THE COOMA CHALLENGE LIMITED BUSINESS SERVICES (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Transport Workers' Union of New South Wales, industrial organisation of employees.

 

(No. IRC 6910 of 2004)

 

 

AWARD

 

Part A

 

1.  Title

 

This Award shall be known as The Cooma Challenge Limited Business Services (State) Award.

 

2.  Arrangement

 

Clause No.          Subject Matter

 

PART A

 

1.         Title

2.         Arrangement

3.         Definitions

4.         General Savings Clause

5.         Objectives

6.         Anti-Discrimination

7.         Dispute Settlement and Grievance Procedure

8.         Employees with a Disability

9.         Employees without a Disability

10.       Hours of Employment

11.       Midday Meal Interval

12.       Overtime

13.       Meal Money

14.       Rest Period

15.       Mixed Functions

16.       Terms of Engagement

17.       Deduction of Union Membership Fees

18.       Annual Leave

19.       Trade Union Training Leave

20.       Sick Leave

21.       Personal/Carer’s Leave

22.       Compassionate Leave

23.       Long Service Leave

24.       Casual Employees

25.       Part-time Employees

26.       Holidays

27.       Payment for Work Done on Holidays

28.       Payment for Work Done on Sundays

29.       Time Book, Sheet or Records

30.       Entry and Inspection by Officer of Industrial Organisations

31.       Seating Accommodation

32.       Amenities

33.       Other Additional Payments and Allowances

34.       Award Posted

35.       Shop Stewards and Representatives

36.       Uniforms

37.       Notice Boards

38.       Protective Clothing

39.       Tools of Trade

40.       Amenities Allowance

42.       Accident Pay

43.       Jury Service

44.       Blood Donors

45.       Attendance at Hospital

46.       Parental Leave

47.       Introduction of Change

48.       Redundancy

49.       Superannuation

50.       Enterprise Bargaining

51.       Consultative Committees

52.       Procedure to be Adopted in Developing an Enterprise Bargaining Agreement

53.       2006 Wage Increase

54.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay - Employees with a Disability

Table 2 - Rates of Pay - Employees without a Disability

Table 3 - Other Rates and Allowances

 

3.  Definitions

 

"Cooma Challenge" means Cooma Challenge Limited (ACN:060284460) trading as any one or more of the following business services:

 

"Koombah Enterprises"

 

"Koombah Garden Maintenance"

 

"Ezy-Wood"

 

"Essentially Monaro".

 

"Award" means Cooma Challenge Limited Business Services (State) Award.

 

"Employee(s) without a disability" means any employee who is not an "employee(s) with a disability" and who is engaged by Cooma Challenge pursuant to clause 9, Employees without a Disability.

 

"Employee(s) with a disability" means a person who is permanently incapacitated.  Such incapacity may be intellectual, physical, sensory and/ or psychiatric, such that they are eligible to claim a disability allowance or pension" and are employed by Cooma Challenge pursuant to clause 8, Employees with a Disability.

 

"Employer" refers to Cooma Challenge (as defined above).

 

"Transfer of business" means the transfer, transmission, conveyance, assignment or succession, whether by agreement or by operation of law, of the whole or any part of a business service of Cooma Challenge.  For the purposes of this Award a transmission will have been deemed to occur whether or not the character or activity of any business service or part of a business service continues to be identical or similar in character under the control of the transmittee as it did under the transmittor.

 

"Union" means the Transport Workers’ Union of New South Wales.

 

4.  General Savings Clause

 

4.1        All service accrued by an employee prior to the making of this Award shall be counted as service for the purposes of this Award.

 

4.2        Nothing in this Award shall be deemed or construed to reduce wages and/or conditions or other benefits of which any employee may have been entitled to prior to the making of this Award.

 

5.  Objectives

 

5.1        Cooma Challenge is a supported employment business service funded under the provisions of the Disability Services Act 1986 (Cth).  Cooma Challenge is a not-for-profit organisation which trades in woodwork, gardening and lawn maintenance and textile services to the community.  Cooma Challenge provides employment and vocational opportunities to employees with a disability.

 

Cooma Challenge’s obligations towards its employees extends beyond a traditional employer-employee relationship, whilst Cooma Challenge Business Service operates in the same commercial environment as conventional businesses.  Cooma Challenge aims:

 

(a)        To give adults with disabilities the opportunity to live and work in the community and through this process be acknowledged and respected as equalled and valued members of society.

 

(b)        To build the self-esteem and sense of belonging in the community by providing meaningful employment opportunities for its employees with disabilities.

 

5.2        Cooma Challenge provides employment opportunities to persons who meet the following criteria:

 

5.2.1     Persons in receipt of a disability pension from the Commonwealth.

 

5.2.2     Persons who are eligible for case base funding from the Commonwealth.

 

5.2.3     Persons whose disability requires them to have on-going support.

 

5.2.4     Persons whose unsupported employment in the mainstream workforce would be unlikely.

 

5.3        Cooma Challenge has a responsibility to provide supported employment and other services to eligible persons who met the criteria set out in subclause 5.2 of this clause and who reside in the districts of the Monaro, Snowy River and Bombala Shires.  In addition, it is possible that Cooma Challenge may be required in the future to provide services for eligible persons who reside outside these areas.

 

5.4        Cooma Challenge’s employment obligations include:

 

5.4.1     To provide its employees with a safe working environment.

 

5.4.2     To assist adults with disabilities to reach their maximum potential in employment, vocational skills and integration in the community through the operation of viable and commercially sustainable employment activities.

 

5.4.3     To provide a training structure that will allow its employees to obtain new skills which in turn will lead to greater job satisfaction, higher pay rates and confidence and self-esteem building.

 

5.4.4     Ensure that employees with a disability have opportunities for learning and skills acquisition including (but not limited to):

 

(i)         Pre-vocational training, e.g. teaching employees a work ethic, conscientiousness and taking responsibility for attending work.

 

(ii)        Vocational training and programming.

 

(iii)       Job modification to suit the needs of individuals with disabilities.

 

(iv)      Support to employees with a disability if they are able to move to open employment.

 

(v)       A range of non-vocationally related supports.

 

5.5        Objectives of the Award

 

This Award aims to:

 

5.5.1     Protect employees from arbitrary treatment and exploitation.

 

5.5.2     Provide fair and equitable wages and conditions to employees with a disability and their trainers and supervisors.

 

5.5.3     Provide conditions of employment which are relative and comparable to an open employment industrial award (see this subclause).

 

5.5.4     Introduce a progressive pro rata wage assessment tool which, unlike the Business Services Wage Assessment Tool (BSWAT) or the traditional award-based supported employment wage assessment tool, does not compare the productivity of a worker with a disability against that of a non-disabled worker doing the same task.

 

5.5.5     Provide on-the-job training and assistance for workers with a disability so that may progress through the skill levels set out in clause 8, Employees with a Disability.

 

5.5.6     Introduce a dispute resolution process which upholds due process and promotes fair and equitable outcomes.

 

5.5.7     Ensure that the process of the management of industrial relations in the workplace of the employer is transparent and structured so as to provide certainty to the all who are bound by the Award.

 

5.5.8     Recognise the legitimate role of the Union as representatives and advocates for the industrial rights of the employees.

 

5.5.9     Provide the employer with certainty and for the better management of industrial relations consistent with Standard 9 of the Disability Service Standards and the principles of Case Base Funding.

 

5.6        Wages payable to workers with a disability under this Award are set out in clause 8, Employees with a Disability, and are a pro rata of rates of pay applicable under the Textile Industry (State) Award.

 

5.7        This Award has been developed through a process of consultation with employees, parents, carers and guardians and the Union.

 

6.  Anti-Discrimination

 

6.1        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.

 

6.2        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.

 

6.3        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.

 

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

 

6.4.1     any conduct or act which is specifically exempted from anti-discrimination legislation;

 

6.4.2     offering or providing junior rates of pay to persons under 21 years of age;

 

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

 

6.4.4     a party to this Award from pursuing matters of unlawful discrimination in any State or Federal jurisdiction.

 

6.5        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".

 

7.  Dispute Settlement and Grievance Procedure

 

Preamble and Definitions

 

7.1        All employees have a right to raise grievances and have them resolved in a manner, and to a level, which is satisfactory to them.  No employee who raises a grievance shall be subject to victimisation or penalty.

 

7.2        For the purposes of this clause the "Complaints Officer" shall be the person nominated by the employer for the purpose in the Cooma Challenge Limited Business Services Grievance Procedure approved by the Board of Directors on 27 October 1997 and reviewed from time to time (see Appendix A).

 

7.3        For the purposes of this clause "Industrial Matter" shall have the same meaning as "Industrial Matters" contained in section 6 of the Industrial Relations Act 1996.

 

Grievance Procedure

 

7.4        Where a grievance or a dispute arises between the employer and an employee or the Union and Cooma Challenge in relation to a term of this Award or other industrial matters, then the following steps shall be taken:

 

7.4.1     As soon as practicable after the issue or claim has arisen, it shall be considered jointly by the Complaints Officer, the worker or workers concerned and the Union delegate who shall attempt to settle the dispute.

 

A.        The Complaints Officer will keep records in relation to each step in the procedure under this subclause and this record will include the following:

 

(i)         Who has made the grievance

 

(ii)        The nature of the grievance

 

(iii)       Proposed action to be taken or resolutions (if any) including any recommendations to the Board of Directors

 

(iv)       Responses or actions of employee to any action or proposed action to be taken.

 

B.         A copy of this record is to be made available to the Union within five working days of the complaint being made.

 

7.4.2     If the dispute is not resolved, the issue or claim shall be considered jointly by the Chief Executive Officer or another senior member of management and an official of the Union who shall attempt to settle the dispute.

 

7.4.3     If the dispute is not resolved, the dispute may then be notified to the Industrial Relations Commission of New South Wales which shall resolve the dispute by conciliation and/or arbitration.

 

7.5        This dispute resolution procedure shall not affect the right of any party to exercise a right in accordance with the Cooma Challenge Limited Business Services Grievance Procedure approved by the Board of Directors on 27 October 1997 and reviewed from time to time and refer a non-industrial matter to an external body other than the Industrial Relations Commission of New South Wales for consideration.

 

8.  Employees with a Disability - Rates of Pay, Assessment and Classification

 

8.1        Trial Period

 

8.1.1     The purpose of the trial period is to allow time for the employer to organise an assessment of the employee for the purpose of skills classification.  The trial period is not a period of probation.

 

8.1.2     New employees may be employed on a trial period on commencement of their employment until they are assessed but for not more than 12 weeks from the date they commenced employment with the employer.

 

8.1.3     Existing employees are subject to this clause whilst undertaking training in duties belonging to a higher skill level than the one they are currently assessed at.

 

8.1.4     During the trial period the employee will be assessed in accordance with subclauses 8.3 and 8.4 to determine their rate of pay.

 

8.1.5     The employer may extend the trial period for a specified period of time with the written consent of the Secretary or the Assistant Secretary of the TCF-Sub-Branch of the Union.

 

8.1.6     The written consent, if given by the Secretary or the Assistant Secretary of the TCF-Sub-Branch of the Union, shall specify the new date the trial period will expire.

 

8.1.7     New employees subject to this clause will be paid at no less than Level 1 of Table 1 - Rates of Pay - Employees with a Disability, of Part B, Monetary Rates, until they are assessed.

 

8.1.8     If upon their assessment it is determined that the new or existing employee is entitled to a higher level of remuneration, then they shall be entitled to be paid the difference between what they were receiving and what they are entitled to receive in accordance with the level they are finally assessed at.  Such payment shall be back dated to such time the employee with a disability would have been entitled to the higher level but for:

 

(a)        the time taken to arrange and perform the assessment; and

 

(b)       the time the employee took to become ‘competent’ in the skill level being performed (see paragraph 8.3.3 of this clause).

 

8.2        The Assessor

 

8.2.1     The assessor shall be either:

 

(i)         The employer together with the Union; and/or

 

(ii)        A suitably qualified person as agreed between the employer and the Union.

 

8.2.2     The assessment, once completed, shall record the classification under this Award for each employee with a disability assessed and the date the assessment takes effect.

 

8.2.3     The employer shall provide a copy of the assessment and any supporting documentation used by the assessor in the assessment, to the Union and/or the employee upon either the Union’s or the employee’s request (but no later than seven days after the request is made).

 

8.3        The Assessment

 

8.3.1     Employees will be assessed based on the work they are performing under the skill level descriptors in subclause 8.4 of this clause.

 

8.3.2     In keeping with the philosophy of Cooma Challenge and the intention of this Award, progression to a higher skill level under this Award is dependent on demonstrated capacity to perform the duties consistent with that level as set out in the descriptors in the said subclause 8.4.

 

8.3.3     Therefore, the parties shall recognise competency in performing tasks as being the prime indicator for justifying progression and re-classification to a higher level under the said subclause 8.4.

 

8.3.4     For the purpose of this clause "competency" is defined as the ability to perform at least two tasks within the criteria of any particular skill level descriptor as set out in the said subclause 8.4.  No weight shall be given to how an employee might compare to an able bodied person in performing the same task or tasks contained within the skill level descriptors in the said subclause 8.4.

 

8.3.5     The assessment of employees will be subject to annual review or earlier if the employee demonstrates a capacity or willingness to try new skills.

 

8.3.6     No party to this Award shall refuse a reasonable request for an assessment review.

 

An employee shall not be disadvantaged by delays in arranging and/or performing an assessment.  If a review under this subclause results in an employee with a disability being classified at a higher level, they shall be entitled to be paid the difference between their new level and old level backdated to such time the employee with the disability would have been entitled to the higher level but for the time taken to arrange and perform the assessment.

 

8.3.7     No employee with a disability shall suffer a pay reduction as a result of a review or further assessment.

 

8.3.8     Any disputes arising in relation to the implementation of this clause shall be subject to the dispute settlement procedure set out in clause 7, Dispute Settlement and Grievance Procedure.

 

8.4        Skills Classification

 

All employees of Cooma Challenge with disabilities shall have a basic knowledge and/or will undertake training in the following:

 

Introduction to support staff and co-workers

 

Occupational health and safety policy and practices

 

Conditions of employment

 

Cooma Challenge policies and procedures.

 

Level 1

 

An employee at this level exercises minimal judgement and performs a small range of basic tasks that are relevant to their job description, using well-established techniques and practices either individually or in a team environment.  An employee’s work at this level will be supervised.

 

The duties of an employee at Level 1 may include:

 

Packing and Assembly Section

 

Good housekeeping/general cleaning (e.g. sweeping)

Collating two items

Basic counting one to 10

Putting briquettes in box

Folding in one fold

 

Gardening Maintenance Section

 

Weeding planted area (supervised)

Watering garden

Good housekeeping and general cleaning

 

Woodwork Section

 

Putting kindling in bag

Good housekeeping/general cleaning

Sanding timber using wire brush

 

Rag Cutting/Sorting Section

 

Any other activities for which the employee has been trained and the Union and Cooma Challenge consider appropriate to classify at this level.

 

An employee at this level will be offered training to enable them to reach Level 2.

 

Level 2

 

An employee at this level performs a range of varied, but basic, tasks above those of Level 1, that are relevant to their job description, using well-established practices and techniques either individually or in a team environment.  An employee’s work at this level will be supervised.

 

The duties of an employee at Level 2 may include all those of Level 1.  Additional duties at this level may include, but are not limited to, the following:

 

Packing and Assembly Section

 

Advanced counting skills (e.g. can count higher than one to 10)

Collating more than two items

Enveloping documents/pamphlets, etc.

Threading herringbone tape

Folding (up to two folds)

Assembling briquette boxes

 

Gardening Maintenance Section

 

Raking leaves and grass cuttings

Loading and unloading gardening and maintenance equipment from truck

Loading and unloading garden refuse and paper

Mowing grassed area with push mower

Cleaning tools and equipment after use

Sorting paper for recycling

Pruning with secateurs

Sweeping paths

 

Woodwork Section

 

Painting timber with hand brush

Sanding timber using sandpaper

Stacking timber

Removing nails from recycled timber

Filling sandbag

Cutting kindling with hatchet

Cleaning tools and equipment after use

 

Rag Cutting/Sorting Section

 

Any other activities for which the employee has been trained and the Union and Cooma Challenge consider appropriate to classify at this level.

 

A Level 2 employee will be offered training to enable them to progress to Level 3.

 

Level 3

 

An employee at this level performs a range of varied tasks (including intermediate tasks) above those of Level 2 that are relevant to their job description, using well-established practices and techniques either individually or in a team environment.  An employee at this level shall be supervised.

 

The duties of an employee at Level 3 may include all those of a Level 1 and Level 2.  Additional duties at this level may include, but are not limited to, the following:

 

Packing and Assembly Section

 

Assembling and taping briquette box

Photocopying

Unloading briquettes from truck

Letter box delivery

Knotting and cutting herringbone tape

Labelling and addressing envelopes

Bundling multiple items for delivery

Quality control awareness

 

Gardening Maintenance Section

 

Using whipper snipper/brush cutter

Pruning from ground level using a ladder

Feeding compressing machine (elephant's foot)

Feeding shredding machine

 

Woodwork Section

 

Sanding timber with electric sander

Painting timber with roller and brush

Bundling stock

Weighing sandbags

 

Rag Sorting/Cutting

 

Any other activities for which the employee has been trained and the Union and Cooma Challenge consider appropriate to classify at this level.

 

A Level 3 employee will be offered training to enable them to progress to Level 4.

 

Level 4

 

An employee at this level performs a range of varied tasks (including intermediate tasks) above those of Level 3 that are relevant to their job description, using well-established practices and techniques either individually or in a team environment.  An employee at this level shall be supervised.

 

The duties of an employee at Level 4 may include all of those of a Level 1, Level 2, and Level 3.  Additional duties at this level may include, but are not limited to, the following:

 

Packing and Assembly Section

 

Putting tape in dispenser

Stacking packed boxes

Taping packed boxes

Stacking pallet

 

Gardening Maintenance Section

 

Operating a ride-on mower

Securing loads

Writing customer dockets or invoices

 

Woodwork Section

 

Using pointing machine

Tying wire around stock bundles

Tying off top of sandbag

 

Rag Sorting/Cutting

 

Any other activities for which the employee has been trained and the Union and Cooma Challenge consider appropriate to classify at this level.

 

A Level 4 employee will be offered training to enable them to progress to Level 5.

 

Level 5

 

An employee at this level performs a range of varied tasks (including intermediate tasks but not complex tasks) above those of Level 4 that are relevant to their job description, using well-established practices and techniques either individually or in a team environment.

 

The duties of an employee at Level 5 may include all those of a Level 1, Level 2, Level 3 and Level 4.  Additional duties at this level may include, but are not limited to, the following:

 

Packing and Assembly Section

 

Guillotining

Writing customer docket or invoice

Weighing packages

Wrapping stacked pallet with plastic

 

Gardening Maintenance Section

 

Operating compressing machine (elephant's foot)

Operating shredding machine

Carrying out basic maintenance on shredding machine

Carrying out basic maintenance on compressing machine

Carrying out maintenance on ride-on mower

 

Woodwork Section

 

Operating bench saw

Painting snow poles

Carrying out quality control checks

Writing customer dockets or invoices

 

Rag Sorting/Cutting

 

Any other activities for which the employee has been trained and the Union and Cooma Challenge consider appropriate to classify at this level.

 

An employee’s work at this level will generally be subject to limited supervision.  A Level 5 employee will be offered training to enable them to progress to Level 6.

 

Level 6 (more complex tasks)

 

An employee at this level performs a range of varied tasks (including intermediate tasks but also more complex tasks) above those of Level 5 that are relevant to their job description, using well-established practices and techniques, either individually or in a team environment.

 

The duties of an employee at Level 6 may include all those of a Level 1, Level 2, Level 3, Level 4 and Level 5.  Additional duties at this level may include, but are not limited to, the following:

 

Packing and Assembly Section

 

Operating pedestrian forklift

Writing customer docket or invoice

Handling petty cash

Carrying out quality control

 

Gardening Maintenance Section

 

Carrying out quality control

Handling petty cash

Writing customer docket or invoice

Operating machine independently

 

Woodwork Section

 

Carrying out quality control

Handling petty cash

Operating machine independently

Writing customer dockets or invoices

Rag Sorting/Cutting

 

Any other activities for which the employee has been trained and the Union or Cooma Challenge consider appropriate to classify at this level.

 

8.5        Employees with Disabilities - Rates of Pay

 

8.5.1     The minimum award rate for employees with disabilities shall be the undermentioned percentages of the weekly wage rate for Year 1 Grade 1 for Employees without a Disability as set out in Table 1 - Rates of Pay - Employees with a Disability, of Part B, Monetary Rates.

 

Classification	Percentage of Year 1 of Grade 1 for Employees without a Disability
	%
Level 1	11
Level 2	13.5
Level 3	18
Level 4	27
Level 5	36
Level 6	37.5

 

8.5.2     The total wage shall be calculated to the nearest five cents.

 

8.5.3     The rates of pay in this Award include the adjustments payable under the State Wage Case 2004.  These adjustments may be offset against:

 

(i)         any equivalent over-award payments; and/or

 

(ii)        award wage increases since 29 May 1991 other than safety net adjustments and minimum rates adjustments.

 

8.5.4     No employee assessed on a higher skill level shall incur a reduction in pay for performing duties which may attract less remuneration than they would otherwise have received had they not performed those lesser duties.

 

8.5.5     If an employee is employed on duty(s) carrying a higher rate of pay than the employee’s ordinary classification, the higher rate must be paid in accordance with clause 15, Mixed Functions.

 

8.6        No Disadvantage to Employees with Disabilities

 

8.6.1     In the event that an assessment pursuant to subclause 8.4 of this clause provides a rate of remuneration that is less than that payable had the employee been assessed pursuant to the criteria set by the Australian Liquor, Hospitality and Miscellaneous Workers Union Supported Employment (Business Enterprises) Award 2001 or any successor thereto (hereafter referred to as ‘the LHMU Federal Business Services Award’), then the employee with a disability shall be paid no less than the rate payable under the LHMU Federal Business Services Award.

 

8.6.2     In the event that an assessment pursuant to the criteria set by the LHMU Federal Business Services Award provides a rate of remuneration lower than that payable in accordance with the assessment undertaken in accordance with the said subclause 8.4, then the employee with a disability shall be paid the rate set by this Award.

 

9.  Employees without a Disability

 

9.1        The employment of employees without a disability who are primarily engaged in supervising the activities of workers with a disability are subject to this Award.  Employees without disabilities employed pursuant to this clause shall not be required to develop or coordinate policy or develop a budget for the business service of the employer.

 

9.2        All employees without a disability shall have a basic knowledge and/or will undertake training in the following:

 

The objectives and aims of Cooma Challenge

 

Conditions of employment

 

Introduction to support staff and co-workers

 

Cooma Challenge Policies and procedures

 

Occupational Health and Safety Policy and practices

 

9.3        Upon commencement of this Award, and thereafter upon of commencement of employment, employees without a disability shall be classified as either a Business Services Grade 1 or 2 as set out in subclause 9.4 of this clause and shall receive no less than the amount set in Table 2 - Rates of Pay - Employees without a Disability, of Part B, Monetary Rates.

 

9.4        Classifications

 

9.4.1     "Business Services Worker Grade 1" shall mean a person who is employed to supervise but who may also provide training and or on-the-job instruction in work and vocational-related skills to employees with a disability.

 

9.4.2     "Business Services Worker Grade 2" shall mean a person who is employed to carry out duties as described in Grade 1 but who shall, in addition to Grade 1 duties, be responsible for the day-to-day supervision and running of a business service, including the supervision of employees without a disability, and be responsible for ensuring that work deadlines and quality assurance standards are met.

 

9.4.3     All employees engaged as Business Services Grade 1 or Business Services Grade 2 shall move from level to level within their grade after each 12 months' continuous service.  For this purpose of this subclause, "Continuous Service" shall have the same meaning as set out in subclause 18.4 of clause 18, Annual Leave.

 

10.  Hours of Employment

 

10.1      All employees other than casual employees shall be engaged by the week.  38 hours shall constitute a week's work to be worked within five days, Monday to Friday inclusive, and between the hours 6.00 a.m. (being the earliest time for the commencement of work) and 6.00 p.m. (being the latest time for the cessation of work) on any single day.  No employee shall be rostered for duty for longer than eight hours on any one day without payment of overtime.

 

10.2      Provided further that any alteration to starting and finishing times shall be agreed upon by the employer and at least 75% of the employees concerned and assented to by the Union in writing or as approved by the Industrial Relations Commission of New South Wales.

 

10.3      Except in the case of an emergency, the employer shall give one week's notice of any alteration to the starting and ceasing times of ordinary work.

 

10.4      The ordinary working hours shall be prominently displayed in each workshop or factory.

 

11.  Midday Meal Interval

 

11.1      An interval of not more than one hour and not less than 30 minutes shall be allowed for the midday meal.  An employee will not be required to work for more than five hours without a meal break of half an hour.

 

11.2      The meal interval shall be observed between the hours of 11.30 a.m. and 2.00 p.m.

 

11.3      The midday meal break for workers without a disability shall be paid.

 

12.  Overtime

 

12.1      All time worked by a weekly employee, including a part-time employee, in excess of the employee’s normal number of daily hours or outside the daily limits prescribed in clause 10, Hours of Employment, shall be paid for at the rate of time and a half for the first three hours and double time thereafter.  Each day shall stand alone for the purpose of calculating overtime and any overtime worked on any day of the week shall be paid for on a daily basis.

 

12.2      Requirement to Work Reasonable Overtime

 

12.2.1               Subject to paragraph 12.2.2 of this subclause, an employer may require an employee to work reasonable overtime at overtime rates.

 

12.2.2               An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

 

12.2.3               For the purposes of the said paragraph 12.2.2, what is unreasonable or otherwise will be determined having regard to:

 

(a)        Any risk to employee health and safety;

 

(b)       The employee’s personal circumstances including any family and carer responsibilities;

 

(c)        The needs of the workplace or enterprise;

 

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

 

(e)        Any other relevant matter.

 

12.2.4               The Union shall not in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with this subclause.

 

12.3      No employee under the age of 16 years shall be employed on overtime beyond 6.00 p.m.

 

12.4      It is the responsibility of the employer to ensure that appropriate transport arrangements are made for all employees required to work overtime.  In such circumstances the employer shall provide safe transport arrangements to and/or from the employee’s place of residence if the employee is required to start earlier than 6.00 a.m. or work later than 6.00 p.m., Monday to Friday or at anytime on weekends.

 

12.5      An employee required to work for longer than one and a half hours after the usual finishing time shall be allowed at least 30 minutes for a meal break.  Provided that this provision shall not apply to employees on any day where there is an early finish time, unless a total of five and a half hours or more, inclusive of overtime, is to be worked following the midday meal break.

 

12.6      An employee, other than an employee subject to subclause 12.5 of this clause, who is required to work overtime for more than one hour beyond the ordinary finishing time on any day, other than on a working day of less than eight ordinary hours, shall be entitled to a rest period of 10 minutes paid for at the appropriate rate.

 

13.  Meal Money

 

13.1      An employee required to work overtime for more than one hour after the employee’s usual ceasing time or beyond 6.00 p.m. (whichever is the earlier) on any day, Monday to Friday inclusive, shall either be supplied with an adequate evening meal by the employer or paid as set out in Item 1 of Table 3 - Other Rates and Allowances, of Part B, Monetary Rates, in lieu thereof.

 

13.2      If the notice to work overtime is given and overtime is not worked (except as a result of a breakdown in machinery or plant), the tea money prescribed herein shall be paid.

 

14.  Rest Period

 

14.1      Employees shall be entitled to a daily rest period for a minimum of 15 minutes, without loss of pay.  If it is reasonable in the circumstances, the employer shall allow further rest periods for individual employees.

 

14.2      The rest period may be taken between the hours of 9.00 a.m. and 11.00 a.m., at the discretion of the employer.

 

14.3      Employees shall not leave the work site without management approval during rest periods.

 

15.  Mixed Functions

 

15.1      Except for employees undergoing training in higher duties in accordance with paragraph 8.1.3 of clause 8, Employees with a Disability, the following conditions shall apply to an employee employed for various periods on duties carrying a higher rate than the employee’s ordinary classification:

 

15.1.1               For two hours or less of one day, payment shall be at the higher rate for the time so worked.

 

15.1.2               For more than two hours of one day, payment shall be at the higher rate for such day.

 

15.1.3               For more than two days of a week, payment shall be at the higher rate for the full week.

 

15.2      Where an employee is engaged in tasks which attract a higher rate of pay than that which the employee is normally employed, the employer shall keep an accurate record of the time worked by such an employee on each class of work he/she is so engaged.  In the absence of an accurate record, the employee shall be entitled to the higher rate of pay for the whole of each week the employee is engaged in tasks which attract a higher rate of pay.

 

15.3      Where the employee is carrying out duties at a higher rate than the employee’s ordinary classification on a recurring basis, then the employee shall be deemed to be entitled to that higher rate thereafter.

 

"Recurring basis" includes, but is not limited to, employees who may perform work at a higher classification at least one occasion in a two-week period.

 

16.  Terms of Engagement

 

16.1      Method of Engagement

 

16.1.1               Subject to the provisions of this Award, employees may be engaged either on a full-time, part-time or a casual basis or for a specified period in circumstances described in paragraph 16.1.4 of this subclause.

 

16.1.2               The employer shall provide each employee with a job description or duty statement outlining specific duties to be performed and hours of work, upon engagement or, in the case of existing employees, within two months of the effective date of this Award.

 

16.1.3               All employees employed pursuant to this Award other than casual employees shall be deemed to have ongoing employment.

 

16.1.4               Paragraph 16.1.3 of this subclause does not prevent the employer from offering an employee (referred to as ‘the replacement employee’) employment for a specified period to replace another employee proceeding on parental leave.

 

(i)         Provided that, if the employee who proceeds on parental leave does not return to work at the end of their leave, then the replacement employee shall be offered the position they are acting in (or another suitable alternative position) on a permanent basis and any service accrued whilst they were a replacement employee shall be deemed continuous for the purpose of any entitlement under this Award or other relevant industrial instrument.

 

(ii)        If the replacement employee is an existing employee acting in a permanent position at the time of becoming a replacement employee, then they shall be allowed to return to their former position in the event that the person they were replacing returns to duty.

 

Note: Section 69 of the Industrial Relations Act 1996 says as follows:

 

"69 Replacement employees

 

(1)        A replacement employee is a person who is specifically employed as a result of an employee proceeding on parental leave (including as a replacement for an employee who has been temporarily promoted or transferred in order to replace the employee proceeding on parental leave).

 

(2)        Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee on parental leave to return to work.

 

Maximum penalty: 50 penalty units.

 

(3)        A reference in this section to an employee proceeding on parental leave includes a reference to a pregnant employee exercising a right under section 70 to be transferred to a safe job."

 

See further Part 4 of the Industrial Relations Act 1996 (NSW) as reproduced in Appendix B to this Award.

 

16.2      Termination of Employment

 

16.2.1               Notice of Termination by Employer

 

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

 

Period of Continuous Service	Period of Notice
1 year or less	1 week
Over 1 year and up to the completion of 3 years	2 weeks
Over 3 years and up to the completion of 5 years	3 weeks
Over 5 years	4 weeks

 

(ii)        In addition to the notice in subparagraph (i) of this paragraph employees over 45 years of age at the time of the giving of the notice, with not less than two years' continuous service, shall be entitled to an additional week's notice.

 

(iii)       Payment in lieu of the notice prescribed in subparagraphs (i) and/or (ii) of this paragraph shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(iv)      In calculating any payment in lieu of notice, the wages an employee would have received in respect of the ordinary time the employee would have worked during the period of notice, had the employee’s employment not been terminated, shall be used.

 

(v)       The period of notice in this clause shall not apply in the case of dismissal for conduct that justifies instant dismissal or in the case of casual employees.

 

(vi)      For the purpose of this clause, notice given not later than 10.00 a.m. on any day shall be regarded as a full day's notice; otherwise, a further day's notice is required.

 

(vii)     For the purposes of this clause, continuity of service shall be calculated in the manner prescribed by subclause 18.4 of this clause.

 

(viii)    When employment is terminated by an employer, the employer shall, upon the date of such termination, pay to the employee all monies due to him or her.  When employment is terminated by an employee in accordance with the terms of this Award, the employer shall, upon the date of termination, pay the employee all monies due to him or her.

 

(ix)       An employee shall not be given notice or dismissed, except for misconduct, whilst legitimately absent from duty on accrued sick leave or on annual leave, and the days on which an employee is absent from duty on account of such sick leave or annual leave shall not be counted as within a working week's notice for the purpose of this Award, unless, in the case of sick leave, an employee had been given notice prior to the employer being informed that paid sick leave was to be taken.  Alternatively, an employee shall not be entitled to give an employer notice while absent on account of paid sick leave and paid annual leave.

 

(1)        Notice of Termination by Employee

 

The notice of termination required to be given by an employee shall be the same as that required of an employer, save and except that there shall be no additional notice based on the age of the employee concerned.

 

(2)        Time Off during Notice Period

 

Where an employer has given notice of termination to an employee, the employee shall be allowed up to one day's time off without loss of pay for the purpose of seeking other employment.  The time off shall be taken at times that are convenient to the employee after consultation with the employer.

 

(3)        Statement of Employment

 

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

 

(4)        Summary Dismissal

 

The provisions of this clause shall not affect the right of an employer to dismiss any employee without notice for conduct that justifies instant dismissal, including neglect of duty.  Where an employee is so dismissed, payment shall be made from time actually worked to the time of dismissal.

 

(5)        Unfair Dismissals

 

Termination of employment by an employer shall not be harsh, unjust or unreasonable.

 

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

 

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.

 

16.3      Other Terms of Employment

 

16.3.1               In the event of the work of the factory or section of the factory or workshop being stopped by a breakdown of machinery or for any cause for which the employer cannot reasonably be held responsible other than on account of lack of orders and/or a shortage of material, all weekly hands who present themselves for work shall be found work for that day or paid one day's wages in lieu thereof.  However, an employer may, when such causes occur, give notice to an employee that their services will not be required on the following day or days, and the employee shall not be entitled to any further payment in respect of any further days that they are out of employment by reason of such causes.

 

Provided that, for any day upon which an employee cannot be usefully employed because of any strike or lockout by any persons whatsoever, or any failure or lack of power arising away from the premises of the employer, or any restriction or shortage of power for which an employer cannot justly be held responsible, all weekly employees who are required to attend for work and do so attend on that day shall be paid a minimum of two hours' pay at ordinary rates.  If required to perform work or remain at work for longer than two hours, payment shall be made at ordinary rates for all time standing by and time worked.

 

16.3.2               Probation - During the first three months of employment, the services of an employee may be terminated by the giving of one week's notice by either the employer or the employee, or by the payment or forfeiture of one week’s pay in lieu of notice.

 

16.3.3               Subject to paragraph 16.3.4 of this subclause, an employee not attending for duty without a reasonable excuse, when there is work ready to be done by them, (except as provided in clause 20, Sick Leave) may lose their pay for the period of such non-attendance at the discretion of the employer.

 

16.3.4               With respect to an employee with a disability, the onus shall be on the employer to prove that they have not unreasonably refused to pay an employee with a disability their wages, notwithstanding the fact the employee failed to attend for duty without a reasonable excuse.  Where an employer is contemplating not paying an employee with a disability under paragraph 16.3.3 of this subclause, then the procedure set out in clause 7, Dispute Settlement and Grievance Procedure, shall be followed.

 

16.3.5               Notwithstanding the said paragraph 16.3.3, the employer shall not unreasonably refuse to pay an employee for any period of absence even if that period of absence was the type described in the said paragraph 16.3.3.

 

16.3.5               Payment of Wages

 

(i)         Employees shall be paid in full all wages due to them not later than two working days following the termination of the working week.

 

(ii)        On or prior to pay day the employer shall state in writing to each employee details of the payment to which the employee is entitled, the amount of each deduction made there from and the net amount being paid to the employee.

 

16.3.6               Transfer of Business

 

(i)         Where a business service of the employer is, before or after the date of this Award, transferred from an employer (in this subparagraph called "the transmittor") to another employer (in this subparagraph called "the transmittee"), and an employee who at the time of such transmission was an employee of the transmittor in that 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)        the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee.

 

17.  Deduction of Union Membership Fees

 

17.1      The employer shall deduct Union membership fees (not including fines or levies) from the pay of any employee, provided that:

 

17.1.1               the employee has authorised the employer to make such deductions in accordance with subclause 17.2 of this clause;

 

17.1.2               the Union shall advise the employer of the amount to be deducted for each pay period applying at the employer's workplace and any changes to that amount;

 

17.1.3               deduction of Union membership fees shall only occur in each pay period in which payment has or is to be made to an employee; and

 

17.1.4               there shall be no requirement to make deductions for casual employees with less than two months' service (continuous or otherwise).

 

17.2      The employee's authorisation shall be in writing and shall authorise the deduction of an amount of Union fees (including any variation in that fee affected in accordance with the Union's rules) that the Union advises the employer to deduct.  Where the employee passes any such written authorisation to the Union, the Union shall not pass the written authorisation on to the employer without first obtaining the employee's consent to do so.  Such consent may form part of the written authorisation.

 

17.3      Monies so deducted from employees' pay shall be remitted to the Union on either a weekly, fortnightly, monthly or quarterly basis at the employer's election, together with all necessary information to enable the reconciliation and crediting of subscriptions to employees' membership accounts, provided that:

 

17.3.1               where the employer has elected to remit on a weekly or fortnightly basis, the employer shall be entitled to retain up to 5% of the monies deducted; and

 

17.3.2               where the employer has elected to remit on a monthly or quarterly basis, the employer shall be entitled to retain up to 2.5% of the monies deducted.

 

17.4      Where an employee has already authorised the deduction of Union membership fees in writing from his/her pay prior to this clause taking effect, nothing in this clause shall be read as requiring the employee to make a fresh authorisation in order for such deductions to commence or continue.

 

17.5      The Union shall advise the employer of any change to the amount of membership fees made under its rules, provided that this does not occur more than once in any calendar year.  Such advice shall be in the form of a schedule of fees to be deducted specifying either weekly, fortnightly or monthly as the case may be.  The Union shall give the employer a minimum of two months' notice of any such change.

 

17.6      An employee may at any time revoke in writing an authorisation to the employer to make payroll deductions of Union membership fees.

 

17.7      Where an employee who is a member of the Union and who has authorised the employer to make payroll deductions of Union membership fees resigns his/her membership of the Union in accordance with the rules of the Union, the Union shall inform the employee in writing of the need to revoke the authorisation to the employer in order for payroll deductions of Union membership fees to cease.

 

18.  Annual Leave

 

18.1      Period of Leave

 

A period of 20 consecutive days' leave (four weeks) shall be allowed annually to an employee, other than a casual or part-time employee, after 12 months' continuous service (less the period of annual leave).

 

18.2      Annual Leave Exclusive of Public Holidays

 

18.2.1               The annual leave prescribed by this clause shall be exclusive of any of the holidays prescribed by clause 26, Holidays.  If any such holiday falls within an employee's period of annual leave and is observed on a day which, in the case of that employee, would have been an ordinary working day, an amount equivalent to the ordinary time which the employee would have worked if such day had not been a holiday shall be added to the period of annual leave.

 

18.2.2               Where an employee, without reasonable cause, is absent from their employment on the working day or part of the working day prior to the commencement of their annual leave, and fails to resume work at their ordinary starting time on the working day immediately following the last day of the period of their annual leave, the employer may withhold payment for the public holidays which fall within the employee’s period of annual leave.

 

18.2.3               With respect to an employee with a disability, the onus shall be on the employer to prove that they have not unreasonably withheld payment of a public holiday(s), notwithstanding the fact the employee failed to attend for duty without a reasonable cause.  Where an employer is contemplating not paying an employee with a disability under paragraph 18.2.2 of this subclause, then the procedure set out in clause 7, Dispute Settlement and Grievance Procedure, shall be followed.

 

18.3      Broken Leave

 

The annual leave shall be given and taken in one or two continuous periods.

 

If the annual leave is given in two continuous periods, then one of those two periods must be of at least 12 working days, exclusive of public holidays.

 

Provided that, if the employer and an employee so agree, then the employee’s annual leave entitlement may be given and taken in four separate periods.

 

18.4      Calculation of Continuous Service

 

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

 

(i)         any interruption or termination of employment by the employer, if such interruption or termination has been made merely with the intention of avoiding the employer's 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 granted (albeit retrospectively or prospectively) by the employer or absence due to long service leave or other reason where there is reasonable cause.

 

18.4.2               In cases of personal sickness or accident or absence with reasonable cause, the employee shall endeavour to inform the employer of their inability to attend for duty as soon as is practicable in the circumstances.  A notification given by an employee pursuant to clause 20, Sick Leave, shall be accepted as a notification under this subclause.

 

18.4.3               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 or within 14 days of the end of the absence, notifies the employee in writing that such absence will be regarded as having broken the continuity of service.

 

18.4.4               In cases of individual absenteeism, such notice shall be given in writing to the employee concerned by delivering it to the employee personally or their legal guardian or carer or by posting it by registered or certified mail to the employee’s or their legal guardian or carer’s last recorded address, in which case it will be deemed to have reached the employee in due course of post.  A copy shall be forwarded by post or facsimile to the Union no later than the day it is sent or given to the employee, their legal guardian or carer.

 

18.4.5               With respect to an employee with a disability, the onus shall be on the employer to prove that they have not unreasonably treated any absence from work as having broken the employee’s continuity of service.  Where the employer is contemplating treating an absence from work as breaking the continuity of service of an employee with a disability under this clause, then the procedure set out in clause 7, Dispute Settlement and Grievance Procedure, shall be followed.

 

18.5      Calculation of Service

 

Service before the date of this Award shall be taken into consideration for the purpose of calculating annual leave.  However, an employee shall not be entitled to leave or payment in lieu thereof for any period in respect of which leave or a payment in lieu thereof has been allowed or made under any award hereby superseded.  The annual leave shall be allowed at the rate of 12.67 hours for each completed month of continuous service.  The period of annual leave to be allowed under this subclause shall be calculated to the nearest day, with any broken part of a day in the result not exceeding half a day to be disregarded.

 

18.6      Calculation of Month

 

For the purpose of this clause the first completed month of service shall be reckoned as commencing with the beginning of the first working day of an engagement and as ending on a corresponding day so as to ensure that the employee concerned has completed four weeks of working time or time regarded as working time with an employer.

 

18.7      Leave to be Taken

 

The annual leave provided for by this clause shall be allowed and shall be taken and, except as provided by subclauses 18.11 and 18.12 of this clause, payment shall not be made or accepted in lieu of annual leave.

 

18.8      Time of Taking Leave

 

Subject to the provisions of subclauses 18.3, 18.9, 18.11 and 18.12 of this clause, annual leave shall be given by the employer no later than three months from the date when the right to annual leave accrued and after at least three months' notice to the employee.  Provided that, where the leave is taken in two or three or four periods, the first period shall be taken within a period not exceeding three months, and the balance shall be taken not later than six months from the date when the right to leave accrued or 30 September next following, whichever is the later.  Provided that the giving and taking of the whole or any separate period of such annual holiday may, with the consent in writing of the Secretary or Assistant Secretary of the Union, be postponed for a period to be specified by the Secretary or Assistant Secretary in any case where he/she is of opinion that circumstances render such postponement necessary or desirable.

 

18.9      Leave Allowed before Due Date

 

18.9.1               An employer may allow an employee who so agrees to take annual leave either wholly or partly in advance.  In such case 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.

 

18.9.2               Where annual leave or part thereof has been granted pursuant to paragraph 18.9.1 of this subclause, before the right to annual leave has accrued, 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 the employee under subclause 18.11 of this clause, the employer shall not be liable to make any payment to the employee under the said subclause 18.11, and shall be entitled to deduct the amount of excess from any remuneration payment to the employee upon the termination of employment.

 

18.10    Payment for Period of Leave

 

18.10.1             Each employee before going on leave shall be paid all wages which would normally become due and payable during the period of leave.  For the purposes of subclause 18.11 of this clause, wages shall, subject to the provisions hereinafter contained, be at the rates of pay prescribed by clauses 8, Employees with a Disability, and 9, Employees without a Disability, for the occupation in which the employee was ordinarily employed immediately prior to the commencement of the employee’s leave or the termination of the employee’s employment, as the case may be.

 

18.10.2             An employee who is receiving a weekly over-award payment shall be entitled to receive the whole of such weekly over-award payment for each week of annual leave to which they are entitled.  Provided that all amounts paid in respect of overtime, shift work or penalty rates shall be excluded.  Provided further that the over-award payment shall not apply where the employee receives pro rata payment in lieu of annual leave on termination of employment with less than 12 months' service in any 12-month qualifying period for annual leave, except in cases where an employee with more than six months' service with an employer is terminated by that employer other than for misconduct or where an employee terminates during the year on account of personal illness, substantiated by a medical certificate, or where an employee terminates on the day that the factory closes down for annual leave.

 

18.10.3             Where an employee has accrued a full entitlement to annual leave after a qualifying 12-month period of service and their employment ceases for any reason before the whole or any part of such leave entitlement has been taken, the weekly over-award payment referred to in this paragraph shall apply in respect to that full entitlement or any remaining portion thereof.

 

18.10.4             Loading on Annual Leave - During a period of annual leave (including any period of leave allowed before due date) an employee shall receive a loading calculated on the award rate of wage prescribed by clauses 8, Employees with a Disability and 9, Employees without a Disability, for the occupation in which the employee was ordinarily employed immediately prior to the commencement of the employee’s leave.

 

This loading shall be as follows:

 

(i)         An employee who would have worked had the employee not been on leave shall receive a loading of 17.5%.

 

(ii)        The loading prescribed by this paragraph is payable in respect of any untaken part of annual leave for which payment in lieu is made.

 

18.11    Proportionate Leave

 

18.11.1             If after one month's continuous service in any qualifying 12-month period an employee leaves their employment or is discharged for neglect of duty or misconduct, they shall be paid at their ordinary rate of wage for 12.67 hours in respect of each completed month of continuous service with the employer as from the commencement of the employment and the service shall be service for which leave has not already been granted.

 

18.11.2             If after one month's continuous service in any part of a qualifying 12-month period an employee is terminated by the employer except for neglect of duty or misconduct, the employee shall be paid for leave for 2.923 hours for each completed week of continuous service with the employer, the service being service in respect of which leave has not already been granted.

 

18.11.3             If during the second or any subsequent year of an employee's continuous service with an employer their service terminates for any reason at the close of business on the day on which the plant or that section thereof in which such employee is employed closes for the December annual closedown and the employee was involved in a similar closedown in the December of the previous year, then such employee shall be paid on termination the equivalent of four weeks' annual leave pay in respect of continuous service during the then current calendar year.  Provided that such employee had not previously been allowed any annual leave in respect of service during that calendar year.  Where any period of leave had already been allowed in respect of such service, the employee's entitlement upon termination shall be the difference between four weeks and the period so allowed.  Any payment made pursuant to this paragraph shall be in substitution for and not cumulative upon any entitlement which would otherwise have arisen pursuant to paragraphs 18.11.1 and 18.11.2 of this subclause in respect of service during the then current calendar year.  In addition, the employee shall be paid the annual leave loading prescribed by paragraph 18.10.4 of this clause applicable to the quantum of leave for which payment in lieu is to be made upon termination pursuant to this paragraph.  In calculating the period of continuous service as aforementioned, reference should be made to subclause 18.4 of this clause.

 

18.11.4             For the purposes of this subclause the rate of wage shall be calculated in accordance with paragraphs 18.10.1, 18.10.2, 18.10.3 of this clause.

 

18.12    Annual Closedown

 

Where an employer closes down their plant, or a section or sections thereof, for the purpose of allowing annual leave to all or the bulk of the employees in the plant or section or sections concerned, the following shall apply:

 

18.12.1             The employer may, by giving at least three months' notice of their intention so to do, stand off for the duration of the closedown all employees in the plant or section or sections concerned and allow to those who are not then qualified for a full entitlement to annual leave paid leave on a proportionate basis of 2.923 hours for each completed week of continuous service, subject to and then including the initial qualifying period of one month of continuous service with the employer.  Provided that, where in any establishment a ballot indicates that at least 75% of employees agree, and with the consent of the Union, the period of closedown may be extended and all employees stood down without pay for a further period of not more than two days.

 

18.12.2             An employee who has then qualified for a full entitlement to annual leave for 12 months' continuous service pursuant to paragraph 18.12.1 of this subclause, and has also completed a further week or more of continuous service, shall be allowed the employee’s leave and shall, subject to subclause 18.5 of this clause, also be paid for 2.923 hours in respect of each completed week of continuous service performed since the close of the employee’s last 12-month qualifying period.

 

18.12.3             Except where annual leave is allowed before the due date in accordance with paragraph 18.12.1 of this subclause, the next 12-month qualifying period for each employee affected by such close down shall commence from the day on which the plant or section concerned is re-opened for work.  Provided that all time during which an employee is stood down without pay for the purposes of this subclause shall be deemed to be time of service in the next 12-month qualifying period.

 

18.12.4             If, in the first year of the employee’s service with an employer, an employee who is allowed proportionate leave under paragraph 18.12.1 of this subclause subsequently within such year leaves their employment or their employment is terminated by the employer, they shall be entitled to the benefit of subclause 18.11 of this clause-, subject to adjustment for any proportionate leave which the employee may have been allowed.

 

18.13    When taking annual leave there shall be added to the aforementioned amount a loading of 17.5%.  Provided, however, that the monetary amount of such loading shall not exceed the amount which an ordinary weekly employee in the same classification would receive by way of an annual leave loading in respect of the same period of employment.

 

18.14    Proportionate payment for annual leave shall be made by an employer in respect of each completed month of continuous service when the employee leaves their employment or, in accordance with paragraph 18.11.2 of this subclause, where an employee is terminated by the employer before the completion of any 12-month qualifying period under this clause.  Payment shall be made on the employee so leaving or on their employment being so terminated, as the case may be.

 

18.15    An employer may close down the plant or section thereof in two periods, for the purpose of granting annual leave.  Provided that the longer of the two periods of leave shall be at least 12 working days exclusive of public holidays.  Such longer period shall be granted by the employer during the December-January period unless otherwise agreed in writing by the employer and the Secretary or Assistant Secretary of the Union or, in the event of a dispute, as decided by the Industrial Relations Commission of New South Wales.  Provided that the employer may close down the plant or section thereof in three separate periods, subject only to the following conditions:

 

18.15.1             That the Secretary or Assistant Secretary of the Union agree.

 

18.15.2             That the employees concerned be given at least three months' notice of the proposed closures.

 

18.15.3             That the longest of the three periods of leave shall be at least 12 days exclusive of public holidays.

 

18.15.4             That the second and/or third closedown period shall take place not later than 30 September, in the year following the first closedown period.

 

18.15.5             Subject to the special provisions contained in this subclause, all other provisions of the annual leave clause shall apply in respect to the obligations and rights of employers and employees.

 

19.  Trade Union Training Leave

 

19.1      Subject to subclause 19.2 of this clause, a Union delegate or elected employee workplace representative shall, upon application in writing, be granted up to five days' leave with pay each calendar year, non-cumulative, to attend courses conducted or approved by the Union which are designed to promote good industrial relations and industrial efficiency within the workplace.

 

This notice to the employer must include details of the type, content and duration of the course to be attended.

 

19.2      Employers may approve leave in accordance with this clause, subject to the following limitations:

 

19.2.1               Where the employer employs up to and including 49 employees in a workplace, five Union delegates or elected workplace representatives may be granted five days' leave per calendar year.

 

19.2.2               Where the employer employs between 50 and 150 employees inclusive in a workplace, 10 Union delegates or elected work place representatives may be granted five days' leave per calendar year.

 

19.2.3               Where the employer employs 150 or more employees in a workplace, 15 Union delegates or elected workplace representatives may be granted five days' leave per calendar year.

 

19.2.4               The numbers contained in this clause may be varied by mutual agreement between the Union and an employer.

 

19.3      The granting of such leave shall be subject to the employee or the Union giving at least one calendar month's notice of the intention to attend such course, or such lesser period as may be agreed between the employer, the Union and the employee concerned.

 

Provided that the taking of such leave shall be arranged so as to minimise any adverse effect on the employer's operations.

 

19.4      Leave of absence granted pursuant to this clause shall count as service for all purposes.

 

19.5      Each employee on leave approved in accordance with this clause shall be paid all ordinary time earnings which normally become due and payable during the period of the leave, such wages to be calculated in accordance with subclause 18.10 of clause 18, Annual Leave.

 

19.6      All expenses (such as travel, accommodation and meals) associated with or incurred by the employee attending a training course during leave approved pursuant to this clause shall be the (equal) shared responsibility of the Union and the employer unless otherwise agreed between the employer, the Union and the employee concerned.

 

19.7      Should an employee granted leave pursuant to this clause fail to attend the nominated course, the employer shall be notified by the Union as soon as practicable, and no payment is to be made by the employer in respect of leave for the employee concerned.

 

19.8      Employees granted leave pursuant to this clause may inform their employer after the completion of the course of the nature of the course and their observations on it.

 

20.  Sick Leave

 

An employee other than a casual employee who is absent from work on account of personal illness or on account of injury shall be entitled to leave of absence without deduction of pay, subject to the following conditions and limitations:

 

20.1      An employee shall be entitled to be paid leave of absence of not more than 76 hours after one month’s service, unless the employer determines otherwise.

 

20.2      The employee shall not be entitled to be paid leave of absence for any period in respect of which the employee is entitled to workers' compensation.

 

20.3      The employee shall endeavour, as soon as it is reasonably practicable, to inform the employer of the inability to attend for duty and, as far as is reasonably practicable, state the nature of the illness or injury and the estimated duration of the absence.

 

20.4      The employer may require the employee to produce evidence of injury or illness following a period of absence.  In such cases an employee may provide a statutory declaration to the employer as evidence. Provided that, if the period of sickness is for three or more days, the employer may insist the employee provide a doctor’s certificate.

 

20.5      For the purpose of this clause, where an employee is terminated by the employer and is re-employed by that employer within a period not exceeding three months, the service with the employer immediately prior to the dismissal shall be taken into account in calculating the employee's entitlement to sick leave. That is to say, the employee's entitlement to sick leave shall be calculated as though their period of service has been continuous, and any sick leave credits accrued to the employee at the time of termination shall not be affected to the detriment of the employee.

 

20.6      Cumulative Sick Leave

 

Sick leave shall accumulate from year to year and may be claimed by the employee and shall be allowed by the employer in a subsequent year without diminution of the sick leave prescribed in respect of that year.  Provided that sick leave which accumulated pursuant to this subclause shall be available to the employee for a period of eight years but not longer from the end of the year in which it accrues.

 

21.  Personal/Carer's Leave

 

21.1      Use of Sick Leave

 

21.1.1               An employee, other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (ii) of paragraph 21.1.3 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 20, 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.

 

21.1.2               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.

 

21.1.3               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:

 

(1)        a spouse of the employee; or

 

(2)        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

 

(3)        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

 

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

 

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

 

(A)       "relative" means a person related by blood, marriage or affinity;

 

(B)       "affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

(C)       "household" means a family group living in the same domestic dwelling.

 

21.1.4               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.

 

21.2      Unpaid Leave for Family Purpose

 

21.2.1               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 (ii) of paragraph 21.1.3 of this clause who is ill.

 

21.3      Annual Leave

 

21.3.1               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.

 

21.3.2               Access to annual leave, as prescribed in subclause 21.1 of this clause, shall be exclusive of any shutdown period provided for elsewhere under this Award.

 

21.3.3               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.

 

21.4      Time Off in lieu of Payment for Overtime

 

21.4.1               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.

 

21.4.2               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.

 

21.4.3               If, having elected to take time as leave in accordance with paragraph 21.4.1 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.

 

21.4.4               Where no election is made in accordance with the said paragraph 21.4.1, the employee shall be paid overtime rates in accordance with the Award.

 

21.5      Make-up Time

 

21.5.1               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.

 

21.5.2               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.

 

22.  Compassionate Leave

 

22.1      An employee, other than a casual employee, shall be entitled to up to two days' compassionate leave without deduction.

 

22.2      The employee must notify the employer as soon as practicable of the intention to take compassionate leave.

 

22.3      Compassionate leave shall be available to the employee in respect of matters of personal concern, including, but not limited to, the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph 21.1.3 of clause 21, Personal/Carer's Leave, provided that for the purpose of compassionate leave, the employee need not have been responsible for the care of the person concerned.

 

22.4      An employee shall not be entitled to compassionate leave under this clause during any period in respect of which the employee has been granted other leave.

 

22.5      Compassionate leave may be taken in conjunction with other leave available under subclauses 21.2, 21.3, 21.4 and 21.5 of the said clause 21.  In determining whether additional leave should be granted under this subclause, the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

23.  Long Service Leave

 

See the Long Service Leave Act 1955 (NSW)

 

24.  Casual Employees

 

24.1      A casual employee is an employee who is engaged in relieving work or work of a casual, irregular or intermittent nature, but does not include an employee who could properly be classified as a full-time or regular part-time employee.

 

24.2      An employee will not be engaged as a casual employee to avoid any obligations of this Award.

 

24.3      An employer may engage a casual worker for a specific period of time to replace a designated person where the period of engagement does not exceed 13 weeks in aggregate in any 12-month period.  The period of time for which the casual worker is engaged, together with any other special conditions of employment, shall be confirmed in writing at the time of engagement.

 

24.5      A casual employee will be paid per hour 1/38th of the weekly award wage prescribed for the relevant classification plus a loading of 20%.  This payment will compensate for payment of sick leave, annual leave and public holidays.

 

24.6      On each occasion a casual employee is required to work, he/she is entitled to a minimum payment for three hours' work.

 

24.7      Casual employees are entitled to penalty payments for overtime, shift work and work on public holidays in accordance with the provisions of this Award as they apply to permanent employees.

 

24.8      Casual employees must be paid at the end of each day, but may agree to be paid weekly.

 

24.9      Casual employees are entitled to all provisions of this Award except clauses 18, Annual Leave, 20, Sick Leave and 26, Holidays (subject to subclause 26.7).

 

24.10    An employer must not require a casual employee to attend for duty more than once on any day.

 

24.11    A casual employee will be engaged by the hour.  Employment can be terminated by either the giving of one hour’s notice by either party or the payment or forfeiture of one hour’s wages.

 

25.  Part-time Employees

 

25.1      An employer may employ a part-time employee in accordance with clause 16, Terms of Engagement.

 

25.2      A regular part-time employee is an employee who:

 

25.2.1               works less than full-time hours of 38 hours per week;

 

25.2.2               has predictable hours of work; and

 

25.2.3               receives, on a pro rata basis, equivalent pay and conditions of those full-time employees who do the same kind of work.

 

25.2.4               A regular part-time employee may be engaged in any skill level of this Award.

 

25.3      At the time of engagement the employer and regular part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

 

25.4      Any variation to the regular pattern of work must also be in writing.  Provided that, with respect to employees with a disability, the consent of the Union is also required.

 

25.5      An employer is required to roster a regular part-time employee for a minimum of three consecutive hours on any day or any shift.

 

25.6      An employee who does not meet the definition of regular part-time or fixed term employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 24, Casual Employees.

 

25.7      All time worked in excess of the hours mutually agreed in accordance with subclauses 25.3 or 25.4 of this clause or outside the ordinary spread of hours will be overtime and paid for at the rates prescribed in clause 12, Overtime.

 

25.8      A regular part-time employee must be paid at least at the rate of 1/38 of the weekly wage prescribed for the appropriate skill level or grade for the work performed.

 

25.9      An employer must not require a regular part-time employee to attend for duty more than once on any one day.

 

25.10    Where a part- time employee works on a public holiday, payment will be calculated in accordance with subclause 27.1 of clause 27, Holidays.

 

25.11    When calculating an employee’s pro rata entitlement for the purposes of annual leave, sick leave and severance payments, they must be paid in proportion to the average number of hours worked in the previous 12 months or, if there is not a 12-month period of employment, then the calculation will be based on the average number of hours worked each week for the actual period of employment.

 

26.  Holidays

 

26.1      All employees, other than casual employees, shall be granted the following holidays without deduction of pay, which is the ordinary rate of pay an employee would have received for the hours that they would have worked had the day not been a holiday:

 

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

 

Provided that, if any other day is by State Act of Parliament or State Proclamation substituted for any of the said holidays, the day so substituted shall be observed.

 

Where a special public holiday is proclaimed by Order-in-Council or otherwise gazetted by the authority of the Australian Government or of a State Government under any State Act and generally observed throughout New South Wales, such day shall be deemed to be a holiday for the purpose of this Award.

 

26.2

 

26.2.1               When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.

 

26.2.2               When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.

 

26.2.3               When New Year's Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday.

 

26.3      Where public holidays are declared or prescribed on days other than those as set out in subclauses 26.1 and 26.2 of this clause, those days shall constitute additional holidays for the purpose of this Award.

 

26.4      Changing Public Holidays by Agreement

 

26.4.1               An employer, with the agreement of the Union, may substitute another day for any prescribed in this clause.

 

(i)         An employer and the employer’s employees may agree to substitute another day for any prescribed in this clause.  For this purpose, the consent of the majority of affected employees shall constitute agreement.

 

(ii)        An agreement pursuant to subparagraph (i) of this paragraph shall be recorded in writing and be available to every affected employee.

 

(iii)       The Union shall be informed of an agreement pursuant to the said subparagraph (i) and may, within seven days, refuse to accept it.  The Union will not unreasonably refuse to accept the agreement.

 

(iv)      If the Union, pursuant to subparagraph (iii) of this paragraph, refuses to accept an agreement, the parties will seek to resolve their differences to the satisfaction of the employer, the employees and the Union.

 

(v)       If no resolution is achieved pursuant to subparagraph (iv) of this paragraph, the employer may apply to the Industrial Relations Commission of New South Wales for approval of the agreement. Such an application must be made at least 14 days before the prescribed holiday. After giving the employer and the Union an opportunity to be heard, the Commission will determine the application.

 

26.5      Termination within 14 Days of a Holiday

 

26.5.1               Where an employee, with at least one week's service with the employer, is terminated through no fault of their own within 14 days prior to a holiday, and is re-engaged by the same employer within three months of such holiday, the employee shall be paid for any such holiday the amount they would have received had they not been terminated.

 

26.5.2               Where an employee, with at least one month's service with the employer, is terminated through no fault of their own on or after the last working day of the last pay period in November each year or within 14 days prior to Good Friday, the employee shall receive payment for the relevant Christmas, New Year or Easter holidays.

 

26.5.3               No employee shall be entitled to be paid more than once for the same holiday whilst working in the industry and shall be in breach of the Award in accepting a double payment without informing the employer in relation thereto.

 

26.6      Part-time Employees

 

Where the normal roster of a part-time employee includes a day that is a holiday, the employee shall receive the normal pay the employee would have received on that day and shall be granted the holiday or receive the appropriate public holiday rate for working whatever hours the employee worked.

 

26.6.1               For part-time employees whose normal roster includes a Saturday or Sunday that would be a prescribed holiday but for the substitution of an alternative day, the following shall apply:

 

(i)         The employee shall be granted leave with pay on the "actual day" without any substitution; or

 

(ii)        The employee works on the "actual day" at normal Saturday or Sunday rates (if the Saturday or Sunday is Christmas Day, the Christmas Day loading will apply) and is allowed to take another day with pay, which may or may not be the prescribed substitute day, as a holiday; or

 

(iii)       The employee works on the "actual day" at normal Saturday or Sunday rates (if the Saturday or Sunday is Christmas Day, the Christmas Day loading will apply) and receives, in addition, payment at ordinary-time rates for an additional day of equal length (with no substitution of an alternative day).

 

26.6.2               If any of these benefits applies, the employee who works on the prescribed substitute day should do so at ordinary-time rates.

 

26.7      A casual employee who works on the day prescribed as the public holiday shall be paid the appropriate public holiday pay as described elsewhere in this Award.  The employee should receive the ordinary casual rate plus the applicable penalty, that is, the casual loading of 20% and the prescribed holiday rate for non-casual employees of 2.5 times ordinary rates.  The casual will be paid 2.7 times the ordinary rate for non-casual employees.

 

26.8      Absences before or after Public Holidays

 

Where an employee is absent from employment on the working day or part of the working day before and the working day or part of the working day after a public holiday without reasonable excuse or without the employer's consent, the employee shall not be entitled to payment for the relevant public holiday.

 

26.9      Unpaid Leave and Public Holidays

 

The employer may refuse to pay a holiday, otherwise payable under this clause, if the employee has been absent without authorisation for any period in excess of four weeks.

 

27.  Payment for Work Done on Holidays

 

27.1      Any weekly employee who works on any holiday provided for in clause 26, Holidays, shall, for all time worked on that day, be paid at the rate of double time and one half of the ordinary rate.

 

28.  Payment for Work Done on Sundays

 

28.1      Work in any factory or workshop is prohibited on Sundays unless in extraordinary circumstances and then only with the consent of the Union.

 

28.2      Any employee who works on a Sunday shall for that day be paid at the rate of double ordinary rates.

 

29.  Time Book, Sheet or Records

 

29.1      The employer shall keep on its premises or place where work is being performed a time and wages book or sheet or records, which shall have correctly recorded in ink, or by other means except pencil and in the English language, the following particulars:

 

29.1.1               The initials and surname and classification or classifications (when engaged on mixed functions) of each employee.

 

29.1.2               The date of birth and experience and time work rate of pay of improvers in respect of new employees at the date of engagement.

 

29.1.3               The number of hours of ordinary time worked by each employee each day and each week and the amount of weekly superannuation contributions paid in accordance with clause 49, Superannuation.

 

29.1.4               The number of hours of overtime worked by each employee each day and each week.

 

29.1.5               The total amount of wages paid to each employee each week.

 

29.1.6               The actual name of the day and the date of each day of each week and also the name of the day and the date on which each week ends.

 

29.1.7               All holiday, annual leave, long service and sick leave payments.

 

29.2      Refer also to the Industrial Relations Act 1996.

 

30.  Right of Entry of Officers of Industrial Organisations

 

30.1      Refer to Part 7 of the Industrial Relations Act 1996 (NSW) - Entry and Inspection by Officers of Industrial Organisations.

 

30.2      It is an offence under section 301 of the Industrial Relations Act 1996 and it is also a breach of this Award for the following to occur:

 

(i)         An authorised industrial officer must not deliberately hinder or obstruct the employer or employees during their working time.

 

(ii)        A person must not deliberately hinder or obstruct an authorised industrial officer in the exercise of the powers conferred by Part 7 of the Industrial Relations Act 1996.

 

(iii)       A person must not, without lawful excuse, fail to comply with a requirement of an authorised industrial officer under Part 7 of the Industrial Relations Act 1996.

 

(iv)       A person must not purport to exercise the powers of an authorised industrial officer under Part 7 of the Industrial Relations Act 1996 if the person is not the holder of a current authority issued by the Industrial Registrar under the said Part.

 

30.3      For the purposes of this clause an authorised industrial officer is the same as the definition in Part 7 of the Industrial Relations Act 1996.

 

31.  Seating Accommodation

 

31.1      When it is necessary for employees to sit at their work, seats shall be provided for the employees by the employer.  Such seats shall be ergonomically comfortable and safe and confirm with any relevant Australian Standards.

 

32.  Amenities

 

32.1      Lighting and Heating

 

32.1.1               In connection with every factory or workshop, the employer shall make provision for adequate warmth during cold weather and cooling during hot weather where necessary (fans or the like) and adequate light for the employees to perform their work and, as far as possible, artificial light shall be avoided.

 

32.1.2               For the purposes of this clause a factory or workshop shall include any building, establishment, depot or place where any person is employed upon any work to which this Award is applicable.

 

32.1.3               The requirements specified by this subclause shall also apply to any dining room and/or rest room provided by the employer in accordance with the provisions of subclauses 32.5 or 32.6 of this clause.

 

32.2      Drinking Water

 

Refrigerated, clean and wholesome drinking water shall be provided in places easily accessible to all employees.  Drinking water kept in a refrigerator shall constitute compliance with this subclause.

 

32.3      State Regulations

 

The laws and regulations in New South Wales relating to factories and workshops in respect to registration of a factory, sanitation, lavatories, factory cleanliness, heating and light shall be incorporated into and be read as part of this Award in so far as such laws and regulations do not conflict with this Award.  Provided, however, and it is hereby expressly declared, that nothing in this clause shall be deemed to abrogate, effect, repeal, amend or in any degree render inoperative any State law except of any inconsistency of such State law with this Award.

 

32.4      Toilet Accommodation

 

Notwithstanding the foregoing, a separate toilet shall be provided in factories where mixed sexes are employed and approaches thereto, properly separated for the sexes, shall be provided.  Provided that, in cases of hardship or where it is reasonable in the circumstances, the Union may consent to a different arrangement.

 

32.5      Dining Accommodation

 

32.5.1               An employer of more than 10 employees shall provide a separate room (reasonably convenient to the working area) or portion of the factory or workshop as a dining room and keep the same and its facilities hygienically clean.

 

(a)        Dining room tables shall be of laminated plastic top construction or be covered by some material which can be kept hygienically clean.

 

(b)       The seating provided shall be safe and fitted with backs.

 

(c)        An adequate supply of boiling water shall be made readily available to employees without charge at the time at which their meal break or rest period commences.  The employer shall also provide a refrigerator and a facility for heating food.

 

(d)       The size of the dining room, the number of tables and its seating accommodation shall be adequate if at least three quarters of the employees taking a meal break at the one time are able to use the same in reasonable manner and without congestion.

 

(e)        The dining room shall not be used for work room or work room storage purposes.

 

32.5.2               The employer of more than 10 employees may make an application to the Industrial Relations Commission of New South Wales for exemption from any of the provisions of paragraph 32.5.1 of this subclause and the Commission may grant such exemption provided that it is satisfied either:

 

(a)        that is it impracticable for such employer to provide the said dining room and/or facilities; or

 

(b)       that for some other good reason exemption from the provisions of such paragraph ought to be granted to such employer.

 

Provided that, where such an exemption is obtained, the disability payments prescribed in clause 40, Amenities Allowance, shall still be payable.

 

32.6      Rest Room

 

32.6.1               In the employer’s factory or workshop, a separate properly ventilated room (reasonably convenient to the working area) with seating and a couch or folding lounge shall be provided as a rest room.

 

32.6.2               An area enclosed by permanent partitioning of hardboard or the like, at least six feet high, with a door or curtained doorway shall be acceptable as a separate room.  Where a folding lounge is provided, it shall be set up for immediate use.  A pillow, blanket and hot water bottle shall be provided.  The rest room and its facilities shall be kept ready for immediate use.

 

32.6.3               The rest room shall not be used for work room or work room storage purposes.

 

32.6.4               If the employer has less than 10 employees, they may make an application to the Industrial Relations Commission of New South Wales for exemption from any of the provisions of paragraph 32.6.1 of this subclause and the Commission may grant such exemption, provided that it is satisfied either:

 

(a)        that it is impracticable for such employer to provide the said rest room and/or facilities; or

 

(b)       that for some other good reason an exemption from the provisions of such paragraph ought to be granted to such employer.

 

Provided that, where such an exemption is obtained, the disability payments prescribed in clause 40, Amenities Allowance, shall still be payable.

 

32.7      Lockable Lockers

 

The employer shall at some reasonably convenient place on the employer’s premises provide proper lockable lockers which afford reasonable protection for employees' clothes and personal items.

 

32.8      First-aid Box, etc.

 

Every factory or workshop shall have, in some accessible place, a first-aid ambulance chest which shall be a suitable dust-proof receptacle made of either metal or wood for the use of the employees.  Such chest shall be equipped and supplied with those articles prescribed by the standards in the State Act relating to shops and factories.

 

33.  Other Additional Payments and Allowance

 

33.1      Leading Hand Allowance

 

An employee appointed by the employer to act as a leading hand shall be paid the amounts in addition to the highest rate prescribed for employees under his/her control as set out in Item 2 of Table 3 - Other Rates and Allowances, of Part B, Monetary Rates.

 

Provided that an employee shall only be entitled to the above prescribed allowance where the employee's classification does not include those skills which reflect the duties of a leading hand as appointed.

 

33.2

 

33.2.1               Unwashed Rags

 

Employees sorting unwashed rags shall be paid the sum as set in Item 3 per week of the said Table 3.

 

33.2.2               Waste and Rags - Picking Over

 

For picking over bales of waste or rags which are in an offensive or obnoxious condition, an employee shall be paid per bale the amount as set in Item 4 of the said Table 3.

 

33.3      Forklift

 

33.3.1               Forklift Driver and Motor Tow Driver - Rates of Pay

 

The rates of pay for forklift drivers and motor tow drivers shall be no less than the rate of pay for Year 1 of Grade 1 in Table 2 - Rates of Pay - Employees without a Disability, of Part B, Monetary Rates.

 

33.4      An employee who holds a current first-aid certificate issued by the St. John Ambulance Association or Australian Red Cross Society or equivalent qualification and who is required by their employer to be available to perform first-aid duty at their workplace shall be paid an allowance with a minimum payment of one day as set out in Item 5 of Table 3 - Other Rates and Allowances, of Part B, Monetary Rates.

 

33.5      Motor Vehicle Allowance

 

Where employees are required by their employer to use their motor vehicle in the course of their duty, they shall be paid an amount per kilometre as set out in Item 6 of the said Table 3.

 

34.  Award Posted

 

A copy of this Award and its amendments when available shall be posted and kept posted by the employer in a prominent place in the workshop or factory.

 

35.  Shop Stewards and Representatives

 

Shop stewards and official Union representatives shall be recognised by the employer and shall be allowed time off during working hours to interview the employer if there is any legitimate complaint.  Shop stewards shall have reasonable access to a telephone during working hours.

 

36.  Uniforms

 

If an employer requires an employee to wear particular footwear or a uniform, they shall pay for the provision and cleaning of such uniform.

 

37.  Notice Boards

 

The employer shall make facilities available in a prominent position in the workshop or factory, upon which representatives of the Union shall be allowed to post Union notices. Any notice so posted shall be countersigned by the representative of the Union and, in the absence of a countersignature, may be removed by the Union representative or the employer.

 

38.  Protective Clothing

 

Where any person is required to work under wet or dirty conditions, suitable protective clothing, including footwear, shall be supplied free of charge by the employer to the employee concerned.

 

Any dispute as to the necessity or suitability of such clothing shall be determined by the Industrial Relations Commission of New South Wales.

 

39.  Tools of Trade

 

The employer shall provide all necessary tools for employees in each workshop or factory.

 

40.  Amenities Allowance

 

40.1      Subject to paragraph 32.5.2 of clause 32, Amenities, where a dining room and/or its facilities, in any establishment having more than 10 employees, are inadequate in that they do not satisfy the provisions of subclause 32.5 of the said clause 32, the employer shall, in addition to the rates set out elsewhere in this Award, pay to each employee in that establishment an Amenities Allowance as set in Item 7 of Table 3 - Other Rates and Allowances, of Part B, Monetary Rates, per day for each day worked by such employee whilst suffering such disability of inadequate conditions.

 

Where such dining room and its facilities are only adequate for a lesser number of employees than the required minimum prescribed by paragraph 32.5.1 of the said clause 32, the disability referred to shall be deemed to have been suffered by the balance of the total employees in that establishment taking a meal break at the one time.  In such case the total amount of the disability payments due to the number of employees who suffered such disability shall be shared equally amongst all the employees in that establishment.

 

40.2      Subject to paragraph 32.6.4 of the said clause 32, where a rest room and/or its facilities, in an establishment, are inadequate in that they do not satisfy the provisions of subclause 32.6 of the said clause 32, the employer shall, in addition to the rates set out elsewhere in this Award, pay to each employee in that establishment an Amenities Allowance as set in Item 8 of Table 3 - Other Rates and Allowances, of Part B, Monetary Rates, per day for each day worked by such employee whilst suffering such disability of inadequate conditions.

 

The disability referred to shall be deemed to have been suffered by all employees in that establishment during that period of their respective employment when the rest room and its facilities were not of the prescribed standard.

 

40.3      Any excess wages payable to an employee on account of work performed or for any other reasons shall not be offset against the disability payments prescribed in this clause.

 

42.  Accident Pay

 

42.1      An employer shall pay and an employee shall be entitled to receive accident pay in accordance with this clause.

 

42.2      Definitions

 

For the purposes of this clause and subject to the terms thereof, the words hereunder shall bear the respective definitions set out hereunder:

 

42.2.1               Workers' Compensation Act

 

The Workers' Compensation Acts applicable in New South Wales are the Workers’ Compensation Act 1987, as amended from time to time, and the Workplace Injury Management and Workers Compensation Act 1998, as amended from time to time.

 

42.2.2               Injury

 

Injury shall be given the same meaning and application as applying under the respective Workers’ Compensation Acts.  No injury occurring at the place of employment shall result in the application of accident pay unless an entitlement exists under such Acts.

 

42.2.3               Accident Pay

 

(i)         Total Incapacity

 

In the case of an employee who is or is deemed to be totally incapacitated within the meaning of the Workers' Compensation Acts, means a weekly payment of an amount representing the difference between, on one hand, the total amount of compensation, including other allowances, paid to the employee during incapacity for the week in question and, on the other hand, the total weekly award rate and weekly over-award payment, if any, being paid to such employee at the date of the injury.  Provided that, in making such calculation, any payment for overtime earnings, shift premiums, attendance bonus, incentive earnings under any system of payment of results, fares and travelling time allowances, penalty rates and any other ancillary payments payable by the employer shall not be taken into account.

 

(ii)        Partial Incapacity

 

In the case of an employee partially incapacitated within the meaning of the Workers’ Compensation Acts, means a weekly payment of an amount representing the difference between, on the one hand, the total amount of compensation paid to the employee during incapacity for the week in question, together with the average weekly amount the employee is earning or is able to earn in some suitable employment or business (as determined expressly or by implication by the appropriate Accident or Workers' Compensation Tribunal or its equivalent in the State or Territory of employment or as agreed between the parties) and, on the other hand, the total weekly award rate and weekly over-award payment, if any, being paid to such employee at the date of the injury.  Provided that, in making such calculation, any payment for overtime earnings, shift premiums, attendance bonus, incentive earnings, fares and travelling time allowances, penalty rates and any other ancillary payments payable by the employer shall not be taken into account.

 

The total weekly award rate and weekly over-award payment abovementioned shall be the same as that applying for a total incapacity.  Provided that, where an employee receives a weekly payment of compensation under the Workers' Compensation Acts and subsequently such payment is reduced pursuant to the said Act, such reduction shall not increase the liability of the employer to increase the amount of accident pay in respect of that injury.

 

(iii)       Payment for Part of a Week

 

Where an employee receives accident pay and such pay is payable for incapacity for part of a week, the amount shall be a direct pro rata.

 

42.3      Qualifications for Payment

 

Always subject to the terms of this clause, an employee covered by this Award shall, upon receiving payment of compensation and continuing to receive such payment in respect of a weekly incapacity within the meaning of the Workers’ Compensation Acts, be paid accident pay by their employer who is liable to pay compensation under the respective Acts.  The liability by the employer for accident pay may be discharged by another person on the employer’s behalf, provided that:

 

42.3.1               Accident pay shall only be payable to an employee whilst they remain in the employment of the employer by whom they were employed at the time of the incapacity.  Provided that, if an employee on partial incapacity cannot obtain suitable employment from their employer but such alternative employment is available with another employer, then the relevant amount of accident pay shall still be payable.

 

Provided further that, in the case of the termination by an employer of an employee who is incapacitated and receiving accident pay, accident pay shall continue to apply subject to the provisions of this clause except in those cases where:

 

(i)         the termination is due to serious and/or wilful misconduct on the part of the employee; or

 

(ii)        arises from a declaration of liquidation of the Company, in which case the employee's entitlement shall be determined by the appropriate New South Wales legislation.

 

In order to qualify for the continuance of accident pay on termination, an employee shall, if required, provide evidence to their employer of the continuing payment of weekly workers' compensation payments.

 

42.3.2               Accident pay shall not apply in respect of any injury sustained during the first five normal working days of incapacity.

 

42.3.3               An employee on engagement may be required to declare all workers' compensation and/or accident claims made pursuant to the Acts as herein defined in the previous five years.  In the event of false or inaccurate information being deliberately and knowingly declared, the employer may require the employee to forfeit their entitlement to accident pay under this Award.

 

42.4      Maximum Period of Payment

 

The maximum period or aggregate of periods of accident pay to be made by an employer shall be a total of 26 weeks for any one injury as defined in paragraph 42.2.2 of this clause.

 

42.5      Absences on Other Paid Leave

 

An employee shall not be entitled to the payment of accident pay in respect of any period of paid annual leave or long service leave or for any paid public holiday in accordance with the appropriate award provisions.

 

42.6      Notice of Injury

 

An employee, upon receiving an injury for which the employee claims to be entitled to receive accident pay, shall give notice in writing of the injury to their employer and of its manner of happening as soon as practicable and shall provide in writing all other information as the employer may reasonably require.

 

42.7      Furnishing of Evidence

 

An employee who has suffered any injury for which they are receiving payment or payments for incapacity in accordance with the provisions of the respective Workers' Compensation Acts shall furnish evidence to the employer from time to time as required by the employer of such payments.  Compliance with this obligation shall be a condition precedent to any entitlement under this clause.

 

Any employee who is receiving or who has received accident pay in respect of any injury shall, if required by the employer or other person on the employer’s behalf, authorise their employer to obtain any information required concerning such injury or compensation payable from the insurance company.

 

42.8      Medical Examination

 

Nothing in this clause shall in any way be taken as restricting or removing the employer's rights under the respective Workers' Compensation Acts to require the employee to submit themselves to examination by a legally qualified medical practitioner, provided and paid by the employer.  If the employee refuses to submit themselves to such examination or in any way obstructs the same, the employee’s right to receive or continue to receive accident pay shall be suspended until such examination has taken place.

 

Where, in accordance with the respective Workers' Compensation Acts, a medical referee gives a certificate as to the condition of the employee and the employee’s fitness for work or specifies work for which the employee is fit and such work is made available by the employer and refused by the employee or the employee fails to commence the work, accident pay shall cease from the date of such refusal or failure to commence the work.

 

Where an employer is unable to provide work of the nature stipulated by the medical referee, an employee shall take all reasonable steps to obtain such work with another employer and, in the event of the employee’s failure to do so, payment of accident pay shall cease.

 

42.9      Redemption or Commutation of Weekly Payment

 

Where there is a redemption or commutation (as the case may be) of weekly compensation payments by the payment under the respective Act of a lump sum, the employer's liability to pay accident pay shall cease as from the date of such redemption or commutation.

 

42.10    Insurance against Liability

 

Nothing in this clause shall require an employer to insure against the employer’s liability for accident pay nor shall it affect the right of an employer to terminate the employment of the employee.

 

42.11    Variation in Compensation Rates

 

Any changes in compensation rates under the respective Acts shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.

 

42.12    Death of Employee

 

All rights to accident pay shall cease on the death of an employee.

 

42.13    Safety Regulations

 

Without prejudice to the terms of this clause, the Union shall use its endeavours to have its members carry out all statutory and other regulations applicable to the employment of such members and to further carry out any orders relating to the preservation of safety given by or on behalf of any employer of its members.

 

42.14    Superannuation

 

An employer shall pay superannuation contributions paid in accordance with subclause 49.2 of clause 49, Superannuation, to an employee receiving accident pay in accordance with this clause.

 

43.  Jury Service

 

43.1      An employee required to attend for jury service during their ordinary working hours shall be reimbursed by the employer, until discharged from such service, 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 the Award classification rate the employee would have received had the employee not been on jury service.  An employee shall notify their employer as soon as possible of the date upon which they are required to attend for jury service.  Furthermore, the employee shall give their employer proof of their jury service, the duration of such service and the amount received in respect of such service.

 

43.2      Provided that, where an employee is working on afternoon shift and is required to attend for jury service, and is empanelled or is required to remain until the afternoon session of Court, the employee shall not be required to attend for work on the shift occurring on that day and shall be entitled to reimbursement as indicated above.

 

44.  Blood Donors

 

44.1      A weekly employee who is absent during ordinary working hours to attend a recognised clinic for the purpose of donating blood shall not suffer any deduction of ordinary pay, up to a maximum of two hours on each occasion and subject to a maximum of four separate absences each calendar year.  Provided that such employee shall arrange, as far as practicable, for their absence to be as close as possible to the beginning or the ending of their ordinary working hours.

 

44.2      Proof of the attendance of the employee at a recognised place for the purpose of donating blood, and the duration of such attendance, shall first be furnished to the satisfaction of the employer.  Furthermore, the employee shall notify their employer as soon as possible of the time and date upon which they are requesting to be absent for the purpose of donating blood.

 

45.  Attendance at Hospital

 

An employee suffering an injury through an accident arising out of and in the course of the employee’s employment (not being an injury in respect of which the employee is entitled to workers' compensation), necessitating the employee’s attendance during working hours at a doctor or at hospital, shall not suffer any deduction from their pay for the time (not exceeding four hours) so occupied on the day of the accident, and shall be reimbursed by the employer all expenses reasonably incurred in connection with such attendance.

 

46.  Parental Leave

 

Refer to Part 4 of Chapter 2 of the Industrial Relations Act 1996 (NSW) as reproduced in Appendix B of this Award.

 

Part 4 of Chapter 2 of the Industrial Relations Act 1996 (NSW) shall be read as if it was a term of this Award.  A breach of a provision in the Part 4 of Chapter 2 of the Industrial Relations Act 1996 shall be a breach of this Award.

 

47.  Introduction of Change

 

47.1      Employer's Duty to Notify

 

47.1.1               Where an employer is planning to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, whether or not a definite decision has been made, the employer shall notify the employees who may be affected by the proposed changes, the Consultative Committee and the Union.

 

47.1.2               "Significant effects" include termination of employment; major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.  Provided that, where the Award makes provisions for alterations of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

47.2      Employer's Duty to Discuss Change

 

47.2.1               The employer shall discuss with the employees affected, the Consultative Committee and the Union, inter alia, the introduction of the changes referred to in paragraph 47.1.1 of this clause, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees, the Consultative Committee and/or their Union in relation to the changes.

 

47.2.2               The discussions with employees affected, the Consultative Committee and the Union shall commence as early as practicable after the activities referred to in the said paragraph 47.1.1.

 

47.2.3               For the purposes of such discussion, the employer shall provide in writing to the Consultative Committee, and to the employees concerned and the Union, all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees; provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests.

 

48.  Redundancy

 

48.1      Consultation and Provision of Information

 

48.1.1               Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with the Union.

 

48.1.2               The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph 48.1.1 of this subclause and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

 

48.1.3               For the purposes of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their Union all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests.

 

48.2      Transfer to Lower Paid Duties

 

Where an employee is transferred to lower paid duties for reasons set out in paragraph 48.1.1 of this clause, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee’s employment had been terminated, and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new lower ordinary-time rates for the number of weeks' of notice still owing.

 

48.3      Severance Pay

 

In addition to the period of notice prescribed for ordinary termination in subclause 16.2 of clause 16, Terms of Engagement, and subject to further order of the Industrial Relations Commission of New South Wales, an employee whose employment is terminated for reasons set out in paragraph 48.1.1 of this clause shall be entitled to the following amount of severance pay in respect of a continuous period of service:

 

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

 

Years of Service	Under 45 Years of Age Entitlement
Less than 1 year	Nil
1 year and less than 2 years	4 weeks
2 years and less than 3 years	7 weeks
3 years and less than 4 years	10 weeks
4 years and less than 5 years	12 weeks
5 years and less than 6 years	14 weeks
6 years and over	16 weeks

 

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

 

Years of Service	45 Years of Age and Over Entitlement
Less than 1 year	Nil
1 year and less than 2 years	5 weeks
2 years and less than 3 years	8.75 weeks
3 years and less than 4 years	12.5 weeks
4 years and less than 5 years	15 weeks
5 years and less than 6 years	17.5 weeks
6 years and over	20 weeks

 

"Week's pay" means the all-purpose rate of pay for the employee concerned at the date of termination and shall include, in addition to the ordinary rate of pay, over-award payments, shift penalties and allowances paid in accordance with this Award.

 

48.4      Employee Leaving during the Notice Period

 

An employee whose employment is terminated for reasons set out in paragraph 48.1.1 of this clause may terminate the employee’s employment during the period of notice and, if so, shall be entitled to the same benefits and payments under this clause had the employee remained with the employer until the expiry of such notice.  Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

 

48.5      Alternative Employment

 

An employer, in a particular redundancy case, may make application to the Industrial Relations Commission of New South Wales to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.

 

48.6      Time Off during Notice Period

 

48.6.1               During the period of notice of termination given by the employer for reasons set out in paragraph 48.1.1 of this clause, an employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment.

 

48.6.2               If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.  For this purpose a statutory declaration will be sufficient.

 

48.7      Notice to Centrelink

 

Where a decision has been made to terminate employees in the circumstances outlined in paragraph 48.1.1 of this clause, the employer shall notify the Centrelink thereof as soon as possible, giving relevant information, including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

48.8      Superannuation Benefits

 

Award superannuation benefits payable upon termination shall not be used in lieu of any severance payments made in accordance with this clause.  Any non-award superannuation benefit payable upon termination shall not be used in lieu of any severance payments made in accordance with this clause, other than by further order of the Industrial Relations Commission of New South Wales.

 

48.9      Employees with less than 12 Months' Service

 

This clause shall not apply to employees with less than one year's continuous service and the general obligation on the employer should be no more than to give the relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

48.10    Employees Exempted

 

This clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including neglect of duty or in the case of casual employees, or employees engaged for a specific period of time or for a specified task or tasks.

 

48.11    Incapacity to Pay

 

The employer, in a particular redundancy situation, may apply to the Industrial Relations Commission of New South Wales to have the general severance pay prescription varied, on the basis of the employer's incapacity to pay within eight weeks of the termination of the employee(s).

 

49.  Superannuation

 

49.1      Preamble - Superannuation Legislation

 

49.1.1               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 s.124 of the Industrial Relations Act 1996.  This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties.

 

49.1.2               Notwithstanding paragraph 49.1.1 of this subclause, the following provisions shall also apply:

 

49.2      Definitions

 

49.2.1               "The Fund", for the purposes of this clause, shall mean the:

 

(i)         Australian Retirement Fund established and governed by a Trust Deed on 11 July 1986, as may be amended from time to time, and includes any superannuation scheme which may be made in succession thereto.

 

49.2.2               "Ordinary-time Earnings"

 

For the purposes of this clause, all references to ordinary-time earnings will mean and include:

 

(i)         award skill level or classification rate;

 

(ii)        supplementary payment (where relevant);

 

(iii)       over-award payment;

 

(iv)      shift loading - including weekend and public holiday penalty rates earned by shift employees on normal rostered shifts forming the ordinary hours of duty, not when worked as overtime;

 

(v)       all non-reimbursable allowances payable under the Award.

 

49.2.3               "The Table", for the purposes of this clause, means the following table:

 

Financial Year	Percentage
	Column A	Column B
1992-93 (1 July - 31 December)	4	3
1992-93 (1 January - 30 June)	5	3
1993-94	5	3
1994-95	5	4
1995-96	6	5
1996-97	6	6
1997-98	6	6
1998-99	7	7
1999-2000	7	7
2000-01	8	8
2001-02	8	8
2002-03 and subsequent years	9	9

 

(i)         Column A in the table above specifies the charge percentages where the employer's national payroll for the base year (the 1991-92 financial year) exceeded $1,000,000.

 

(ii)        Column B in the table above specifies the charge percentage where the employer's national payroll for the base year (the 1991-92 financial year) did not exceed $1,000,000.

 

(iii)       Subject to amendments to the charge percentages prescribed in the Superannuation Guarantee (Administration) Act 1991 (SGA Act), the above table is deemed to be changed to reflect amendments.

 

49.3      The Employer to become a Party to the Fund

 

49.3.1               An employer shall make application to the fund to become a participating employer in the fund and shall become a participating employer upon acceptance by the Trustee of the fund.

 

49.3.2               An employer shall provide each employee who is not a member of the fund with a membership application form upon commencement of this clause and thereafter upon commencement of employment.

 

49.3.3               Each employee shall be required to complete the membership application and the employer shall forward the completed application to the fund by the end of the calendar month of commencement of this clause or commencement of employment.

 

49.4      Eligibility of Employees

 

49.4.1               Each employee shall be eligible to join the fund upon commencement of employment.

 

49.4.2               Each employee shall be eligible to receive contributions from the date of eligibility, notwithstanding the date the membership application prescribed in paragraph 49.3.3 of this clause was forwarded to the fund.

 

49.5      Employer Contributions on behalf of each Employee

 

49.5.1               Notwithstanding the provisions of this subclause and the legislation referred to therein, an employer must contribute to the fund in respect of each employee, irrespective of the age and/or earnings of the employee, such contributions as required to comply with the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992.  Failure to comply with this paragraph shall constitute a distinct and separate breach of this paragraph.

 

49.5.2               Failure to comply with this subclause shall constitute a distinct and separate breach of this subclause.

 

49.5.3               Such contribution shall be made monthly by the last day of the month following, the total of the weekly contribution amounts accruing in the previous month in respect of each employee.

 

The amount of contributions to the fund shall be calculated to the nearest 10 cents, and any fraction below five cents shall be disregarded.

 

49.5.4               The fund and the amount of contributions paid in accordance with this subclause and subclause 49.6 of this clause shall be included in pay advice notices provided by the employer to each employee.

 

49.5.5               Contributions shall continue to be paid in accordance with this subclause during any period in respect of which an employee is entitled to receive accident pay in accordance with clause 42, Accident Pay.

 

49.5.6               Unpaid Absences - Except as where specified in the rule of the fund, contributions by the employer in respect of unpaid absences will be proportional to the wage received by the employee concerned in a particular pay period.  For the purpose of this clause, each pay period will stand alone.  Accordingly, unpaid absences in one pay period will not carry over to another pay period.

 

49.5.7               Cessation of Contributions - An employer's obligation to make contributions on behalf of the employee ceases on the last day of employment with the employer.

 

49.6      Employee Contributions

 

49.6.1               An employee may make contributions to the fund in addition to those made by the employer under subclause 49.5 of this clause.

 

49.6.2               An employee who wishes to make additional contributions must authorise the employer in writing to pay into the fund, from the employee's wages, amounts specified by the employee in accordance with the fund's Trust Deed and Rules.

 

49.6.3               An employer who receives written authorisation from the employee must commence making payments into the fund on behalf of the employee within 14 days of receiving the authorisation.

 

49.6.4               An employer may vary the additional employee contributions by a written authorisation and the employer must alter the additional contributions within 14 days of receiving the authorisation.  An employee may only vary the employee’s additional contributions once each month.

 

49.6.5               Additional employee contributions to the fund, requested under this subclause, shall be expressed in whole dollars.

 

50.  Enterprise Bargaining

 

50.1      The parties to this Award are committed to co-operating positively to increase the efficiency, productivity and international competitiveness of the workplace to enhance the career opportunities, quality of working life and job security of employees in the industry.

 

50.2      An employer, employees and the Union may develop an enterprise bargaining agreement in accordance with the provisions of this clause and clause 52, Procedure to be Adopted in Developing an Enterprise Bargaining Agreement, or such other procedures that are agreed in writing between the employer and the Secretary of the Union.  The agreement shall, to the extent of any inconsistency, take precedence over any provisions of this Award.

 

50.3      If the employer sought to develop an enterprise bargaining agreement, with its employees and/or the Union, it shall establish a Consultative Committee in accordance with clause 51, Consultative Committees, or such other procedures that are agreed in writing between the employer and the Secretary of the Union.

 

50.4      The basis for the work of the Consultative Committee shall be to consider matters raised by Committee members which impact on employees and/or which contribute to the improved operation and efficiency of the enterprise as outlined in subclause 50.1 of this clause.

 

50.5      The matters raised for inclusion in an enterprise bargaining agreement may, amongst other things, involve:

 

spread of hours

 

shift work

 

job redesign and work organisation

 

work-related childcare*

 

vocational training

 

English language training

 

foundation education training

 

arrangement of leave

 

occupational health and safety

 

leave for special purposes

 

parental leave

 

job-sharing

 

50.6      An enterprise bargaining agreement shall not act to:

 

(i)         reduce the award rate in accordance with the rates of pay in clause 8, Employees with a Disability;

 

(ii)        increase the ordinary hours of work in any roster system beyond an average of 38 hours per week;

 

(iii)       reduce the quantum of meal money in accordance with clause 13, Meal Money;

 

(iv)       reduce the number or duration of rest periods contained in clause 14, Rest Period;

 

(v)        reduce the quantum of period of notice in accordance with clause 16, Terms of Engagement;

 

(vi)       reduce the quantum of annual leave and annual leave loading in accordance with clause 18, Annual Leave;

 

(vii)      reduce the quantum of sick leave entitlement in accordance with clause 20, Sick Leave;

 

(viii)     reduce the quantum of holidays in accordance with clause 26, Holidays;

 

(ix)       reduce the quantum of compassionate leave in accordance with clause 22, Compassionate Leave;

 

(x)        reduce the quantum of accident make up pay in accordance with clause 42, Accident Pay;

 

(xi)       reduce the quantum of unpaid leave in accordance with clause 46, Parental Leave;

 

(xii)      reduce the quantum or limit the application of severance pay in accordance with clause 48, Redundancy;

 

(xiii)     reduce the quantum of superannuation contributions in accordance with clause 49, Superannuation.

 

51.  Consultative Committees

 

(Subject to the provisions of the Industrial Relations Act 1996)

 

51.1      Composition

 

51.1.1               A Consultative Committee shall include:

 

at least 50% Union/employee representatives; and

 

at least one senior management representative.

 

51.1.2               Management, the Union and the employees will jointly determine the size of the Committee.  A Committee shall consist of no fewer than four members and no more than 10.

 

51.1.3               The election/appointment of management representatives will be determined by management, and the election of Union/employee representatives will be determined by the Union.  Where there is a Union delegate, they must be a Union/employee representative.

 

51.1.4               In the determination of Union/employee representatives on the Committee, consideration shall be given to:

 

the makeup of the workforce, in particular the proportion of women, people from a non-English speaking background and juniors;

 

the size of the workforce;

 

the number of distinct operations at the workplace;

 

the corporate structure;

 

other existing consultative mechanisms.

 

51.1.5               Where an enterprise is comprised of a number of sites or distinct workplaces, the number of committees to be established shall be determined jointly by management and the Union, depending on the size and operation of the enterprise and its separate components.  Should more than one committee be established, a Peak Committee shall be established to ensure a co-ordinated approach.

 

51.1.6               The Committee, once established, may invite persons to attend specific meetings.

 

51.1.7               An official of the Union shall have a right to be present and participate in the deliberation of the Committee, irrespective of whether the employees are members of the Union or not.

 

51.2      Term of Office

 

51.2.1               Members elected or appointed to the Committee shall hold office for a period of 12 months, and will be required to be re-elected or re-appointed each subsequent year.  It is the responsibility of each Committee member to attend meetings on a regular basis and to represent the views and opinions of those people they represent.

 

51.2.2               If a member of the Committee ceases employment with the enterprise or resigns from the Committee, a new election or appointment shall be made in accordance with paragraph 51.2.1 of this subclause.

 

51.3      Terms of Reference

 

The following matters shall form the basis for the work of the Committees.  Each Committee will seek to reach agreement on the matters set out below and make recommendations to senior management who will take into account the views and the deliberations of the Committee prior to making its final decisions:

 

(i)         To implement the restructured Award in the workplace.

 

(ii)        To review the implications and/or impact on the enterprise of major external influences, including State or Federal Government funding arrangements.

 

(iii)       To consider the introduction of new or revised work methods/work arrangements.

 

(iv)       To give consideration to the impact of technological change and other significant changes in the organisation or workplace, with regard to:

 

number of employees, job specifications and current skill base; and

 

acquisition of new skills and additional training requirements.

 

(v)        To develop a framework for skills development and provisions of training within the workplace, including English language training and the provision of foundation education.

 

(vi)       To assess proposed changes in product or product orientation for possible impact on work method/work arrangements, employment and skill requirements.

 

(vii)      To give consideration to equal employment opportunity principles in the context of award restructuring in the workplace.

 

(viii)     To consider the provision of work-related childcare and, in particular, any Australian Government work-based childcare program.

 

(ix)       To consider other matters raised by Consultative Committee members which impact on employees or which contribute to the improved operation and efficiency of the enterprise.

 

51.4      Procedural Guidelines

 

51.4.1               Chairperson

 

A chairperson shall be elected by the Committee from within the Committee and shall alternate each meeting between management and Union/employee representatives.

 

51.4.2               Secretary

 

A Secretary shall be appointed for the purposes of recording minutes, preparation and distribution of agendas and other administrative duties.  The administrative requirements of this position shall be provided by the employer.  The person appointed to this position shall not be a member of the Committee.

 

51.4.3               Agenda

 

All members of the Committee shall have a right and a responsibility to submit agenda items.  The agenda, minutes and any relevant background documentation shall be circulated one week prior to the meetings.

 

51.4.4               Preparation

 

Reasonable time in working hours shall be provided to Union/employee representatives for the purpose of preparing for the meeting.  Union/employee representatives and an official of the Union may, at a time convenient to the employer, during working hours, hold meetings with the workforce or part of the workforce prior to meetings of the Committee.

 

51.4.5               Meetings

 

The Committee shall meet at least every two months, unless the Committee determines that it shall meet on a more frequent basis.

 

The meetings of the Committee shall be held at a place and time convenient to management, but shall be held during normal working hours.  Attendance at Committee meetings shall be treated as and paid for as time worked.

 

A reasonable time limit shall be placed on the length of meetings.  Enough time shall be provided to adequately deal with the agenda items.  Meetings shall operate on a consensus basis.

 

51.4.6               Minutes

 

The Secretary of the Committee shall minute the proceedings of each meeting of the Committee.  The minutes shall be circulated to each member of the Committee within one week of the meeting, verified by Committee members prior to the next meeting, and signed by the chairperson at the next meeting of the Committee as a true and correct record of the proceedings of the Committee.

 

51.4.7               Future Meetings

 

The date of the next meeting of the Committee shall be set at the close of the previous meeting.

 

51.4.8               Confidentiality

 

All members of the Consultative Committee and the Secretary of the Committee shall accept that, whilst the spirit of genuine consultation is to be paramount, at no time shall the Committee have placed before it any matter, the confidentiality of which is in the Company's best interests, or where confidentiality has been specifically agreed with a third party.

 

51.4.9               Management Response

 

Senior management must formally respond to the Committee's recommendations.  Normally this will take place prior to the next meeting of the Committee.

 

51.5      Feedback

 

51.5.1               The minutes of the meetings of the Committee shall be kept by the Secretary of the Committee and shall be available upon request to any employee or any other person approved by the Committee.  All minutes shall be forwarded to the Secretary of the Union within seven days of the meeting being held.

 

51.5.2               Minutes of the Committee meeting shall be posted on the noticeboards after ratification by the meeting.

 

51.5.3               Reasonable time in working hours shall be provided to Union/employee representatives for the purpose of reporting back on items raised and agreements reached at the meeting. Union/employee representatives may, at a time convenient to the employer, during working hours, hold meetings with the workforce or part of the workforce following meetings of the Committee.

 

A reasonable time limit shall be placed on the length of meetings.  Enough time shall be provided to adequately deal with the agenda items.  Meetings shall operate on a consensus basis.

 

51.6      Training

 

All members of the Committee shall be entitled to training in meeting procedures and relevant related skills required to ensure that they are in a position to represent their constituents and play an active role in the operation of the Committee.  The nature, time and extent of training provided shall be determined between management and the Union.

 

51.7      Evaluation

 

A review of these procedures shall be conducted at the end of each 12 months’ operation.

 

52.  Procedures to be Adopted in Developing an Enterprise Bargaining Agreement

 

The procedures to be followed in developing an enterprise bargaining agreement are as follows:

 

52.1      Step One - The party raising a measure or measures for consideration shall place the matter on the agenda of a forthcoming meeting of the Consultative Committee.

 

52.2      Step Two - The party raising the measure or measures for consideration shall outline the proposal at a meeting of the Consultative Committee and the outline shall be recorded in the minutes of the meeting. The party receiving the proposal shall not be required to respond to the proposal at that meeting.  At the same time a written outline of the proposal shall be forwarded to the Secretary of the Union.

 

52.3      Step Three - The Consultative Committee shall post the proposal on the noticeboards.  They shall endeavour to express the proposal in a manner that enables the proposal to be understood by the workforce.  In particular, where there are a number of non-English speaking employees, the Consultative Committee shall consider having the proposal translated into the main languages spoken in the workplace so that all employees fully understand the proposal.

 

52.4      Step Four - The Union/employee Consultative Committee representatives shall be granted one day's leave with pay to attend a briefing session conducted by the Union to equip them to negotiate each enterprise bargaining agreement with the employer.  Where an employee has used the employee’s full entitlement to Trade Union Training Leave in accordance with clause 19, Trade Union Training Leave, the one day's leave shall be in addition to the employee’s entitlement.

 

52.5      Step Five - The Union/employee Consultative Committee representatives and the relevant official of the Union shall consult with the whole of the workforce or section of the workforce affected by the proposal.  An employer shall grant the whole of the workforce reasonable time off with pay to attend a meeting conducted by the Union/employee representatives and the relevant official of the Union for the purpose of consultation.  In the case of a workplace where there are a number of non-English speaking workers, the employer shall favourably consider a request from the Union/employee Consultative Committee representatives or the relevant official of the Union for the engagement of interpreter/s to assist in the meeting so that non-English speaking employees fully understand the proposal.  In such cases, reasonable time to conduct the meeting will be longer than in the case where an interpreter/s is not used.

 

52.6      Step Six - The Consultative Committee shall then consider the proposal and the views of the workforce and attempt to reach an enterprise bargaining agreement.  As necessary, the employee/Union Consultative Committee representatives will refer the draft to the workforce for comment.

 

52.7      Step Seven - If the Consultative Committee reaches agreement, it shall record the agreement in writing and forward it to the Secretary of the Union, who shall arrange with the employer to jointly conduct a vote of the workforce affected.

 

52.8      Step Eight - In the case of a proposal which does not affect the provisions of the Award, if a majority of the workforce affected are in favour of the proposal, the proposal shall be forwarded as a recommendation to senior management.

 

52.8.1               In the case of a proposal which does affect the provisions of the Award, if 75% of the workforce affected are in favour of the proposal, the proposal shall be forwarded as a recommendation to senior management.

 

52.9      Step Nine - If the recommendation is accepted, then senior management shall refer the proposed agreement in writing to the Secretary of the Union for approval or otherwise.  The Union shall not unreasonably withhold agreement.

 

52.10    Step Ten - If the proposed agreement in writing is approved by the Secretary of the Union, then it shall be signed by senior management and the Secretary of the Union.

 

52.11    Step Eleven - The agreement shall then be submitted to the Industrial Relations Commission of New South Wales for approval.

 

53.  2006 Wage Increase

 

53.1      The Employer and the Union shall negotiate an award variation (or enterprise bargaining agreement) to incorporate further wage rises and improvement to conditions commencing no later than March 2006.

 

53.2      The Employer agrees that it will commit to paying no less than the following rates of pay for Employees with a Disability from the first pay period on or after 23 July 2006.

 

Classification	Percentage of Year 1 of Grade 1 for Employees without a Disability
	%
Level 1	19.5
Level 2	22.5
Level 3	27
Level 4	32
Level 5	36
Level 6	37.5

 

53.3      The Industrial Relations Commission of New South Wales may vary this increase on the basis of the Employer’s incapacity to pay.

 

54.  Area, Incidence and Duration

 

54.1      This Award shall be binding on:

 

54.1.1               Cooma Challenge.

 

54.1.2               Employees of Cooma Challenge who are eligible to be members of the Union.

 

54.1.3               The Transport Workers’ Union of New South Wales.

 

54.1.4               This Award shall come into force from the beginning of the first pay period on or after 16 December 2004 and shall remain in force thereafter for a period of 18 months.

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay - Employees with a Disability

 

(i)         Rates of pay commencing the first pay period on or after 23 July 2004 that apply until the first pay period on or after 30 April 2005.

 

Classification	Percentage of Year 1 of Grade 1	Hourly Rate of Pay	Weekly Rate of Pay
	for Employees without a Disability
	%	$	$
Level 1	11	1.62	61.75
Level 2	13.5	1.99	75.76
Level 3	18	2.66	101.00
Level 4	27	3.99	151.50
Level 5	36	5.32	202.05
Level 6	37.5	5.54	210.45

 

(ii)        Rates of pay commencing the first pay period on or after 1 May 2005.

 

Classification	Percentage of Year 1 of Grade 1	Hourly Rate of Pay	Weekly Rate of Pay
	for Employees without a Disability
	%	$	$
Level 1	19.5	2.88	109.45
Level 2	22.5	3.32	126.30
Level 3	27	3.99	151.50
Level 4	32	4.73	179.60
Level 5	36	5.32	202.05
Level 6	37.5	5.54	210.45

 

Table 2 - Rates of Pay - Employees without a Disability

 

The rates of pay in Table 2 shall apply on or after 23 July 2004.

 

Grade 1
Number of Years Employed	Hourly	Weekly
	$	$
Year 1	14.22	561.20
Year 2	14.89	583.65
Year 3	15.57	611.70
Year 4	16.30	639.25
Grade 2
Number of Years Employed	Hourly	Weekly
	$	$
Year 1	16.98	662.20
Year 2	17.60	690.30
Year 3	14.27	701.50
Year 4	14.95	746.40
Year 5	19.68	774.46

 

Table 3 - Other Rates and Allowances

 

Allowances payable from the beginning of the first pay period to commence on or after 23 July 2004.

 

Item No.	Clause No.	Brief Description	Amount
			$
1	13.1	Meal Money	8.00
2	33.1	Leading Hand Allowance -
		In charge of up to 10 employees	20.10 per week
		In charge of 11 to 20 employees	29.30 per week
		In charge of 21 or more employees	35.50 per week
3	33.2	Unwashed Rags	2.30
4	33.2	Picking Over Waste or Rags	0.92 per bale
5.	33.4	First-aid Allowance	9.50 per week
6.	33.5	Motor Vehicle Allowance	0.48 per km
7	40.1	Amenities Allowances -
		Inadequate dining facilities	3.30 per day
8	40.1	Amenities Allowances -
		Inadequate rest facilities	3.30 per day

 

APPENDIX A

 

COOMA CHALLENGE LIMITED BUSINESS SERVICES - ATC, KOOMBAH GARDEN MAINTENANCE AND KOOMBAH ENTERPRISES GRIEVANCE POLICY

 

All employees have a right to raise grievances and have them resolved in a manner, and to a level, which is satisfactory to them.  These services will provide appropriate avenues for people with disabilities to state and resolve any grievances about the service they receive, without fear of penalty or victimisation.

 

Employees can involve an advocate of their choice at any stage of the process.

 

All grievances will be handled according to policies regarding privacy and confidentiality.

 

The policy to include examples of behaviour that has been stated as being unacceptable by employees:

 

"No bullies"

 

"No smart arse"

 

"No pushing or shoving"

 

Procedure

 

1.          Education: Employees will be given training and support through their Workers Meeting and Self Advocacy group on their right to have problems and grievances resolved and the procedures for resolving grievances.

 

2.          Informal: Employees discuss grievances with the Senior Training Officer/appropriate staff person, Chief Executive Officer or advocate.

 

3.          Formal: The Chief Executive Officer will serve as a Complaints Officer, unless the complaint is about the Chief Executive Officer; then it will be handled by the Board of Directors.  All complaints/grievances will be handled objectively.

 

When a formal grievance is started, the Complaints Officer will keep records which include the following:

 

who has made the grievance

 

statement of the grievance

 

action taken

 

outcomes reached

 

recommendations to the Board of Directors if applicable

 

feedback from originating employee

 

4.          The Complaints Officer will assess the situation to determine whether the details of the grievance should be referred to another body, e.g. Community Services.

 

5.          The Complaints Officer will consult with the person who has the grievance regarding a method of resolution and, with consent, this should be implemented.

 

6.          If a satisfactory resolution cannot be determined, the matter may be referred to the Board of Directors or any external complaints service.  In all cases it shall be the responsibility of the Complaints Officer to provide whatever assistance is required.

 

7.          Employees can take action through an external complaints service at any stage in the process and the service will make information on the external agencies available.

 

8.          Employees will, in all cases, be informed of the outcome of raising the grievance.  If the employee is not satisfied with this outcome, he/she will be informed of the mechanisms for appeals.

 

9.          The Employee can appeal to the decisions at any time.  This may be done be referring the matter to the Board of Directors or any external complaints service.

 

Approved by
Board of Directors			Date
Reviewed			Date
Reviewed			Date

 

APPENDIX B

 

Part 4 of the Industrial Relations Act 1996 (NSW) is set out in the following terms:

 

"Part 4 - Parental leave

 

Division 1 - Parental leave generally

 

53.        Employees to whom Part applies

 

(1)        This Part applies to all employees, including part-time employees or regular casual employees, but does not apply to other casual or seasonal employees.

 

(2)        For the purposes of this Part, a regular casual employee is a casual employee who works for an employer on a regular and systematic basis and who has a reasonable expectation of on-going employment on that basis.

 

54.        Entitlement to unpaid parental leave

 

(1)        An employee is entitled to a total of 52 weeks unpaid parental leave in connection with the birth or adoption of a child, as provided by this Part.

 

(2)        Parental leave is not to extend beyond one year after the child was born or adopted.

 

Note: See also Part 5 relating to entitlements to part-time work agreements.

 

55.        What is parental leave?

 

(1)        For the purposes of this Part, parental leave is maternity leave, paternity leave or adoption leave.

 

(2)        Maternity leave is leave taken by a female employee in connection with the pregnancy or the birth of a child of the employee.  Maternity leave consists of an unbroken period of leave.

 

(3)        Paternity leave is leave taken by a male employee in connection with the birth of a child of the employee or of the employee's spouse.  Paternity leave consists of:

 

(a)        an unbroken period of up to one week at the time of the birth of the child or other termination of the pregnancy (short paternity leave), and

 

(b)       a further unbroken period in order to be the primary care-giver of the child (extended paternity leave).

 

(4)        Adoption leave is leave taken by a female or male employee in connection with the adoption by the employee of a child under the age of 18 years (other than a child who has previously lived continuously with the employee for a period of at least 6 months or who is a child or step-child of the employee or of the employee's spouse).  Adoption leave consists of:

 

(a)        an unbroken period of up to 3 weeks at the time of the placement of the child with the employee (short adoption leave), and

 

(b         a further unbroken period in order to be the primary care-giver of the child (extended adoption leave ).

 

(5)        For the purposes of this Part, spouse includes a de facto spouse.

 

Note: Employees are also entitled to special maternity leave for recovery from a termination of pregnancy or illness related to pregnancy (section 71) and to special adoption leave up to 2 days to attend interviews or examinations for the purposes of adoption (section 72).  The requirement of unbroken periods of leave is subject to section 63 (Employee and employer may agree to interruption of parental leave by return to work.)

 

56.        This Part provides minimum entitlements

 

(1)        This Part sets out the minimum entitlements of employees to parental leave.

 

(2)        The provisions of an industrial instrument, contract of employment or other agreement (whether made or entered into before or after the commencement of this Part) do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under this Part.

 

57.        Length of service for eligibility

 

(1)        An employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer.

 

(2)        Continuous service is service under one or more unbroken contracts of employment, including:

 

(a)        any period of authorised leave or absence, and

 

(b)       any period of part-time work.

 

(3)        However, in the case of a casual employee:

 

(a)        the employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), and

 

(b)       continuous service is work for an employer on an unbroken regular and systematic basis (including any period of authorised leave or absence).

 

Note: Under Part 8 of this Chapter a period of service in the business of a former employer counts as service with a new employer to whom the business concerned has been transferred.

 

58.        Notices and documents required to be given to employer

 

(1)        Maternity leave

 

The notices and documents to be given to the employer for the purposes of taking maternity leave are as follows:

 

(a)        The employee should give at least 10 weeks' written notice of the intention to take the leave.

 

(b)       The employee must, at least 4 weeks' before proceeding on leave, give written notice of the dates on which she proposes to start and end the period of leave.

 

(c)        The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that she is pregnant and the expected date of birth.

 

(d)       The employee must, before the start of leave, provide a statutory declaration by the employee stating, if applicable, the period of any paternity leave sought or taken by her spouse.

 

(2)        Paternity leave

 

The notices and documents to be given to the employer for the purposes of taking paternity leave are as follows:

 

(a)        In the case of extended paternity leave, the employee should give at least 10 weeks' written notice of the intention to take the leave.

 

(b)       The employee must, at least 4 weeks before proceeding on leave, give written notice of the dates on which he proposes to start and end the period of leave.

 

(c)        The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that his spouse is pregnant and the expected date of birth.

 

(d)       In the case of extended paternity leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:

 

(i)         if applicable, the period of any maternity leave sought or taken by his spouse; and

 

(ii)        that he is seeking that period of extended paternity leave to become the primary care-giver of a child.

 

(3)        Adoption leave

 

The notices and documents to be given to the employer for the purposes of taking adoption leave are as follows:

 

(a)        In the case of extended adoption leave, the employee should give written notice of any approval or other decision to adopt a child at least 10 weeks' before the expected date of placement.

 

(b)       The employee must give written notice of the dates on which the employee proposes to start and end the period of leave, as soon as practicable after the employee is notified of the expected date of placement of the child but at least 14 days before proceeding on leave.

 

(c)        The employee must, before the start of leave, provide a statement from an adoption agency or another appropriate body of the expected date of placement of the child with the employee for adoption purposes.

 

(d)       In the case of extended adoption leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:

 

(i)         if applicable, the period of any adoption leave sought or taken by his/her spouse, and

 

(ii)        that the employee is seeking that period of extended adoption leave to become the primary care-giver of a child.

 

(4)        An employee does not fail to comply with this section if the failure was caused by:

 

(a)        the child being born (or the pregnancy otherwise terminating) before the expected date of birth; or

 

(b)       the child being placed for adoption before the expected date of placement,

 

or if it was not otherwise reasonably practicable to comply in the circumstances.  In the case of the birth of a living child, notice of the period of leave is to be given within 2 weeks after the birth and the certificate of the medical practitioner is to state that the child was born and the date of birth.  In the case of the adoption of a child, notice of the period of leave is to be given within 2 weeks after the placement of the child.

 

(5)        An employee must notify the employer of any change in the information provided under this section within 2 weeks after the change.

 

(6)        If required by the employer, an employee who applies for parental leave is to give the employer a statutory declaration, or enter into an agreement with the employer, that for the period of the leave the employee will not engage in any conduct inconsistent with the employee's contract of employment.

 

59.        Continuity of service

 

(1)        Parental leave does not break an employee's continuity of service, but is not to be taken into account in calculating an employee's period of service for any purpose.

 

(2)        However, parental leave counts as service for any purpose authorised by law or by any industrial instrument or contract of employment.

 

60.        Parents not to take parental leave at the same time

 

(1)        An employee is not entitled to parental leave at the same time as his/her spouse is on parental leave under this Part.

 

(2)        If this section is contravened, the period of parental leave to which the employee is entitled under this Part is reduced by the period of leave taken by his/her spouse.

 

(3)        This section does not apply to short paternity leave or short adoption leave.

 

61.        Cancellation of parental leave

 

(1)        Before starting leave parental leave applied for but not commenced is automatically cancelled if:

 

(a)        the employee withdraws the application for leave by written notice to the employer, or

 

(b)       the pregnancy concerned terminates other than by the birth of a living child or the placement of the child concerned does not proceed.

 

(2)        After starting leave if:

 

(a)        the pregnancy of an employee or an employee's spouse terminates other than by the birth of a living child while the employee or spouse is on parental leave, or

 

(b)       the child in respect of whom an employee is then on parental leave dies, or

 

(c)        the placement of a child for adoption purposes with an employee then on adoption leave does not proceed or continue,

 

the employee is entitled to resume work at a time nominated by his/her employer within 2 weeks after the date on which the employee gives his/her employer a notice in writing stating that the employee intends to resume work and the reason for the intended resumption.

 

(3)        Special leave not affected.  This section does not affect an employee's entitlement to special maternity leave under section 71.

 

62.        Parental leave and other leave

 

(1)        An employee may take any annual leave or long service leave (or any part of it) to which the employee is entitled instead of or in conjunction with parental leave.

 

(2)        However, the total period of leave cannot be so extended beyond the maximum period of parental leave authorised by this Part.

 

(3)        Any paid sick leave or other paid absence authorised by law or by an industrial instrument or contract of employment is not available to an employee on parental leave, except if the paid absence is annual leave or long service leave or with the agreement of the employer.

 

63.        Employee and employer may agree to interruption of parental leave by return to work

 

(1)        An employee on parental leave may, with the agreement of the employer, break the period of leave by returning to work for the employer, whether on a full-time, part-time or casual basis.

 

(2)        The period of leave cannot be extended by such a return to work beyond the maximum period of leave authorised by this Part.

 

(3)        Nothing in this section affects any other work undertaken by the employee during parental leave.

 

Note: Section 58(6) requires the employee when taking parental leave to provide the employer with a statutory declaration, or enter into an agreement with the employer, that the employee will not engage during leave in any conduct inconsistent with the employee's contract.

 

64.        Extension of period of parental leave

 

(1)        An employee may extend the period of parental leave once only by giving the employer notice in writing of the extended period at least 14 days before the start of the extended period.  The period of leave cannot be extended by such a notice beyond the maximum period of leave authorised by this Part.

 

(2)        An employee may extend the period of parental leave at any time with the agreement of the employer.  The period of leave can be extended by such an agreement beyond the maximum period of leave authorised by this Part.

 

(3)        This section applies to an extension of leave while the employee is on leave or before the employee commences leave.

 

65.        Shortening of period of parental leave

 

An employee may shorten the period of parental leave with the agreement of the employer and by giving the employer notice in writing of the shortened period at least 14 days before the leave is to come to an end.

 

66.        Return to work after parental leave

 

(1)        An employee returning to work after a period of parental leave is entitled to be employed in:

 

(a)        the position held by the employee immediately before proceeding on that leave, or

 

(b)       if the employee worked part-time or on a less regular casual basis because of the pregnancy before proceeding on maternity leave - the position held immediately before commencing that part-time work or less regular casual work, or

 

(c)        if the employee was transferred to a safe job under section 70 before proceeding on maternity leave - the position held immediately before the transfer.

 

(2)        If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee's former position.

 

(3)        This section extends to a female employee returning to work after a period of leave under section 71 (Special maternity leave and sick leave).

 

(4)        An employer who does not make available to an employee a position to which the employee is entitled under this section is guilty of an offence.

 

Maximum penalty: 100 penalty units.

 

(5)        In this section, a reference to employment in a position includes, in the case of a casual employee, a reference to work for an employer on a regular and systematic basis.

 

Note: An employee returning to work after parental leave may also have an entitlement to work part-time under an industrial instrument or a part-time work agreement under Part 5.

 

Division 2 - Miscellaneous provisions

 

67.        Employer's obligations

 

(1)        Information to employees.  On becoming aware that an employee (or an employee's spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of:

 

(a)        the employee's entitlements to parental leave under this Part, and

 

(b)       the employee's obligations to notify the employer of any matter under this Part.

 

An employer cannot rely on an employee's failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee.

 

(2)        Records.  An employer must keep, for at least 6 years, a record of parental leave granted under this Part to employees and all notices and documents given under this Part by employees or the employer.

 

Maximum penalty: 20 penalty units.

 

68.        Termination of employment because of pregnancy or parental leave

 

(1)        An employer must not terminate the employment of an employee because:

 

(a)        the employee or employee's spouse is pregnant or has applied to adopt a child, or

 

(b)       the employee or employee's spouse has given birth to a child or has adopted a child, or

 

(c)        the employee has applied for, or is absent on, parental leave,

 

but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.

 

Maximum penalty: 100 penalty units.

 

(2)        For the purposes of establishing such a termination of employment, it is sufficient if it is established that the alleged reason for termination was one of two or more reasons for termination.

 

(3)        This section does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment, or the rights of an industrial organisation representing such an employee.

 

Note: A dismissed employee may also make a claim under Part 6 (Unfair dismissals).

 

69.        Replacement employees

 

(1)        A replacement employee is a person who is specifically employed as a result of an employee proceeding on parental leave (including as a replacement for an employee who has been temporarily promoted or transferred in order to replace the employee proceeding on parental leave).

 

(2)        Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee on parental leave to return to work.

 

Maximum penalty: 50 penalty units.

 

(3)        A reference in this section to an employee proceeding on parental leave includes a reference to a pregnant employee exercising a right under section 70 to be transferred to a safe job.

 

70.        Transfer to a safe job

 

(1)        This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or new born child.  The assessment of such a risk is to be made on the basis of a medical certificate supplied by the employee and of the obligations of the employer under the Occupational Health and Safety Act 2000.

 

(2)        The employer is to temporarily adjust the employee's working conditions or hours of work to avoid exposure to that risk.

 

(3)        If such an adjustment is not feasible or cannot reasonably be required to be made, the employer is to transfer the employee to other appropriate work that:

 

(a)        will not expose her to that risk, and

 

(b)       is as nearly as possible comparable in status and pay to that of her present work.

 

(4)        If such a transfer is not feasible or cannot reasonably be required to be made, the employer is to grant the employee maternity leave under this Part (or any available paid sick leave) for as long as is necessary to avoid exposure to that risk, as certified by a medical practitioner.

 

(5)        An employer who does not comply with any obligation imposed on the employer by this section is guilty of an offence.

 

Maximum penalty (subsection (5)): 50 penalty units.

 

71.        Special maternity leave and sick leave

 

If the pregnancy of an employee terminates before the expected date of birth (other than by the birth of a living child), or she suffers illness related to her pregnancy, and she is not then on maternity leave:

 

(a)        the employee is entitled to such period of unpaid leave (to be known as special maternity leave ) as a medical practitioner certifies to be necessary before her return to work, or

 

(b)        the employee is entitled to such paid sick leave (either instead of or in addition to special maternity leave) as she is then entitled to and as a medical practitioner certifies to be necessary for her return to work.

 

72.        Special adoption leave

 

An employee who is seeking to adopt a child is entitled to up to 2 days' unpaid leave if the employee requires that leave to attend compulsory interviews or examinations as part of the adoption procedure."

 

 

 

J. McLEAY, Commissioner.

 

 

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Printed by the authority of the Industrial Registrar.