TANNING 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 4566 of 2004)

 

 

REVIEWED AWARD

 

1.          Delete clause 1, Arrangement, of the award published 8 February 2002 (331 I.G. 157) and insert in lieu thereof the following:

 

1.  Arrangement

 

Clause No.          Subject Matter

 

PART A

 

1.         Arrangement

2.         Definitions

3.         Contract of Employment

4.         Wages

5.         Wage Groups

6.         Mixed Functions

7.         Sunday and Holiday Rates

8.         Supported Wage

9.         Hours of Work

10.       Implementation of 38-Hour Week

11.       Meal Breaks and Rest Periods

12.       Overtime

13.       Shift Work

14.       Special Rates

15.       Washing Time

16.       Tools of Trade and Damage to Clothing

17.       Formaldehyde and/or Corrosive Chemicals

18.       Holidays

19.       Sick Leave

20.       Personal/Carer's Leave

21.       Annual Leave

22.       Parental Leave

23.       Long Service Leave

24.       Bereavement Leave

25.       Jury Service

26.       Payment of Wage

26A.    Union Dues

27.       Payment for Piece Work and Task Work

28.       Time and Wages Records

29.       Right of Entry of Union Officials

30.       Breaches of the Award

31.       Union Delegates and Notice Board

32.       Union Business

33.       Trade Union Training Leave

34.       Accident Pay

35.       Redundancy

36.       Superannuation

37.       Grievance and Disputes Procedure

38.       Anti Discrimination

39.       Basis of Award and Leave Reserved to Apply

40.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Wages

Table 2 - Other Rates and Allowances

 

2.          Insert after the words "Japan Shop" in the first sentence of subclause (xii) of clause 2, Definitions, the following new words:

 

Bark and Extract Department

 

3.          Delete the reference to paragraph (a) appearing in subparagraph (iv)(a)(2) of clause 3, Contract of Employment, and insert in lieu thereof the following:

 

subparagraph (1)

 

4.          Delete the reference to subclause (v) appearing in paragraph (iv)(g) of the said clause 3 and insert in lieu thereof the following:

 

subclause (iv)

 

5.          Delete the reference to subclause (ii) appearing in subclause (vi) of clause 4, Wages, and insert in lieu thereof the following:

 

subclause (i)

 

6.          Delete the words "the said Table 2" appearing in subclause (vii) of the said clause 4 and insert in lieu thereof the following:

 

Table 2 - Other Rates and Allowances, of Part B, Monetary Rates

 

7.          Delete the words "Shedmen, Yardmen" appearing in the list of duties under Group 2 in subclause (b) of clause 5, Wage Groups, and insert in lieu thereof the following:

 

Shedperson, Yardperson

 

8.          Delete the reference to subclause (d) appearing in the table in subclause (iii) of clause 8, Supported Wage, and insert in lieu thereof the following:

 

subclause (iv)

 

9.          Delete the word "trail" appearing in paragraph (ix)(e) of the said clause 8 and insert in lieu thereof the following:

 

trial

 

10.        Delete the words "shop delegate" appearing in subclause (i) of clause 11, Meal Breaks and Rest Periods, and insert in lieu thereof the following:

 

union delegate

 

11.        Insert after the words "Hours of Work" appearing in the second paragraph of subclause (i) of clause 12, the following new word:

 

and

 

12.        Delete subclause (vii) of the said 12 and renumber the following subclauses accordingly.

 

13.        Delete the words "and or before midnight" appearing in the first sentence of subclause (i) of clause 13, Shift Work, and insert in lieu thereof the following:

 

and at or before midnight

 

14.        Delete the reference to subclause (iv) appearing in paragraph (vii)(b) of the said clause 13 and insert in lieu thereof the following:

 

subclause (iii)

 

15.        Delete clause 20, Personal Carer’s Leave Case, and insert in lieu thereof the following:

 

20.  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 (2) 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 19, 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 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 Purposes

 

(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 (1) of paragraph (c) of subclause (i) 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 inclusive 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 the 12 months of the said election.

 

(b)        Overtime taken as time off during ordinary 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 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 on shift work 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.

 

16.        Delete subclause (vi) of clause 21, Annual Leave, and insert in lieu thereof the following:

 

(vi)       Payment of Wages - An employee, before going on leave, shall be paid the amount of wages the employee would have received in respect of ordinary time the employee would have worked had the employee not been on leave during the relevant period.

 

For the purpose of this subclause, wages to be received for annual leave shall be calculated as follows:

 

(a)        At the rate applicable to the employee as prescribed by subclauses (i), (vi) and (viii) of clause 4, Wages, and clause 8, Supported Wage; and

 

(b)        At the rate prescribed by clause 13, Shift Work, according to the roster or projected roster; and

 

(c)        At any additional rate to which the employee is otherwise entitled in accordance with the contract of employment for ordinary hours of work; provided that this provision shall not operate so as to include any payment which is of a similar nature to or is paid for the same reason as or is paid in lieu of these payments prescribed by clauses 14, Special Rates, and 12, Overtime, nor any payment which might have become payable to the employee as reimbursement for expenses incurred.

 

(d)        In the case of an employee carrying out work under any scheme of payment by results, whether in accordance with clause 27, Payment for Piece Work and Task Work, or otherwise, at the rate which is the weekly average of payments made to the employee under such scheme for the period actually worked by the employee during ordinary hours during the last three-monthly period in respect of which such payments have been calculated prior to the time of going on leave or termination of employment as the case may be, or, if the employee has worked under such scheme for a lesser period immediately prior to going on leave, at the rate which is the weekly average of payments made during such lesser period.

 

(e)        At the rate payable pursuant to clause 6, Mixed Functions, calculated on a daily basis which the employee would have received for ordinary time during the relevant period whether on a shift roster or otherwise.

 

17.        Delete paragraph (x)(b) of the said clause 21 and insert in lieu thereof the following:

 

(b)        In calculating a period of 12 months' continuous service:

 

(1)        Any annual leave therein; and

 

(2)        Any absence of any kind mentioned in subparagraphs (1), (2) and (5) of paragraph (a) of this subclause, counted as part of such period.

 

(3)        In respect of absences of the kind mentioned in subparagraphs (3) and (4) of paragraph (a) of this subclause, the employee shall serve such additional period as part of the qualification for annual leave as will equal the period of such absence.

 

(4)

 

(i)         Any absence from work by reason of any cause not being a cause specified in this subclause shall not be deemed to break the continuity of service for the purposes of this clause unless the employer, during the absence of within 14 days of the termination of the absence, has notified the employee in writing that such absence will be regarded as having broken the continuity of service.

 

(ii)        Where an employee has been absent from employment and the employer has notified the employee that such absence is regarded as a break in the continuity of service, the employee may, within 14 days of such notification from the employer, appeal to the Industrial Committee against such notification of the employer.

 

18.        Delete the reference to subclause (xi) appearing in paragraph (xiii)(f) of the said clause 21 and insert in lieu thereof the following:

 

subclause (ix)

 

19.        Delete clause 24, Bereavement Leave, and insert in lieu thereof the following:

 

24.  Bereavement Leave

 

(i)         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 as prescribed by subclause (iii) of this clause.

 

(ii)        The employee must notify the employer as soon as practicable of the intention to take bereavement leave and will, if required by the employer, provide to the satisfaction of the employer, proof of death.

 

(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 (2) of paragraph (c) of subclause (i) of clause 20, Personal/Carer’s Leave, provided that, for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

(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.

 

(v)        Bereavement leave may be taken in conjunction with other leave available under subclauses (ii), (iii), (iv), (v) and (vi) of the said clause 20.  In determining such a request the employer will give consideration to the consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

20.        Renumber paragraphs (i), (ii) and (iii) of subclause (viii) clause 26A, Union Dues, to read as paragraphs (a), (b) and (c) respectively.

 

21.        Delete the words "shop delegates" wherever they appear in clause 31, Shop Delegates and Notice Board, and insert in lieu thereof the following:

 

union delegates

 

22.        Delete the word "he" appearing in subclause (vi) of clause 34, Accident Pay, and insert in lieu thereof the following:

 

he/she

 

23.        Renumber the second subclause (iv), Severance Pay, and subclause (v), Procedures Relating to Grievances, of clause 35, Redundancy, to read as subclauses (v) and (vi) respectively.

 

24.        Delete the reference to clause 37, Disputes Resolution, appearing in the said subclause (vi) and insert in lieu thereof the following:

 

clause 37, Grievance and Dispute Procedure

 

25.        Delete clause 36, Superannuation, and insert in lieu thereof the following:

 

36.  Superannuation

 

The subject of superannuation is dealt with extensively by Federal legislation, including the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act 1993, the Superannuation (Resolution of Complaints) Act 1993, and section 124 of the Industrial Relations Act 1996 (NSW).  This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties.

 

(i)         Definitions

 

In this award, unless the contrary intention appears:

 

(a)        "The Fund" shall mean the Australian Retirement Fund (ARF), established and governed by a Declaration of Trust dated 11 July 1986, as amended from time to time.

 

(b)        "The Union" shall mean The Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch.

 

(c)        "Ordinary Pay" shall include the classification rates, over-award payments and shift loadings.

 

(d)        "Employee" means an employee other than an employee specifically told on engagement that the employee is to be employed as a casual.

 

(ii)        Eligibility of Employees

 

An employee shall be eligible for membership of the Fund on the first day of the calendar month following completion of two calendar months' employment.

 

(iii)       Eligibility of Employers

 

Employers bound by this award shall become parties to the Fund upon the acceptance by the Trustee of the Fund of an application to become a participating employer of the Fund, duly signed by the employer and the Trustee.

 

(iv)       Contributions

 

(a)        On behalf of each employee member of the Fund each employer shall pay to the Trustee of the Fund contributions as specified in Item 12 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.

 

(b)        Contributions shall be made in respect of each completed week of service for which an employee is a member of the Fund.

 

(c)        Upon an employee being admitted as a member of the Fund the employer shall pay to the Trustee of the Fund appropriate contributions for the previous calendar month.

 

(d)        A pro rata deduction shall be made from the weekly contribution for each complete day an employee is absent from work without authorisation or on unpaid leave.

 

(e)        The obligation of the employer to contribute to the Fund in respect of an employee shall cease on the last full week of such employee's employment with the employer.

 

26.        Delete reference to the Tanning Industry Award, 1999 in subclause (i) of clause 39, Basis of Award and Leave Reserved to Apply, and insert in lieu thereof the following:

 

Tanning Industry Award 1999

 

27.        Delete the third paragraph of clause 40, Area, Incidence and Duration, and insert in lieu thereof the following:

 

The changes made to the award pursuant to the Award Review under section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 6 December 2004.

 

28.        Delete the words "Industry Allowance" in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, and insert in lieu thereof the following:

 

Industry Loading

 

29.        Delete the reference to 36(D)(i) in the column titled "Clause No." at Item 12 of the said Table 2 and insert in lieu thereof the following:

 

36(iv)(a)

 

 

 

R. W. HARRISON  D.P.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.