BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(807)

SERIAL C3467

TRANSPORT INDUSTRY - QUARRIED MATERIALS (STATE) AWARD

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

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

(No. IRC 4597 of 2004)

Before The Honourable Mr Deputy President Harrison

6 December 2004

REVIEWED AWARD

1. Delete the word "ex" appearing in subclause 4.1, of clause 4, Anti-Discrimination, of the award published 24 August 2001 (327 I.G. 39), and insert in lieu thereof the following:

sex

2. Delete subclause 4.4, of clause 4, Anti-Discrimination, and insert in lieu thereof the following:

4.4 Nothing in this clause is to be taken to affect:

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

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

4.4 (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; or

4.4 (d) a party to this award from pursing matters of unlawful discrimination in any State or federal jurisdiction.

3. Delete subclause 5.3, of clause 5, Area, Incidence and Duration, and insert in lieu thereof the following:

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

4. Delete clause 6, Definitions, and insert in lieu thereof the following:

6.1 "The Act" shall mean the Industrial Relations Act 1996, as amended.

6.2 "Aggregate Mass" shall mean the total weight of a loaded vehicle.

6.3 "Articulated Truck" shall mean a motor propelled vehicle used for the conveyance of material and comprising two separate units, viz., a tractor and a semi‑trailer.

6.4 "Award" shall mean the Transport Industry - Quarried Materials (State) Award.

6.5 "B-Double Combination Vehicle" shall mean a combination vehicle which consists of a prime mover hauling two semi-trailers, where the second semi-trailer is mounted on a turntable coupling located at the rear of the first semi-trailer.

6.6 "Casual employee" shall mean an employee engaged by the day and paid by the day or at the conclusion of the casual employment.

6.7 "Double time" shall mean the employee's ordinary rate of pay plus 100 per cent.

6.8 "Driver" shall mean any person engaged to drive or control any type of vehicle specified in this award irrespective of other duties. This definition shall not exclude other duties ordinarily performed by a driver.

6.9 "Leading Hand" shall mean an employee who, in addition to other duties, is required to direct the work and/or conduct, during working hours, of other employees.

6.10 "Ordinary rate" shall mean the employee's ordinary time rate of pay, which the employee is entitled to receive for work performed in ordinary working hours.

6.11 "Other Agreed Starting Place" shall mean a place, other than the Depot at which it is agreed between the employer and the employees affected such employees will be in attendance at the time or times fixed ready to commence work in ordinary working hours. Upon such agreement having been reached between the employer and the employees, as aforesaid, the employer shall forthwith notify the branch or sub-branch secretary of the union of the location of such other agreed starting place.

6.12 "Quarried Materials &c." shall mean any material and or by-product of any material, excluding coal and coal-related products, which has been removed from a quarry, a sand pit, or a mine, provided that such material is for use in manufacturing or construction purposes. Quarried materials shall also mean slag and slag by- products, excluding coal-slag products.

6.13 "Time and one-half" shall mean the employee's ordinary rate of pay plus 50 per cent.

6.14 "Trailer" shall mean a vehicle, not having its own motive power, attached by means of a draw bar to a truck and hauled behind such truck.

6.15 "Truck" shall mean a motor propelled vehicle used for the conveyance of material.

6.16 "Union" shall mean the Transport Workers' Union of Australia, New South Wales Branch.

6.17 "Year" shall mean the period from 1st July to 30 June next following.

5. Delete clause 8, Hours of Employment, and insert in lieu thereof the following:

8. Hours of Employment

8.1 The ordinary hours of work shall be an average of 38 per week (exclusive of meal breaks) to be worked on one of the following bases:

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

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

(d) 152 hours within a work cycle not exceeding 28 consecutive days; or

(e) 304 hours within a work cycle not exceeding 56 consecutive days.

8.2 The 38 ordinary hours of work may with the agreement of the Union and the employees involved be worked in any of the following ways:

(a) Five equal days per week; or

(b) Four equal days and one short day per week; or

(d) Three equal days over five weeks and four equal days in the sixth week; or

(e) Any other agreed method of implementation which may include an accrual system for a rostered day off to a pattern determined by the employer with up to five days of accrual.

8.3 The ordinary hours of work shall not exceed 8 hours per day, exclusive of meal breaks, on any day Monday to Friday between the hours of 6.30 am and 5.30 pm, provided that:

(a) Employees may be rostered to work five days within a six day spread Monday to Saturday inclusive, with two consecutive days off and with all work on Saturday being subject to a penalty of 50%, and

(b) Employees may be rostered to work five days within a seven day spread Monday to Sunday inclusive, with two consecutive days off and with all work on Sunday being subject to a penalty of 75%.

All overtime worked subsequent to a rostered day on a Saturday or Sunday shall be paid at the rate of double time.

8.4 Commencing and Finishing Times

Within the limits prescribed herein before, the employer shall fix the time and place at which each employee shall be in attendance at the yard, depot, garage or other agreed starting place ready to commence work in ordinary working hours and work shall be deemed to have commenced, for each employee in attendance, at the time and place so fixed. Work in ordinary working hours shall be deemed to have finished, for those employees in attendance, when a period of eight hours, exclusive of a break for a meal, calculated from the fixed starting time, has elapsed.

The employer may only alter the time and place fixed in accordance with 8.1, above, by notice posted for 7 days at the yard, depot, garage or other agreed starting place. In cases of emergency such time or place may be altered on shorter notice by agreement with the employee or employees affected provided that notification of such alteration is given at the time to an authorised official of the union.

8.5 Permanent Part-Time Employees

Employees may be engaged to work regular days and regular hours less than 38 per week, provided that:

The set weekly hours for such employees shall be determined upon engagement and thereafter not changed other than by agreement;

(b) Notwithstanding (a) above, a minimum of three (3) days of six (6) consecutive hours shall be worked a week by such employees;

(d) All work outside the set hours contracted for at engagement shall be paid at overtime penalty rates;

(e) The spread of ordinary hours allowable for part-time employees shall be as set out in 8.2, and their rate of pay shall be calculated on the basis of an hourly rate equal to the weekly rate for the appropriate classification divided by 38;

(f) The ratio of full-time employees to non-full-time employees (including casuals and permanent part-time employees) shall remain at 4:1; and

(g) No current employee shall be forced to become a permanent part‑time employee against the employee's will.

6. Delete subclause 11.6,of clause 11, Shift Work, and insert in lieu thereof the following:

11.6 Shift Work - Weekends and Public Holidays

Shift workers rostered on a shift the major portion of which is performed on a Saturday, Sunday or public holiday shall be paid as follows:

(a) Saturday at the rate of time and a half.

(b) Sunday at the rate of time and three-quarters.

The penalty rates prescribed by this subclause for work on a Sunday or a public holiday shall be payable in lieu of the shift allowances prescribed in 11.5.

Notwithstanding anything contained herein, each shift shall be paid for at the rate applicable to the day on which the major portion of the ordinary time of the shift is worked.

7. Delete paragraph 11.8 (b), of clause 11, Shift Work, and insert in lieu thereof the following:

(b) Leave is reserved for the parties to apply for a minimum period of engagement for casuals on shift work.

8. Delete the first paragraph of subclause 18.1, of clause 18, Meals, and insert in lieu thereof the following:

18.1 On the days Monday to Friday, inclusive, there shall be one unpaid break of not less than 30 minutes nor more than one (1) hour for lunch between the hours of 11 am and 2 pm.

9. Delete the word "employee'" appearing in the second line of paragraph 18.2 (a), and insert in lieu thereof the following:

employee's

10. Delete paragraph 21.8 (a), of clause 21, Payment of Wages, and insert in lieu thereof the following:

21.8

(a) In the case of an employee whose services are terminated on a day other than a payday such employee Shall be paid all wages due either prior to or immediately upon cessation of work on the final day of the employee's employment.

11. Delete the reference to "Industrial Relations (General) Regulation 1996" appearing in subclause 21.9, of the said clause 21, and insert in lieu thereof the following:

Industrial Relations (General) Regulation 2001

12. Delete subclause 26.2, of clause 26, Duties of Drivers, and insert in lieu thereof the following:

26.2 An employer may direct an employee to carry out such duties as are within an employee's limits of skill, competence and training.

13. Delete subclause 27.2, of clause 27, Public Holidays, and insert in lieu thereof the following:

27.2 An employee, other than a casual employee, whose services are terminated within seven (7) days of the commencement of any week in which one or more public holidays occur and who is re-engaged by the same employer within seven (7) days of the said week, shall be paid an ordinary day(s) pay for each public holiday so occurring at the rate prescribed for the class of work performed by the employee prior to termination.

14. Delete paragraph 28.2 (a), of clause 28, Sick Leave, and insert in lieu thereof the following:

(a) Unless it is not reasonably practicable to do so (proof whereof shall be on the employee), before the ordinary starting time on the first day of absence, and in any event within twenty‑four hours, the employee shall inform the employer of their inability to attend for duty and, as far as practicable, state the nature of the illness and the estimated duration of the absence.

15. Delete clause 29, Personal/Carers Leave, and insert in lieu thereof the following:

29. Personal/Carers Leave

29.1 Use of Sick Leave-

(a) An employee other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (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 28, 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 employees 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.

(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 step child, a foster child or an ex-nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de 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 paragraph:

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

2. "affinity" means a relationship that one spouse because of marriage has to blood relatives of 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 persons 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.

29.2 Unpaid Leave for Family Purpose

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 (2) of paragraph (C) of subclause 29.1 who is ill.

29.3 Annual Leave

(a) An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.

(b) Access to annual leave, as prescribed in paragraph (a) of this subclause above, shall be exclusive of any shutdown period provided for elsewhere under this award.

(c) An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

29.4 Time Off in Lieu of Payment for Overtime

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

29.5 Make-Up Time

(a) An employee may elect, with the consent of the employer, to work "make-up time", under which the employee takes time off during 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.

29.6 Rostered Days Off

(a) An employee may elect, with the consent of the employer, to take a rostered day off at any time.

(b) An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

(c) An employee may elect, with the consent of the employer, to accrue some or all-rostered days off for the purpose of creating a bank to be drawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.

(d) This subclause is subject to the employer informing each union which is both party to the award and which has members employed at the particular enterprise of its intention to introduce an enterprise system of RDO flexibility, and providing a reasonable opportunity for the union(s) to participate in negotiations.

16. Delete subparagraph 30.3 (a) (2), of clause 30, Annual Leave, and insert in lieu thereof the following:

(2) Subject to subparagraph (4), of this paragraph, if during the year of the employee’s employment the employee has served for only a portion of it as such seven-day shift worker - the additional leave shall be one day for every thirty-six ordinary shifts worked as a seven-day shift worker.

17. Delete subclauses 32.3 and 32.5, of clause 32, Bereavement Leave, and insert in lieu thereof the following:

32.3 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 (C)(2) of clause 29, 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.

32.5 Bereavement leave may be taken in conjunction with other leave available under subclauses 29.1, 29.2, 29.3, 29.4, 29.5 and 29.6 of the said clause 29. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements, of the business.

18. Delete subclause 33.1, of clause 33, Jury Service, and insert in lieu thereof the following:

33.1 An employee required to attend for jury service during ordinary hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of the employee's attendance for such jury service and the amount of wage the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.

R. W. HARRISON D.P.

____________________

Printed by the authority of the Industrial Registrar.

* to download attachment

IE Users	Right click the attachment - Click 'Save Target As' - Select a location - Click 'Save'
Netscape Users	Right click the attachment - Select 'Save Link As' - Select a location - Click 'Save'