.

 

(iii)       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.

 

(iv)       Nothing in this clause is to be taken to affect:

 

(a)        Any conduct or act which is specifically exempted from anti-discrimination legislation.

 

(b)        Offering or providing junior rates of pay to persons under 21 years of age.

 

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

 

(d)        A party to this award from pursuing matters of unlawful discrimination in any State or Federal jurisdiction.

 

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

 

Notes:

 

(i)         Employer’s and employees may also be subject to Commonwealth anti-discrimination legislation.

 

(ii)        Section 54(d) of the Anti Discrimination Act 1977 provides:

 

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

 

20.        Delete clause 29, Redundancy, and insert in lieu thereof the following:

 

29.  Redundancy

 

(i)         Application

 

(a)        This clause shall apply in respect of full-time and part-time persons employed in the classifications specified by clause 2, Definitions.

 

(b)        This clause shall 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 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.

 

(d)        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.

 

(ii)        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 effect 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 this award makes provision for alteration of any of the matter 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) 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.

 

(2)        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 (a).

 

(3)        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.

 

(iii)       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 done by anyone pursuant to subclause (ii) of this clause, 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 provisions of subparagraph (1) 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.

 

(3)        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.

 

(iv)       Termination of Employment

 

(a)        Notice for Changes in Production, Program, Organisation or Structure

 

This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, program, organisation or structure, in accordance with subparagraph (ii)(a)(i) of this clause.

 

(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 notice, with not less than two years' continuous service, shall be entitled to an additional week’s notice.

 

(3)        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.

 

(b)        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 subparagraph (ii)(a)(1) of this clause.

 

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

 

(2)        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.

 

(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 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 purpose 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 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 subparagraph (ii)(a)(1) 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.

 

(v)        Severance Pay

 

(a)        Where the employment of an employee is to be terminated pursuant to subclause (iv) 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.

 

(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)        "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, over-award payments, shift penalties and allowances paid in accordance with this award.

 

(b)        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 (a) 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 (a) will have on the employer.

 

(c)        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 (a) if the employer obtains acceptable alternative employment for an employee.

 

(vi)       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.

 

21.        Delete the third paragraph of clause 30 and insert in lieu thereof the following:

 

The changes made to the award pursuant to the Award Review pursuant to section 19 (6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Award made by the Industrial Relations Commission of New South Wales on 18 December 1998 (308 I.G. 307) take effect on and from 5 October 2004.

 

 

 

R. W. HARRISON  D.P.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.