Aerated Waters, &c. (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1520 of 2007)

 

 

REVIEWED AWARD

 

Arrangement

 

PART A

 

Clause No. Subject Matter

 

1. Definitions

2. Anti-Discrimination

3. Terms of Employment

4. Hours and Shift Work

5. Wages

6. State Wage Case Adjustments

7. Proportion of Juniors

8. Overtime

9. Meal Allowance

10. Holidays and Sundays

11. Annual Leave

12. Sick Leave

13. Personal/Carers’ Leave

14. Bereavement Leave

14A. Parental leave

15. Mixed Functions

16. Clothing, Boots, etc

17. Accident Pay

18. First Aid Kit

19. Time and Wages Sheets

20. Union Officials

21. Exhibition of Award

22. Call Back

23. Payment of Wages

24. Dispute Resolution

25. Redundancy

26 Traineeships

27. Secure Employment

28. Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Wages

Table 2 - Other Rates and Allowances

 

PART A

 

1.  Definitions

 

"Storeman" means a person primarily concerned with manufacturing operations.

 

"Assistant Syrup Maker" means an employee other than one covered in Classifications 1 or 3 who is involved in the syrup process after the preparation of simple syrup.

 

"Routine In-line Tester" means an employee who in the course of or in addition to, other duties pursuant to this award shall perform product tests of a routine and/or simple nature as prescribed by the employer. This classification shall not refer to persons under the control of the quality control section or in the laboratory.

 

"Union" means the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch.

 

2.  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 the award which, by its terms and 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 intends to make or has been involved in a complaint of unlawful discrimination or harassment.

 

(iv)       Nothing in this clause is 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;

 

(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 parties by the 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".

 

3.  Terms of Employment

 

(i)         Except as provided in subclause (ix) of clause 5, Wages, of this award, employment shall be on a weekly basis.

 

(ii)        Employees shall perform such work as the employer shall from time to time reasonably require and an employee not attending for or not performing his/her duly shall lose his/her pay for the actual time of such non-attendance or non-performance.

 

(iii)

 

(a)       The employment of all employees, except casual employees, shall be terminated by a week’s notice on either side given at any time during the week; or by the payment or forfeiture of a week’s wages from any moneys due under this award as the case may be.

 

(b)        For the purpose of this award, notice given within a period not exceeding 3 hours after the rostered starting time on any working day shall be regarded as a full day'’ notice; provided that notice shall not be given on either side whilst an employee is on paid sick leave, annual leave or long service leave except in the case of misconduct.

 

(iv)

 

(a)       This clause shall not affect the right of an employer to deduct payment for any day or portion thereof during which the employee is suspended as a result of refusal of duty, inefficiency during the first 14 days of employment, neglect of duty or misconduct on the part of the employee cannot be usefully employed because of any strike or through any breakdown of machinery or due to any cause for which the employer cannot reasonably be held responsible.  Any suspended employee who informs his/her employer within a period of 24 hours after he/she is suspended that he/she prefers to terminate his/her employment without notice, shall be paid all moneys due including annual leave up to the time he/she is notified of his/her suspension.

 

(b)       Any dispute arising from any such suspension shall be referred to the Industrial Relations Commission of New South Wales.

 

(c)       This clause shall not affect the right of an employer to dismiss an employee without notice for refusal of duty, inefficiency during the first 14 days of employment, neglect of duty or misconduct, and in such cases the wages shall be payable up the time of dismissal only.

 

(v)        An employee shall within 24 hours of the commencement of any absence inform his/her employer of the absence.  In the absence of notification he/she shall be deemed to have abandoned his/her employment without notice.

 

4.  Hours and Shift Work

 

(i)         Each employee shall have fixed starting and finishing times alterable at seven days’ notice except in the case of emergency when 48 hours notice may be given; provided that a change in the weather cannot be considered as an emergency.

 

(ii)        The ordinary hours of labour of day workers shall be 40 per week Monday to Friday, inclusive, 8 hours each day exclusive of meal interval.  The said hours shall be worked within the range of hours from 6am to 5pm.

 

(iii)       Meal intervals for day workers shall not be less than 30 or more than 60 minutes.

 

(iv)       An employee shall not be required to take a meal within 4 hours of his/her ordinary starting time or work longer than 5 hours from his/her ordinary starting time without a lunch break; provided that where it is not possible to grant a meal interval at the usual time an employee shall be paid at overtime rates as prescribed in clause 8, Overtime, of this award from the beginning of the usual meal interval until released for a meal.

 

(v)        The ordinary hours of labour of shift workers may be worked in two or three shifts but shall not exceed -

 

(a)        8 consecutive hours during any consecutive 24 hours; or

 

(b)        40 hours in any one week.

 

(vi)       Shift workers shall be allowed 20 minutes crib time which shall be counted as time worked.

 

(vii)

 

(a)       Shift workers whilst on afternoon shifts, that is any shift finishing after 6pm and at or before midnight shall be paid 15 per cent more than the ordinary rate for such shift.

 

(b)       Shift workers may be employed on a non-rotating night shift that is a shift finishing after midnight and at or before 8am and shall be paid 30 per cent more than the ordinary rate for all ordinary time worked between midnight Sunday and midnight Friday and 50 per cent more than the ordinary rate for all ordinary time worked between midnight Friday and 8 am on Saturday.

 

5.  Wages

 

(i)         The minimum weekly rates of pay shall be those contained in Table 1 - Wages, of Part B, Monetary Rates.

 

(ii)        Juniors - The minimum rates of wages to be paid to juniors shall be the money equivalent of the undermentioned percentages of the total rate prescribed for classification 3 in the said Table 1.  The said calculations shall be taken to the nearest five cents, any broken part of five cents in the result not exceeding two cents to be disregarded.

 

Age	Percentage of adult rate for classification 3
Under 16 years of age	55
At 16 years of age	70
At 17 years of age	85
At 18 years of age	Appropriate adult rate of pay

 

(iii)       Caustic Soda - Employees handling caustic soda shall be paid an amount as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, per hour extra for the time so engaged.

 

(iv)       Cold Rooms - Employees working in a cold room where the temperature is below 1.667 degrees Celsius shall be paid an additional amount as set out in Item 2 of the said Table 2 per hour extra whilst so employed.  Where the work continues for more than one hour, employees shall be allowed a rest period of ten minutes every hour without loss of pay.

 

(v)        Leading Hand - that is an employee who is authorised to exercise and who does exercise supervision:

 

Over the work of three to ten employees, shall be paid an amount per week extra as set out in Item 3 of the said Table 2;

 

Over the work of more than ten employees, shall be paid an amount per week as set out in the said Item 3.

 

(vi)       First-aid Attendant - An employee appointed by the employer as a first-aid attendant shall be paid the sum per day or per shift as set out in Item 4 of the said Table 2 in addition to the wage rate for his/her classification prescribed by this award.

 

(vii)      The extra hourly rate or daily rates prescribed in subclause (ii), (iv) and (vi) of this clause shall be paid irrespective of the times on which the work is performed and shall not be subject to any premium or penalty additions.

 

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

 

(ix)       Casual Work -

 

(a)        A casual employee shall mean and be deemed to be an employee engaged for a period of less than one full working week.  Such casual employee’s rate shall be the ordinary wages herein provided for similar weekly employees, plus 20 per cent additional.  The minimum payment shall be the equivalent of four hours worked.

 

(b)       The hours of labour and conditions as to the time off shall be the same for casual as for other employees.  Where a casual employee is worked outside the ordinary hours of employment, the appropriate overtime rates shall apply as prescribed by clause 8, Overtime, based on the casual rate as herein prescribed.

 

6.  State Wage Case Adjustments

 

The rates of pay in this award include the adjustments payable under the State Wage Case of 2007.  This adjustment 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.

 

7.  Proportion of Juniors

 

The proportion of juniors to adults employed shall not exceed one junior to three or fraction of three adults employed in each establishment.

 

8.  Overtime

 

(i)         All work performed in excess of 8 hours per day or per shift or outside of the fixed starting and finishing times shall be overtime and shall be paid for at the rate of time and a half for the first three hours and double time thereafter.

 

(ii)        An employee required to work overtime on Saturday shall be paid at least 4 hours at the appropriate rate except where such overtime is continuous with overtime commenced on the previous day.

 

(iii)       In computing overtime each day or shift shall stand-alone.

 

(iv)       If an employee is so long on overtime duties that he/she has not had ten consecutive hours’ rest between the termination of his/her ordinary work on one day and the commencement of his/her ordinary work on the next day, he/she shall be allowed at least ten consecutive hours’ rest without deduction of pay or shall be paid at overtime rates for all time of duty until he/she has had at least ten consecutive hours’ rest.  The provision of this subclause shall apply in the case of shift workers as if eight hours were substituted for ten hours when overtime is worked -

 

(a)        for the purpose of changing shift rosters; or

 

(b)       where a shift worker does not report for duty and a day worker or a shift worker is required to replace such shift worker; or

 

(c)       where a shift is worked by arrangement between the employees themselves.

 

(v)        An employee working overtime after ordinary finishing time shall be allowed a crib time of twenty minutes without deduction of pay after each four hours of overtime worked if required to work beyond such crib break.

 

(vi)       When an employee, after having worked overtime, finishes work at a time when reasonable means of transport are not available, the employer shall provide him/her with a conveyance to reach a point where reasonable means of transport are available or if no such transport is available, to his/her home, or shall pay him/her ordinary time for the time reasonably occupied in reaching his/her home.

 

9.  Meal Allowance

 

An employee required to work overtime in excess of one and one half hours after the usual finishing time without having been notified on the previous day that he or she would be so required, shall either be supplied with a meal or be paid $1.91 by the employer, and a further meal allowance of $1.91 after a further four hours’ overtime has been worked.

 

10.  Holidays and Sundays

 

(i)         For the purpose of this award the days generally observed as the following shall be holidays:

 

New Year’s Day, Anniversary Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Labour  Day, the third Monday in February, Sovereign’s Birthday, Christmas Day, Boxing Day, and any other day or days proclaimed or gazetted as public holidays for the state.

 

(ii)        If any of the said named days fall on a Sunday and no weekday is generally observed as such day, a week day in lieu thereof shall be allowed to each employee, and shall in respect of such employee be treated as if it were such named day:  Provided that this subclause shall not apply to Anzac Day.

 

(iii)       No deduction shall be made from the wage of any employee engaged by the week because of absence from work on a holiday.

 

(iv)       An employee who, without the permission or without reasonable cause, is absent on the working day immediately preceding or the working day immediately following an award holiday shall not be entitled to payment for such holiday.

 

(v)        No deliveries, other than to sporting functions and other special functions, shall be made on Sunday, or any holiday except New Year’s Day and Easter Monday.

 

(vi)       All work performed on Sunday shall be paid for at the rate of double time and all work performed on holidays provided for by this award shall be paid for at the rate of double time and a half with a minimum payment of four hours in either case.

 

(vii)      An employer and an employee, or an employer and the majority of employees in an establishment, may agree to observe an alternative day as a holiday, in lieu of the third Monday in February.

 

(viii)     Where the service of a weekly employee is terminated through no fault of the employee within one week of a holiday or holidays and that employee is re-employed within one month of the holiday of holidays the employee shall be entitled to payment for the said holiday or holidays; provided that such employee has been employed for a period of three months prior to the termination.

 

11.  Annual Leave

 

The provisions of the Annual Holidays Act 1944 shall apply.

 

(i)         Annual Holiday Loading - Payment for the first week of leave taken in respect of any qualifying twelve-month period shall be subject to a loading of one week’s pay.  Where an employee’s service is terminated for reasons other than misconduct and the employee has given not less than eight weeks, continuous service he/she shall be paid the loading on a pro rata basis in the proportion that his/her service bears to a full year’s service at the rate of one week’s pay for a full year’s service.  Where the period included a full year’s service he/she shall be entitled to a week’s pay as a loading in respect of that period without regard for the reason for termination.

 

12.  Sick Leave

 

An employee on weekly hiring who is absent from his/her work on account of personal illness, or on account of injury by accident arising out of and in the course of his/her employment, shall be entitled to leave of absence without deduction of pay subject to the following conditions and limitations:

 

(i)         He/she shall not be entitled to paid leave of absence for any period in respect of which he/she is entitled to workers' compensation.

 

(ii)        He/she shall, within 24 hours of the commencement of such absence inform the employer of his/her inability to attend for duty and, as far as practicable, state the nature of the injury or illness and estimated duration of the absence. An employee is not required to inform the employer of these details where it is proved, to the satisfaction of his/her employer, that such notice was not reasonably practicable.

 

(iii)       He/she shall prove to the satisfaction of his/her employer (or in the event of a dispute, of the Industrial Relations Commission of New South Wales ) that he/she as unable, on account of such illness or injury, to attend for duty on the day or days for which sick leave is claimed.

 

(iv)       He/she shall not be entitled during his/her first year of any period of service with an employer to leave in excess of forty hours of working time; provided that during the first six months of the first year of any period of service with an employer, he/she shall be entitled to sick leave which shall accrue on a pro rata basis of 3.33 hours of working time for each month of service completed with that employer:  Provided further that on application by the employee during the seventh month of employment and subject to the availability of an unclaimed balance of sick leave the employee shall be paid for any sick leave taken during the first six months in respect of which payment was not made.

 

(vi)       On the first day of his/her second and subsequent years of service he/she shall qualify for a further entitlement of sick leave at the rate of 64 hours for each year of service.

 

(vi)       Sick leave shall accumulate from year to year and any balance not taken shall be available subject to the provision of subclauses (i), (ii), (iii) and (vii), of this clause.

 

(ix)       Single Day Absences -

 

(a)        An employee shall be allowed three single days sick leave in any one qualifying year without a medical certificate. For absences requiring a medical certificate, the employer may agree to accept a Statutory Declaration in lieu of a medical certificate.

 

13.  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 13(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 12, 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 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 Resolution, 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 13(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)        Personal Carers Entitlement for casual employees -

 

(1)       Subject to the evidentiary and notice requirements in 13(1)(b) and (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 (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.

 

14.  Bereavement Leave

 

(i)         An employee, other than a casual employee, shall be entitled to up 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 within Australia 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 leave and will provide to the satisfaction of the employer proof of death.

 

(iii)             Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of subclause (1) of clause 13, 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) and (5) of the said clause 13.  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 14(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 13(1)(c)(ii) of clause 13, 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.

 

14A.  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).

 

15.  Mixed Functions

 

(i)         Where an employee is called upon to perform two or more classes of work in any one day, he or she shall for the purpose of assessing wages to be paid, be deemed to have worked the day at the class for which the highest rate of wages is prescribed.

 

(ii)        A higher paid employee shall, when necessary temporarily relieve a lower paid employee without loss of pay.

 

16.  Clothing, Boots, Etc.

 

(i)

 

(a)       Where it is necessary for an employee to wear protective clothing boots or clogs, they shall be provided by the employer. The question as to whether protective clothing or boots or clogs are necessary for any employee shall be settled by agreement between the employer and the union.

 

(b)       Where employees are required by the employer to wear special clothing supplied by the employer then the employer shall launder such special clothing.

 

(ii)        Wet weather clothing for motor wagon drivers: Where an employee is required by his/her employer to continually work in conditions in which, because of their nature, his/her clothing could become saturated, he/she shall be provided with suitable protective clothing free of cost. Such protective clothing shall remain the property of the employer, and the employee shall be liable for the cost of replacement of any article of protective clothing which is lost, destroyed or damaged through the negligence of the employee.

 

(iii)       Freezing or cold rooms employees shall be provided with suitable protective clothing.

 

(iv)       All employees working on bottling machines or required to bring their hands in contact with broken glass shall be supplied with suitable protective gloves by the employer.

 

17.  Accident Pay

 

(i)         For the purposes of this clause and subject to the terms of this clause the words hereunder shall bear the respective definitions set out hereunder -

 

"The Act" - The Workers Compensation Act 1987 (as amended) of the State of New South Wales

 

"Accident Pay" -

 

(a)        In the case of an employee who is or is deemed to be totally incapacitated within the meaning of the Act means a weekly payment of an amount representing the difference between on the one hand, the total amount of compensation including other allowances paid to the employee during incapacity pursuant to section 9 of the Act for the week in question and on the other hand the total 40 hours weekly award rate and weekly over-award payment being paid to such employee at the date of the injury giving rise to the said payments of compensation together with or less, as the case may be, any variation in award rates which would have been applicable to the classification of such employee for the week in question if he/she had been performing his/her normal duties providing further that in making such calculation any payment for overtime earnings, shift allowance, or other disability allowances (that is any allowances that an employee does not normally receive when he/she is absent from work with pay), fares and travelling time allowances and any other ancillary payments payable by the employer shall not be taken into account; or

 

(b)        In the case of an employee partially incapacitated within the meaning of the Act means a weekly payment of an amount representing the difference between on the one hand, the total amount of compensation paid to the employee during incapacity pursuant to section 11 (1) of the Act for the week in question together with the average weekly amount he/she is earning or is able to earn in some suitable employment or business as determined expressly or by the implication by the Workers' Compensation Commission of New South Wales or as agreed between the parties and on the other hand the total 40 hour weekly award rate and weekly overaward payment being paid to such employee at the date of the injury giving rise to the said payments of compensation together with or less, as the case may be, any variation in award rates which would have been applicable to the classification of such employee for the week in question if he/she had been performing his/her normal duties providing that in making such calculation any payment for overtime earnings, shift allowance, or other disability allowances (that is any allowances that an employee does not normally receive when he/she is absent from work with pay), fares and travelling time allowances and any other ancillary payments payable by the employer shall not be taken into account, subject to the proviso that where in respect of any claim for compensation brought by an employee in the Workers' Compensation Commission pursuant to section 11 (1) of the Act the Commission awards to him/her an amount of weekly compensation or agreement is reached that the employee should receive a weekly amount of compensation less than the difference referred to in section 11 (1) of  the Act, such an award or agreement will not operate to increase any liability of the employer to pay any higher amount of accident pay pursuant to this agreement by reason of the employee receiving less than the said difference referred to in section 11 (1) of the Act and for the purpose of this calculation the employee in such event shall be deemed to have recovered the full amount of the difference referred to in section 11 (1) of the Act.

 

For the purposes of (a) and (b) of this definition where an employee receives remuneration by way of any form of bonus scheme in lieu of or in addition to over-award payments his/her weekly over-award payment shall be deemed to be or include the average weekly bonus earned by him/her during the 52 weeks; period immediately preceding the date of the injury or during the whole period of his/her employment, whichever is the lesser period.

 

"Injury"- Injury means any injury within the meaning of the Act (including but without limiting the generality thereof, injury received during daily or periodic journeys as defined by section 7 of the Act) resulting in incapacity and for which compensation is being paid within the meaning of the said Act.

 

"Incapacity" - Incapacity shall have the same meaning as in The Act.

 

(ii)        An employee shall upon receiving payment of compensation and continuing to receive such payment in respect of a weekly incapacity within the meaning of the Act be paid Accident Pay by the employer who directly employs him/her under a contract of service and is liable to pay compensation under the provisions of the said Act, which said liability by the employer for Accident Pay may be discharged by another person on his/her behalf provided that:

 

(a)       Accident pay shall only be payable in respect of a period or periods of any incapacity of an employee while such employee remains in the employment of the employer who employed him/her at the time of the injury causing such period or periods of incapacity provided that in respect of an employee engaged for a seasonal period the employer's liability to pay accident pay shall cease at the end of such seasonal period for which the employee was engaged and providing further that where during a period where an employee is partially incapacitated within the meaning of the Act or during a period where an employee is deemed to be totally incapacitated pursuant to section 11 (2) of the Act, the employer who is liable to pay Accident Pay or who is paying Accident Pay to such injured employee is unable to provide suitable employment to such employee who thereupon obtains such suitable employment with another employer then the employer shall continue to pay such Accident Pay as he/she would have paid or been liable to pay had the employee continued in his/her employment and where applicable as he/she would have paid if the provisions of  section 11 (2) of the Act had not operated.

 

(b)        No Accident Pay shall be payable in respect of any period of incapacity commencing during the first two week's continuous employment of an employee by an employer unless such period of incapacity is continuing at the date of expiration of the first two weeks of such employee's continuous employment in which case Accident Pay will be payable only in respect of that part of such period of incapacity occurring after the first two weeks of such employee's continuous employment.  In the case of an injury within the meaning of section 7 (4), 7 (4A), 7 (4B) or 7 (4C) of the Act an employer shall not be liable to pay Accident Pay to an employee pursuant to this clause unless the employee has completed a minimum period of three months' service with the employer prior to the date of happening of the injury as determined by section 7 (5) of the Act and provided further that as at the date of such happening the employee is still employed by the employer under a then subsisting contract of service.

 

(c)        An employee shall not be entitled to the payment of Accident Pay in respect of any period of paid annual leave, or long service leave or for any paid public holiday in accordance with the appropriate award provisions.

 

(d)        An employee upon receiving any injury for which he/she claims to be entitled to Accident Pay shall give notice in writing of the said injury to his/her employer and of its manner of happening as soon as practicable after the happening thereof and shall provide in writing all other information as the employer may reasonably require.

 

(e)        An employee upon receiving any injury for which he/she is receiving payment or payments for incapacity in accordance with the provisions of the Act shall furnish evidence to the employer of such payment and compliance with this obligation shall be a condition precedent to any entitlement under this award.

 

(f)       Nothing in this clause shall be taken as restricting or removing the employer’s right under the section 51 of the Act to require the employee to submit himself/herself to examination be a legally qualified medical practitioner, provided and paid for by the employer, and if he/she refuses to submit himself/herself to such examination or in any way obstructs the same, his/her right to receive or continue to receive Accident Pay shall be suspended in like manner as his/her right of compensation is suspended pursuant to section 51 of the Act until such examination has taken place.

 

(g)       Where a medical referee or Board within the meaning of section 51 of the Act gives a certificate as to the condition of the employee and his/her fitness for employment or specifies the kind of employment for which he/she is fit and the employer duly makes available to the employee the employment falling with the terms of such certificate and the employee refuses or fails to resume or perform the said employment so provided, then all payments in accordance with this clause shall cease and determine from the date of such refusal to commence such duties.

 

(h)       Accident Pay payable hereunder shall be payable for a maximum period or aggregate of periods in no case exceeding a total of 26 weeks for any incapacity in respect of and resulting from any one injury suffered by an employee.

 

(iii)       Where an employee is receiving Accident Pay and Accident Pay is payable for incapacity for part of a week the amount shall bear the same ratio to Accident Pay for a full week that normal working time during such part bears to the worker’s full normal working week.

 

(iv)       Where there is a redemption of weekly payments by the payment under section 15 of the Act of lump sum, there shall be no further liability for Accident Pay under this clause in respect of an injury (for which weekly payments have been recovered) form the date of the said redemption in the Workers’ Compensation Commission of New South Wales.

 

(v)             Notwithstanding clauses (vi) and (vii), of this clause, any employee who is receiving or who has received Accident Pay in respect of an injury, shall furnish all relevant information to is employer concerning any action he/she may institute or any claim he/she may make for damages in respect of that injury and shall, if required, authorise such employer to obtain information as to the progress of such action or claim from the employee’s solicitors and shall, if required, provide an irrevocable authority to the employer entitling the said employer to a charge upon any money or moneys payable pursuant to any consequent verdict or settlement.

 

(vi)       Where the employee obtains a verdict for damages against his/her employer or is paid an amount in settlement of any claim for damages that he/she has made against his/her employer in respect of any injury for which he/she has received compensation under the Act and Accident Pay he/she shall not be entitled to any further Accident Pay within the meaning of this clause and he/she shall be immediately liable upon payment to him/her or his/her agent of such verdict for damages or amount in settlement of a claim thereof to repay to his/her employer the amount of Accident Pay which the employer has paid in respect to the employee’s injury under this clause.

 

(vii)      Where the injury for which Accident Pay is paid was cause under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof and the employee obtains a verdict for damages he/she has made against that other person, he/she shall immediately upon payment of such verdict or amount of money to him/her or his/her agent, repay to the employer the amount of Accident Pay which the employer had paid in respect of the employee’s injury and the employee shall not be entitled to any further Accident Pay.

 

(viii)     Any employee who is receiving or who has received Accident Pay in respect of any injury shall, if required by the employer or other person on his/her behalf, authorise his/her employer to obtain any information required by such employer concerning such injury or compensation payable in respect thereof from the insurance company that is liable to pay compensation to such employee pursuant to the Act.

 

(ix)       Nothing in this Clause shall require the employer to insure against his/her liability for Accident Pay.

 

(x)        In the event of the rates of compensation payable pursuant to the Act at the date hereof being varied at any time after the date hereof, such variations shall not operates so as to increase the amount of Accident Pay payable hereunder above the amount that would have been payable if such rates of compensation had not been varied.

 

(xi)       If the compensation payable to an employee pursuant to the Act is reduced by any amount by reason of the fact that such employee is entitled to receive Accident Pay or is in receipt of Accident Pay, then in calculating the amount of Accident Pay payable to such employee the compensation that he/she would have received if there had been no such reduction in compensation payments.

 

(xii)      The right to be paid Accident Pay shall terminate on the date of an employee entitled thereto and no sum shall be payable to the legal personal representatives, next-of-kin, assignee or dependant of the deceased employee, with the exception of Accident Pay accrued up to the time of death.

 

(xiii)     Without prejudice to the terms of this clause the Union hereby acknowledges that it shall use its best endeavours to have its members carry on all statutory and other regulations applicable to the employment of such members and to further carry out any orders relating to the preservation of safety by or on behalf of any employer of its members.

 

18.  First Aid Kit

 

A first aid kit shall be provided by the employer in each Factory, in accordance with the applicable Occupational Health and Safety legislation and regulation, as amended. In the event of an accident occurring the first aid attendant shall be allowed reasonable time to attend to employees concerned in such accident.

 

19.  Time and Wages Sheets

 

(i)         All employees shall keep a time and wages sheet, which may either be combined or separate and which shall be entered in ink showing the hours worked each day and wages paid to each employee.

 

(ii)        The time and wages sheet shall, as to entries therein, in resect of employees covered by this award, be open for inspection to a duly accredited official of the union during the usual office hours at the place of employment.

 

(iii)       Time and wages record shall be kept available in accordance with the appropriate statutory requirements, and in any case for not less than twelve months.

 

(iv)       Time and Wages records are dealt with by the Industrial Relations Act 1996 and the Industrial Relations (General) Regulation 2001.

 

20.  Union Officials

 

The Secretary and accredited representatives of the union may enter the employer’s premises for the purpose of interviewing employees on legitimate union business at a time reasonably convenient to the employer, provided he/she first reports to the employer and obtains his/her approval to enter. Approval shall not be withheld except for a reasonable cause.

 

21.  Exhibition of Award

 

This award shall be exhibited by each employer on his/her premises in a place accessible to all employees.

 

22.  Call Back

 

An employee recalled to work overtime after leaving his/her employer’s premises or business (whether notified before leaving the premises) shall be paid a minimum of four hours, work at the appropriate rate for each time he/she is so recalled; provided that, except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four hours if the job he/she recalled to perform is completed within a shorter period. This clause shall not apply in cases where it is customary for an employee to return to his/her employer’s premises to perform a specific job outside his/her ordinary working hours, or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time.  Overtime worked in accordance with this clause shall not be regarded as overtime where for the purpose of subclause (iv), of clause 8, Overtime, of this award, where the actual time worked is less than four hours on such recall or on each of such recalls.

 

23.  Payment of Wages

 

(i)         Except upon termination of employment, all wages including overtime shall be paid on any day other than Friday, Saturday, Sunday in each week.

 

(ii)             Employees, including casuals, who are paid their wages at any time other than during their working time shall, if kept waiting more than 15 minutes, be paid overtime rate for all such waiting time.

 

(iii)

 

(a)       When a week’s notice of termination of employment has been given, payment of all wages and moneys due shall be made at the employee’s normal place of employment prior to the employee leaving such place of employment if kept waiting after ceasing time overtime rate shall be paid for all such waiting time.

 

(b)        For the purpose of this subclause waiting time shall mean from ceasing time until the actual time all wages and other moneys due are received by the employee; provided that any overtime earnings in respect of the day of termination or other payments which cannot be calculated prior to the termination of the employee’s ordinary hours on the last day or shift may be paid on a subsequent working day, or by arrangement, may be posted to the employee.

 

24.  Dispute Resolution

 

Where a dispute arises the following steps shall be taken:

 

(a)        Step One: as soon as practicable after the issue has arisen, the employee or employees concerned will notify their supervisor or manager of the issue.

 

(b)        Step Two: as soon as practicable after the issue or claim has arisen, it shall be considered jointly by the appropriate supervisor, the worker or workers concerned and the union delegate who shall attempt to settle the dispute.

 

(c)        Step Three: if the dispute has not been resolved, the issue or claim shall be considered jointly by the appropriate senior management representative in conjunction with the union delegate who shall attempt to settle the dispute.

 

(d)        Step Four: if the dispute is not resolved, the issue or claim shall be considered jointly by the employer and an official of the union who shall attempt to settle the dispute.

 

(e)        Step Five: if the dispute is not resolved, the dispute may then be notified to the Industrial Relations Commission of New South Wales.

 

25.  Redundancy

 

(A)             Application -

 

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

 

(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 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 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 effect" includes termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

Provided that where this award makes provision for alteration of any of the matters referred to herein, 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 purposes 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, of this clause, 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, 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.

 

(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 the employee the following notice:

 

Period of continuous service	Period of notice
Less than 1 year	1 week
3 years and less than 5 years	2 week
1 year and less than 3 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.

 

(ii)       Notice for Technological Change - This paragraph sets out the notice provisions to be applied to termination 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 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.

 

(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 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.

 

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

 

(vii)       Centrelink 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 the Centrelink.

 

(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  of notice still owing.

 

(E)        Severance Pay -

 

(i)       Where the employment of an employee is to be terminated pursuant to paragraph (i) of subclause  (D) of this clause, 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 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 clause 5, Wages.

 

(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 paragraph (i) of this subclause 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.

 

26.  Traineeships

 

As to traineeships for persons covered by this award, see the Training Wage (State) Award 2002 published 26 September 2003 (341 I.G. 569) or any successor thereto.

 

This variation shall take effect from the first pay period commencing on or after 6 September 2002.

 

27.  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)             Definitions

 

For the purposes of this clause, the following definitions shall apply:

 

(i)         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.

 

(ii)        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.

 

(c)        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 (c)(i), upon receiving notice under paragraph (c)(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 (c)(iii), the employer and employee shall, in accordance with this paragraph, and subject to paragraph (c)(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, consistent with any other part-time employment provisions of this award made pursuant to a part-time working arrangement made 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.

 

(d)             Occupational Health and Safety and Rehabilitation

 

(i)       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.

 

(i) Where an employee of a contract business or labour hire business is injured whilst carrying out work or services for another employer bound by this award, then that other employer shall, in a manner co-ordinated with the contract business or labour hire business, take all reasonable steps to provide such an employee with suitable duties as part of any rehabilitation program for the employee.

 

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

 

(e)        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.

 

(f)         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.

 

28.  Area, Incidence and Duration

 

(a)        This award shall apply to aerated waters and beverage makers, bottlers, washers, carters, grooms, stablepersons, yardpersons, motor wagon drivers, and labourers employed in or in connection with the manufacture and/or distribution of aerated water, other soft drinks, fruit juices, cider, cordials, ginger beer, hop and other non-intoxicating beers and/or similar types of beverages with or without alcoholic content within the State excluding the County of Yancowinna.

 

(b)        This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Aerated Waters, &c. (State) Award published 22 February 2002 (331 I.G. 498), and all variations thereof.

 

(c)        The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 14 March 2008.

 

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

 

PART B

 

MONETARY RATES

 

Table 1 - Wages

 

Motor wagon drivers - The rate of wages prescribed by the Transport Industry (State) Award, as varied from time to time, shall be applicable to employees classified as motor wagon drivers.

 

Table 2 - Other Rates and Allowances

 

Item No.	Clause No.	Brief Description	Amount
			$
1	4 (iii)	Employees handling caustic soda	0.72 per hour extra
2	4 (iv)	Employees working in a cold room	0.60 per hour extra
3	4 (v)	Leading Hands -
		3 to 10 employees	20.45 per week extra
		more than 10 employees	32.65 per week extra
4	4 (vi)	First-aid Attendant	2.44 per day

 

Aerated Waters, &c (State) Industrial Committee

 

Industries and Callings

 

Aerated waters and beverage makers, bottlers, washers, carters, grooms, stablemen, yardmen, motor-wagon drivers, and labourers employed in connection therewith, in the State, excluding the County of Yancowinna.

 

 

 

E. A. R. BISHOP, Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.