ULAN COAL DELIVERY FACILITY CONSENT AWARD 2004

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Ulan Coal Mines Limited.

 

(No. IRC 5896 of 2004)

 

 

AWARD

 

Clause No.          Subject Matter

 

A1.      Application

A2.      Period of Operation

A3.      No Extra Claims Commitment

A4.      Intent

A5.      Structural Efficiency

B1.       Total Rates

B2.       Additional Allowance

B3.       Increases

B4.       Apprentice Rates of Pay

B5.       Mixed Functions

C1.       Contract of Employment

C2.       Termination of Employment

C3.       Hours of Work

C4.       Meal Breaks

C5.       Shift Work

C6.       Overtime

C7.       Payment of Wages

C8.       Public Holidays

C9.       Sick Leave

C9A    State Personal/Carer’s Leave Case - August 1996

C10.     Annual Leave

C11.     Bereavement Leave

C12.     Jury Service

D1.      Time and Wages Book

D2.      Right of Entry

D3.      Settlement of Dispute Procedure

D3A.   Anti-Discrimination

D4.      First Aid

D5.      Redundancy

D6.      Definitions

 

A1.  Application

 

This award applies to employees engaged in the operation and maintenance of the Ulan Coal Mines Ltd Coal Delivery Facility at Eraring Power Station, Eraring, New South Wales.

 

A2.  Period of Operation

 

This award rescinds and replaces the Ulan Coal Delivery Facility Consent Award 2001 published 24 May 2002 (333 I.G. 724).

 

This award shall take effect on and from 21 October 2004 and remain in force for a period of three years thereafter.

 

A3.  No Extra Claims Commitment

 

It is a term of this award that the union undertakes, for the duration of the award, not to pursue any extra claims during its term of operation.

 

A4.  Intent

 

The award shall regulate totally the terms and conditions of employment previously regulated by the Metal and Engineering Industry (New South Wales) Interim Award and the Ulan Coal Mines Limited Coal Delivery Facility Consent Award 2001.

 

A5.  Structural Efficiency

 

The employer may direct an employee to carry out such duties as are within the limits of the employee's skills, competence and training consistent with the classification structure of this award, provided that such duties are not designed to promote deskilling.

 

Any direction by the employer shall be consistent with the employer s responsibilities to provide a safe and healthy working environment.

 

The parties to this award are committed to co-operating positively to increase the efficiency, productivity and competitiveness of the facility and to enhance the career opportunities and job security of employees.

 

B1.  Total Rates

 

(a)        The "total rate" payable, for individual classifications, comprehends all award entitlements, including, but without limiting the generality to, payments for travelling time, travelling allowances and fares, excess fares, special rates (such as space, height and dirt money), etc., irregularity of work, industry or special allowance, follow-the-job loadings, compensation for travel patterns, mobility, isolation, etc., allowances, and any other similar or like payment but excludes those payments contained in clause B2, Additional Allowance.  "Total rates" are based on a weekly rate of pay of 38 hours for ordinary time worked and are expressed as an hourly rate of pay to be paid for all purposes for time actually worked.

 

(b)

 

 

B2.  Additional Allowance

 

The following allowance will be paid in addition to the "total rate", where applicable:

 

Tool Allowance

 

(a)        A tradesperson shall be paid an allowance of $11.60 per week for supplying and maintaining tools ordinarily required in the performance of his/her work as a tradesperson.

 

(b)        Notwithstanding subclause (a) of this clause, the employer shall provide all necessary power tools, special purpose tools and precision measuring instruments.

 

(c)        An employee shall replace or pay for any tools supplied by his/her employer if lost through negligence.

 

B3.  Increases

 

The rates of pay provided in subclause (b) of clause B1, Total Rates, shall be increased by an amount of 3% on the first anniversary of the making of this award and increased by a further 3% on the second anniversary of the making of this award.  There shall be no other increases in rates of pay or allowances during the nominal term of this award and no increases shall be claimed before 31 December 2007 when the Ulan-Eraring Energy Contract expires.

 

B4.  Apprentice Rates of Pay

 

The "total rate" applicable to apprentices shall be the following percentages of the trade person classification:

 

 

B5.  Mixed Functions

 

An employee engaged for more than two hours during one day or shift on duties carrying a higher rate than his/her ordinary classification shall be paid the higher rate for such day or shift.  If engaged for two hours or less during one day or shift, he/she shall be paid the higher rate for the time so worked.

 

C1.  Contract of Employment

 

(a)        Weekly Contract of Employment

 

All employees not specifically engaged pursuant to subclause (c) of this clause shall be deemed to be employed by the week.

 

(b)        Part-time Employment

 

(i)         An employee may be engaged to work on a part-time basis for a constant number of hours which, having regard to the various ways of arranging ordinary hours, shall average less than 38 hours per week.

 

(ii)        An employee shall be paid 1/38 of the weekly rate prescribed by subclause (b) of clause B1, Total Rates, for the classification in which the employee is engaged for each hour worked.

 

(iii)       An employee engaged on a part-time basis shall be entitled to payments in respect of annual leave, public holidays and sick leave arising under this award on a proportionate basis, calculated as follows:

 

(1)        Annual Leave

 

Subject to the provisions of clause C10, Annual Leave:

 

Where the employee has completed 12 months' continuous service - the employee shall  receive four weeks' leave at the number of ordinary hours which would otherwise have been worked during the period of leave.

 

Where the employee is entitled to pro rata leave on termination or at a closedown in accordance with this award - the employee shall receive 2.923 hours paid at the appropriate rate of wage for each eight ordinary hours worked.

 

(2)        Public Holidays

 

Where the normal paid hours fall on a public holiday and the employee is not required for work, the employee shall not lose pay for the day.

 

Where the employee works on the holiday, the employee shall be paid in accordance with clause C8, Public Holidays.

(3)        Sick Leave

 

Subject to clause C9, Sick Leave:

 

First Year of Employment

 

During the first year of any period of service with the employer, the employee shall be entitled to sick leave of up to 7.6 hours for each completed month of service during the first ten months of employment, based upon the number of hours that the employee would normally work each day.

 

Second or Subsequent Years of Employment

 

During the second or subsequent years of any period of service with the employer, the employee shall be entitled to paid sick leave of up to 76 hours' duration, based upon the number of hours that the employee normally works each day multiplied by ten.

 

(4)        Bereavement Leave

 

An employee shall be entitled to bereavement leave without loss of ordinary pay on either or both of the two working days immediately following the death of a close relative (as stipulated in clause C11, Bereavement Leave) if the employee would ordinarily be required to work on those days.

 

(iv)       Overtime

 

A part-time employee who works in excess of the hours fixed under the Contract of Employment shall be paid overtime in accordance with clause C6, Overtime.

 

(c)        Casual Employment

 

A casual employee is one engaged and paid as such.  A casual employee for working ordinary time shall be paid per hour 1/38 of the weekly wage prescribed for the work which the employee performs, plus a 20% loading, which shall be in lieu of all leave.

 

(d)        Time Keeping - Late Comers

 

Notwithstanding anything elsewhere contained in this award, the employer may select and utilise for time keeping purposes any fractional or decimal proportion of an hour (not exceeding six minutes) and may apply this proportion in the calculation of the working time of employees.  The employer who adopts a proportion for this purpose shall apply the same proportion for the calculation of overtime.

 

(e)        Absence from Duty

 

An employee not attending for duty as required shall lose pay for the actual time of the non-attendance.

 

(f)         Standing Down of Employees

 

The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike or by the employee's participation in any strike, or because of any stoppages of work for any cause, including the breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.

 

C2.  Termination of Employment

 

(a)        Other than for casual employees, a minimum of one week's notice of termination of employment shall be given by either party, or one week's pay shall be forfeited by the employee.  Notice of termination of employment by the  employer, or pay in  lieu thereof, shall be on the following bases:

 

 

(b)        If an employee fails to give notice, the employer shall have the right to withhold monies due to the employee, with a maximum amount equal to the all-purpose rate of pay for the period of notice.

 

(c)        Nothing in this clause shall affect the right of  the employer to dismiss an employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and, in such cases, the wages shall be paid up to the time of dismissal only.

 

(d)

 

(i)         Termination of employment by the employer shall not be harsh, unjust or unreasonable.

 

(ii)        For the purposes of this clause, termination of employment shall include termination with or without notice.

 

(iii)       Without limiting the above, except where a distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the ground of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment.

 

(e)        An employee who is absent from work for a continuous period of five working days without the consent of the employer and without notification to the employer with a reasonable explanation shall be deemed to have abandoned his/her employment.

 

C3.  Hours of Work

 

(a)        Day Workers

 

The ordinary hours of  work shall be an average of 38 per week over a period of four weeks or 28 consecutive days.

 

The ordinary hours or work prescribed herein may be worked between 6.00 a.m. and 6.00 p.m. on any or all of the days of the week, Monday to Friday, or varied as provided for under subclause (b) of this clause.

 

(b)        Variation of Hours

 

The ordinary hours of work once determined maybe varied by agreement between the employer and the employees concerned to suit the circumstances of the facility or, in the absence of agreement, by one week's notice of alteration given by the employer to the employees concerned.

 

Provided, further, that work done prior to or at the end of the spread of hours fixed in accordance with this subclause for which overtime rates would otherwise be payable shall be deemed, for the purposes of this subclause, to be part of the ordinary hours of work.

 

(c)        The ordinary hours of work prescribed herein shall not exceed 12 hours on any one day.

 

(d)

 

(i)         Ordinary hours of work shall be an average of 38 per week as provided for in subclause (a) of this clause.

 

(ii)        The method of implementation of the 38-hour week may be one of the following:

 

(1)        by employees working less than eight ordinary hours each day; or

 

(2)        by employees working less than eight ordinary hours on one or more days each week;

 

(3)        by rostering employees off on various days of the week during a particular work cycle so that each employee has one work day off during that cycle; or

 

(4)        by fixing one weekday on which all employees will be off during a particular work cycle.

 

(5)        Circumstances may arise where different methods of implementation of a 38-hour week apply to various groups or sections of employees.

 

(e)        Rostered Days Off

 

For each day an employee works eight ordinary hours, the employee accrues the first 24 minutes (0.4 hour) as an entitlement to take the nominated rostered day off (as provided in subparagraphs (d)(ii)(3) and (d)(ii)(4) of this clause) as a day of paid leave as though the employee had worked.

 

(i)         Notice of Days Off

 

The employer and employees shall determine a list of rostered days off to be taken by employees, which shall not be altered unless agreed to with employees.

 

(ii)        Substitute Days

 

(a)        The employer may substitute the day an employee is to take off for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of some other emergency or unforeseen situation.

 

(b)       An individual employee, with the agreement of the employer, may substitute the day to take off for another day.

 

(iii)       Accrual of Rostered Days Off

 

Rostered days off may be accrued up to a maximum of five days by agreement of the parties.

 

(iv)       Public Holidays

 

Where such rostered day off falls on a public holiday, the next working day shall be taken in lieu.

 

(v)        Paid Leave (e.g. annual, sick, long service, bereavement, public holiday, jury service or workers' compensation)

 

Leave taken and paid for during the cycle of four weeks shall be regarded as a day worked for accrual purposes and, in the case of actual days worked, the first 24 minutes (0.4 hour) shall be the designated accrual.

 

(vi)       Pro Rata Accruals

 

Except as provided for by the paid leave provision above, employees not working a complete 19- day four-week cycle shall receive pro rata accrued entitlements for each day worked, payable for the programmed day off or, in the case of termination of employment, on termination.

 

(vii)      Apprentices

 

Apprentices who attend technical college courses in accordance with their conditions of employment on a prescribed rostered day off shall, by arrangement with their employer, be afforded the following Friday or Monday as an alternative rostered day off.

 

(viii)     Annual Leave

 

Where annual leave is granted and taken and such period covers an entire four-week cycle, then the employee affected shall be paid one day's additional pay for the rostered day off occurring within the leave period.  The employee shall not be entitled to an extra day's holiday.

 

C4.  Meal Breaks

 

(a)        An employee shall not be required to work for more than six hours without a break for a meal, consisting of a 30-minute unpaid cessation of working time, subject to the following:

 

(b)        The time of taking the scheduled meal break by employees may be altered by the employer if it is necessary to do so in order to meet a requirement for continuity of operations.

 

(c)        The employer may stagger the time of taking the meal break  to meet operational requirements.

 

(d)        Employees shall work during meal breaks at ordinary rates of pay whenever instructed to do so for the purpose of making good breakdown of plant or upon routine maintenance of plant which can only be done while such plant is idle.

 

C5.  Shift Work

 

(a)        Definitions

 

For the purpose of this clause:

 

"Afternoon Shift" means any shift finishing after 6.00 p.m. and at or before midnight.

 

"Night Shift" means any  shift finishing subsequent to midnight and at or before 8.00 a.m.

 

(b)        Hours

 

The ordinary hours of shift workers shall average 38 per week.  A roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days.

 

The ordinary hours shall be worked continuously except for the meal break as prescribed in clause C4, Meal Breaks.

 

The ordinary hours of work prescribed herein shall not exceed 12 on any one day.

 

(c)        Shift Variations

 

The time of commencing and finishing shifts may be varied by agreement between the employer and the employees concerned to suit the circumstances of the establishment or, in the absence of agreement, by 48 hours' notice of alteration given by the employer to the employees.

 

(d)        Afternoon or Night Shift Allowances

 

(i)         A shift worker whilst on afternoon or night shift shall be paid for such shift 15% more than the total all-purpose rate.

 

(ii)        An employee who:

 

(a)        during a period of engagement on shift works night shift only; or

 

(b)       remains on night shift for a longer period than four consecutive weeks; or

 

(c)        works on a night shift which does not rotate or alternate with another shift or with day work so as to give him/her at least 1/3 of his/her working time off night shift in each shift cycle,

 

shall, during the shift cycle, be paid 30% more than the employee's ordinary rate for all time worked during ordinary working hours on such night shift.

 

(e)        Saturday Shifts

 

The minimum rate to be paid to a shift worker for work performed between midnight on Friday and midnight on Saturday shall be time and a half.  Such extra rate shall be in substitution for and not cumulative upon the shift premiums prescribed in subclause (d) of this clause.

 

(f)         Overtime

 

(i)         Shift workers, for all time worked in excess of or outside the ordinary hours prescribed by this award or on a shift other than a rostered shift, shall be paid at the rate of time and a half for the first two hours and double time thereafter, except in each case when the time is worked:

 

(a)        for the purpose of effecting the customary rotation of shift; or

 

(b)       on a shift or part thereof to which an employee is transferred on short notice by the employer to meet a requirement for continuity of operations.

 

(ii)        Requirement to Work reasonable Overtime

 

The employer may require any employee to work reasonable overtime at overtime rates and the employee shall work overtime in accordance with this requirement.

 

(g)        Sundays and Holidays

 

Shift workers who are required to work on a Sunday or public holiday shall be paid at the rates prescribed by clauses C6, Overtime, and C8, Public Holidays, respectively.

 

Where shifts commence between 11.00 p.m. and midnight on a Sunday or holiday, the time worked before midnight shall not entitle the employee to the Sunday or holiday rate, provided that the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or holiday and extending into a Sunday or holiday shall be regarded as time worked on the Sunday or holiday.

 

Where shifts fall partly on  a holiday, that shift the major portion of which falls on a holiday shall be regarded as the holiday shift.

 

(h)        Daylight Saving

 

Notwithstanding anything contained elsewhere in this award, in any area where, by reason of legislation of the State of New South Wales, summer time is prescribed as being in advance of the standard time of the State of New South Wales, the presented length of any shift:

 

(i)         commencing before the time prescribed by the relevant legislation for the commencement of a summer time period; and

 

(ii)        commencing on or before the time prescribed by such legislation for the termination of a summer time period,

 

shall be deemed to be the number of hours represented by the difference between the time recorded by the clock at the beginning of the shift and the time recorded at the end thereof, the time of the clock in each case to be set to the time fixed pursuant to the relevant New South Wales State legislation.

 

In this subclause the expressions "standard time" and "summer time" shall bear the same meanings as are prescribed by the relevant New South Wales State legislation.

 

C6.  Overtime

 

(a)        Payment for Working Overtime

 

(i)         For all hours (other than shift work) worked outside the ordinary hours of work, the rates of pay shall be time and a half for the first two hours and double time thereafter, such double time to continue until the completion of the overtime work.

 

Except as provided in this paragraph or paragraph (iii) of this subclause, in computing overtime, each day's work shall stand alone.

 

For the purposes of this clause, ordinary hours shall mean the hours fixed in accordance with clause C3, Hours of Work.

 

The hourly rate, when computing overtime, shall be determined by dividing the appropriate weekly rate by 38.

 

(ii)        Requirement to Work Reasonable Overtime

 

The employer may require any employee to work reasonable overtime at overtime rates and the employee shall work overtime in accordance with this requirement.

 

(iii)       Rest Period after Overtime

 

When overtime work is necessary, it shall, wherever reasonably practicable, be so arranged that employees have at least ten consecutive hours off duty between the work of successive days.

 

(iv)       Call Back

 

An employee recalled to work overtime after leaving the facility (whether notified before or after leaving the facility) shall be paid pursuant to paragraph (i) of this subclause.

 

Overtime worked in the circumstances specified in this subclause shall not be regarded as overtime for the purpose of paragraph (iii) of this subclause when the actual time worked is less than three hours on such recall or on each of such recalls.

 

(v)        Crib Time

 

An employee required to work overtime for two hours or more shall be allowed a crib time of 20 minutes in duration without deduction of pay, immediately after ceasing ordinary working hours.  After each four hours of continuous overtime worked, the employee shall be allowed to take a crib break of 20 minutes in duration without deduction of pay.  In the event of an employee continuing to work overtime for a period of two hours or more without taking a crib break, the employee shall be regarded as having worked 20 minutes more than the time worked and be paid accordingly.

 

(vi)       Standing By

 

An employee required to stand by in readiness to work after ordinary hours shall, until released, be paid standing-by time of 20% of the employee's ordinary rate from the time that the employee is required to stand by in readiness.  An employee may be issued with and required to carry an electronic paging device at all times.

 

(b)        Working Saturdays and Sundays

 

(i)         All time worked on Sundays shall be paid for at the rate of double time.

 

(ii)        An employee working overtime on a Saturday or overtime on a Sunday shall be allowed a paid crib break of 20 minutes after four hours worked, to be paid for at ordinary rates of pay.  In the event of an employee being required to work in excess of a further four hours, the employee shall be allowed a further paid crib break of 20 minutes, which shall be paid for at the ordinary rate of pay.

 

C7.  Payment of Wages

 

(a)        Payment by Electronic Transfer

 

Payment of wages may be by electronic transfer, which shall be at the employer's discretion.

 

(b)        Pay Details

 

Full particulars of details of payments shall be provided to each employee on or prior to the recognised pay day and shall contain the following information:

 

(i)         Date of payment.

 

(ii)        Period covered by such payment.

 

(iii)       The amount of wages paid for work at ordinary rates.

 

(iv)       The number of hours paid at overtime rates and the amount paid.

 

(v)        The amount of allowances paid and the nature thereof.

 

(vi)       The gross amount of wages and allowances paid.

 

(vii)      The amount of each deduction made and the nature thereof.

 

(viii)     The net amount of wages and allowances paid.

 

(ix)       The annual holiday payments.

 

(c)        Payment on Termination

 

When notice is given of termination, all monies due to the employee shall be paid at the time of termination.

 

Where this is not practicable as a result of summary dismissal, the employer shall have two working days to forward monies due by registered post.

 

C8.  Public Holidays

 

(a)        An employee, other than a casual employee, shall be entitled to the following holidays without deduction of pay.  If any other day is granted by a New South Wales Act of Parliament or State proclamation in substitution for any of the said holidays, the day so substituted shall be observed:

New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen s Birthday, Labour Day, Christmas Day, Boxing Day and Picnic Day.

 

(b)        All work performed on any of the holidays prescribed in this clause or substituted in lieu thereof shall be paid for at the rate of double time and a half.

 

(c)        The provisions of clause C6, Overtime, shall apply in respect of work on a holiday.

 

(d)        Provided that the employee has worked the working day immediately before and the working day immediately after such a holiday or is absent with the permission of the employer or is absent with reasonable cause.  Absence arising by termination of employment by the employee shall not be reasonable cause.

 

(e)        Picnic Day Definition

 

The picnic day as prescribed in subclause (a) of this clause shall be taken in lieu of award prescriptions relating to picnic days or additional award public holidays.  The date of such picnic day is to be determined by agreement at the commencement of each year.

 

C9.  Sick Leave

 

An employee, other than a casual, who is absent from work on account of personal illness or injury, other than that covered by workers' compensation, shall be entitled to leave of absence without deduction of pay, provided that:

 

(a)        Within 24 hours of the commencement of the absence, the employee shall inform the employer of the 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.

 

(b)        The employee shall prove to the satisfaction of the employer the inability on account of illness or injury to attend for duty on the day or days for which sick leave is claimed.

 

(c)        An employee during the first year of employment with the employer shall be entitled to sick leave entitlement at the rate of one day at the completion of each of the first ten calendar months or the first year of employment.

 

Provided that, in cases where the work is normally more than eight ordinary hours in any day, there shall be no entitlement to leave in excess of 80 hours.

 

An employee who has completed one year of continuous employment shall be credited with a further ten days' or 80 hours' sick leave entitlement at the beginning of the second and each subsequent year, which shall commence on the anniversary of engagement.

 

(d)        An employee who claims paid sick leave for an absence of one day only shall not be paid for the sick leave if the employee has been allowed paid sick leave on two occasions for one day only, unless the employee produces to the employer a certificate from a duly qualified medical practitioner stating that, in the medical practitioner's opinion, the employee was unable to attend for duty on account of personal illness or injury.  Nothing in this subclause shall limit the employer's rights under subclause (b) of this clause.

 

(e)        Unused sick leave provided in subclause (c) of this clause shall accumulate from year to year.

 

C9A.  State Personal/Carer's Leave Case - August 1996

 

(1)        Use of Sick Leave

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a class of person as set out in subparagraph (c)(ii) 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 C9, Sick Leave, for absences to provide care and support for such persons when they are ill.  Such leave may be taken for part of a single day.

 

(b)        The employee shall, if required, establish, either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person.  In normal circumstances, an employee must not take carer's leave under this subclause where another person has taken leave to care for the same person.

 

(c)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

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

 

(ii)        the person concerned being:

 

(A)       a spouse of the employee; or

 

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

 

(C)       a child or an adult child (including  an adopted child, a 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.

 

(2)        Unpaid Leave for Family Purpose

 

(a)        An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a member of a class of person as set out in subparagraph (1)(c)(ii) of this clause who is ill.

 

(3)        Annual Leave

 

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

 

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

 

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

 

(4)        Time Off in Lieu of Payment for Overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within 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 paragraph (a) of this subclause, the employee shall be paid overtime rates in accordance with the award.

 

(5)        Make-up Time

 

(a)        An employee may elect, with the consent of the employer, to work "make-up time", under which the employee takes time off ordinary hours and works those hours at a later time during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

(b)        An employee on shift work may elect, with the consent of the employer, to work "make-up time" (under which the employee takes time off ordinary hours and works those hours at a later time) at the shift work rate which would have been applicable to the hours taken off.

 

(6)        Rostered Days Off

 

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

 

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

 

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

 

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

 

C10.  Annual Leave

 

For all employees other than casuals:

 

(a)

 

(i)         Period of Leave

 

A period of 28 consecutive days leave, including non-working days, shall be allowed annually to an employee after 12 months' continuous service (less the period of annual leave) for the purpose of annual leave.  An employee shall accrue annual leave at a rate of 2.923 hours for each 38 ordinary working hours worked.

 

(ii)        Seven-day Shift Workers

 

In addition to leave provided in paragraph (i) of this subclause, seven-day shift workers, that is, shift workers who are rostered to work regularly on Sundays and holidays, shall be allowed an additional seven consecutive days' leave, including non-working days.

 

Where an employee with 12 months' continuous service is only engaged for part of the 12-month period as a seven-day shift worker, the employee shall be granted, pro rata, one half day for each completed month worked on the seven-day shift.

 

(b)        Annual Leave Exclusive of Public Holidays

 

Subject to this subclause, the annual leave prescribed by this clause shall be exclusive of any of the holidays prescribed by clause C8, Public Holidays.  If any such holiday falls within an employee's period of annual leave and is observed on a day that the employee would have ordinarily worked, the employee shall be granted an additional day as annual leave.

 

Where a holiday falls as stated above and the employee fails, without reasonable cause (proof whereof shall be upon him/her) to attend for work at his/her ordinary starting time on the working day immediately prior to the first day and immediately following the last day of the period of the annual leave, the employee shall not be entitled to be paid for any such holiday.

 

(c)        Broken Leave

 

Annual leave shall be given and taken by agreement between the employer and the employee.  Annual leave is normally taken in more than one period and, as such, the employer and employee will use their best endeavours to ensure that one of the periods is of at least 21 consecutive days, including non-working days.

 

The timing and taking of the employee's leave shall, at all times, be by agreement between the employer and an employee.

 

(d)        Calculation of Continuous Service

 

For the purpose of this clause, service shall be deemed to be continuous, notwithstanding:

 

(i)         any interruption or determination of the employment by the employer if such interruption or determination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;

 

(ii)        any absence from work on account of personal sickness or accident or on account of leave lawfully granted by the employer; or

 

(iii)       any absence with reasonable cause, proof whereof shall be upon the employee.

 

To be eligible for paid sick leave in cases of personal sickness or accident or absence with reasonable cause, the employee shall inform the employer within 24 hours of the commencement of the absence of the inability to attend for duty and, as far as practicable, the nature of the illness, injury or cause and the estimated duration of his/her absence.

 

Broken Service

 

Where an employee breaks continuity of service by an absence from work for any reason other than a reason set out in paragraphs (i), (ii) and (iii) of this subclause, the amount of leave to which the employee would have been entitled under subclause (a) of this clause shall be reduced by 1/48 for each week or part thereof during which any such absence occurs and the amount of payment in lieu of leave to which the employee would have been entitled under subclause (k) of this clause shall be reduced by 1/12 of a week's pay for each week or part thereof during which any such absence occurs.

 

Provided, however, that no reduction shall be made in respect of any absence unless the employer  informs the employee in writing of the intention to do so within 14 days of the termination of the absence.

 

In calculating the period of 12 months' continuous service, the following absences shall be taken into account and counted as time worked:

 

up to 152 ordinary hours in a 12-month period in the case of sickness or accident;

 

long service leave actually taken by an employee;

 

injury received during the course of employment and up to a maximum of 52 weeks for which he/she received workers' compensation.

 

Other absences from work shall not be taken into account and shall not count as time worked in calculating the period of 12 months' continuous service.

 

Provided that, for the purpose of this clause in calculating continuous service for periods of less than 12 months, such absences due to sickness or accident shall be taken into account and counted as time worked on a pro rata basis of 152 ordinary working hours for 12 months' service.

 

(e)        Calculation of Service

 

The period of annual leave to be allowed under this subclause shall be calculated to the nearest day, any broken part of a day in the result not exceeding half a day to be disregarded.

 

Where the employer is a successor or assignee or transmittee of a business, if an employee was in the employment of the employer's predecessor at the time when he/she became such successor or assignee or transmittee, the employee, in respect of the period during which he/she was in the service of the predecessor, shall, for the purpose of this clause, be deemed to be in the service of the employer.

 

(f)         Leave to be Taken

 

The annual leave provided by this clause shall be allowed and shall be taken and, except as provided by subclauses (k) and (l) of this clause, payment shall not be made or accepted in lieu of annual leave.

 

(g)        Time of Taking Leave

 

Annual leave shall be given at a time fixed by the employer within a period not exceeding six months from the date when the right to annual leave accrued and after not less than four weeks' notice to the employee.

 

Provided that, by agreement between the employer and employee, annual leave may be taken at the time within a period of 12 months from the date at which it falls due and with less than four weeks' notice to the employee.

 

(h)        Leave Allowed before Due Date

 

(i)         The employer may allow an employee to take annual leave either wholly or partly in advance before the right thereto has accrued due.  In such cases, a further period of annual leave shall not commence to accrue until after the expiration of the 12 months in respect of which the annual leave or part thereof had been taken before it accrued.

 

(ii)        Where annual leave or part thereof has been granted pursuant to paragraph (i) of this subclause before the right thereto has accrued due, and the employee subsequently leaves or is discharged from the service of the employer before completing the 12 months' continuous service in respect of which the leave was granted, and the amount paid by the employer to the employee for the annual leave or part so taken in advance exceeds the amount which the employer is required to pay to the employee under subclause (k) of this clause, the employer shall not be liable to make any payment to the employee under subclause (k) of this clause, and shall be entitled to deduct the amount of excess from any remuneration payable to the employee under the termination of employment.

 

(i)         Payment for Period of Annual Leave

 

Subject to the provisions of subclauses (l) and (m) of this clause, each employee before going on leave shall be paid the wages he/she would have received in respect of the ordinary time he/she would have worked had he/she not been on leave during the relevant period, provided that payment for the period specified shall not exceed 152 ordinary hours.

 

(j)         Loading on Annual Leave

 

During a period of annual leave, each employee shall receive an annual leave loading equal to 17.5% of the employee's ordinary rate of pay for the period of time taken as leave.

 

The loading prescribed by this subclause shall not apply to proportionate leave on termination.

 

(k)        Proportionate Leave on Termination

 

An employee who:

 

(i)         after one week's continuous service in his/her first qualifying 12-month period with an employer, lawfully leaves the employment of the employer or his/her employment is terminated by the employer through no fault of the employee; or

 

(ii)        after 12 months' continuous service with an employer, leaves the employment of the employer or his/her employment is terminated by the employer for any reason,

 

shall be paid for 2.923 hours for each 38 ordinary hours worked and in respect of whichever had not been granted under this clause at the appropriate rate of wage calculated in accordance with subclause (i) of this clause.

 

(l)         Annual Closedown

 

Where the employer closes down the facility or a section or sections thereof for the purposes of allowing annual leave to all or the bulk of the employees at the facility, or section or sections concerned, the following provisions shall apply:

 

(i)         The employer may, by giving not less than four weeks' notice of his/her intention so to do, stand off for the duration of the closedown all employees at the facility, or section or sections concerned, and allow to those who are not then qualified for a full entitlement to annual leave for 12 months' continuous service, pursuant to subclause (a) of this clause, paid leave on a proportionate basis at the appropriate rate of wage as prescribed in subclauses (i) and (j) of this clause for 2.923 hours for each 38 ordinary hours worked.

 

(ii)        An employee who has then qualified for a full entitlement to annual leave for 12 months' continuous service pursuant to subclause (a) of this clause, and has also completed a further week or more of continuous service, shall be allowed his/her leave and shall, subject to subclause (f) of this clause, also be paid at the appropriate rate of wage as prescribed by subclauses (i) and (j) of this clause for 2.923 hours for each 38 ordinary hours worked since the close of his/her last 12-month qualifying period.

 

(iii)       The next 12-month qualifying period for each employee affected by such closedown shall commence from the day on which the facility, or section or sections concerned, is reopened for work.  Provided that all time during which an employee is stood off without pay for the purposes of this subclause shall be deemed to be time of service in the next 12-month qualifying period.

 

(iv)       If in the first year of service with an employer an employee is allowed proportionate annual leave under paragraph (i) of this subclause, and subsequently within such year lawfully leaves his/her employment or his/her employment is terminated by the employer through no fault of the employee, he/she shall be entitled to the benefit of subclause (k) of this clause, subject to adjustment for any proportionate leave  which he/she may have been allowed as aforesaid.

 

(v)        The employer may close down the facility for one or two separate periods for the purpose of granting annual leave in accordance with this subclause.  If the employer closes down the facility in two separate periods, one of those periods shall be for a period of at least 21 consecutive days, including non-working days.

 

Provided that, where the employees in the facility or section or sections concerned agree, the employer may close down the facility in accordance with this subclause in two separate periods neither of which is of at least 21 consecutive days, including non-working days, or in three separate periods.  In such cases, the employer shall advise the employees concerned of the proposed dates of each closedown before asking them for their agreement.

 

(m)       Part Closedown and Part Rostered Leave

 

(i)         The employer may close down the facility, or a section or sections thereof, for a period of at least 21 consecutive days, including non-working days, and grant the balance of the annual leave due to an employee in one continuous period in accordance with a roster.

 

(ii)        The employer may close down the facility, or a section or sections thereof, for a period of less than 21 consecutive days, including non-working days, and allow the balance of the annual leave due to an employee in one or two continuous periods, either of which may be in accordance with a roster.  In such case, the granting and taking of annual leave shall be subject to the agreement of the employer and the employees in the facility, or a section or sections thereof respectively and, before asking the employees concerned for their agreement, the employer shall advise them of the proposed date of the closedown or closedowns and the details of the annual leave roster.

 

C11.  Bereavement Leave

 

(i)         An employee, other than a casual employee, shall be entitled to up to two days' bereavement leave without deduction of pay, up to and including the day of the funeral (or, where necessary because of travel arrangements, the day of the funeral), on each occasion of the death of a person within Australia as prescribed in 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 (1)(c)(ii) of clause C9A, State Personal/Carer's Leave Case - August 1996, 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 (2), (3), (4), (5) and (6) of clause C9A, State Personal/Carer's Leave Case - August 1996.  In determining such a request, the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

(Note: This clause varied with effect on and from 10 December 1998.)

 

C12.  Jury Service

 

An employee required to attend for jury service, and who is therefore unable to attend for ordinary working hours, shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of the attendance for jury service and the amount of wage that would have been received in respect of the ordinary time he/she would have worked had he/she not been on jury service.

 

An employee shall notify the employer as soon as practicable of the date upon which he/she is required to attend for jury service, and shall provide the employer with proof of this attendance, the duration of such attendance and the amount received in respect thereof.

 

D1.  Time and Wages Book

 

(a)        The employer shall keep a record from which can be readily ascertained the name of each employee and his/her occupation, the hours worked each day and the wages and allowances paid each pay period.

 

(b)        The time occupied by an employee in filling in any time record or cards or in the making of records shall be treated as time of duty, but this does not apply to checking in or out when entering or leaving the facility.

 

(c)        The time and wages record shall be open for inspection by a duly accredited union official during the usual office hours at the employer's office or other convenient place.  Provided that an inspection shall not be demanded unless the Secretary of the union or the District Secretary or organiser of any division suspects that a breach of this award has been committed, such breach to be nominated to the employer.

 

(d)        The official making such inspection shall be entitled to take a copy of entries in a time and wages record relating to the suspected breach of this award.

 

D2.  Right of Entry

 

(a)        Interviewing Employees

 

For the purpose of interviewing employees on legitimate union business, a duly accredited union representative shall have the right to enter the employer's premises during the midday meal break on the following conditions:

 

(i)         that he/she produces his/her authority to the gatekeeper or such other person as may be appointed by the employer;

 

(ii)        that he/she interviews employees at places where they are taking their meals or at such other places as are mutually agreed;

 

(iii)       that, if the employer alleges that a representative is unduly interfering with his/her work or is creating dissatisfaction amongst his/her employees or is offensive in his/her methods or is committing a breach of any of the previous conditions, the employer may refuse the right of entry, but the representative shall have the right to bring such refusal before a member of the Industrial Relation Commission of New South Wales.

 

(b)        Investigating Complaints

 

For the purpose of investigating complaints concerning the application of this award, a duly accredited union representative shall be afforded reasonable facilities for entering the employer s premises during working hours, subject to the following conditions:

 

(i)         that he/she discloses to the employer or his/her representative the complaint which he/she desires to investigate;

 

(ii)        that he/she makes his/her investigations in the presence of the employer or his/her representative (if the employer so desires);

 

(iii)       that he/she does not interfere with work proceeding in the premises;

 

(iv)       that he/she conducts himself/herself properly.

 

(c)        A representative of the union shall be a duly accredited representative if he/she is the holder of a form being a certificate signed by the General Secretary of that organisation and bearing the seal of that organisation in the following form, or in a form not materially differing there from:

 

Name of Organisation:
This is to certify that
is a duly accredited representative of the above named organisation for all purposes of this award
made under the Industrial Relations Act 1996.
(Seal) General Secretary
Specimen Signature of Holder		Strictly Not Transferable

 

D3.  Settlement of Dispute Procedure

 

(a)        Where an employee or the delegate has submitted a request concerning a matter directly connected with employment to a foreman or a more senior representative of Management and that request has been refused, the employee may, if he/she so desires, ask the delegate to submit the matter to Management and the matter shall then be submitted by the delegate to the appropriate executive of the employer.

 

(b)        If not settled at this stage, the matter may be formally submitted by a State official of the union to the employer.

 

(c)        If not settled at this stage, the matter may then be discussed between such representatives of the union as the union may desire and the employer, who may be accompanied by or represented by an Employee Relations Advisor.

 

(d)        Where the procedures from subclauses (a) to (c) of this clause are being followed, work shall continue normally.

 

(e)        Should the parties fail to agree, there shall be no stoppage of work and either party reserves its rights to notify a dispute to the Industrial Relations Commission of New South Wales.

 

(f)         No party shall be prejudiced as to the final settlement by continuance of work in accordance with this clause.

 

D3A.  Anti-Discrimination

 

(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 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.

 

(2)        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.

 

(3)        Under the Anti-Discrimination Act 1977, 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.

 

 

(4)        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 1997;

 

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

 

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

 

Notes

 

(a)        Employers and employees may also be subject to Commonwealth anti-discrimination legislation.

 

(b)        Section 56(d) of the Anti-Discrimination Act 1977 provides:

 

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

 

(Note: This clause has effect on and from 3 June 1999.)

 

D4.  First Aid

 

An employee who is an appropriately qualified first-aid person pursuant to New South Wales legislation and is appointed by the employer to carry out first aid in addition to their usual duties shall be paid an additional rate of $10.80 per week.

 

D5.  Redundancy

 

(a)        Definition

 

"Redundancy" means a situation where the employer terminates the services of an employee because the employer no longer requires the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour.  "Redundant" has a corresponding meaning.

 

(b)        Employees Exempted

 

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 the employee is offered alternative employment or the employer obtains acceptable alternative employment for the employee.  Acceptable alternative employment shall consist of a comparable position located in an area that does not necessitate the employee to change his/her permanent residential address.

 

(c)        Redundancy Pay

 

A redundant employee shall be entitled to the following amount of redundancy pay in respect of a continuous period of service whilst so engaged at the facility:

 

(i)         If an employee  is under 45 years of age, the employer shall pay in accordance with the following scale:

 

 

(ii)        Where an employee is 45 years of age or over, the entitlement shall be in accordance with the following scale:

 

 

(iii)       "Week's pay" shall mean the all-purpose rate for the employee concerned at the date of termination.

 

(d)        Transfer to Lower-paid Duties

 

When an employee is transferred to lower-paid duties for reasons set out in subclause (a) of this clause, the employee shall be entitled to the same period of notice of transfer as he/she would have been entitled to if his/her 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, lower ordinary-time rate for the number of weeks of notice still owing.

 

(e)        Superannuation Benefits

 

Where an employee who is terminated receives a benefit from the superannuation scheme, he/she shall only receive under subclause (c) of this clause the difference between the severance pay specified in that subclause and the amount of the superannuation benefit he/she receives which is attributable to the employer contributions only.  If this superannuation benefit is greater than the amount due under subclause (c) of this clause, then he/she shall receive no payment under that clause.

 

(f)         Transmission of Business

 

(i)         Where the business is transmitted from the employer (in this subclause called the transmitter) to another employer (in this subclause called the transmittee) and an employee who at the time of such transmission was an employee of the transmitter in the business becomes an employee of the transmittee:

 

(a)        the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and

 

(b)       in this subclause "business" includes trade, process, business or occupation and includes part of any such business, "transmission" includes transfer, conveyance, assignment or succession, whether by agreement or by operation of law, and "transmitted" has a corresponding meaning.

 

D6.  Definitions

 

Plant Technician

 

A Plant Technician is the holder of an appropriate Trade Certificate (mechanical, electrical and/or electronics) who shall have satisfactorily completed a suitable training course and shall:

 

(i)         perform work under limited supervision either individually or in a team;

 

(ii)        carry out surveillance, including physical checks, of all operating equipment, monitor and log results;

 

(iii)       carry out maintenance and repairs;

 

(iv)       co-ordinate and/or perform all work associated with the effective operation of the facility and may be required to supervise the work of others.

 

Tradesperson

 

A Tradesperson is an employee who holds an appropriate Trade Certificate in mechanical and/or electrical/electronics and is able to exercise the skills and knowledge of the trade and shall operate all lifting equipment incidental to his/her work and performs work which is incidental or peripheral to the primary task and facilitates the completion of the whole task.

 

Utility Person

 

A Utility Person shall be a holder of a current driver's licence and shall perform tasks such as operating all lifting equipment, store-keeping, trade-assisting, non-trades maintenance and may utilise such other non-trade qualifications as appropriate.

 

Week

 

One working week equals 38 ordinary hours.

 

 

 

P. J. SAMS  D.P.

 

 

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Printed by the authority of the Industrial Registrar.