Potato Crisp Makers (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1553 of 2007)

 

 

REVIEWED AWARD

 

Arrangement

 

PART A

 

Clause No.         Subject Matter

 

1.         Hours of Labour

2.         Structural Efficiency

3.         Shift Work

4.         Training

5.         Rates of Pay

6.         Overtime

7.         Saturdays, Sundays and Holidays

8.         Meals

9.         Casual and Part-time Employees

9A.      Secure Employment

10.       Holidays

11.       Annual Holidays

12.       Annual Holidays Loading

13.       Long Service Leave

14.       Rest Period

15.       Mixed Functions

16.       First-Aid

17.       Sick Leave

18.       Terms of Engagement

19.       Utilisation of Skills

20.       Redundancy

21.       Superannuation

22.       Jury Service

23.       Bereavement Leave

23A.    Parental Leave

24.       Dispute Settling Procedure

25.       Training Wage

26.       Personal/Carer's Leave

27.       Undertakings

28.       Anti Discrimination and Harassment

28A.    Deduction of Union Membership Fees

29.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay

Table 2 - Other Rates and Allowances

 

PART A

 

1.  Hours of Labour

 

(i)         Subject to clause 2, Structural Efficiency, the ordinary hours of work prescribed herein shall not exceed twelve hours on any one-day. However, in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any one day the arrangement of hours shall be subject to agreement between the employer, each individual employee and/or the majority of employees in the plant or work section or sections concerned.

 

(ii)        Subject to clause 3, Shift Work, the ordinary hours of work, exclusive of meal times, shall be an average of 38 hours per week, Monday to Friday, worked as follows:

 

(a)        The hours to be worked will be between the span of hours of 6.00 a.m. to 6.00 p.m.

 

(b)        Once having been fixed, the time for commencing and finishing work shall not be altered without at least seven days notice to the employees concerned or by mutual agreement between the employer and such employees. Where the majority of the employees and the employer so agree, the starting time may be varied to an earlier time.

 

(iii)       Except as provided in subclauses (v) and (vi) below, the 38-hour average week may be implemented in any one of the following ways:

 

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

 

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

 

(c)        by fixing one weekday on which all employees will be off during a particular work cycle; or

 

(d)        by rostering the employees off on various days of the week during a particular work cycle so that each employee has one weekday off during that cycle.

 

(iv)       The method of working a 38-hour average week shall be at the discretion of the employer who shall nominate which method prescribed in subclause (iii) above shall apply. However, the employer shall not subsequently alter the method of implementation without advising the employee subject to the alteration at least seven days in advance of the date on which the altered method of implementation is to take effect.

 

(v)        Subject to the provisions of subclause (i) of this clause and clause 3, Shift Work, should the employer and the majority of employees in any establishment agree, the ordinary working hours may exceed eight on any day, to enable a weekday off to be taken more frequently than would otherwise apply.

 

(vi)       Different methods of implementation of a 38-hour week may apply to various groups or sections of employees in the plant or establishment concerned.

 

(vii)      Except as provided in subclause (viii) hereof, in cases where an employee, in accordance with paragraphs (c) and (d) of subclause (iii) hereof, is entitled to a day off during the employee's work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday to be taken off.

 

(viii)

 

(a)        An employer, with the agreement of the majority of employees in any establishment, may substitute the day an employee is to take off in accordance with paragraphs (c) and (d) of subclause (iii) hereof, for another day in the case of a breakdown in machinery, a failure or shortage of electric power to meet the requirements of the business, in the event of rush orders, or some other emergency situation.

 

(b)        An employee who is required by the employer to work on the employee's scheduled day off in circumstances other than those in paragraph (a) of this subclause shall be paid overtime rates or be granted an alternative day off. Such choice shall be at the option of the employee.

 

(c)        An individual employee, with the agreement of the employer, may substitute the day to be taken off for another day.

 

(d)        An employer may hold up to a maximum of five days accrued in accordance with (c) and (d) of subclause (iii) hereof.

 

The accrued days are to be taken at a time mutually agreed between the employer and the employee.

 

2.  Structural Efficiency

 

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

 

(ii)        The employer, the employees and their relevant union or unions shall establish a consultative mechanism and procedures appropriate to the size, structure and needs of that quarry. Measures raised by the employer, employees or union or unions for consideration consistent with subclause (i) herein, shall be processed through that consultative mechanism and procedures.

 

(iii)       Measures raised for consideration consistent with subclause (ii) herein shall be related to implementation of the new classification structure, the facilitative provisions contained in this award and, subject to clause 4, Training, matters concerning training.

 

(iv)       Without limiting the rights of either an employer or a union to arbitration, any other measure designed to increase flexibility and sought by any party shall be notified to the Commission and, by agreement of the parties involved, shall be implemented subject to the following requirements:

 

the changes sought shall not affect provisions reflecting State "Test Case" standards;

 

the majority of employees affected by the change must genuinely agree to the change;

 

the relevant union or unions must be a party to the agreement;

 

the relevant union or unions shall not unreasonably oppose any agreement;

 

any agreement shall be subject to approval of the Industrial Relations Commission of New South Wales and, if approved, shall operate as a schedule to this award and take precedence over any provision of this award to the extent of any inconsistency.

 

3.  Shift Work

 

(i)         The ordinary hours of work shall be an average of 38 per week, to be worked on one of the following bases:

 

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

 

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

 

(c)        114 hours within a work cycle not exceeding twenty-one consecutive days; or

 

(d)        152 hours within a work cycle not exceeding twenty-eight consecutive days.

 

(ii)

 

(a)        The ordinary hours shall be worked continuously, except for meal breaks, at the discretion of the employer. An employee will not be required to work for more than five hours without a break for a meal. Except at regular changeover of shifts, an employee shall not be required to work more than one shift in each twenty-four hours.

 

(b)        Subject to clause 2, Structural Efficiency, the ordinary hours of work prescribed herein shall not exceed ten hours on any one-day. In any arrangement of ordinary working hours where the ordinary working hours exceed eight on any shift, the arrangement of hours shall be subject to agreement between the employer and the majority of employees in the plant or work section or sections concerned.

 

(iii)

 

(a)        "Afternoon shift" means any shift finishing after 6.00 p.m. and at or before 12.00 midnight. Shift workers may be employed on afternoon shift which shall cease at or before midnight, Monday to Friday, inclusive, each week.

 

(b)        Employees engaged on afternoon shift work shall be paid, in addition to the ordinary rates of wages prescribed by clause 5, Rates of Pay, an amount per week as set out in Item 3 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.

 

(iv)

 

(a)        "Night shift" means any shift finishing after midnight and at or before 8.00 a.m. Shift workers may be employed on night shift which shall cease at or before 8.00 a.m. on any day, Monday to Saturday, inclusive.

 

(b)        Employees engaged on night shift work shall be paid, in addition to the ordinary rates of wages prescribed by clause 5, Rates of Pay, an amount per week as set out in Item 4 of Table 2 - Other Rates and Allowances, of the said Part B.

 

(v)        This shift allowance prescribed by subclauses (iii) and (iv) of this clause is on a shift basis, the rate per shift being ascertained by dividing the shift allowance prescribed by the said subclauses by five.

 

(vi)       Employees while engaged on such shift work shall be allowed a meal break of thirty minutes, which shall be paid for as time worked.

 

(vii)      Employees may be employed on weekly part-time afternoon or night shifts of less than eight hours but not less than 6.5 hours.

 

(viii)     For such part-time shifts, employees shall be paid pro rata amounts of the weekly rates prescribed by Table 1 - Rates of Pay, of Part B, Monetary Rates, according to the number of hours worked, plus a pro rata shift allowance calculated in the same manner.

 

(ix)       Employees employed on a casual basis on afternoon or night shift work shall, in addition to all other payments prescribed by this subclause, be paid the casual loading of 15 per cent prescribed by subclause (iii) of clause 5, Rates of Pay.

 

4.  Training

 

(i)         The parties to this award recognise that, in order to increase the efficiency, productivity and competitiveness of the industry, greater commitment to training and skill development is required. Accordingly, the parties commit themselves to:

 

(a)        developing a more highly skilled and flexible workforce;

 

(b)        providing employees with career opportunities through appropriate training to acquire additional skills; and

 

(c)        removing barriers to the utilisation of skills acquired.

 

(ii)        Following proper consultation, an employer shall develop a training program consistent with:

 

(a)        the current and future skill needs of the industry;

 

(b)        the size, structure and nature of the operations of the industry;

 

(c)        the need to develop vocational skills relevant to the industry and the snack food industry through courses conducted by accredited educational institutions and providers and through on-site courses.

 

(iii)

 

(a)        Where, as a result of consultation with the employee concerned, it is agreed that additional training in accordance with the program developed pursuant to subclause (ii) herein should be undertaken by an employee, that training may be undertaken either on or off the job. Provided that if the training is undertaken during ordinary working hours the employee concerned shall not suffer any loss of pay. The employer shall not unreasonably withhold such paid training leave:

 

(b)        Any costs associated with standard fees for prescribed courses and prescribed textbooks (excluding those textbooks which are available in the employer's technical library) incurred in connection with the undertaking of training shall be evidence of such expenditure. Provided that reimbursement shall also be on an annual basis, subject to the presentation of reports of satisfactory progress.

 

(c)        Travel costs incurred by employees undertaking training in accordance with this clause, which exceed those normally, incurred in travelling to and from work shall be reimbursed by the employer.

 

(iv)       Any disputes arising in relation to subclauses (i) and (iii) shall be subject to the provisions of clause 24, Dispute Settling Procedure.

 

5.  Rates of Pay

 

(i)         The weekly rates of pay to be paid to adult employees shall be as set out in (i), Adult Employees, of Table 1 - Rates of Pay, of Part B, Monetary Rates.

 

The weekly rate of pay to be paid to a junior employee shall be as set out in (ii), Juniors, of the said Table 1. Provided, however, that a junior employee 18 years of age or over who has completed at least three months' satisfactory service with an employer in this industry shall be paid the appropriate adult rate.

 

(ii)        Leading Hands - Employees appointed as Leading Hands shall be paid an additional amount per week as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, to be calculated for all purposes of this award.

 

(iii)       Casual Employees - Refer to clause 9, Casual and Part-time employees.

 

(iv)       Team Leader - Arnotts Foods only, shall be paid an amount per week as set out in Item 2 of the said Table 2.

 

(v)        The rates of pay in this award include the adjustments payable under the State Wage Case June 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.

 

6.  Overtime

 

(i)         For all work performed on any day before the starting or after the finishing times provided for under clause 1, Hours of Labour, and clause 3, Shift Work, or fixed pursuant to an agreement under the said clause 1, Hours of Labour, and clause 3, Shift Work, the rates shall be time and one-half for the first two hours and at the rate of double time thereafter.

 

(ii)

 

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

 

(b)        An employee (other than a casual employee) who works so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day so that they have not had at least ten consecutive hours off duty between those times shall, subject to this subclause, be released after completion of such overtime until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

 

(c)        If, on the instructions of their employer, such an employee resumes or continues work without having had such ten consecutive hours off duty they shall be paid at double rates until they are released from duty for such period and they shall then be entitled to be absent until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

 

(iii)

 

(a)        Overtime - in computing overtime, each day's work shall stand alone.

 

(b)        Time worked outside the fixed hours for that day, by a worker arriving late, is to be considered ordinary time until the worker has worked the normal number of rostered hours for that day.

 

(c)        Subject to genuine agreement between an employer and employee, an employee may elect to take time off in lieu of payment for ordinary hours of work performed outside the fixed commencing and ceasing time for ordinary hours. In such cases the time off shall be equivalent to the actual hours worked.

 

Notation: The provisions of this award, in particular this clause, shall be read in conjunction with the Occupational Health and Safety Act 2000.

 

(iv)       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.

 

7.  Saturdays, Sundays and Holidays

 

(i)         Any employee required to work on a Saturday, Sunday or holiday shall be paid at the prescribed rate of wage for work on such days for a minimum of four hours.

 

(ii)        Overtime commencing on a Saturday shall be paid for at the rates prescribed under subclause (i) of clause 6, Overtime.

 

(iii)       Work done on a Sunday shall be paid for at the rate of double time, with a guaranteed payment as for four hours work.

 

(iv)       All work performed on a public holiday shall be paid for at the rate of double time and a half, plus, in the case of shift workers, the appropriate shift allowance as provided under subclauses (iii) and (iv) of clause 3, Shift Work.

 

8.  Meals

 

(i)         An employee shall not be required to work for more than five hours without a break for a meal. Provided that by agreement between an employer and each individual employee and/or the majority of employees in the enterprise, work section or sections concerned, an employee or employees may be required to work in excess of five hours, but not more than six hours, at ordinary pay without a meal break.

 

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

 

(iii)       An employer may stagger the time of taking a meal or rest break to meet operational requirements.

 

(iv)       Subject to the provisions of subclause (i) hereof, an employee employed as a regular maintenance person shall work during meal breaks at ordinary rates of pay whenever instructed to do so, for the purpose of making good breakdown of plant or upon routine maintenance of plant, which can be done while such plant is idle.

 

(v)        Work done during any period of the recognised meal time shall be paid for at the rate of time and one-half and such rate shall continue to be paid until a meal break is allowed.

 

(vi)       An employee who is required to work overtime for any period in excess of one and one-half hours after and continuous from their ordinary finishing time shall be provided by the employer either with a meal, free of cost, or the employer shall pay the employee the meal allowance as set out in Item 5 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, and if required to work in excess of four hours overtime shall be supplied with a further meal or shall be paid the meal allowance as set out in the said Item 5.

 

(vii)      If such an employee is not notified on the previous day that the employee will be required to work overtime, the employee shall be provide with a meal, or a meal allowance as set out in the said Item 5.

 

9.  Casual and Part-Time Employees

 

(a)        "Casual Employee" -

 

(i)         A casual employee is an employee engaged for less than 38 hours per week, with a minimum of 4 hours per start.

 

(ii)        A casual employee shall be paid at ordinary rates , plus 15%.

 

(iii)       The spread of ordinary hours for a casual employee shall be as set out in clause 1, Hours of Labour, and their rates of pay shall be calculated pursuant to subclause (i) of clause 5, Rates of Pay and subclause (ii) of this clause.

 

(Notation: The New South Wales Annual Holidays Act provides that casual employees under this award are entitled to receive an additional amount equal to one-twelfth of their ordinary time earnings in lieu of annual leave)

 

(b)        "Part-time Employee" -

 

(i)         A part-time employee shall mean all adult employees who are employed to work regular days and regular hours, either of which are less than the number of days or hours worked by full-time employees, but such days shall not be less than two per week and such hours shall not be less than twelve per week, nor more than 30.

 

(ii)        The spread of ordinary hours of part-time employees shall be as set out in clause 1, Hours of Labour, and their rates of pay shall be calculated pursuant to clause 5, Rates of Pay.

 

(iii)       Notwithstanding anything else contained in this award, the provisions of this award with respect to annual leave, annual leave loading, sick leave, jury service, bereavement leave, maternity leave and holidays shall apply to part-time employees on a pro rata basis for each employee in proportion to the normal ordinary hours worked by full-time employees.

 

(iv)       Notwithstanding the provisions of this clause, the union and an employer may agree in writing to observe other conditions in order to meet special cases.

 

9A.  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-tune 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.

 

10.  Holidays

 

(i)         The following days or the days upon which they are observed shall be holidays, viz.,

 

New Year's Day,

 

Australia Day,

 

Good Friday,

 

Easter Saturday

 

Easter Monday,

 

Anzac Day,

 

Queen's Birthday, Labour Day,

 

Christmas Day,

 

Boxing Day,

 

The picnic day of the Australian Workers' Union, New South Wales, which, if held, shall be the first Monday in March of each year, provided that one month's notice is given to the employer, and all other days which may be proclaimed as public holidays in the localities for which they are gazetted by the Government of New South Wales.

 

(ii)        No deductions shall be made from the wages of employees for the week in which any such holidays occur, provided that the employee attends for duty on the ordinary working day immediately preceding the holiday and the ordinary working day immediately succeeding such holiday.

 

(iii)       An employee absent without leave on the day before or the day after any award holiday shall be liable to forfeit wages for such holiday, except where the employer is satisfied that the employee's absence was caused through illness, in which case wages shall not be forfeited for the holiday. Work performed on such holidays shall be paid for at the rate of double time and a half, with a minimum of four hours' pay.

 

(iv)       When an employer terminates the employment of an employee within one week of an award holiday, the employee shall be paid for such holiday or holidays, provided that such employee has been employed by the employer for a period of at least one week prior to the termination of employment. This subclause shall not apply to casual employees.

 

(v)        Employers may require from their employees the butt of the picnic ticket as evidence of their attendance at the picnic. Unless such is produced, payment may not be made for such picnic day.

 

11.  Annual Holidays

 

Annual holidays shall be allowed to all employees as provided for by the Annual Holidays Act 1944.

 

12.  Annual Holidays Loading

 

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

 

(ii)        Before an employee is given and takes 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 a 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 or, 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 periods, as the case may be, stated in subclause (iii), at the rate per week of 17'/z % of the appropriate ordinary-time weekly rate of pay prescribed by this award for the classification in which the employee was employed immediately before commencing annual holiday together with, where applicable, the first-aid allowance prescribed by clause 16, First-aid, but shall not include any other allowances, penalty rates, shift allowances, overtime rates or any other payments prescribed by this award.

 

(vi)       No loading is payable to an employee who takes an annual holiday wholly or partly in advance; provided that, if the employment of such employee continues until the day when they 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.

 

(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 a 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 them under the Act, such proportion of the loading that would have been payable to them under this clause if they had become entitled to an annual holiday prior to the close-down as their qualifying period of employment in completed weeks bears to 52.

 

(viii)

 

(a)        When the employment of an employee is terminated by their 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 they were entitled, they shall not 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 they had not been on holiday; provided that, 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.

 

13.  Long Service Leave

 

See Long Service Leave Act 1955.

 

14.  Rest Period

 

A rest period of fifteen minutes between 9.45 a.m. and 10.30 a.m. each day, which shall be counted as time worked, shall be allowed to all employees.

 

15.  Mixed Functions

 

(i)         An employee who is required to do work carrying a higher rate than their ordinary classification for more than two hours in any one-day or shift 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, 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 their ordinary classification shall suffer no reduction in consequence thereof.

 

16.  First-Aid

 

(i)         First-aid facilities and personnel shall be provided by the employer in accordance with the applicable occupational health and safety legislation and regulation.

 

(ii)        Not less than one employee, holding a current first aid certificate attained by the completion of a First Aid Training Course approved by WorkCover, shall be on duty and available to give any necessary treatment to any employee during work hours.

 

(iii)       An employee appointed by the employer to perform first-aid duty shall be paid an amount as set out in Item 6 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.

 

17.  Sick Leave

 

(i)         An employee with not less than three months' continuous service in the industry covered by this award who is absent from work by reason of personal illness or injury, not being illness or injury arising from the employee's misconduct or default, shall be entitled to leave of absence without deduction of pay, subject to the following conditions and limitations:

 

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

 

(b)        They shall furnish to the employer such evidence as the employer may desire that they were unable, by reason of such illness or injury, to attend for duty on the day or days for which sick leave is claimed.

 

(c)        They shall not be entitled in any one year, whether in the employ on one employer or several in the aforesaid industry in such year, to leave in excess of the following:

 

(1)        in the first year of service, five days' sick leave per annum;

 

(2)        in the second or subsequent years of service, ten days' sick leave per annum

 

(ii)        For the purpose of administering paragraph (c) of subclause (i) of this clause, an employer may, within three months of this award coming into operation or within two weeks of an employee entering their employment, require an employee to make a statutory declaration or other written statement of the names of their employers in the immediately preceding twelve months and the paid leave of absence on account 12 of illness or injury that they had from any of those employers during the said period of twelve months and upon such statement the employer shall be entitled to rely and act.

 

(iii)       The rights under this clause shall accumulate from year to year so long as the employee's employment continues with the employer so that any part of the annual entitlement which has not been allowed in any one year may be claimed by the employee and shall be allowed by the employer, subject to the conditions prescribed by this clause, in a subsequent year of continued employment.

 

(iv)       For the purpose of this clause, continuous service shall be deemed not to have been broken by:

 

(a)        any absence from work on leave granted by the employer;

 

(b)        any absence from work by reason of personal illness, injury or other reasonable cause, proof whereof shall in each case be upon the employee.

 

(v)        Service before the date of the operation of this award shall be counted as service for the purpose of qualifying thereunder but shall not be taken into consideration in arriving at any period of accumulated leave. The additional sick leave in excess of five days shall not accrue until the employee enters a new sick leave year.

 

18.  Terms of Engagement

 

(i)         Employment shall be on a full-time, part-time or casual basis.

 

(ii)        Employment of employees on probation for the first two weeks of service shall be from day to day at the weekly rate fixed, determinable at a day's notice.

 

(iii)       Employees shall perform such work as the employer reasonably shall from time to time require, and an employee not attending for or not performing their duty shall, except as otherwise provided for in this award, lose their pay for the actual time of such non-attendance or non-performance.

 

(iv)       Subject to sub-clause (ii) of this clause, employment shall be terminated by a week's notice on either side, given at any time during the week, or by the payment or forfeiture, as the case may be, of an amount equal to one week's wages.

 

(v)        This clause shall not affect the rights of the employer to deduct payment for any day during which the employee cannot be employed usefully because of any strike or through any breakdown of machinery or due to any cause for which the employer reasonably cannot be held responsible.

 

(vi)       This clause shall not affect the rights of the employer to dismiss an employee without notice for refusal of duty, malingering, inefficiency, neglect of duty or misconduct and in such cases the wages shall be payable up to the time of dismissal only.

 

(vii)      An employee who is stood down, pursuant to subclause (v) of this clause, shall be treated for all purposes of this award as having continuity of service.

 

19.  Utilisation of Skills

 

(i)         Employees shall be employed to carry out such duties as may be directed by an employer from time to time, subject to their skill and competence and training.

 

(ii)        Any employee may at any time carry out such duties and use such tools and equipment as may be directed by an employer, provided that the employee has been properly trained in the use of such tools and equipment.

 

(iii)       Any direction given by an employer in accordance with subclauses (i) and (ii) of this clause shall be consistent with the employer's obligations under the applicable occupational health and safety legislation and regulation.

 

(iv)       Disputes arising in relation to the operation of this clause shall be dealt with in accordance with clause 24, Dispute Settling Procedure, following prior consideration of the issue.

 

20.  Redundancy

 

(A)       Application -

 

(i)         This clause shall apply in respect of full-time and part-time persons employed in the classifications specified by clause 5, Rates of Pay.

 

(ii)        This clause shall apply, in respect of employers who employ more than 15 employees immediately prior to the termination of employment of employees, in the terms of paragraph (i) of subclause (D) of this clause.

 

(iii)       Notwithstanding anything contained elsewhere in this award, this clause shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be not 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.

 

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

 

(B)       Introduction of Change -

 

(i)         Employer's Duty to Notify:

 

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

 

(b)       "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 locations and the restructuring of jobs.

 

Provided that where this award makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

(ii)        Employer's Duty to Discuss Change:

 

(a)        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 (i) 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.

 

(b)       The discussions 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 (i).

 

(c)        For the purpose of such discussions, 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 the 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.

 

(C)       Redundancy

 

(i)         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 (a) of paragraph (i) of subclause (B), 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 provisions of subparagraph (a) of this paragraph and shall cover, inter alia, any reason for the proposed 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 is 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.

 

(D)       Termination of Employment -

 

(i)         Notice for Changes in Production, Program, Organisation or Structure - This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, program, organisation or structure, in accordance with subparagraph (a) of paragraph (i) of subclause (B) of this clause.

 

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

 

 

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

 

(c)        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.

 

(ii)        Notice of Technological Change - This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from technology in accordance with subparagraph (a) of paragraph (i) of subclause (B) of this clause.

 

(a)        In order to terminate the employment of an employee the employer shall give to the employee three months notice of termination.

 

(b)       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.

 

(c)        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.

 

(iii)       Time Off During Notice Period:

 

(a)        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.

 

(b)       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.

 

(iv)       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 the employee would have received 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.

 

(v)        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.

 

(vi)       Notice to Centrelink (or any relevant successor government body) - Where a decision has been made to terminate the employment of employees, the employer shall notify the Centrelink (or any relevant successor government body) thereof as soon as possible, giving relevant information, including the number and categories of employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(vii)      (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 (or any relevant successor government body).

 

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

 

(E)        Severance Pay

 

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

 

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

 

 

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

 

 

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

 

(ii)        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 (i) of this subclause.

 

The Industrial Relations Commission of New South Wales 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 (i) will have on the employer.

 

(iii)       Alternative Employment - 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 the said paragraph (i) if the employer obtains acceptable alternative employment for an employee:

 

(F)        Savings Clause- Nothing in this clause shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions which an employee may be entitled to under any existing redundancy agreement, taken as a whole, between the union and any employer bound by this award.

 

21.  Superannuation

 

(a)        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 and the Superannuation (Resolution of Complaints) Act 1993. The legislation, as varied from time to time, governs the superannuation rights and obligations of the parties.

 

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

 

Australian Public Superannuation (APS)

 

Australian Superannuation Savings Employment Trust (ASSET)

 

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

 

(c)        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 7% until 30 June 2000, when they will increase to 8% and a final adjustment of 9% from l July 2002.

 

(a)        The employer shall provide each employee upon commencement of employment with membership forms of the fund and shall forward the completed membership form to the fund as soon as practicable.

 

(b)        An employee may make contributions to the fund in addition to those made by the employer. Such employee may either forward their own contribution directly to the fund trustees or authorise the employer to pay into the fund from the employee's wage an amount specified by the employee.

 

(c)        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.

 

(d)        An employee may vary his or her additional contributions by a written authorisation and the employer must alter the additional contributions as soon as practicable after the receipt of the authorisation.

 

(e)        All contributions shall be made at the completion of each calendar month, or at such other times and in such other manner as may be agreed in writing between the Trustee and the employer.

 

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

 

(i)         Award classification rate

 

(ii)        overaward payment

 

(iii)       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

 

(iv)      Casual loading in respect to casual employees including 1/12th Annual Holiday Loading. Ordinary time earnings does not include bonuses, commission, payment for overtime or other extraordinary payment, remuneration or allowance.

 

22.  Jury Service

 

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

 

(ii)        An employee shall notify their employer as soon as possible of the date upon which they are required to attend for jury service. Further, the employee shall give their employer proof of their attendance, the duration of such attendance and the amount received in respect of such jury service.

 

23.  Bereavement Leave

 

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

 

(ii)        The employee must notify the employer as soon as practicable of the intention to take bereavement 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 26, 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 (2), (3), (4), (5) and (6) of the said clause 26. 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 23(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 26(1)(c)(ii) of clause 26, 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.

 

23A.  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).

 

24.  Dispute Settling Procedure

 

A procedure for the avoidance of industrial disputes shall apply in places covered by this award.

 

The objectives of the procedure shall be to promote the resolution of disputes by measures based on consultation, co-operation and discussion, to reduce the level of industrial confrontation, and to avoid interruption to the performance of work and the consequential loss of production or wages.

 

It is acknowledged that, in some companies or sectors of the industry, disputes avoidance/settlement procedures are either now in place or in the process of being negotiated and it may be the desire of the immediate parties concerned to pursue those mutually agreed procedures. In other cases, the following principles shall apply:

 

(1)        Depending on the issues involved, a procedure involving up to three stages of discussion shall apply. These are:

 

discussion between the employee(s) concerned and, at their request, the appropriate union delegate, and the immediate supervisor;

 

discussion involving the employee(s), the delegate(s) and more senior management; and

 

discussion involving representatives from the State Branch of the union(s) concerned and the employer's employer association representative.

 

(2)        There shall be a commitment by the parties to achieve adherence to this procedure. This should be facilitated by the earliest possible advice by one party to the other of any issue or problem which may give rise to a grievance or dispute.

 

(3)        Throughout all stages of the procedure all relevant facts shall be clearly identified and recorded.

 

(4)        Sensible time limits shall be allowed for the completion of the various stages of the discussions. At least seven days should be allowed for all stages of the discussions to be finalised.

 

(5)        Emphasis shall be placed on a negotiated settlement. However, if the negotiation process is exhausted without the dispute being resolved, the parties shall jointly or individually refer the matter to the Industrial Relations Commission of New South Wales for assistance in resolving the disputes.

 

(6)        In order to allow for the peaceful resolution of grievances the parties shall be committed to avoiding stoppages of work, lockouts or any other bans or limitations on the performance of work while the procedures of negotiation and conciliation are being followed.

 

(7)        The employer shall ensure that all practices applied during the operation of the procedure are in accordance with their obligations under the applicable occupational health and safety legislation and regulation and consistent with established custom and practice at the workplace.

 

25.  Training Wage

 

See the AWU Training Wage (State) Award.

 

26.  Personal/Carer's Leave

 

(1)        Use of Sick Leave -

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a class of person set out in 26(1)(c)(ii) 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 17, 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:

 

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

 

(ii)        the person concerned being:

 

(A)       a spouse of the employee; or

 

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

 

(C)       a child or an adult child (including an adopted child, a step child, a foster child or an ex nuptial child), parent (including foster parent and legal guardian), grandparent, grandchild or sibling of the employee, 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 24, Dispute Settling Procedure, should be followed.

 

(2)        Unpaid Leave for Family Purpose -

 

(a)        An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in 26(1)(c)(ii) above who is ill or who requires care due to an unexpected emergency.

 

(3)        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.

 

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

 

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

 

(b)        Overtime taken as time off during ordinary-time hours shall be taken at the ordinary-time rate, that is, an hour for each hour worked.

 

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

 

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

 

(5)        Make-up Time -

 

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

 

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

 

(6)        Rostered Days Off -

 

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

 

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

 

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

 

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

 

(7)        Personal Carers Entitlement for casual employees -

 

(1)        Subject to the evidentiary and notice requirements in 26(1)(b) and 26(1)(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 26(1)(c)(ii) 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.

 

27.  Undertakings

 

(1)        Enterprise Arrangements -

 

(a)        As part of the Structural Efficiency exercise and as an ongoing process for improvements in productivity and efficiency, discussion should take place at an enterprise to provide more flexible working arrangements, improvement in quality of working life, enhancement of skills, training and job satisfaction, and positive assistance in the restructuring process and to encourage consultation mechanisms across the workplace to all employees in an enterprise and consideration of a single bargaining unit in all multi-union/union award workplaces. Union delegates at the place of work may be involved in such discussions.

 

(b)        The terms of any proposed genuine arrangement reached between an employer and employee(s) in any enterprise shall, after due processing, substitute for the provisions of this award to the extent that they are contrary, provided that:

 

(i)         a majority of employees affected genuinely agree;

 

(ii)        such arrangement is consistent with the current State Wage Case principles.

 

(c)

 

(i)         Before any arrangement requiring variation to the award is signed and processed in accordance with subclause (2), details of such arrangements shall be forwarded in writing to the union or unions with members in that enterprise affected by the changes and the employer association, if any, of which the employer is a member. A union or an employer may, within 14 days thereof, notify the employer in writing of any objection to the proposed arrangement, including the reasons for such an objection.

 

(ii)        When an objection is raised, the parties are to confer in an effort to resolve the issue.

 

(2)        Procedures to be Followed - Such enterprise arrangements shall be processed as follows:

 

(a)        All employees will be provided with the current prescriptions (e.g., award, industrial agreement or enterprise arrangement) that apply at the place of work.

 

(b)

 

(i)         Where an arrangement is agreed upon between the employer and the employees or their authorised representative at an enterprise, such arrangement shall be committed to writing.

 

Where the arrangement is agreed upon between the employer and an absolute majority of permanent employees under this award at an enterprise, such arrangement shall be committed to writing.

 

(ii)        The authorised representative of employees at an enterprise may include a delegate, organiser or official of the relevant union, if requested to be involved by the majority of employees at the establishment.

 

(c)        The arrangement shall be signed by the employer, or the employer's duly authorised representative, and the employees or their authorised representative with whom agreement was reached.

 

(d)        Where an arrangement is objected to in accordance with subparagraph (i) of paragraph (c) of subclause

 

(1)        of this clause and the objection is not resolved, an employer may make application to the Industrial Relations Commission of New South Wales to vary the award to give effect to the arrangement.

 

(e)        The union and/or employer association shall not unreasonably withhold consent to the arrangement agreed upon by the parties.

 

(f)         If no party objects to the arrangement, then a consent application shall be made to the Industrial Relations Commission of New South Wales to have the arrangement approved and the award varied in the manner specified in paragraph (g).

 

Such applications are to be processed in accordance with the appropriate State Wage Case principles.

 

(g)        Where an arrangement is approved by the Industrial Relations Commission of New South Wales and the arrangement is contrary to any provision of the award, then the name of the enterprise to which the arrangement applies, the date of operation of the arrangement, the award provisions from which the said enterprise is exempt, and the alternative provisions which are to apply in lieu of such award provisions (or reference to such alternative provisions) shall be set out in a schedule to the award.

 

(h)        Such arrangement when approved shall be displayed on a notice board at each enterprise affected.

 

(i)         No existing employees shall suffer a reduction in entitlement to earnings, award or overaward, for working ordinary hours of work as the result of any award changes made as part of the implementation of the arrangement.

 

28.  Anti-Discrimination

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

28A.  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:

 

(i)         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

 

(ii)        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.

 

29.  Area, Incidence and Duration

 

(a)        This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Potato Crisp Makers (State) Award, published 10 August 2001 (326 I.G. 1011) and all variations thereof.  This award will take effect on 5 February 2008.

 

(b)        This award shall apply to all employees engaged in the manufacture, preparation and packing of crisps or extrusions processed from potato and/or cereals and being snack foods of the nature of potato crisps, corn crisps, expanded and shaped extruded cereal snack foods or the like, excepting employees in grain and/or cereal food mills, within the State.

 

(c)        The changes made to the Award pursuant to the Award Review under 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 NSW on 28 April 1999 (310 I.G. 359) take effect on 5 February 2008.

 

(d)        The 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

 

(i)         Adult Employees:

 

Classification	SWC 2006	SWC 2007	SWC 2007
	Amount	Adjustment	Amount
	$	$	$
Cook Grade 1, Extrusion Machine Operator Grade 1, Corn
Chi Cook, Corn Preparation Operator Arnotts	627.40	20.00	647.40
Packing Machine Operator, Fork Lift Truck Driver Arnotts	625.00	20.00	645.00
Waste Water Treatment and Plant Operator Arnotts	631.90	20.00	651.90
Cook Grade 1, Extrusion Machine Operator Grade 1, Corn
Chi Cook, Corn Preparation Operator	618.10	20.00	638.10
Packing Machine Operator, Fork Lift Truck Driver	615.70	20.00	635.70
Waste Water Treatment and Plant Operator	611.90	20.00	631.90
Cook Grade 2, Extrusion Machine Operator Grade 2, Other
Machine Operator, Packet Weight Controller using
calculator, Pallet Checker and Recorder and Palletiser, Wet
End Attendant, Packaging Machine Operator (Training)	591.60	20.00	611.60
Person who, in the course of a shift, cleans toilets	583.60	20.00	603.60
Other employees not elsewhere classified	580.70	20.00	600.70

 

(ii)        Juniors - Junior employees shall be paid the following percentages of the rate of pay for the classification "Other employees not elsewhere classified", calculated to the nearest 5 cents, any broken part of 5 cents in the result not exceeding 2.5 cents to be disregarded:

 

	Percentage
	%
At 16 years of age and under	50
At 17 years of age	60
At 18 years of age	70
At 19 years of age	80
At 20 years of age	95

 

Table 2 - Other Rates and Allowances

 

Item No.	Clause No.	Brief Description	SWC 2006	SWC 2007
			Amount	Amount
			$	$
1	5(ii)	Leading Hand Allowance	36.80/wk	38.30/wk
2	5(iv)	Team Leader - Arnotts Foods only	59.20/wk	61.55/wk
3	3 iii (b)	Afternoon Shift Allowance	83.30/wk	86.60/wk
4	3(iv) b	Night Shift Allowance	165.55/wk	172.15/wk
5	8(vi)	Meal Allowance	8.60/meal	8.90/meal
6	16(iii)	First-aid Allowance	2.20/day	2.30/day

 

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 June 2007 State Wage Case Decision of the Industrial Relations Commission of New South Wales.

 

POTATO CRISP MAKERS (STATE) INDUSTRIAL COMMITTEE

 

Industries and Callings

 

Employees engaged in the manufacture, preparation and packing of crisps or extrusions, processed from potato and/or cereals and being snack foods of the nature of potato crisps, corn crisps, expanded and shaped extruded cereal snack foods or the like, excepting employees in grain and/or cereal food mills, within the State.

 

 

 

E. A. R. BISHOP, Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.