Ice Cream 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 1540 of 2007)

 

 

REVIEWED AWARD

 

PART A

 

Arrangement

 

Clause No.         Subject Matter

 

1.         Title

2.         Definitions

3.         Hours

3A.      Implementation of 38 Hour Week

4.         Mixed Functions

5.         Shift Work

6.         Rates of Pay

7.         State Wage Case Adjustments

8.         Supported Wage

9.         Overtime, Sunday and Holiday Rates

10.       Holidays

11.       Meal Break

12.       Meal Allowance

13.       Rest Period

14.       Engagement and Termination of Employment

14A.    Secure Employment

15.       Protective Clothing

16.       Annual Leave

17.       Annual Leave Loading

18.       Sick Leave

19.       Bereavement Leave

20.       Personal Carer’s Leave

20A.    Parental Leave

21.       Working Alone

22.       Jury Service

23.       Shop Stewards

24.       Compassionate Leave

25.       Long Service Leave

26.       Part-Time Employment

27.       Payment of Wages

28.       First Aid

29.       Redundancy

30.       Grievance Procedure

31.       Training

32.       Anti-Discrimination

33.       Area, Incidence and Duration

34.       Training Wage

 

PART B

 

MONETARY RATES

 

Table 1 - Adult Wages

Table 2 - Other Rates and Allowances

 

1.  Title

 

This award shall be known as the Ice Cream Makers (State) Award.

 

2.  Definitions

 

(i)         Ice Cream Mixer shall mean an employee responsible for the mix preparation, whether under the control of a foreperson or otherwise.

 

(ii)        Assistant Ice Cream Mixer shall mean an employee directly assisting the Ice Cream Mixer as defined in subclause (i) of this clause.

 

(iii)       Operator - Moulding and Freezing shall mean an employee who controls the operation of an Ice Cream Churn in conjunction with a moulding or extruding and freezing machine, being machines producing product by the freeze or freeze heat method.

 

(iv)       Operator - Auto Filler shall mean an employee who controls the operation of an Ice Cream Churn in conjunction with an automatic filling machine, producing semi-frozen product.

 

(v)        Operator - Manual Filler shall mean an employee who controls the operation of an Ice Cream Churn producing semi-frozen product requiring manual fill operation.

 

(vi)       Other Operator shall mean an employee undergoing training on any of the classifications or who operates machines auxiliary to machines mentioned in subclauses (iii), (iv) and (v) of this clause.

 

(vii)      Packer shall mean an employee who performs the work incidental to the production line such as forming cartons, packing into cartons, sealing cartons, filling containers, lidding, loading sticks into "stick" machines, observing products passing through machines and discarding imperfect products and/or materials, transferring products by hand from point to point, preparatory work for the shrink wrapping process and any other associated duties.

 

(viii)     Union shall mean the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch.

 

(ix)       Ice Cream Production Assistant - An employee appointed by the employer to this grade shall be required to perform any one or more of the functions within this grade and may be undertaking training so as to enable the employee to work in Manufacturer Grade 1:

 

(1)        General Hand

 

(2)        Packer

 

In addition employees in this grade will undergo a training program and will have to successfully complete the program to a competency level defined within the program.

 

(x)        Ice Cream Manufacturer - Grade 1

 

An employee appointed by the employer to this grade shall be required to perform any one or more functions within this grade and may be required to perform any of the duties for which they are trained under Production Assistant; they may also be undertaking training so as to enable them to work in Manufacturer Grade 2:

 

(1)        Stretchwrap Operator / Forklift Driver

 

(2)        Trainee Operator

 

(3)        Other Operator

 

In addition employees will undergo a training program and will have to successfully complete the program to a competency level defined within the program.

 

(xi)       Ice Cream Manufacturer - Grade 2

 

An employee appointed by the employer to this grade shall be required to perform any one or more of the functions within this grade and may be required to perform any of the duties for which they are trained under Manufacturer Grade 1 and Production Assistant; they may also be undertaking training so as to enable them to work in Manufacturer Grade 3:

 

(1)        Operator Auto Filler

 

(2)        Operator Manual Filler

 

(3)        Assistant Ice Cream Mixer

 

(xii)      Ice Cream Manufacturer - Grade 3

 

An employee appointed by the employer to this grade shall be required to perform this function and may be required to perform any of the duties for which they are trained under Manufacturer Grade 2, Manufacturer Grade 1 and Production Assistant:

 

(1)        Ice Cream Mixer

 

(2)        Operator Moulding and Freezing

 

(3)        Cake Decorator

 

In addition employees in this grade will undergo a training program and will have to successfully complete the program to a competency level defined within the program.

 

3.  Hours

 

(i)         The ordinary hours of work shall be an average of 38 per week.

 

(ii)        Except for shift workers, the ordinary hours of work shall be worked in five days of not more than 8 hours continuously except for breaks for meals between 6.00 a.m. and 6.00 p.m. on Mondays to Fridays inclusive.  Provided that where as a result of the introduction of 6.00 a.m. - 6.00 p.m. as ordinary hours of work an existing employee (as at 28 August 2002) may lose regular or usual overtime, that change with respect to that employee shall be preceded by consultation with the employee (and where the employee is a member, consultation with the union) and if the consultation fails to resolve the matter it shall be settled in accordance with the settlement of disputes procedure.

 

(iii)       The daily starting and finishing times for day work shall be fixed by the employer within the spread of hours prescribed by subclause (ii) of this clause shall not be altered except on one week's notice.

 

(iv)       Rostered days off falling on a public holiday

 

(a)        An employee who works continuous work and who by the circumstances of the arrangement of the employee's ordinary hours of work is entitled to a rostered day off which falls on a public holiday prescribed by this clause shall, at the discretion of the employer, be paid for that day 7.6 hours at ordinary rates or have an additional day added to the employee's annual leave.  This provision shall not apply when the public holiday on which the employee is rostered off falls on a Saturday or Sunday.

 

(b)        In the case of an employee whose ordinary hours of work are arranged in accordance with paragraphs (b) or (d) of subclause (ii) of clause 3A, Implementation of 38 Hour Week, the week day to be taken off shall not coincide with a public holiday fixed in accordance with clause 10, Holidays.  Provided that, in the event that a public holiday is prescribed after an employee is given notice of the employee's week day off and the public holiday falls on the week day the employee is to take off, the employer shall allow the employee to take the day off on an alternate week day. 

 

3A.  Implementation of 38 Hour Week

 

(i)         Ordinary hours of work shall be an average of 38 per week as provided in clauses 3, Hours, and 5, Shift Work.

 

(ii)        Except as provided by subclauses (iv) and (v) of this clause, the method of implementation of the 38 hour week may be any of the following:

 

(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 employees off on various days of the week during a particular work cycle so that each employee has one week day off during the cycle.

 

(iii)       In each plant, an assessment should be made as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation.  Provided that if a method of operating a 38 hour week is already in place at a plant or section or sections concerned prior to 28 August 2002, such a method shall not be altered unless by agreement between the employer and a majority of employees concerned.

 

(iv)       The employer and the majority of employees in the plant or sections or sections concerned may agree that the hours of work are to exceed eight on any day, thus enabling a weekday off to be taken more frequently than would otherwise apply.

 

(v)        Circumstances may arise where different methods of implementation of the 38 hour week apply to various groups or sections of employees in the plant or establishment concerned.

 

(vi)       Notice of days off

 

Except as provided in subclauses (vii) and (viii) of this clause, in cases where, by virtue of the arrangement of employee's ordinary working hours, an employee, in accordance with paragraphs (c) and (d) of subclause (ii) of this clause, 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 the employee is to take off.  Provided that lesser period of notice may be agreed by the employer and majority of employees or section or sections concerned.

 

(vii)      Substitute days

 

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

 

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

 

(viii)     Flexibility in relation to rostered days off

 

(a)        Notwithstanding any other provision of this clause, where the ordinary hours of work of an establishment, plant or section are organised in accordance with paragraphs (c) and (d) of subclause (ii) of this clause an employer, the union and the majority of employees in the establishment, plant, section or sections concerned may agree to accrue up to a  maximum of five rostered days off in special circumstances such as where there are regular and substantial fluctuations in production requirements in any year.

 

(b)        Where such agreement has been reached the accrued rostered days off must be taken within twelve months on which they fall due.

 

(c)        It is understood between the parties that the involvement of the union would be necessary in cases where it has members in the plants concerned and not in non-union establishments.

 

4.  Mixed Functions

 

An employee if employed on a higher class of work shall be paid at the higher rate for all time worked upon such higher duty, provided that if the employee is so employed for more than two hours on any day, the employee shall receive the wages for the higher class of work for the whole of the day and if the employee is so employed for ten hours or more in any pay week the employee shall be paid at the higher rate for the whole of that pay week. If an employee is called upon to work on a class of work carrying a lower rate of pay the said employee shall suffer no reduction.

 

5.  Shift Work

 

An employer may employ employees on shift work subject to the following conditions and limitations:

 

(i)         A night shift may be worked by adult employees only, in which case the ordinary hours of work shall not exceed an average of thirty-eight hours per week inclusive of crib time.  Subject to clause 3A, Implementation of 38 Hour Week, such shifts shall be worked continuously on each night, Monday to Friday inclusive, between the hours of 10.00pm and 8.00am on the succeeding day.

 

(ii)        An employee engaged on night shift shall be paid a loading of thirty per cent of the wages prescribed by clause 6, Rates of Pay, of this award.

 

(iii)       Morning and afternoon shifts may be worked subject to the following conditions:

 

(a)        Subject to clause 3A, Implementation of 38 Hour Week, the ordinary hours shall not exceed an average of thirty-eight hours per week, to be worked Monday to Friday inclusive.

 

(b)        A crib time of twenty minutes shall be allowed to shift workers on each shift which shall be counted as time worked.

 

(c)        A rest period of twenty minutes which shall be counted as time worked shall be allowed to shift workers. Such twenty minutes shall be taken either in one period or in two periods of ten minutes at times mutually convenient.

 

(d)        The employer shall give to the union not less than seven days’ notice of its intention to work shifts and of the times between which such shifts shall be worked; provided that shifts shall not commence before 6 a.m. and shall not finish later than 11:30 p.m.

 

(e)        Employees whilst working on afternoon shift shall be paid the rate per shift as set out in Item 6 of Table 2 - Other Rates and Allowances of Part B - Monetary Rates in addition to the ordinary rates.

 

(f)         Afternoon shift shall mean any shift finishing after 6 p.m. and at or before 11:30 p.m.

 

(g)        Employees whilst working on night shift shall be paid 30 per cent, in addition to the ordinary rates.

 

(iv)       Norco Co-operative Limited may commence a shift at 4:00 a.m. for the purpose of preparing mixers for the day with a shift loading of 10 per centum.

 

6.  Rates of Pay

 

Adult and junior employees shall be paid in accordance with the rates prescribed in Table 1 - Rates of Pay, of Part B, Monetary Rates.

 

7.  State Wage Case Adjustments

 

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.

 

8.  Supported Wage

 

Employees Eligible for a Supported Wage -

 

(a)        The clause defines the condition which will apply to employees who, because of the effects of a disability, are eligible for a supported wage under the terms of this award. In the context of this clause, the following will apply:

 

(i)         Supported Wage System means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in Supported Wage System: Guidelines and Assessment Process.

 

(ii)        Accredited Assessor means a person accredited by the management unit established by the Commonwealth under the Supported Wage System to perform assessments of an individual’s productive capacity within the Supported Wage System.

 

(iii)       Disability Support Pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided for under the Social Security Act 1991, or any successor to that scheme.

 

(iv)       Assessment Document means the form provided under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System.

 

(b)        Eligibility Criteria - Employees covered by this clause will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity, and who meet the impairment criteria test for receipt of a Disability Support Pension.

 

The clause does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers’ compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment. This clause does not apply to employers in respect of their facility, program, undertaking, service or the like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider and sheltered employer to people with disabilities who are in receipt of, or are eligible for, a Disability Support Pension, except with respect to an organisation which as received recognition under section 10 or section 12A of the said Act or, if a part only has received recognition, that part.

 

(c)        Supported Wage Rates - Employees to whom this clause applies shall be paid the applicable percentage of the minimum rate of pay prescribed by this award for the class of work which the person is performing, according to the following schedule:

 

 

(Provided that the minimum amount payable shall be not less than $66.00 per week.)

 

Where a person’s assessed capacity is 10 per cent, they shall receive a high degree of assistance and support.

 

(d)        Assessment of Capacity - For the purpose of establishing the percentage of the award rate to be paid to an employee under this award, the productive capacity of the employee will be assessed in accordance with the Supported Wage System and documented in an assessment instrument by either:

 

(i)         the employer and a union party to the award, in consultation with the employee or, if desired, by any of these:

 

(ii)        the employer and an accredited assessor from a panel agreed by the parties to the award and the employee.

 

(e)        Lodgement of Assessment Instrument -

 

(i)         All assessment instruments under the conditions of this clause, including the appropriate percentage of the award wage to be paid to the employee, shall be lodged by the employer with the Registrar of the Industrial Relations Commission of New South Wales.

 

(ii)        All assessment instruments shall be agreed and signed by the parties to the assessment, provided that where a union which is a party to the award is not a party to the assessment, it shall be referred by the Registrar to the union by certified mail and will take effect, unless an objection is notified to the Registrar within ten working days.

 

(f)         Review of Assessment - The assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonable request for such a review. The process of review will be in accordance with the procedures for assessing capacity under the Supported Wage System.

 

(g)        Other Terms and Conditions of Employment - Where an assessment has been made, the applicable percentage shall apply to the wage rate only. Employees covered by the provisions of this clause will be entitled to the same terms and conditions of employment as all other workers covered by this award paid on a pro rata basis.

 

(h)        Work Adjustment - An employer wishing to employ a person under the provisions of this clause must take reasonable steps to make changes in the workplace to enhance the employee’s capacity to do the job. Changes may involve redesign of job duties, working time arrangement and work organisation in consultation with other workers in the area.

 

(i)         Trial Period -

 

(i)         In order of an adequate assessment of the employee’s capacity to be made, an employer may employ a person under the provisions of this clause for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

 

(ii)        During the trial period the assessment of capacity shall be undertaken and the proposed wage rate for a continuing employment relationship shall be determined.

 

(iii)       The minimum amount payable to the employee during the trial period shall be no less than $66.00 per week.

 

(iv)       Work trials should include induction or training as appropriate to the job being trialled.

 

(v)        Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment shall be entered into, based on the outcome of assessment under subclause (d) of this clause.

 

9.  Overtime, Sunday and Holiday Rates

 

(i)         An employee, who works for any time in excess of thirty-eight hours in any one week or before the fixed starting time or after the fixed finishing time shall be paid for such time at the rate of time and one-half for the first two hours and at the rate of double time thereafter.

 

(ii)        An employee required to work on a Sunday shall be paid at the rate of double time, whilst an employee required to work on a public holiday shall be paid at the rate of double time and a half, provided that an employee required to work on 25 December or Good Friday shall be paid at treble time. There shall be a minimum payment of four hours at the rate herein described for any start on such day.

 

(iii)       An employee required to work during the usual meal break shall be paid at the rate of time and one-half and such rates shall continue to be paid until the employee is allowed the usual meal break.

 

(iv)       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.

 

(v)        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 that the employee has 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 the employee has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

 

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

 

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

 

10.  Holidays

 

(i)         The following holidays shall be observed as 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, or any day observed in lieu of such days, and such other days as may be proclaimed as public holidays for the State and observed as such and the union picnic day which shall be held on the last Monday in October, in each year.

 

(ii)        Employees, other than casual employees, shall be entitled to the holidays specified in subclause (i) of this clause without loss of pay provided that such employees do not absent themselves from work on the working day preceding or the working day succeeding such holiday.

 

(iii)       When such holidays fall on consecutive days an employee who works on either the working day preceding or the working day succeeding such holiday, but not on both, shall be entitled to payment for the holiday closest to the day on which the employee worked.

 

(iv)       The employer may require from an employee evidence of the employee’s attendance at the picnic and the production of the butt of a picnic ticket issued for the picnic shall be sufficient evidence of such attendance. Where such evidence is required by the employer payment need not be made unless the evidence is produced.

 

11.  Meal Break

 

(i)         Except as to shift work employees, no employee shall work more than five hours without a suitable meal break, such meal break shall be not less than thirty minutes nor more than one hour.

 

(ii)        Each employee on shift work shall be allowed at least twenty minutes for crib during the fifth hour of this employment which shall be counted as time worked.

 

12.  Meal Allowance

 

An employee required to work overtime in excess of one hour without having been notified on the previous day, shall be paid the sum as set out in Item 3 of Table 2 - Other Rates and Allowances of Part B - Monetary Rates to provide the employee with a meal and an additional sum as set out in the said Item 3 for each further four hours so worked; provided that in the case of day workers where such overtime is completed by 5:30 pm, a meal allowance is not paid if the overtime worked is not more than one and one-half hours.

 

13.  Rest Periods

 

(i)         Rest periods of ten minutes’ duration shall be allowed to all employees within the third hour after starting time and the third hour after meal break.

 

(ii)        Rest periods in each instance shall be paid for and if worked by direction of the employer shall be paid for at the rate of double time.

 

14.  Engagement and Termination of Employment

 

(i)         Employees shall be engaged on a full-time, part-time or casual basis and shall be paid by the week.

 

(ii)        The engagement of an employee may be terminated only by one week’s notice or the payment or forfeiture, as the case may be, of one week’s wages in lieu provided that the employer may dismiss an employee at any time for misconduct or wilful disobedience and then shall be liable for the payment of wages due to the time of dismissal only.

 

14A.  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 six 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 six 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.

 

15.  Protective Clothing

 

(i)         Caps, overalls, uniforms and other protective covering shall be provided by the employer free of charge and shall be kept laundered by the employer: Provided that the employer may require the employee to launder their uniforms / overalls only, in which case the employer shall reimburse the employee the amount as set out in Item 5 of Table 2 - Other Rates and Allowances of Part B - Monetary Rates per week.

 

(ii)        Caps, overalls, uniforms and other protective covering shall be returned on demand and in default thereof the employee shall pay for them at a reasonable rate calculated by the employer and the union.

 

16.  Annual Leave

 

See Annual Holidays Act 1944.

 

17.  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 their 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 such separate period, 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.

 

(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 employee’s annual holiday, together with where applicable the extra rates pursuant to subclauses (iii) and (v) of clause 6, Rates of Pay, of this award, but shall not include 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 an employee continues until the day when the employee would have become entitled under the Act to the 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 to the award rates of wages payable on that day.

 

(vii)

 

(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 has become entitled the employee shall be paid a loading calculated in accordance with subclause (iv) 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.

 

Shift Worker -

 

(viii)     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; 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 the amount shall be paid to the employee in lieu of the loading.

 

18.  Sick Leave

 

(a)        Entitlement to Sick Leave

 

An employee who is absent from work on account of illness or on account of injury by accident shall be entitled to paid sick leave subject to the following conditions:

 

The employee shall be entitled to paid sick leave after one months service;

 

Where absences occur in the first 3 months of employment, payment for sick leave shall be subject to the production of a medical certificate covering the period of absence.

 

An employee shall be entitled to the following sick leave entitlements:

 

38 hours during the first year of employment.

 

76 hours during the second and subsequent years of employment.

 

(b)        Inability to Attend for Work - Notifying the Employer

 

The employee shall inform the employer of the inability to attend for work within 2 hours of the commencement of such absence and, as far as practicable, state the nature of the employee's illness or injury and the estimated duration of the absence.  If it is not reasonably practicable to inform the employer of the absence within 2 hours the employee shall inform the employer within 4 hours.

 

(c)        Proof of Illness or Injury

 

The employee shall provide to the satisfaction of the employer, or in the event of any dispute to the Industrial Relations Commission, that the employee was unable, on account of such illness or injury, to attend for work for the period of sick leave claimed.

 

The employer may require an employee to make a statutory declaration verifying the cause and length of the employee's absence.

 

(d)        Cumulative effects of unexhausted sick leave entitlement

 

Where an employee has not exhausted the amount of sick leave owing to them as outlined in subclause (a) above, the balance of any leave owing shall be cumulative and be available in subsequent years of employment for the purposes of this clause.  This shall be in addition to any entitlement that arises in the second or subsequent years of employment under this clause.

 

(e)        Single Day Absences

 

Where an employee is paid sick leave for a single days absence in one year, the employee shall not be entitled to payment for a further single days absence unless a medical certificate stating proof of illness or injury is provided to the employer.

 

19.  Bereavement Leave

 

(i)         An employee, other than a casual employee, shall be entitled three 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.  Provided that, if the employee claims payment for such leave in excess of two ordinary working days, the employee shall furnish proof satisfactory to the employer that the employee attended the funeral.

 

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

 

(iii)       Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of subclause (1) of clause 20, Personal/Carers 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), (6) of the said clause 20. 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 19(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 20(1)(c)(ii) of clause 20, 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.

 

20.  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 20(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 18, 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 a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse o r 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 30, Grievance 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 20(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 20(1)(b) and 20(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 20(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.

 

20A.  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).

 

21.  Working Alone

 

No employee shall be required to work alone without regular observation or contact with another responsible person.

 

22.  Jury Service

 

An employee, other than a casual, 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 amount of wage the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.

 

An employee shall notify their employer as soon as possible of the date upon which the employee is 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.  Shop Stewards

 

(a)        An employee who is elected or appointed a shop steward shall be recognised as such by the employer and subject to the permission of the employer, which permission shall not be unreasonably withheld, the shop steward may interview members of the union during working time and if such time is during the shop steward’s working time, the shop steward shall suffer no loss of pay.

 

(b)        A shop steward shall be permitted to interview the employer or its representative during working hours without loss of pay.

 

(c)        A shop steward shall be permitted easy access to a telephone to call branch officials at any time.

 

24.  Compassionate Leave

 

(i)         An employee shall be entitled to leave of absence upon notice without pay in order to attend to matters relating to the education of a child or to attend to personal legal business or legal business involving a person dependent either wholly or partially upon the employee or to attend to matters of a medical nature involving the employee personally or a person whose relationship to the employee is such as it is reasonable that the employee shall be in attendance or escort the person to a medical appointment.

 

(ii)        An employee shall be entitled to so much leave of absence upon notice as is necessary to attend a parent, spouse, child, stepchild or ward whose death is anticipated to be imminent.

 

25.  Long Service Leave

 

See Long Service Leave Act 1955.

 

26.  Part-Time Employment

 

(i)         A part-time employee is an employee engaged for a regular number of hours each week less than 38 but such hours shall not be less than 15.

 

(ii)        The weekly hours shall be worked at the same time and on the same days of the week, and all time worked outside these hours shall be paid as overtime.

 

(iii)       Such an employee for working ordinary time shall be paid per hour one-thirty-eighth of the weekly rate prescribed by this award; and where applicable the appropriate shift penalty shall be paid on a pro rata basis.

 

27.  Payment of Wages

 

(i)         The employer may determine the method of payment of wages which shall be paid weekly, during working hours, by one of the following ways:

 

(a)        Cash;

 

(b)        Cheque; or

 

(c)        Electronic funds transfer (EFT) into the employees' nominated financial institution account, without cost to the employee.

 

(ii)        Payment of cash or cheque wages - if cash or cheque wages are to be paid, such cash or cheque wages shall be paid without delay prior to the employee ceasing work on the nominated pay day.  Employees who are kept waiting for their cash or cheque wages for more than ten minutes after the usual time for ceasing work shall be paid overtime rates for all waiting time.  This subclause shall not apply if cash or cheque wages cannot be paid within working time due to circumstances beyond the employer's control.

 

(iii)       Payment of wages by EFT - where wages are paid by into an employee's nominated bank account, wages shall be available on the nominated pay day.  If the wages are not available on the designated pay day, the employee shall contact the employer, who shall contact the relevant financial institution for the wages to be made available.

 

If, by the day following the designated pay day, the wages are still not available, employees who are kept waiting for wages to be credited into their nominated bank account for more than ten minutes after the usual time for ceasing work on pay day shall be paid overtime rates for all waiting time.  This subclause shall not apply if wages cannot be paid within working time due to circumstances beyond the employer's control.

 

(iv)       Payment on termination - upon termination of employment, in the case of cash payment of wages or payment of wages by electronic funds transfer, all wages due to an employee (including a casual) shall be paid to an employee on the day of termination.  In the case of payment of wages by cheque, such wages shall be forwarded to the employee by post on the next ordinary working day.

 

28.  First-Aid

 

An employee appointed by the employee to perform first-aid duty, shall in addition to the employee’s ordinary rate of pay be paid the amount as set out in Item 4 of Table 2 - Other Rates and Allowances of Part B - Monetary Rates per week extra.

 

29.  Redundancy

 

(i)         Application -

 

(a)        This clause shall apply in respect of full-time and part- time employees as set out in clause 6, Rates of Pay.

 

(b)        This clause shall apply only in respect to employers who employ more than 15 employees immediately prior to the termination of employment of employees, in the terms of subclause (iv) of this clause.

 

(c)        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 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 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.

 

(ii)        Introduction of Change -

 

(A)       Employers 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 effects 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 or locations and the restructuring of jobs. 

 

(B)       Employer's Duty to Discuss Change -

 

(a)        The employer shall discuss with the employees affected and the union to which they belong, the introduction of the changes referred to in subclause (A) of this clause, 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 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 subclause (A).

 

(c)        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 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 practicable after the employer has made a definite decision which will invoke the provision of paragraph (a) of this subclause and shall cover, any reason 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 discussion 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, Program, Organisation or Structure -  This subclause 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 paragraph (a) of subclause (ii) of this clause.

 

(a)        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

 

(b)       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.

 

(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.

 

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

 

(C)       Time Off During the 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.

 

(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 Centrelink or the appropriate Government Authority - Where a decision has been made to terminate the employment of employees, the employer shall notify Centrelink 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), 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 of notice still owing.

 

(v)        Severance Pay

 

(a)        Where 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:

 

(A)      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

 

(B)       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

 

(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.

 

(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 subclause (a) of this clause. 

 

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 subclause (a) of this subclause will have on the employer.

 

(c)        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 subclause (a) of this subclause if the employer obtains acceptable alternative employment for an employee.

 

30.  Grievance Procedure

 

(i)         Procedures Relating to Grievances of Individual Employees

 

(a)        The employee is required to notify the employer (in writing or otherwise) 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 and the employer may be represented by an industrial organisation of employers.

 

(ii)        Procedures 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 employees may be represented by an industrial organisation of employees for the purposes of each procedure.

 

31.  Training

 

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

 

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

 

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

 

(iii)       removing barriers to the utilisation of skills required.

 

(b)        Following proper consultation or through the establishment of a training committee, an employer shall develop a training program consistent with:

 

(i)         the current and future skill needs of the enterprise;

 

(ii)        the size, structure and nature of the operations of the enterprise;

 

(iii)       the need to develop vocational skills relevant to the enterprise and the industry through courses conducted by accredited education institutions and providers.

 

(c)        Where it is agreed a training committee be established, that training committee should be constituted by equal numbers of employer and employee representatives and have a charter which clearly states its role and responsibilities, for example:

 

formulation of a training program and availability of training courses and career opportunities to employees;

 

dissemination of information on the training program and availability of training courses and career opportunities to employees;

 

the recommending of individual employees for training and reclassification;

 

monitoring and advising management and employees on the on-going effectiveness of the training.

 

(d)

 

(i)         Where it is agreed that additional training in accordance with the program developed pursuant to subclause (b) hereof 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.

 

(ii)        Any costs associated with standard fees for prescribed courses and prescribed textbooks (including those textbooks which are available in the employer's technical library) incurred in connection with the undertaking of training shall be reimbursed by the employer upon production of evidence of such expenditure.  Provided that reimbursement shall be on the basis of reports of satisfactory progress.

 

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

 

(e)        Subclauses (b), (c) and (d) herein shall operate as interim provisions and shall be reviewed as part of the ongoing process of award restructuring.  The parties shall monitor the effectiveness of those interim provisions in encouraging the attainment of the objectives detailed in subclause (a) hereof.  In this connection the unions reserve the right to press for the mandatory prescription of a minimum number of training hours per annum without loss of pay for an employee undertaking training to meet the needs of an individual enterprise and/or the Ice Cream Making industry.

 

(f)         Any disputes arising in relation to subclauses (b) and (c) shall be subject to the provisions of clause 30, Grievance Procedure.

 

(g)        Redefine the role of operator to include reference to the responsibility for quality, safety and hygiene.  In addition, employees in this grade will:

 

(i)         undergo a training program and will have to successfully complete the program to a competency level defined within the program;

 

(ii)        be responsible for achieving, monitoring and maintaining specified product quality;

 

(iii)       be responsible for implementing and monitoring hygiene work practices.

 

(h)        Commitment from the union to discuss the future roles and responsibilities of employees.  The industry is introducing a Total Quality Management philosophy with the intention of giving a competitive edge by improving quality and hygiene.  It is the wish of the industry to provide employees with the right work practices and equipment in a clean and safe environment.  To achieve this it is proposed that the union give a commitment to discuss reviewing the roles and responsibilities of employees seeking their involvement in support via work study groups and consultative committees.

 

A commitment is also required from the union and its members to participate in purposeful and cooperative discussions towards the achievement of a Streets Ice Cream Site Agreement.

 

32.  Anti Discrimination

 

(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 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.

 

(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 this award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

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

 

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

 

(a)        any conduct or act which is specially 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;

 

(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 legislation referred to in this clause.

 

NOTES:

 

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

 

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

 

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

 

33.  Area, Incidence and Duration

 

This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Ice Cream Makers (State) Award published on 21 September 2001 (327 I.G. 1037) and all variations thereof.

 

This award shall apply to all employees engaged in or in connection with the manufacture, packing, putting up and conveying to cold store of ice creams, frozen ices, or snows, in the State, excluding the County of Yancowinna, within the Industries and Callings of this award.

 

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 New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 21 February 2008.

 

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

 

Industries and Callings

 

Employees engaged in or in connection with the manufacture, packing, putting up and conveying to cold store of ice cream, frozen ices or snows, in the State, excluding the County of Yancowinna;

 

Excepting -

 

Engineers, fitters, turners, blacksmiths, coppersmiths and patternmakers;

 

Makers, fitters, and repairers of electrical apparatus and installations, and employees engaged in the maintenance of electrical apparatus and installations or in running electrical plant;

 

Tinsmiths, canister makers, sheet ironworkers, and tin box makers;

 

Carpenters and joiners;

 

Engine-drivers and firepersons, greasers, trimmers, cleaners, and pumpers engaged in and about the driving of engines, electrical crane, winch, and motor drivers;

 

Plumbers and gasfitters and their assistants;

 

Painters;

 

Bricklayers and tuckpointers;

 

Carters, grooms, stablepersons, yardpersons, and drivers of motor and other power propelled vehicles;

 

Watchpersons, caretakers and cleaners;

 

Clerks; and

 

Cold storage and ice hands.

 

34.  Training Wage

 

 

 

The parties to this award shall observe the terms and conditions of the National Training Wage Award 1994 Print N4816 as amended from time to time.

 

 

 

That is to permit the employment under this Award of employees undertaking traineeships including school-based and part-time traineeships as approved by the relevant NSW Training Authority.

 

 

 

Payment of wages of those employees undertaking a relevant traineeship shall be in accordance with the National Training Wage Award 1994.

 

PART B

 

MONETARY RATES

 

Table 1 - Wages

 

Classification	Former Rate	SWC June 2007	Wage Total
	Per Week		Per Week
	$	$	$
Ice Cream Production Assistant -
General Hand	510.80	20.00	530.80
Packer	510.80	20.00	530.80
Ice Cream Manufacturer Grade 1 -
Stretchwrap operator/forklift operator	527.00	20.00	547.00
Trainee Operator	519.80	20.00	539.80
Other operator	519.80	20.00	539.80
Ice Cream Manufacturer Grade 2 -
Operator auto filler	534.30	20.00	554.30
Operator manual filler	527.00	20.00	547.00
Assistant ice cream mixer	524.90	20.00	544.90
Ice Cream Manufacturer Grade 3 -
Ice cream mixer	545.70	20.00	565.70
Operator moulding and freezing	542.30	20.00	562.30
Cake decorator	542.30	20.00	562.30

 

Junior Employees

 

Classification	Former Rate	SWC June	Wage Total
	Per Week	2007	Per Week
	$	$	$
Under 17 years of age	226.75	9.05	235.80
At 17 and under 18 years of age	268.35	10.75	279.10

 

Table 2 - Other Rates and Allowances

 

Item	Clause.	Brief Description	Amount
No.	No		$
1		Leading Hands -
		Leading Hands shall, in addition to their rate of pay, be
		paid the following amounts:
		In charge of two and up to five employees inclusive	23.10 per week
		In charge of six and up to ten employees inclusive	29.40 per week
		In charge of more than ten employees	33.70 per week
2		Casual employees -
		Casual employees shall be paid one-thirty-eighth of the
		appropriate weekly wage, plus 20% thereof per hour
3	12	Meal Allowance	11.95 per occasion
4	28	First-aid Allowance	12.30 per week
5	15(i)	Laundry Allowance	19.00 per week
6	5(iii)(e)	Shift Allowance	16.60 per shift

 

Notation: The Annual Holidays Act 1944 (NSW) 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.

 

 

 

E. A. R. BISHOP, Commissioner.

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.