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.