State Crest
New South Wales Industrial Relations Commission
(Industrial Gazette)




No longer in force


spacer image spacer image

Chemical Workers (State) Award
  
Date05/02/2008
Volume365
Part3
Page No.757
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C6428
CategoryAward
Award Code 112  
Date Posted05/02/2008

spacer image spacer image

spacer image Click to download*
spacer image
(112)

(112)

SERIAL C6428

 

Chemical Workers (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1528 of 2007)

 

Before Commissioner Bishop

8 February 2008

 

REVIEWED AWARD

 

1.  Arrangement

 

PART A

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Definitions

3.         Wages

4.         Allowances

5.         Shift Work

6.         Sundays and Holidays Pay

7.         Hours of Work

8.         Overtime

9.         Meals

10.       Holidays

11.       Sick Leave

12.       Personal/Carer's Leave

13.       Annual Leave

14.       Annual Leave Loading

15.       Long Service Leave

16.       Protective Clothing

17.       Mixed Functions

18.       Contract of Employment

18A.    Secure Employment

19.       Payment of Wages

20.       First-aid

21.       Amenities

22.       Anti Discrimination and Harassment

23.       Jury Service

24.       Bereavement Leave

25.       Structural Efficiency

26.       Labour Flexibility - Mixed Enterprises

27.       Consultative Mechanism

28.       Disputes Procedure

29.       Redundancy

30.       Enterprise Agreements

31.       Parental Leave

32.       Superannuation

33.       Trainees

34.       Leave Reserved

35.       Deduction of Union Membership Fees

36.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay

Table 2 - Other Rates and Allowances

 

2.  Definitions

 

(i)         A Chemical Plant Operator, Class 1, is an employee who is required to operate a complex chemical plant and/or a complex chemical process and who performs duties with a high degree of skill and competence and requires a minimum of supervision.

 

(ii)        A Chemical Plant Operator, Class 2, is an employee who is required to operate a chemical plant and/or perform a chemical process.

 

(iii)       A Chemical Plant Operator, Class 3, is an employee undergoing training in the operation of chemical plant and/or chemical processes or assisting a Chemical Plant Operator Class 1 or 2.

 

(iv)       Materials Attendant, Class 1, means and includes an employee engaged in the recording duties of external dispatch, stocktaking, receiving, unloading and internal dispatch of bulk liquid chemicals and, when performed amongst other duties covered by this definition, filling of finished goods from storage, or employees engaged in cell reconditioning.

 

(v)        Materials Attendant, Class 2, means and includes an employee engaged in the work of drum spraying, drum conditioning, working in production departments handling chemical products, removing ashes, chemical waste materials, receiving, storing, stacking, loading, unloading and despatching process stocks, finished goods, empty containers and raw materials, other than bulk liquid materials, redrumming and repackaging, hand painting, labelling and check weighting of drums and packages, stencilling shipping brands or filling of finished goods from storage unless covered by definition of materials Attendant, Class 1, and/or generally assisting a Materials Attendant, Class 1.

 

(vi)       General Labourer means and includes an employee cleaning yard, change rooms, laboratories, production and other building and plants, and plant environs, etc., burning refuse, etc., and performing other general labouring work not elsewhere classified.

 

(vii)      Shift Workers are employees working on one, two or three-shift systems.

 

(viii)     Seven-day Shift Workers are shift workers whose ordinary working period includes Sundays and holidays as ordinary working days on which they may be regularly rostered.

 

(ix)       Day Workers are employees other than shift workers.

 

(x)        Casual Employee means an employee engaged to work for a lesser period than 38 hours in any period of seven days.

 

3.  Wages

 

(i)         The minimum rates of pay for any classification shall, subject to the other provisions of this award, be the weekly rate hereinafter appearing in Table 1 - Rates of Pay, of Part B, Monetary Rates.

 

(ii)        Junior Rates - Junior employees shall be paid the percentages of the total rate prescribed in the said Table 1 for the classification of General Labourer.

 

(iii)       The rates of pay in this award include the adjustments payable under the State Wage Case 2007. These adjustments may be offset against:

 

(a)        any equivalent overaward payments;  and/or

 

(b)        award wage increases since 29 May 1991 other than safety net, State Wage Case, and minimum rates adjustments.

 

(iv)       The amount prescribed in subclause (i) may be absorbed to the extent of any overaward payments exceeding the level of award wages set out in Table 1.

 

4.  Allowances

 

(i)         An employee appointed as a leading hand in charge of other employees shall be paid an additional amount as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.

 

(ii)        Employees whilst engaged on cleaning work inside a tank or still shall be paid an amount as set out in Item 2 of the said Table 2.

 

5.  Shift Work

 

(i)         Definitions -

 

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

 

(b)        "Continuous Work" means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption, except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.

 

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

 

(d)        "Rostered Shift" means a shift of which the employee concerned has at least 48 hours’ notice.

 

(ii)        Hours - Continuous Work Shifts - This subclause applies to shift workers on continuous work as herein defined.

 

(a)        The ordinary hours of shift workers shall average 38 per week, inclusive of crib time, and shall not exceed 152 hours in 28 consecutive days.

 

(b)        Where the employer and the majority of the employees concerned agree, a roster system may operate on the basis that the weekly average of 38 hours is achieved over a period which exceeds 28 consecutive days.

 

(c)        Subject to the following conditions, such shift workers shall work at such times as the employer may require. A shift shall consist of not more than ten hours, inclusive of crib time.  However:

 

(1)        By agreement between the employer, the union(s) concerned and/or the majority of employees concerned, ordinary hours not exceeding 12 on any day may be worked, subject to: the employer and employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12-hour Shifts; proper health and monitoring procedures being introduced; suitable roster arrangements being made; and proper supervision being provided.

 

(2)        Except at the regular changeover of shifts, an employee shall not be required to work more than one shift in each 24-hour period.

 

(3)        Twenty minutes shall be allowed to shift workers each shift for crib which shall be counted as time worked.

 

(iii)       Hours - Other than Continuous Work - This subclause shall apply to shift workers not on continuous work as herein defined.  The ordinary hours of work shall be an average of 38 per week, to be worked on the following bases:

 

(a)        10 hours during any consecutive 24 hours;

 

(b)        38 hours per week;

 

(c)        76 hours in 14 consecutive days; or

 

(d)        114 hours in 21 consecutive days; or

 

(e)        152 hours in 28 consecutive days,

 

However, by agreement between an employer, the union and the majority of employees in the plant or work section(s) concerned, ordinary hours not exceeding 12 on any day may be worked, subject to: the employer and the employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12-hour Shifts; suitable roster arrangements being made; proper supervision being provided.

 

(iv)       Variation by Agreement - The method of working shifts and the time of commencing and finishing shifts may in any case be varied where there is agreement between either the employer and the union, or the majority of employees affected by the proposed change in the plant, work section or work sections concerned.

 

The time of commencing and finishing shifts once having been determined may be varied by agreement between either the union and employer, or the majority of employees affected by the proposed change in the plant, work section or work sections concerned or, in the absence of agreement, by seven days notice of alteration given by the employer to the employees.

 

(v)        Shift Allowances -

 

(a)        Shift workers whilst on afternoon or night shift shall be paid an allowance of 15 per cent of the ordinary rate of pay per week in addition to the rates payable under this award.

 

(b)        Shift workers who do not work on day shift for at least one-third of their time in each shift cycle shall be paid an allowance of 25 per cent per week whilst working afternoon shift and night shifts only, or working night shifts only, in addition to the rates payable under this award.

 

(c)        Day workers who are transferred to shift work but are required to work on one afternoon or night shift of not more than 10 hours for four or more consecutive afternoons or nights, Monday to Friday, shall be paid time and one-quarter.

 

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

 

6.  Sundays and Holidays Pay

 

(i)         Day workers and shift workers shall be paid at the rate of double time for work done on Sundays and double time and one-half for work done on holidays, such extra rate to be in substitution for and not cumulative upon the shift premiums prescribed by subclause (v) of clause 5, Shift Work.

 

(ii)        Employees other than on shift, required to work on any Sunday or on a holiday, shall receive a minimum of four hours pay.

 

7.  Hours of Work

 

(i)

 

(a)        Day Workers - The ordinary working hours of day workers shall be 38 per week, to be worked Monday to Friday, inclusive, between the hours of 6.00 a.m. and 6.00 p.m.

 

(b)        However, the spread of hours may be altered by mutual agreement between an employer and the majority of affected employees in a plant, work section or work sections concerned. Agreement can extend to staggering starting and finishing times for employees provided that the majority of employees affected by the proposed change agree in a plant, work section or work sections concerned.

 

(ii)        The ordinary hours of work prescribed herein shall not exceed ten on any day.  However:

 

(a)        By arrangement between an employer, the union and/or majority of employees in the plant or work sections concerned, ordinary hours not exceeding 12 may be worked on any day subject to:

 

(1)        The employer and the employees concerned being guided by the Occupational Health and Safety provisions of the ACTU Code of Conduct on 12-Hour shifts.

 

(2)        Proper health monitoring procedures being introduced.

 

(3)        Suitable rostering arrangements being made.

 

(4)        Proper supervision being provided.

 

(iii)       Implementation of the 38-Hour Week - The method of implementing the 38-hour week shall be determined by agreement between the employer and the majority of employees directly affected, from one or more of the following:

 

(a)        By employees working less than eight ordinary hours each day.

 

(b)        By employees working less than eight ordinary hours on one or more days each week.

 

(c)        By employees having one weekday off, or two half days off, excluding public holidays in each 20 - day work cycle, eight hours being worked on each of the other days of those four weeks. The days off are to be nominated by the employer.

 

(d)        By fixing one weekday on which all or any number of employees will be off during a particular 20-day work cycle.

 

(e)        By rostering employees off on various weekdays during a particular 20-day work cycle. Subject to operational requirements, preference shall be given to days off being arranged to suit individual requests.

 

(iv)       Flexibility in relation to days off - Where the hours of work of an establishment, plant or section are organised in accordance with paragraph (c) of this subclause an employer may require the employee(s) to accrue a maximum of five rostered days off.  Where a rostered day off is allowed it shall be taken within 12 months of its original due date.

 

(v)        The procedure for resolving special, anomalous or extraordinary problems shall be applied in accordance with the settlement of disputes, claims and grievances. The procedure shall be applied without delay.

 

(vi)       In any calendar year, where 20 days annual leave is taken there shall be a maximum of 12 rostered days off. Provided that for lesser periods of annual leave taken the above will apply on a proportionate basis.

 

(vii)      However the ordinary hours may be worked by such other method that is agreed upon between the employer and the majority of employees directly affected.

 

(viii)     Circumstances may arise where different methods of implementing a 38-hour week apply to various groups or sections of employees in the plant or section concerned.

 

(ix)       The day scheduled to be the day off in accordance with paragraph (c) of this subclause may be worked as an ordinary working day without penalty when substituted for another day by agreement between the employer and the employee directly affected, or where a number of employees are directly affected, by agreement between the employer and a majority of employees in respect of whom a substituted day off is sought.

 

(x)        Excluding circumstances beyond the control of the employer and except as herein provided, not less than seven days notice is to be given concerning the days off thus allocated to employees by the application of the foregoing arrangements.

 

(xi)       In any calendar year, where 20 days annual leave is taken there shall be a maximum of 12 rostered days off. Providing that for lesser periods of annual leave taken the above will apply on a proportionate basis.

 

8.  Overtime

 

(i)         Day Workers - All time worked before the usual commencing time or after the usual ceasing time each day, or in excess of 38 hours per week, shall be overtime and shall be paid for at the rate of time and a half for the first two hours and double time thereafter.

 

(ii)        Shift Workers - All time worked -

 

(a)        in excess of or outside the ordinary working hours prescribed by this award;  or

 

(b)        on more than 11 shifts in 12 consecutive days;  or

 

(c)        on a rostered shift off, shall be paid for at the rate of time and a half for the first two hours and double time thereafter. However, where a shift worker works overtime on a Saturday on which the shift worker’s last ordinary shift finished the shift worker shall be paid at double time. Further, where a shift worker works in excess of ten hours on a Saturday and/or Sunday, they shall be paid at the rate of double time.

 

This subclause shall not apply when the time worked is -

 

(1)        by arrangement between the employees themselves;  or

 

(2)        for the purpose of effecting the customary rotation of shifts.

 

(iii)       An employee recalled to work after leaving the employer’s premises shall be paid for four hours at least at the appropriate overtime rate.

 

(iv)       An employee working overtime but finishing work when the usual means of transport are not available shall be entitled to any additional outlay incurred in reaching home by reasonable means of transport.

 

(v)        Where overtime is necessary it shall, wherever reasonably practicable, be so arranged that employees have at least ten consecutive hours off duty between the work of successive days.  An employee (other than a casual employee) who works overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day such that the employee has not had at least ten consecutive hours off duty between these times shall, subject to this subclause, be released after completion of such overtime until he/she has had ten consecutive hours off duty without loss of pay, for ordinary working time occurring during such absence.  If, on the instruction of the employer, such employee resumes or continues work without having had the ten consecutive hours off duty, he/she shall be paid at double rates until he/she is released from duty for that period, and he/she shall then be entitled to be absent until he/she has had ten consecutive hours off duty without loss of pay, for ordinary working time occurring during such absence. Call backs shall not be counted as overtime for the purpose of this subclause.

 

(vi)       Overtime shall be paid for at the end of each week and each day shall stand alone.

 

(vii)      In lieu of payment for overtime worked on a particular day, an employee may be granted leave by the employer to be absent during ordinary hours of work.  However, the period of absence shall be granted in accordance with the following conditions:

 

(a)        it shall not exceed the number of hours worked by the employee as overtime;  and

 

(b)        it shall be paid at the same hourly rate for the overtime worked, ie.  At the ordinary time rates;  and

 

(c)        it shall not be more than 12 hours in any 28-day period;  and

 

(d)        any period of overtime not paid at the time of working the overtime must be taken as time off or paid within a period of 28 days;  and

 

(e)        it shall be counted as ordinary hours worked by the employee (refer to notation).  NOTATION: This condition ensures that there is no diminution in the number of ordinary hours worked in the rostered period in which the period of absence is granted.

 

(viii)     Reasonable Overtime

 

(a)        Subject to paragraph (b) below, an employer may require an employee to work reasonable overtime at overtime rates or as otherwise provided for in this award.

 

(b)        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.

 

(c)        For the purposes of paragraph (b) what is unreasonable or otherwise will be determined having regard to:

 

(i)         any risk to employee health and safety;

 

(ii)        the employee's personal circumstances including any family and carer responsibilities;

 

(iii)       the needs of the workplace or enterprise;

 

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

 

(v)       any other relevant matter.

 

9.  Meals

 

(i)         Employees, other than shift workers, shall be allowed a meal break of not less than 30 minutes or more than one hour, Monday to Friday, inclusive. An employer may vary an employee’s regular meal break with seven days notice.

 

(ii)        An employee called upon to work during the employee’s regular meal break shall be paid at overtime rates for all time worked until such break for a meal is granted.

 

(iii)

 

(a)        An employee required to work overtime for more than two hours after the ordinary ceasing time, without being notified before leaving work on the previous day that the employee would be required to work overtime, shall be provided (free of cost) either with a suitable meal or paid the amount set out in Item 3 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, in lieu of such meal. If the employee works for a further four hours the employee shall be supplied with a second meal by the employer or paid a further sum of the amount set out in Item 4 of the said Table 2 for the second meal.

 

(b)        If an employee is notified on a previous day that the employee would be required to work overtime and pursuant to such notification the employee has provided a meal or meals and is not required to work less than the amount of overtime that the employee was notified that they would be required to work, the employee shall be paid in accordance with paragraph (a) of this subclause for each meal which the employee has provided and which are surplus.

 

(iv)       Employees shall be supplied at meal times with boiling water or with facilities for boiling water.

 

(v)        No employee shall work longer than five hours without a break for a meal.  By agreement between the employer and the majority of employees in a plant, work section, or work sections concerned, an employee or employees may be required to work in excess of five hours, but not more than six hours, without a break for a meal.

 

10.  Holidays

 

(i)         Subject to the provisions of this clause employees, other than casuals, shall be entitled to the following public holidays without loss of ordinary pay that the employee would normally receive, viz., New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen’s Birthday, Labour Day, Christmas Day and Boxing Day and any other public holidays proclaimed for the County of Cumberland or the State.

 

(ii)        The first Monday in March of each year or any other date if a month’s notice is given to the employer shall be a holiday as the picnic day of The Australian Workers’ Union, New South Wales, provided that a picnic is held.  The employer may require any employee to work on such picnic day and, unless reasonable excuse exists, the employee shall work in accordance with such requirements at the rate prescribed by clause 6, Sundays and Holidays Pay.  The employer may require from an employee evidence of his/her attendance at the picnic and the production of the butt of the picnic ticket issued for the picnic will be sufficient evidence of attendance.  Where such evidence is requested by the employer, payment need not be made unless the evidence is produced.

 

(iii)       Any employee who is absent without leave or reasonable excuse on the working days succeeding or preceding a holiday shall not be entitled to payment for such holiday.

 

11.  Sick Leave

 

(i)         An employee, after three months continuous service, who is absent from work by reason of personal illness or personal injury, shall be entitled to paid leave of absence, subject to the following conditions and limitations:

 

(a)        The employee shall, within 24 hours of the commencement of such absence, inform the employer of the employee’s inability to attend for duty and, as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.

 

(b)        The employee shall prove to the satisfaction of the employee’s employer, by the production of a medical certificate or other satisfactory evidence, that the employee was unable, on account of such illness or injury, to attend for duty on the day or days for which sick leave is claimed.

 

(c)        An employee shall be entitled to sick leave of 38 hours in the first year of employment, 60.8 hours in the second year of employment and 76 hours in subsequent years of employment.  This leave shall be paid at ordinary working time rates.

 

(ii)        Sick leave shall accumulate from year to year so that any balance of the period specified in subclause (i) of this clause which has not been allowed by an employer to an employee as paid sick leave may be claimed, subject to the conditions prescribed by this clause, by an employee in a subsequent year of continued employment. Any rights which accumulate, pursuant to this subclause, shall be available to the employee so long as the employment continues.

 

(iii)       Service prior to the operative date of this award shall be counted as service for the purpose of qualifying thereunder.

 

12.  Personal/Carer’s Leave

 

(i)         Use of Sick Leave -

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a class of person set out in 12(c)(2) 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 at clause 11, Sick Leave of the award, for absences to provide care and support for such persons when they are ill, or who require care due to an unexpected emergency. Such leave may be taken for part of a single day.

 

(b)        The employee shall, if required,

 

(1)        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, or

 

(2)        establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

 

In normal circumstances, an employee must not take carer's leave under this subclause where another person had taken leave to care for the same person.

 

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

 

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

 

(2)        the person concerned being:

 

(A)       a spouse of the employee; or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(d)        An employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that person’s relationship to the employee, the reasons for taking such leave and the estimated length of absence. If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

 

Note: In the unlikely event that more than 10 days sick leave in any year is to be used for caring purposes the employer and employee shall discuss appropriate arrangements which, as far as practicable, take account of the employer’s and employee’s requirements.

 

Where the parties are unable to reach agreement the disputes procedure at clause 28, Dispute Procedure, should be followed.

 

(ii)        Unpaid Leave for Family Purpose -

 

(a)        An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in 12(c)(2) above who is ill or who requires care due to an unexpected emergency.

 

(iii)       Annual Leave -

 

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

 

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

 

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

 

(d)        An employee may elect with the employers agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

(iv)       Time Off in Lieu of Payment for Overtime -

 

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

 

(b)        Overtime taken as time off during ordinary time hours shall be taken at the same hourly rate for the overtime worked.

 

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

 

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

 

(v)        Make-up Time -

 

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

 

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

 

(vi)       Rostered Days Off -

 

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

 

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

 

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

 

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

 

(vii)      Personal Carers Entitlement for casual employees -

 

(1)        Subject to the evidentiary and notice requirements in 12(i)(b) and 12(i)(d) casual employees are entitled to not be available to attend work, or to leave work if they need to care for a person prescribed in subclause 12(c)(2) of this clause who are sick and require care and support, or who require care due to an unexpected emergency, or the birth of a child.

 

(2)        The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(3)        An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.

 

13.  Annual Leave

 

(i)         Day Workers and Six-day Shift Workers - See Annual Holidays Act 1944.

 

(ii)        Seven-day Shift Workers -

 

(a)        In addition to the leave prescribed by the Annual Holidays Act 1944, a further period of seven consecutive days leave with 38 hours pay at ordinary rates, shall be allowed annually to employees after not less than 12 months continuous service as seven-day shift workers under this award.

 

(b)        An employee with 12 months’ continuous service who is employed for part of the 12-month period as a seven-day shift worker under this award shall be entitled to have the leave prescribed by the Annual Holidays Act 1944 increased by a half day for each month the employee is continuously employed as a seven day shift worker.

 

(c)        Where the additional leave calculated under paragraph (b) of this subclause is or includes a fraction of a day, such day shall not form part of the leave period and any such fraction shall be discharged by payment only.

 

(d)        Annual leave under this subclause shall be given and taken within a period not exceeding six months from the date upon which the right to such leave accrued.  However, the giving and taking of such annual leave may be postponed for a further period not exceeding three months in cases where circumstances render it impracticable to give or take it within the said period of six months.  Nothing in this paragraph shall prevent the employer from allowing annual leave to an employee before the right thereto has accrued, but where such leave is taken before the right thereto has accrued, further leave shall not commence to accrue until after the expiration of the 12 months in respect of which such annual leave has been taken.

 

(e)        Any employee whose employment is terminated by the employer through no fault of the employee’s own and any employee who leaves employment shall be paid for the proportionate period of annual leave to which the employee would have been entitled if the employee’s employment had not been so terminated.

 

(f)         The annual leave provided for by this subclause shall be given and shall be taken and except as provided in paragraphs (c) and (e) of this subclause, payment shall not be made or accepted in lieu of annual leave.

 

(g)        Service with an employer before the date of coming into force of this award shall count as service for the purpose of the current qualifying 12 months period under this clause.

 

(iii)       Days Added to Period of Annual Leave -

 

(a)        Where an employee is employed as a seven-day shift worker, as defined, one day shall be added to the annual leave period in respect of any holiday prescribed by this award which falls within the period of annual leave to which the employee is entitled under this award.

 

(b)        One day shall be added to the annual leave period of any employee who, whilst employed as a seven-day shift worker, as defined, is rostered off duty on a day which is a holiday prescribed by this award and who is not required to work on that day.

 

(c)        Any day or days added shall be paid for at the ordinary rate of pay prescribed by subclause (i) of clause 3, Wages.

 

(d)        Any day or days added in accordance with paragraphs (a) and (b) of this subclause shall be the working days immediately following the period of annual leave to which the employee is entitled under subclauses (i) and (ii) of this clause.

 

(e)        For the purpose of paragraph (d) of this subclause, working days shall be:

 

(1)        in the case of an employee who, at the commencement of the period of annual leave was employed as a day worker - any day in the week other than Saturday, Sunday or a holiday prescribed by this award;

 

(2)        in the case of an employee who, at the commencement of the period of annual leave, was employed as a seven-day shift worker - any day of the week, including a day on which the employee concerned would have been rostered off duty if the employee was not on annual leave.

 

(f)         Where the employment of a worker has been terminated and he/she thereby becomes entitled under section 4 of the Annual Holidays Act 1944 to payment in lieu of annual holiday, with respect to a period of employment, the employee shall be also entitled to an additional payment for each day accrued to the employee under paragraph (b) of this subclause at the ordinary rate of pay prescribed by subclause (i) of clause 3, Wages.

 

14.  Annual Leave Loading

 

(i)         In this clause, the Annual Holidays Act 1944 is referred to as "the Act".

 

(ii)        Before an employee is given and takes an annual holiday or where, by agreement between the employer and employee, the annual holiday is given and taken in more than one separate period, then before each of such separate periods the employer shall pay the employee a loading determined in accordance with this clause.  (NOTE: The obligation to pay in advance does not apply where an employee takes an annual holiday wholly or partly in advance - see subclause (vi).)

 

(iii)       The loading is payable in addition to the pay for the period of holiday given and taken and due to the employee under the Act and this award.

 

(iv)       The loading is to be calculated in relation to any period of annual holiday to which the employee becomes or has become entitled under the Act and this award (but excluding days added to compensate for public or special holidays worked or public or special holidays falling on an employee’s rostered day off not worked) and where such a holiday is given and taken in separate periods, then in relation to each such separate period.

 

(v)        The loading is the amount payable for the period, or the separate period, as the case may be, stated in subclause (iv) at the rate per week of 17.5 per cent of the appropriate ordinary weekly time rate of pay prescribed by this award for the classification in which the employee was employed immediately before commencing the annual holiday, together with leading hand allowance where applicable.

 

(vi)       No loading is payable to an employee who takes an annual holiday wholly or partly in advance, if the employment of such an employee continues until the day when the employee would have become entitled under the Act to an annual holiday, the loading then becomes payable in respect of the period of such holiday and is to be calculated in accordance with subclause (v) of this clause, applying the award rates of wages payable on that day.  This subclause applies where an annual holiday has been taken wholly or partly in advance.

 

(vii)      Where, in accordance with the Act, the employer’s establishment or part of it is temporarily closed down for the purpose of giving an annual holiday or leave without pay to the employees concerned -

 

(a)        An employee who is entitled under the Act to an annual holiday and who is given and takes such holiday shall be paid the loading calculated in accordance with subclause (v) of this clause.

 

(b)        An employee who is not entitled under the Act to an annual holiday and who is given and takes leave without pay shall be paid, in addition to the amount payable to the employee under the Act, such proportion of the loading that would have been payable to the employee under this clause if the employee had become entitled to an annual holiday prior to the closedown as the qualifying period of employment in completed weeks bears to 52.

 

(viii)

 

(a)        When the employment of an employee is terminated by the employer, for a cause other than misconduct and at the time of the termination the employee has not been given and has not taken the whole of an annual holiday to which the employee became entitled, the employee shall be paid a loading calculated in accordance with subclause (v) for the period not taken.

 

(b)        Except as provided by paragraph (a) of this subclause, no loading is payable on the termination of an employee’s employment.

 

(ix)       This clause extends to an employee who is given and takes an annual holiday and who would have worked as a shift worker if the employee had not been on holiday.  However, if the amount to which the employee would have been entitled by way of shift work allowances and weekend penalty rates for the ordinary time (not including time on a public or special holiday) which the employee would have worked during the period of the holiday exceeds the loading calculated in accordance with this clause, then that amount shall be paid to the employee in lieu of the loading.

 

15.  Long Service Leave

 

See Long Service Leave Act 1955.

 

16.  Protective Clothing

 

(i)         Where necessary, for the performance of their duties, employees shall be provided with suitable rubber boots, suitable waterproof clothing, clogs, goggles, masks, gloves, aprons, or other suitable substitutes.

 

(ii)        Any employee issued with protective clothing in accordance with subclause (i) of this clause shall wear such clothing whilst engaged on work for which it was deemed necessary for the protective clothing to be issued.

 

(iii)       Clothing and equipment shall remain the property of the employer.

 

17.  Mixed Functions

 

(i)         An employee who is required to do work carrying a higher rate than the employee’s ordinary classification for more than two hours shall be paid at the higher rate for the whole of the day or shift.

 

(ii)        Subject to subclause (i) of this clause, an employee who, on any day or shift is required to do the work of a higher paid classification for at least one hour, shall be paid the rate prescribed for such work whilst so engaged.

 

(iii)       An employee who, on any day or shift is required to do work carrying a lower rate than the employee’s ordinary classification for less than one hour, shall suffer no reduction in consequence thereof.

 

18.  Contract of Employment

 

(i)         After three months continuous service employment shall be by the week and may be terminated by a week’s notice on either side or by the payment or forfeiture of one week’s wages in lieu of notice, as the case may be.

 

(ii)        Employment for the first three months of continuous service shall be from day to day at a proportion of the weekly rate fixed. However, any employee who has once served for a continuous period of one month with an employer, if re-employed within 12 months, shall be engaged and paid by the week.

 

(iii)       An employer shall not be required to pay for any time an employee cannot be usefully employed because of any strike, or through any breakdown in machinery or any stoppage of work through any cause for which the employer cannot be reasonably held responsible.

 

(iv)       An employer may dismiss any employee without notice for malingering, inefficiency, neglect of duty or misconduct and in such cases wages shall be paid up to the time of dismissal only.

 

(v)        Part-time Employment -

 

(a)        An employee may be engaged by the week to work on a part- time basis for a constant number of hours which shall average less then 38 per week.

 

(b)        An employee so engaged shall be paid per hour one thirty- eighth of the weekly rate prescribed in Table 1 - Rates of Pay, of Part B, Monetary Rates, for the classification in which the employee is engaged.

 

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

 

(d)        Where the normal paid hours for a part-time employee fall on a public holiday and work is not performed by the employee, such employee shall not lose pay for the day.  Where the employee works on the holiday, such employee shall be paid in accordance with clause 6, Sundays and Holidays Pay.

 

(vi)       Casual Employment -

 

(a)        A casual employee is engaged and paid by the hour. A casual employee shall be paid one thirty- eighth of the weekly award wage prescribed herein for work performed, plus 15 per cent.

 

(b)        The employment of a casual employee may be terminated by one hour’s notice on either side or the payment or forfeiture of an hour’s pay.

 

18A.  Secure Employment

 

(a)        Objective of this Clause

 

The objective of this clause is for the employer to take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce, in particular by ensuring that casual employees have an opportunity to elect to become full-time or part-time employees.

 

(b)        Casual Conversion

 

(i)         A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this Award during a calendar period of twelve months shall thereafter have the right to elect to have his or her ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by this subclause.

 

(ii)        Every employer of such a casual employee shall give the employee notice in writing of the provisions of this sub-clause within four weeks of the employee having attained such period of twelve months.  However, the employee retains his or her right of election under this subclause if the employer fails to comply with this notice requirement.

 

(iii)       Any casual employee who has a right to elect under paragraph (b)(i), upon receiving notice under paragraph (b)(ii) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that he or she seeks to elect to convert his or her ongoing contract of employment to full-time or part-time employment, and within four weeks of receiving such notice from the employee, the employer shall consent to or refuse the election, but shall not unreasonably so refuse.  Where an employer refuses an election to convert, the reasons for doing so shall be fully stated and discussed with the employee concerned, and a genuine attempt shall be made to reach agreement.  Any dispute about a refusal of an election to convert an ongoing contract of employment shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

(iv)       Any casual employee who does not, within four weeks of receiving written notice from the employer, elect to convert his or her ongoing contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.

 

(v)        Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

 

(vi)       If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with paragraph (b)(iii), the employer and employee shall, in accordance with this paragraph, and subject to paragraph (b)(iii), discuss and agree upon:

 

(1)        whether the employee will convert to full-time or part-time employment; and

 

(2)        if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked either consistent with any other part-time employment provisions of this award or pursuant to a part time work agreement made under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW);

 

Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert his or her contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and the employee.

 

(vii)      Following an agreement being reached pursuant to paragraph (vi), the employee shall convert to full-time or part-time employment. If there is any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment, it shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

(viii)     An employee must not be engaged and re-engaged, dismissed or replaced in order to avoid any obligation under this subclause.

 

(c)        Occupational Health and Safety

 

(i)         For the purposes of this subclause, the following definitions shall apply:

 

(1)        A "labour hire business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which has as its business function, or one of its business functions, to supply staff employed or engaged by it to another employer for the purpose of such staff performing work or services for that other employer.

 

(2)        A "contract business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which is contracted by another employer to provide a specified service or services or to produce a specific outcome or result for that other employer which might otherwise have been carried out by that other employer’s own employees.

 

(ii)        Any employer which engages a labour hire business and/or a contract business to perform work wholly or partially on the employer’s premises shall do the following (either directly, or through the agency of the labour hire or contract business):

 

(1)        consult with employees of the labour hire business and/or contract business regarding the workplace occupational health and safety consultative arrangements;

 

(2)        provide employees of the labour hire business and/or contract business with appropriate occupational health and safety induction training including the appropriate training required for such employees to perform their jobs safely;

 

(3)        provide employees of the labour hire business and/or contract business with appropriate personal protective equipment and/or clothing and all safe work method statements that they would otherwise supply to their own employees; and

 

(4)        ensure employees of the labour hire business and/or contract business are made aware of any risks identified in the workplace and the procedures to control those risks.

 

(iii)       Nothing in this subclause (c) is intended to affect or detract from any obligation or responsibility upon a labour hire business arising under the Occupational Health and Safety Act 2000 or the Workplace Injury Management and Workers Compensation Act 1998.

 

(d)        Disputes Regarding the Application of this Clause

 

Where a dispute arises as to the application or implementation of this clause, the matter shall be dealt with pursuant to the disputes settlement procedure of this award.

 

(e)        This clause has no application in respect of organisations which are properly registered as Group Training Organisations under the Apprenticeship and Traineeship Act 2001 (or equivalent interstate legislation) and are deemed by the relevant State Training Authority to comply with the national standards for Group Training Organisations established by the ANTA Ministerial Council.

 

19.  Payment of Wages

 

(i)         All wages and overtime shall be paid not later than Thursday in each week.

 

(ii)        The pay period shall close not more than two working days prior to the recognised pay day.

 

(iii)       Wages may be paid by electronic funds transfer where genuine agreement exists between the employer and employees.

 

(iv)       Provided that where the employer and the majority of the employees agree, an alternative method of paying wages to that agreed above may be introduced.

 

20.  First-Aid

 

(i)         The employer shall provide a fully equipped and maintained first- aid kit at a position available to all departments at any time when work is being carried on (see Occupational Health and Safety Regulation 2001).

 

(ii)        Any employee appointed by the employer to carry out the duties of a first-aid attendant shall be paid an additional amount as set out in Item 5 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, per day.

 

21.  Amenities

 

The requirements in relation to amenities shall conform at least to the minimum requirements set out in the Occupational Health and Safety Regulation 2001.

 

22.  Anti Discrimination and Harassment

 

(i)         It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 (NSW) to prevent and eliminate discrimination in the workplace on the grounds of race, sex, marital status, disability, homosexuality, transgender identity and age.

 

(ii)        It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects.  It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

(iii)       Under the Anti-Discrimination Act 1977 (NSW) it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

 

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

 

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

 

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

 

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

 

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

 

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

 

Note:

 

1.          Employers and Employees may also be subject to commonwealth anti-discrimination legislation.

 

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

 

"Nothing in the Act effects...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."

 

23.  Jury Service

 

An employee on weekly hiring required to attend for jury service during ordinary working hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of the employee’s attendance for such jury service and the amount of wage the employee would have received in respect of the ordinary time that would have been worked had the employee not been on jury service.  An employee shall notify the employer as soon as possible of the date upon which he/she is required to attend for jury service. Further, the employee shall give the employer proof of attendance, the duration of such attendance and the amount received in respect of such jury service.

 

24.  Bereavement Leave

 

(i)         An employee, other than a casual employee, shall be entitled to up to two days bereavement leave without deduction of pay on each occasion of the death of a person prescribed in subclause (iii) of this clause.

 

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

 

(iii)       Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer’s leave as set out in subparagraph (ii) of paragraph (c) of subclause (1) of clause 12, Personal/Carer s Leave, provided that for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

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

 

(v)        Bereavement leave may be taken in conjunction with other leave available under subclauses (ii), (iii), (iv), (v) and (vi) of the said clause 12.  In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

(vi)       Bereavement entitlements for casual employees

 

(a)        Subject to the evidentiary and notice requirements in 24(ii) casual employees are entitled to not be available to attend work, or to leave work upon the death in Australia of a person prescribed in subclause 12(c)(2) of clause 12, Personal/Carer's Leave.

 

(b)        The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(c)        An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not engage a casual employee are otherwise not affected.

 

25.  Structural Efficiency

 

(i)         The parties to this award are committed to co-operating positively to increase the efficiency and productivity and competitiveness of the industry.

 

An employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training. This may include work which is incidental or peripheral to their main tasks or functions.

 

(ii)        Discussion shall take place at the enterprise with the view to allowing workers to perform a wider range of tasks to this end.

 

26.  Labour Flexibility - Mixed Enterprises

 

(i)         A mixed enterprise is defined as a single establishment where the primary operation is not covered by this award.

 

(ii)        For the purpose of increasing productivity, flexibility and efficiency in a mixed enterprise, as well as enhancing opportunities for workers, multiskilling may extend to allow the worker to perform any work in a mixed enterprise within the scope of their skills and competence.

 

(iii)       Discussion shall take place at the enterprise with the view to allowing workers to perform a wider range of tasks and the removal of demarcation barriers.

 

(iv)       Workers in a mixed enterprise shall not impose or continue to enforce demarcation barriers between the work of workers, provided that it is agreed that the work lies within the scope of the skill and competence of the worker concerned.

 

27.  Consultative Mechanism

 

Enterprises covered by this award shall establish, between the employer and employee(s) and/or the union, if the employees so desire, a consultative mechanism and procedures appropriate to their size, structure and needs, for consultation and negotiation on matters

 

affecting their efficiency and productivity.

 

28.  Disputes Procedure

 

The procedure for the resolution of industrial disputation will be in accordance with the Industrial Relations Act 1996.

 

These procedural steps are:

 

(i)         Procedure relating to grievances of individual employees -

 

(a)        The employee is required to notify (in writing or otherwise) the employer as to the substance of the grievance, request a meeting with the employer for bilateral discussions and state the remedy sought.

 

(b)        A grievance must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(c)        Reasonable time limits must be allowed for discussion at each level of authority.

 

(d)        At the conclusion of the discussion, the employer must provide a response to the employee’s grievance, if the matter has not been resolved, including reasons for not implementing any proposed remedy.

 

(e)        While a procedure is being followed, normal work must continue.

 

(f)         The employee may be represented by an industrial organisation of employees.

 

(ii)        Procedure relating to disputes, etc., between employers and their employees -

 

(a)        A question, dispute or difficulty must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(b)        Reasonable time limits must be allowed for discussion at each level of authority.

 

(c)        While a procedure is being followed, normal work must continue.

 

(d)        The employer may be represented by an industrial organisation of employers and the employee may be represented by an industrial organisation of employees for the purposes of each procedure.

 

29.  Redundancy

 

(i)         Application -

 

(a)        This clause shall apply in respect of full-time and part- time persons employed in the classifications structure specified by Table 1 - Rates of Pay, of Part B, Monetary Rates.

 

(b)        This clause shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees, in the terms of subclause (d), Termination of Employment.

 

(c)        Notwithstanding anything contained elsewhere in this award, this award shall not apply to employees with less than one year’s continuous service, and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

(d)        Notwithstanding anything contained elsewhere in this award, this award shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

(ii)        Introduction of Change -

 

(a)        Employer’s Duty to Notify -

 

(1)        Where an employer has made a definite decision to introduce major changes in production, programme, organisation, structure, mechanisation or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the union to which they belong.

 

(2)        "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.  Provided that where this award makes provision for alteration of any of the matters referred to herein, such alteration shall be deemed not to have significant effect.

 

(b)        Employer’s Duty to Discuss Change -

 

(1)        The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in paragraph (a) of this subclause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

(2)        The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in the said paragraph (a).

 

(3)        For the purpose of such discussion, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(iii)       Redundancy - Discussions Before Terminations -

 

(a)        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 pursuant to subparagraph (1) of paragraph (a) of subclause (ii), Introduction of Change, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(b)        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of paragraph (a) 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 termination on the employees concerned.

 

(c)        For the purpose of the discussions the employer shall, as soon as practicable, provide to the employees concerned and the union to which they belong, all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(iv)       Termination of Employment -

 

(a)        Notice for Changes in Production, Programme, Organisation or Structure - This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from changes to production, programme, organisation or structure, in accordance with subparagraph (1) of paragraph (a) of subclause (ii), Introduction of Change:

 

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

 

Period of continuous service

Period of notice

 

 

Less than 1 year

1 week

1 year and less than 3 years

2 weeks

3 years and less than 5 years

3 weeks

5 years and over

4 weeks

 

(2)        In addition to the notice above, employees over 45 years of age at the time of the giving of the notice, with not less than two years’ continuous service, shall be entitled to an additional week’s notice.

 

(3)        Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(b)        Notice for Mechanisation and/or Technological Change - This subclause sets out the notice provisions to be applied to termination by the employer for reasons arising from "technology" in accordance with subparagraph (1) of paragraph (a) of subclause (ii), Introduction of Change:

 

(1)        In order to terminate the employment of an employee (provided the employee has 12 months’ service), the employer shall give to the employee three months’ notice of termination.

 

(2)        Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(3)        The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts.

 

(c)        Time Off During the Notice Period -

 

(1)        During the period of notice of termination given by the employer, an employee shall be allowed up to one day’s time off without loss of pay during each week of notice, to a maximum of five weeks, for the purpose of seeking other employment.

 

(2)        If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.

 

(d)        Employee Leaving During the Notice Period - If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause as those to which the employee would have been entitled had the employee remained with the employer until the expiry of such notice. Provided that, in such circumstances, the employee shall not be entitled to payment in lieu of notice.

 

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

 

(f)         Notice to Centre Link or any relevant successor entity - Where a decision has been made to terminate the employment of employees, the employer shall notify Centre Link 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.

 

(g)        Centrelink Employment Separation Certificate - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an Employment Separation Certificate in the form required by Centrelink.

 

(h)        Transfer to Lower Paid Duties - Where an employee is transferred to lower paid duties for reasons set out in paragraph (a) of subclause (ii), Introduction of Change, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee’s employment had been terminated, and the employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary-time rates for the number of weeks of notice still owing.

 

(v)        Severance Pay -

 

(a)        Where the employment of an employee is to be terminated pursuant to subclause (iv), Termination of Employment, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the employee the following severance pay in respect of a continuous period of service:

 

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

 

Years of service

Under 45 years of age entitlement

 

 

Less than 1 year

Nil

1 year and less than 2 years

4 weeks

2 years and less than 3 years

7 weeks

3 years and less than 4 years

10 weeks

4 years and less than 5 years

12 weeks

5 years and less than 6 years

14 weeks

6 years and over

16 weeks

 

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

 

Years of service

45 years of Age and Over Entitlement

 

 

Less than 1 year

Nil

1 year and less than 2 years

5 weeks

2 years and less than 3 years

8.75 weeks

3 years and less than 4 years

12.5 weeks

4 years and less than 5 years

15 weeks

5 years and less than 6 years

17.5 weeks

6 years and over

20 weeks

 

(3)        "Week’s pay" means the all-purpose rate for the employee concerned at the date of termination and shall include, in addition to the ordinary rate of pay, overaward payments, shift penalties and allowances paid in accordance with Table 1 - Rates of Pay, of Part B, Monetary Rates, and Table 2 - Other Rates and Allowances, of the said Part B.

 

(b)        Incapacity to Pay - Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (a) of this subclause.  The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in the said paragraph (a) will have on the employer.

 

(c)        Alternative Employment - Subject to an application by the employer and further order of the Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in the said paragraph (a) if the employer obtains acceptable alternative employment for an employee.

 

30.  Enterprise Agreements

 

An enterprise arrangement shall be processed in accordance with the Principles for the Approval of Enterprise Agreements determined by the Industrial Relations Commission of New South Wales in December 1996.

 

31.  Parental Leave

 

(1)        Refer to the Industrial Relations Act 1996 (NSW).  The following provisions shall also apply in addition to those set out in the Industrial Relations Act 1996 (NSW).

 

(2)        An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Act) because:

 

(a)        the employee or employee's spouse is pregnant; or

 

(b)        the employee is or has been immediately absent on parental leave.

 

The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.

 

(3)        Right to request

 

(a)        An employee entitled to parental leave may request the employer to allow the employee:

 

(i)         to extend the period of simultaneous unpaid parental leave use up to a maximum of eight weeks;

 

(ii)        to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months;

 

(iii)       to return from a period of parental leave on a part-time basis until the child reaches school age; to assist the employee in reconciling work and parental responsibilities.

 

(b)        The employer shall consider the request having regard to the employee's circumstances and, provided the request is genuinely based on the employee's parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer's business.  Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

 

(c)        Employee's request and the employer's decision to be in writing

 

The employee's request and the employer's decision made under 3(a)(ii) and 3(a)(iii) must be recorded in writing.

 

(d)        Request to return to work part-time

 

Where an employee wishes to make a request under 3(a)(iii), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the employee is due to return to work from parental leave.

 

(4)        Communication during parental leave

 

(a)        Where an employee is on parental leave and a definite decision has been made to introduce significant change at the workplace, the employer shall take reasonable steps to:

 

(i)         make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave; and

 

(ii)        provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave.

 

(b)        The employee shall take reasonable steps to inform the employer about any significant matter that will affect the employee's decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to request to return to work on a part-time basis.

 

(c)        The employee shall also notify the employer of changes of address or other contact details which might affect the employer's capacity to comply with paragraph (a).

 

32.  Superannuation

 

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

 

(ii)        The employer shall be a participating employer in any of the following funds:

 

Australian Public Superannuation (APS)

 

Australian Superannuation Savings Employment Trust (ASSET)

 

Australian Primary Industry Superannuation Fund (APISF)

 

or any other approved fund;

 

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

 

(iii)       The employer shall contribute to the Fund in accordance with the legislation provided that employer contributions do not fall below 3% of ordinary time earnings:

 

Notation: Employer contributions under relevant legislation are set at 9% from 1st July 2002

 

(iv)       The employer shall provide each employee upon commencement of employment with membership forms of the fund and shall take all reasonable steps to forward the application form to the fund as soon as possible after the completion of the forms by the employee.

 

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

 

(vi)       An employee who wishes to make additional contributions must authorise the employer in writing to pay into the fund from the employee’s wages a specified amount in accordance with the Trust Deed and the rules of the fund.

 

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

 

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

 

(ix)       Ordinary time earnings shall be defined as including:

 

(a)        Award classification rate.

 

(b)        overaward payment.

 

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

 

(d)        Casual loading in respect to casual employees including 1/12 Annual Holiday Loading.

 

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

 

33.  Trainees

 

See the AWU Training Wage (State) Award 2002 published 5 April 2002 (332 I.G. 522), as varied, or any successor industrial instrument.

 

34.  Leave Reserved

 

Casual Loading, Shift Penalty

 

35.  Deduction of Union Membership Fees

 

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

 

(a)        the employee has authorised the employer to make such deductions in accordance with subclause (ii) herein;

 

(b)        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;

 

(c)        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

 

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

 

(ii)        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 effected 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.

 

(iii)       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:

 

(a)        where the employer has elected to remit on a weekly or fortnightly basis, the employer shall be entitled to retain up to five per cent of the monies deducted; and

 

(b)        where the employer has elected to remit on a monthly or quarterly basis, the employer shall be entitled to retain up to 2.5 per cent of the monies deducted.

 

(iv)       Where an employee has already authorised the deduction of Union membership fees in writing from his or 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.

 

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

 

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

 

(vii)      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 or 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.

 

(viii)     The above variations shall take effect:

 

(a)        In the case of employers who currently deduct Union membership fees, or whose payroll facilities are carried out by way of an outsourcing arrangement, or whose payroll calculations are made through the use of computerised means, from the beginning of the first full pay period to commence on or after 17 March 2003;

 

(b)        In the case of employers who do not fall within paragraph (a) above, but who currently make deductions, other than Union membership fee deductions or mandatory deductions (such as for taxation instalments or superannuation contributions) from employees' pay, or have in place facilities to make such deductions, from the beginning of the first full pay period to commence on or after 17 June 2003;

 

(c)        For all other employers, from the beginning of the first full pay period to commence on or after 17 September 2003.

 

36.  Area, Incidence and Duration

 

This award shall apply to all classes of employees within the jurisdiction of the Chemical Workers (State) Industrial Committee in the State, excluding the County of Yancowinna.

 

This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Chemical Workers (State) Award published 11 May 2001 (324 I.G. 688) and all variations thereof.

 

The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 8 February 2008.

 

This award remains in force until varied or rescinded the period for which it was made having already expired.

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay

 

Classification

SWC 2006

SWC 2007

SWC 2007

 

Amount

Adjustment

Amount

 

$

$

$

Chemical Plant Operator -

 

 

 

Class One (100%)

598.20

20.00

618.20

Class Two (92.4%)

564.50

20.00

584.50

Class Three (89.9%)

554.10

20.00

574.10

Materials Attendant -

 

 

 

Class One (92.4%)

564.50

20.00

584.50

Class Two (89.9%)

554.10

20.00

574.10

General Labourer (86%)

537.80

20.00

557.80

Forklift Operator (89.9%)

554.10

20.00

574.10

Juniors:

Percentage of total wage for adult general Labourer per week

 

%

Under 16 years of age

44

At 16 years of age

53

At 17 years of age

61

At 18 years of age

70

At 19 years of age

79

At 20 years of age

88

 

Table 2 - Other Rates and Allowances

 

Item No.

Clause No.

Brief Description

SWC 2006

SWC 2007

 

 

 

Amount

Amount

 

 

 

$

$

1

4(i)

Leading Hand

23.65

24.60

2

4(ii)

Cleaning inside tank or still

1.30 per hour

1.35

3

9(iii)(a)

Meal allowance

10.75

11.15

4

9(iii)(a)

Meal allowance - second meal

10.75

11.15

5

20(ii)

Duties of first-aid person

1.75 per day

1.82

 

"Note": These allowances are contemporary for expense related allowances as at 30 March 2007 and for work related allowances are inclusive of adjustment in accordance with the State Wage Case 2007 decision of the Industrial Relations Commission of New South Wales.

 

 

 

E. A. R. BISHOP, Commissioner.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

* to download attachment
  
IE UsersRight click the attachment - Click 'Save Target As' - Select a location - Click 'Save'
Netscape UsersRight click the attachment - Select 'Save Link As' - Select a location - Click 'Save'