Asphalt and Bitumen Industry (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1521 of 2007)

 

 

REVIEWED AWARD

 

1.  Arrangement

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Contract of Employment

2A.      Secure Employment

3.         Termination of Employment

4.         Allowances

5.         Hours of Work

6.         Overtime

7.         Recall to Work

8.         Public Holidays

9.         Payment of Wages

9A.      State Wage Case Adjustments

10.       Travelling to Country Work

11.       Country Work

12.       Tea Break

13.       Protective Clothing

14.       Occupational Health and Safety

15.       Mixed Functions

16.       Annual Leave

17.       Sick Leave

18.       Dispute Resolution Procedure

19.       Reporting for duty

20.       Bereavement Leave

20A.    Parental Leave

21.       Flexible Work Practices

22.       Consultation

23.       Enterprise Flexibility Processes

24.       Training

25.       Utilisation of Skills

26.       Introduction of Change

27.       Redundancy

28.       Personal/Carer’s Leave

29.       Anti Discrimination

30.       Long Service Leave

30A.    Deduction of Union Membership Fees

31.       Area, Incidence and Duration

 

 

 

 

 

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay

Table 2 - Other Rates and Allowances

 

2.  Contract of Employment

 

(a)        Probation - Employment for the first two weeks of service shall be from day to day at the appropriate weekly rate; provided that any employee who has previously served a probationary period of two weeks shall not be employed for a further probationary period. An employee shall be paid for any holiday or holidays which may occur during any period he or she is employed on probation.

 

(b)        Weekly Employment - Except as provided by subclauses (a) and (c) of this clause, employment shall be by the week.

 

(c)        Casual Employment -

 

(i)         A casual employee is a person who is engaged and paid as such.

 

(ii)        A casual shall be paid a loading of 20 per cent in addition to the weekly rates prescribed herein. Such loading shall form part of the casual’s ordinary rate of pay.

 

(iii)       The casual loading shall be in substitution for annual leave, sick leave and payment for public holidays not worked.

 

(iv)       A casual shall receive a minimum of four hours’ pay per day.

 

(d)        Stand Down - The employer may deduct payment for any time an employee cannot be usefully employed because of any strike or any stoppage of work by any cause for which the employer cannot reasonably be held responsible.

 

2A.  Secure Employment

 

(a)        Objective of this Clause

 

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

 

(b)        Casual Conversion

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(c)        Occupational Health and Safety

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(d)        Disputes Regarding the Application of this Clause

 

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

 

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

 

3.  Termination of Employment

 

(a)        Notice of Termination by Employer

 

(i)         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
1 year or less	1 week
1 year and up to the completion of 3 years	2 weeks
3 years and up to the completion of 5 years	3 weeks
5 years and over	4 weeks

 

(ii)        In addition to the notice in paragraph (i) of this subclause, 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.

 

(iii)       Payment in lieu of the notice prescribed in paragraphs (i) and/or (ii) of this subclause 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.

 

(iv)       In calculating any payment in lieu of notice, the wages an employee would have received in respect of the ordinary time he or she would have worked during the period of notice had his or her employment not been terminated shall be used.

 

(v)        The period of notice in this clause shall not apply in the case of dismissal for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees or employees engaged for a specific period of time or for a specific task or tasks.

 

(b)        Notice of Termination by Employee - The notice of termination required to be given by an employee shall be the same as that required of an employer, save and except that there shall be no additional notice based on the age of the employee concerned. If an employee fails to give notice, the employer shall have the right to withhold moneys due to the employee, with a maximum amount equal to the ordinary-time rate of pay for the period of notice.

 

(c)        Time Off During Notice Period - Where an employer has given notice of termination to an employee, an employee shall be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off shall be at times that are convenient to the employee after consultation with the employer.

 

(d)        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 his or her employment and the classification of or the type of work performed by the employee.

 

(e)        Summary Dismissal - Notwithstanding the provisions of paragraph (i) of subclause (a) of this clause, the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and in such cases the wages shall be paid up to the time of dismissal only.

 

(f)         Unfair Dismissals - Termination of employment by an employer shall not be harsh, unjust or unreasonable.

 

For the purposes of this clause, termination of employment shall include terminations with or without notice.

 

Without limiting the above, except where a distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the grounds of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment.

 

4.  Allowances

 

(a)        Industry Allowance - Employees shall be paid an industry allowance as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates. This allowance shall be treated as part of the employee’s ordinary wage for all purposes of this award. The allowance is intended to compensate employees for all adverse conditions (excepting those in subclause (b) of this clause) and for working with Tarmix.

 

(b)        Inclement Weather

 

(i)         Employees shall be paid an allowance as set out in Item 2 of the said Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.

 

This allowance shall be treated as part of the employee’s ordinary wage for all purposes of this award.

 

(ii)        This allowance is intended to compensate employees for the additional disabilities of being required to work when exposed to inclement weather and for working in isolated and under-developed locations. For the purposes of this clause, "inclement weather" means wet weather and/or abnormal climatic conditions such as hail, cold, high winds, severe dust storms, extreme high temperatures or any combination thereof.

 

(iii)       Where employees cannot be gainfully employed on their normal duties or on other productive work because of wet weather, they will carry out alternative work out of the rain, where available.

 

(iv)       Alternative arrangements may be mutually agreed with the employees concerned.

 

(c)        In Charge of Plant - An operator in charge of plant will be paid an allowance as set out in Item 3 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, and such payment shall be regarded as part of an employee’s ordinary wage for all purposes of this award. An employee shall be deemed to be in charge of plant when employed on a unit of plant and is the operator specifically entrusted with responsibility for such unit. This responsibility shall include oiling, greasing, checking water levels, etc, carrying out repairs within his or her level of skill and also assisting fitters when required.

 

(d)        First-aid Attendant - An additional rate as set out in Item 4 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, shall be paid to an employee who is a qualified first-aid person and is employed to carry out the duties of a first-aid person.

 

(e)        Leading Hand Allowance- A Leading Hand Allowance as set out in Item 9 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, applies to employees under this award.

 

5.  Hours of Work

 

(a)        Except as provided elsewhere in this award, the ordinary working hours shall be 38 per week and shall be worked in accordance with the following provisions for a four-week cycle:

 

(b)

 

(i)         The ordinary working hours shall be worked as a 20-day, four-week cycle, Monday to Sunday inclusive, with 19 working days of eight hours each between the hours of 7.00 a.m. and 5.00 p.m., with 0.4 of one hour on each day worked accruing as an entitlement to take a rostered day off in each cycle as a day off paid for as though worked.

 

(ii)        Provided that where there is a mutual agreement between the employer and a majority of the employees concerned, the span of hours referred to herein may be varied to commence any time between 5.00 a.m. and 7.00 a.m. and finish any time between 5.00 p.m. and 6.00 p.m., subject to the limitation that there be no more than nine hours of ordinary time worked in any one day and 76 ordinary hours each fortnight.

 

(c)

 

(i)         A schedule of rostered days off shall be determined and agreed between the parties 15 months in advance.

 

(ii)        Such scheduled rostered days off may be deferred and accumulated up to a maximum of four rostered days off, by agreement between the employer and any individual employee concerned.

 

(iii)       Where the majority of employees in any particular section of work agree, and the employer or employer’s representative agrees, an alternative day in the four-week cycle may be substituted for the scheduled rostered day off and, where such agreement is reached, all provisions of this award shall apply as if the substituted day were the scheduled rostered day off.

 

Provided that a minimum of five days shall elapse before such agreement is implemented, unless the parties agree otherwise.

 

(d)        Each day of paid leave taken, e.g., annual leave, and any public holidays occurring during any cycle of four weeks, shall be regarded as a day worked for accrual purposes (this does not include periods of long service leave).

 

(e)        An employee who has not worked, or is not regarded by reason of subclause (d) of this clause as having worked, a complete four-week cycle, shall receive pro rata accrued entitlements for each day worked (or each fraction of a day worked) or regarded as having been worked in such cycle, payable for the rostered day off or, in the case of termination of employment, on termination.

 

(f)         The accrued rostered day off prescribed in subclauses (b) and (c) of this clause shall be taken as a paid day off, provided that the day may be worked where that is required by the employer and such work is necessary to allow other employees to be employed productively or to carry out maintenance outside ordinary working hours or because of unforeseen delays to a particular project or a section of it or for other reasons arising from unforeseen or emergency circumstances on a project, in which case the employee shall take one paid day off before the end of the succeeding work cycle, and the employee shall be paid for the day worked at the rates prescribed for Saturday work in subclause (l) of this clause.

 

(g)        Subject to subclauses (h), (i) and (j) of this clause, the rosters for ordinary hours will be one of the following:

 

(i)         Monday to Friday inclusive; or

 

(ii)        Tuesday to Saturday inclusive; or

 

(iii)       Sunday to Thursday inclusive, and employees will present for work in accordance with the appropriate roster.

 

(h)        Rosters in accordance with subclause (g) of this clause will be posted at the employee’s usual starting place by the close of normal business each Tuesday.

 

(i)         When an employer wishes to alter a roster set in accordance with subclause (h) of this clause, to another such roster set in accordance with subclause (g) hereof, such alteration can only be by consent of the employees directly affected by such alteration.

 

(j)         Employees may, by agreement, exchange places on rosters with the employer’s consent. Such consent shall not be unreasonably withheld.

 

(k)        All overtime worked subsequent to ordinary hours on a rostered day on a Saturday or Sunday shall be at double the ordinary-time rate.

 

(l)         Where a person is rostered pursuant to this clause to work ordinary time on a Saturday, the person shall be paid at the ordinary-time rate for their classification, plus 87.5 per cent. Where a person is rostered pursuant to this clause to work ordinary time on a Sunday, the person shall be paid at the ordinary-time rate for that classification, plus 100 per cent.

 

(m)       Afternoon and Night Shifts

 

(i)         Afternoon and/or night shifts may be worked at the discretion of the employer to meet the exigencies of the industry.

 

(ii)        Employees working on shifts shall be paid at the rate of time and a quarter.

 

(iii)       When working shifts exceed four hours, crib time of 30 minutes shall be allowed and shall be paid for on each shift, providing work continues after such crib time.

 

(iv)       An employer may require a day worker to change to shift work, provided at least 24 hours’ notice is given of the change.

 

Overtime rates shall be paid if the shifts do not continue for at least five consecutive afternoons or nights.

 

(v)        Notwithstanding anything elsewhere contained in this subclause, where employees are required to work on a shift not worked on a two-or three- shift system, which commences at or after 8.00 p.m. and which finishes at or before 6.00 a.m., such shift shall be of no longer duration than eight hours and shall be paid for at the rate of time and a half.

 

In addition, all time worked in excess of eight hours on such night shift shall be paid for at the rate of double time. The calculation of such overtime shall be on the basis of each completed unbroken period of overtime.

 

(vi)       Shift work hours shall be worked between Monday to Friday inclusive.  Shift time worked on a Saturday, Sunday or public holiday shall be paid for at overtime rates; provided that an ordinary night shift commencing before and extending beyond midnight Friday shall be regarded as a Friday shift.

 

(vii)      Rest Period After Overtime - Refer to the provisions of subclause (e) of clause 6, Overtime.

 

(viii)     Employees engaged for work under the terms of this subclause shall accrue 0.4 of one hour for each shift worked to allow one shift to be taken off as a paid shift for every 20-shift cycle.

 

The 20th shift shall be paid for at the shift rate(s) prescribed in paragraphs (ii), (iv) and (v) of this subclause, provided that no employee shall be disadvantaged in the introduction of this paragraph as to the receipt of appropriate shift rates in a cycle.

 

(ix)       Each shift of paid leave taken, e.g., annual leave, and any public holidays occurring during any cycle of four weeks, shall be regarded as a shift worked for accrual purposes (this does not include periods of long service leave).

 

(x)        An employee who has not worked, or is not regarded by reason of paragraph (ix) of this subclause as having worked a complete four-week cycle, shall receive pro rata accrued entitlements for each shift worked (or fraction of a shift worked) or regarded as having been worked in such cycle, payable for the rostered day off or, in the case of termination of employment, on termination.

 

(xi)       The employer and employees shall agree on arrangements for rostered paid days off during the 20-shift cycle or for accumulation of accrued days, provided that such accumulation shall be limited to no more than five such accrued days before they are taken as paid days off and, when taken, the days shall be regarded as days worked for accrual purposes in the particular 20-shift cycle.

 

(xii)      Once such shifts have been rostered they shall be taken as paid shifts off, provided that where an employer, for emergency reasons, requires an employee to work on his/her rostered shift off, the provisions of subclause (f) of this clause shall apply as if relating to shift work.

 

(n)        General Provisions

 

(i)         Employees shall not be required to work longer than six hours without a break for a meal.

 

(ii)        Employees shall report and finish at the depot at the usual starting and finishing time.

 

(iii)       Employees when camping or being otherwise accommodated by the company shall start and finish on the job, provided that in such cases the company will provide the employee with transport between the camp or accommodation and job free of charge and will pay for all time so occupied in excess of 20 minutes each way at ordinary rates.

 

6.  Overtime

 

(a)        Payment for Working Overtime - All time worked in excess of eight hours per day (or the agreed number as provided in paragraph (ii) of subclause (b) of clause 5, Hours of Work) Monday to Friday inclusive, or outside the spread of hours specified in subclause (b) of the said clause 5, shall be overtime and shall be paid at the rate of time and one-half for the first two hours and double time thereafter. In computing overtime, each day shall stand alone.

 

(b)        Working During Meal Breaks - Employees called to work during recognised meal hours shall be paid at overtime rates for all time worked until they receive a meal break of the usual period; provided that where it is necessary to alter the time of the recognised meal hour, employees may be called upon to work for not more than one hour beyond such recognised meal hour without additional rates of pay, provided that they receive the equivalent meal time.

 

(c)        Saturday Work - All time worked on Saturdays, where there shall be a minimum payment of four hours, shall be paid at the rate of time and a half for the first two hours and double time thereafter; provided that all work performed after 12 noon shall be paid for at double time. A crib time of 30 minutes shall be allowed without deduction of pay between 12 noon and 1.00 p.m. if work is to continue after such crib time.

 

(d)        Sunday Work - All time worked on Sundays shall be paid at the rate of double time. There shall be a minimum payment of four hours at double time. A crib time of 30 minutes shall be allowed without deduction of pay between 12 noon and 1.00 p.m. if work is to continue after such crib time.

 

(e)        Rest Period After Overtime - 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 on successive days.

 

An employee (other than a casual employee) who works so much overtime between the termination of ordinary work on one day and the commencement of his or her ordinary work on the next day that he or she 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 he/she has had ten consecutive hours off duty, without loss of pay, for ordinary working time occurring during such absence.

 

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

 

The provisions of this subclause shall apply in the case of shift workers as if eight hours were substituted for ten hours where overtime is worked:

 

(i)         for the purpose of changing shift rosters;

 

(ii)        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

 

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

 

(f)         Crib Time - An employee shall be entitled to a 30-minute paid crib break after two hours of work past the normal finishing time and after each additional four hours of continuous overtime, provided that such work is to continue after the crib break and further provided that, in respect of this condition, time worked shall mean time worked on the job and excludes time spent travelling from the job back to the depot.

 

(g)        Meal Allowance and Subsequent Cribs

 

(i)         Any employee required to work over more than one and a half hours after the usual ceasing time, without having been notified the previous day or earlier, shall be provided with a meal or shall be paid as per Item 5 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, for such meal, and after each four hours on continuous overtime shall be supplied either with a meal or shall be paid as per Item 5 of the said Table 2 in addition to his/her overtime payment.

 

(ii)        If an employee, pursuant to notice, has provided a meal or meals and is not required to work overtime or is required to work less than the amount advised, he/she shall be paid as prescribed by paragraph (i) of this clause, for the meals which he/she has provided but which are surplus.

 

7.  Recall to Work

 

When an employee is recalled to work Monday to Friday after leaving the job, he/she shall be paid for a minimum of three hours at overtime rates, provided that overtime worked as provided herein shall not be regarded as overtime for the purposes of subclause (e) of clause 6, Overtime, where the actual time worked is less than three hours on such recall or on each of such recalls.

 

8.  Public Holidays

 

(a)        Prescribed Holidays - The following days or the days on which they are observed shall be holidays and payment of the amount which ordinarily would have been paid had the day been a working day shall be made for these days to employees other than casuals:

 

New Year’s Day,

 

Australia Day,

 

Good Friday,

 

Easter Monday,

 

Anzac Day,

 

Queen’s Birthday,

 

Labour Day,

 

Christmas Day,

 

Boxing Day,

 

and any other gazetted holidays as may be proclaimed throughout the State of New South Wales.

 

(b)        Payment for Holidays

 

(i)         An employee who, without reasonable cause, is absent on the working day before or the working day after such public holiday shall not be entitled to payment for such holiday.

 

(ii)        Employees required to work on a public holiday shall be paid at the rate of double time and a half, with a minimum payment of four hours at such rate.

 

(c)        Picnic Day

 

(i)         Each year there shall be an AWU picnic day holiday for employees in New South Wales on the first Monday in December.

 

(ii)        Employees (other than casuals) who are not required to work on the said picnic day shall be paid for the holiday at the ordinary rates of pay prescribed in clauses 9, Payment of Wages, and 10, Travelling to Country Work.

 

(iii)       Employees required to work on the picnic day shall be paid at the rate of double time and a half for a minimum of four hours.

 

(iv)       Employers may require from their employees the butt of the ticket as evidence of their attendance at the picnic.

 

9.  Payment of Wages

 

(a)        Wages shall be paid weekly in the employer’s time. Any employee required to wait for payment of wages after the usual ceasing time shall be paid at ordinary rates for all time until he/she receives such wages.

 

(b)        The method of payment of wages to employees working in country depots or jobs outside the County of Cumberland shall be in accordance with the written arrangements with individual employees.

 

9A.  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.

 

10.  Travelling to Country Work

 

(a)        Fares - All employees sent by the employer from the city to the country or from one country centre to another country centre or from a country centre to the city shall have their fares provided by the employer and, on remaining until the completion of the job or until the special work on which they were sent to perform is completed and no other work is provided by the employer, they shall be entitled to fares back to the place of employment.

 

(b)        Travelling Time - Where an employee is sent from one centre to another and is required to remain away from home while necessarily travelling between such centres, the rate of pay for travelling time shall be at ordinary rates. The maximum time to be paid for when travelling shall be eight hours per day in addition to wages otherwise earned for work performed. Provided that this subclause shall not alter any current practice.

 

(c)        Travelling Expenses - Employees while travelling shall be paid an amount as set out in Item 6 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, with a maximum of three meals per day and, if required to spend a night en route, shall be paid an amount as set out in Item 6 of the said Table 2, provided that where an employee is provided with meals and accommodation, he/she shall not be entitled to the said allowance.

 

(d)        Definition - For the purpose of this clause, a day shall mean midnight to midnight.

 

11.  Country Work

 

(a)        Entitlement - Where an employee is required to work at such a distance from home that it is impossible to return each night, the following shall apply:

 

(i)         The employer shall provide reasonable board and lodging or shall pay an allowance per week of seven days, as set out in Item 7 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, but such allowance shall not be wages.

 

(ii)        In the case of broken parts of a week the allowance shall be all living expenses actually and reasonably incurred but not exceeding the amount per week as set out in Item 7 of the said Table 2. Provided that the foregoing allowance shall not be paid by the employer where reasonable board and lodging is provided.

 

(iii)       The employer shall pay each employee an incidentals allowance per night as set out in Item 8 of Table 2.

 

(b)        Weekend Return Home - When a country work job continues for more than two months, an employee on such job shall be entitled to be paid fares reasonably incurred in returning home for a weekend, or shall be provided with normal transport at the employer’s cost.

 

Such entitlement to fares shall accrue for only one weekend every four weeks after the completion of two months’ continuous service on such distant job.  Provided that the fares shall not be payable by the employer unless the employee works his or her full ordinary hours on the ordinary working day before and the ordinary working day after such weekend. Provided further that such fares shall not be payable unless the distant job continues for at least two weeks after such weekend.

 

(c)        Accrual of Rostered Days Off - If an employer and employee engaged on country work agree, the paid rostered day off prescribed in paragraph (iii) of subclause (c) of clause 5, Hours of Work, may be taken and paid for at a time mutually agreed. The agreement shall only provide for a paid day or days off work up to a maximum accrual of five days.

 

12.  Tea Break

 

(a)        A tea break during the morning period of not more than 15 minutes’ duration shall be allowed to each individual employee, at a time to be arranged by the employer, without deduction from the employee’s wages.

 

(b)        The taking of the morning tea break shall not involve a complete stoppage of work.

 

(c)        The employer shall provide the necessary facilities and the labour to brew tea for employees.

 

13.  Protective Clothing

 

(a)        Employees handling tar, bitumen or bituminous emulsions shall be supplied, on request, with gloves.

 

(b)        Employees engaged in cleaning out sullage pits shall be supplied with suitable protective boots when required to enter such pits.

 

14.  Occupational Health and Safety

 

The parties to this award are committed to achieving healthier and safer jobs through workplace changes aimed at improved efficiency and productivity. As such, the parties are committed to the relevant occupational health and safety legislation and the relevant codes of practice.

 

15.  Mixed Functions

 

An employee called upon to perform work for which a higher rate is fixed shall be entitled to receive such higher rate whilst so employed.

 

16.  Annual Leave

 

(a)        In addition to the public holidays specified in this award, an employee shall be entitled to leave of absence on full pay for a period equal to four working weeks for each continuous 12 months’ service (less the period of annual leave) with the employer.

 

Employees on shift work shall, on completion of each 12 months’ continuous service, be entitled to leave of absence on full pay for a period equal to five working weeks, exclusive of public holidays.

 

Any day worker called upon to work shift work for short periods during the year shall be entitled to annual leave for the total period so worked, on the same basis as a shift worker, and shall be granted additional leave of absence on full pay on a pro rata basis for time worked on shift work.

 

(b)        An employee before going on leave shall be paid the amount of wages he/she would have received in respect of ordinary time he/she would have worked had he/she not been on leave during the relevant period.

 

Each employee shall, where applicable, have the amount of wages for annual leave calculated as follows:

 

(i)         the applicable rate prescribed by clauses 9, Payment of Wages, and 10, Travelling to Country Work; and

 

(ii)        any additional rate applicable for work in ordinary time, including Saturday and Sunday shifts as prescribed by paragraph (vi) of subclause (m) of clause 5, Hours of Work;

 

(iii)       any additional rates to which the employee is otherwise entitled in accordance with his/her contract of employment for ordinary hours of work; provided that this provision shall not operate so as to include any payment which is of a similar nature to or is paid for the same reason as or is paid in lieu of those payments which might have become payable to an employee in reimbursement for expenses incurred;

 

(iv)       in the case of an employee engaged on a mixed function, the rate payable pursuant to the said clauses 9, Payment of Wages and 10, Travelling to Country Work calculated on a daily basis, which the employee would have received for ordinary time during the relevant period whether on a shift roster or otherwise;

 

(v)        this subclause shall not operate so as to entitle an employee, in respect of a public holiday occurring during his/her period of annual leave, to any additional payment calculated as though the employee had worked on that day.

 

(c)        Continuous employment, as specified in subclause (a) of this clause, means constant weekly employment until the termination of an engagement. Absence of up to one month owing to illness covered by a medical certificate after two days’ absence, or an absence with a medical certificate extending beyond one month in the case of an employee with an accumulation of sick leave to the extent of such accumulation; three months owing to injury received in the course of his/her employment; one month owing to other causes for which sick leave has been granted by the employer concerned, shall not be deemed to break the continuity of employment.

 

(d)        Pro Rata Leave

 

(i)         Should an employee not complete 12 months’ service he or she shall, on termination of employment (provided that he/she has been employed continuously for one month or more), be entitled to pay on a pro rata basis for each completed month of service at the appropriate rate of wage prescribed by subclause (b) of this clause in respect of leave which has not been granted under this clause.

 

(ii)        In the computation of pro rata leave, the period of any previous annual leave which may be involved shall be computed as a period of service.

 

(e)        Leave to be Taken - Annual leave shall be taken at a time mutually agreed upon by the employer and the employee and, in the absence of agreement, at a time fixed by the employer, within a period not exceeding six months from the date when the right to annual leave accrued due and after not less than six weeks’ notice to the employee.

 

Leave shall be taken in a continuous period or, in the event of an agreement between an employer and the employee, in two separate periods and not otherwise.

 

In cases where an employer and an employee have agreed on two separate periods of leave, one of the periods shall be not less than two consecutive weeks, exclusive of any public holiday or holidays which may occur during such period of leave. Any such two periods of leave shall be granted to an employee within six months from the date when the right to annual leave accrued.

 

(f)         Close-down - Notwithstanding the provisions of subclause (e) of this clause, an employer may, by one month’s notice in writing exhibited on a notice board in the establishment, project or business, declare that the establishment, project or business shall observe a complete Christmas/New Year "close-down" period at the next following Christmas/New Year. In a case where an employee has not completed 12 months’ service at the Christmas/New Year close-down such employee shall, provided that he/she has been employed continuously for one month or more, be entitled to leave on a pro rata basis for each month of continuous service and such an employee may be stood off for the duration of the close-down period, provided that any such employee shall be paid for all public holidays occurring during the close-down period.

 

(g)        An employer may allow annual leave to an employee before the right thereto has accrued due but, where leave is taken in such a case, a further period of annual leave shall not commence to accrue until after the expiration of the 12 months in respect of which annual leave had been taken before it accrued.

 

Where leave has been granted to an employee pursuant to this subclause before the right thereto has accrued due and the employee subsequently leaves or is discharged from the service of the employer before completing the 12 months’ continuous service in respect of which the leave was granted, the employer may, for each one complete month of the qualifying period of 12 months not served by the employee, deduct from whatever remuneration is payable upon the termination of the employment one-twelfth of the amount of wage paid on account of the annual leave, which amount shall not include any sums paid for any of the public holidays prescribed by this award.

 

(h)        For the purposes of subclause (f) of this clause, close-down shall be deemed to mean a period of not less than three consecutive weeks, exclusive of public holidays, commencing two clear working days before Christmas Day. Provided that the close-down period may not extend for longer than two consecutive weeks, exclusive of public holidays, where the employees agree with their employer that annual leave may be taken in two periods.

 

An employer, in conjunction with an accredited representative of the union, may seek such an agreement with his/her employees on a particular project, establishment or business by means of a secret ballot. In the event of a majority in favour of two periods of leave, that employer may close down that project for a period of two consecutive weeks at Christmas/New Year, exclusive of public holidays, and grant the remaining two weeks’ leave at some other time of the year within six months from the date when the right to annual leave first occurred.

 

(i)         Payment in Lieu - Payment in lieu of annual leave shall not be made by an employer nor accepted by an employee except in accordance with all the requirements of this clause. An employee shall not offer his/her services to any other employer during the period of paid annual leave and an employer shall not engage an employee who is on paid annual leave.

 

(j)         Leave Record - Every employer shall keep, or cause to be kept, an annual leave record showing the date of commencement of employment, the date on which the last leave became due and the date upon which the last leave was taken.

 

(k)        Before proceeding on annual leave an employee shall be paid any monies then due in respect of the annual leave being taken, or which may accrue due to the employee during the period of leave.

 

(l)         Leave Loading - During a period of annual leave an employee shall receive a 17.5 per cent loading calculated on the rate of wage prescribed in subclause (b) of this clause.

 

The loading shall be as follows:

 

(i)         Day workers - an employee who would have worked on day work only had he/she not been on leave - a loading of 17.5 per cent.

 

(ii)        Shift workers - an employee who would have worked on shift work had he/she not been on leave - a loading of 17.5 per cent.

 

Provided that where the employee would have received shift loadings prescribed by subclause (m) of clause 5, Hours of Work, had he/she not been on leave during the relevant period, and such loadings would have entitled the employee to a greater amount than the loading of 17.5 per cent, the shift loadings shall be added to the rate of wage prescribed by paragraph (i) of subclause (b) of this clause in lieu of the 17.5 per cent loading.

 

Provided further that if the shift loadings would have entitled him/her to a lesser amount than the loading of 17.5 per cent, such loading of 17.5 per cent shall be added to the rate of wage prescribed by paragraph (ii) of subclause (b) of this clause in lieu of the shift loading.

 

For the purposes of this subclause, the ordinary time an employee would have worked had he/she not been on leave during the relevant period shall be determined by the roster which covers such period at a time immediately prior to commencement of annual leave or the termination of employment, as the case may be.

 

The loading prescribed by this subclause shall apply to proportionate leave on termination of employment where the employment is terminated by the employer, but it shall not apply where the reason for termination is misconduct or wilful disobedience.

 

(m)       The provisions of this clause shall not apply to casual employees.

 

17.  Sick Leave

 

An employee who, after not less than three months’ continuous service in his/her current employment, is unable to attend for duty during ordinary working hours by reason of personal illness or personal incapacity (excluding incapacity resulting from injury within the Workers’ Compensation Act 1987 and Workplace Injury and Workers Compensation Act 1998) not due to his/her own serious and wilful misconduct, shall be entitled to be paid at the ordinary-time rate of pay for the time of such non-attendance, subject to the following:

 

(a)        Payment in connection with sick leave is to be made on the next regular pay day after the employee reports sick and such payment shall continue on regular pay days until the employee exhausts his/her sick leave or resumes duty.

 

(b)        The employee shall not be entitled to paid leave of absence for any period in respect of which he/she is entitled to workers’ compensation. Where a claim for workers’ compensation is made by an employee, payment of such leave under this clause shall not be payable.

 

(c)        The employee shall, within two hours of the commencement of such absence, where practical, inform his/her employer or representative thereof of his/her inability to attend for duty and, as far as possible, state the nature of the illness or incapacity and the estimated duration of same.

 

(d)        The employee shall prove to the satisfaction of the employer (or, in the event of a dispute, the Industrial Relations Commission of New South Wales), that he/she is or was unable on account of such illness or incapacity to attend for duty on the day or days for which payment under this clause is claimed.

 

(e)        Subject to the provisions of subclause (g) of this clause, the employee shall not be entitled in any year of continuous employment to sick pay for more than ten ordinary working days. Any period of paid sick leave allowed by the employer to an employee in any such year shall be deducted from the period of sick leave, which may be allowed or carried forward under this award, or in respect of such year.

 

(f)         Where an employee is ill or incapacitated, within the meaning of this clause, on his/her rostered day or shift off he/she shall not be entitled to sick pay on that day nor shall his/her sick leave entitlement be reduced as a result of such illness or incapacity.

 

(g)        The right under this clause shall accumulate from year to year to a maximum of 60 days from the next sick leave entitlement date, so long as the employment continues with the employer, whether under this or any other award or agreement, so that any part of ten days which has not been allowed in any year may be claimed by the employee and shall be allowed by the employer, subject to the conditions prescribed by this clause, in a subsequent year of such continued employment.

 

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

 

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

 

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

 

provided that any time so lost shall not be taken into account in computing the qualifying period of three months.

 

(i)         Service with an employer before the operative date of this award shall be counted as service for the purpose of qualifying thereunder.

 

(j)         The provisions of this clause shall not apply to casuals.

 

18.  Dispute Resolution Procedure

 

(i)         Industrial Disputes

 

(a)        Any disputes arising out of employment shall be referred to the immediate supervisor by the employee concerned.

 

(b)        Failing settlement at this level, the matter shall be referred to the accredited union representative who will take up the matter with the nominated employer representative within 48 hours.

 

(c)        If resolution is not achieved, the dispute will be referred to the respective union organisers, who will meet the employer within 48 hours.

 

(d)        Failing settlement, the organiser will refer the dispute to the union Secretary and the employer may refer the dispute to its employer association or representative.

 

(e)        During discussions, the work shall continue in the usual manner and, if the matter cannot be settled by conference, the circumstances of the dispute shall be notified to the Industrial Registrar with a view to a compulsory conference being convened for the purpose of settling such dispute.

 

(f)         Whilst these procedures are continuing, the status quo shall remain and no stoppage of work or any form of limitation of work shall be applied.

 

(ii)        Safety Disputes

 

(a)        It is recognised that problems related to safety and other hazardous situations may arise from time to time, which require immediate attention and decision. An unsafe and hazardous situation is a situation on a work site, which is considered by employees to endanger their safety.

 

(b)        Any safety or health issue shall be reported to the employee's immediate supervisor for immediate attention.

 

(c)        Should the problem be considered a safety or health issue, the company may refer the dispute to the chairman of the plant's occupational health and safety committee and the appointed company representative.

 

Work shall cease in the disputed area and the employees are to be relocated to another safe working area while the inspections are carried out and a final determination made.

 

(d)        The committee, in conjunction with management, shall inspect the area of the alleged unsafe location or practice and shall determine whether the work in question will proceed.

 

(e)        Should the parties not be able to reach agreement about the alleged unsafe working environment, an inspector from the appropriate department shall be advised to inspect the area as a matter of urgency. The determination of the inspector shall be binding on all parties.

 

(f)         Should the work in dispute cease, the employer shall have the right to relocate the employees to another workstation or to reallocate duties of the employees to maintain production requirements.

 

19.  Reporting for Duty

 

Employees who are directed to report for work on a Saturday or a Sunday and are not required shall be paid for three hours at overtime rates.

 

20.  Bereavement Leave

 

(i)         An employee on weekly hiring shall be entitled to a maximum of two days’ leave without deduction of pay on each occasion of the death within Australia of a person prescribed in subclause (iii) of this clause. There shall be an additional entitlement to a maximum of two days’ leave without pay on the same basis.

 

(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 28.1.3 of subclause 28.1 of clause 28, 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 28.2, 28.3, 28.4, 28.5 and 28.6 of the said clause 28. 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 20(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 28.1.3(ii) of clause 28, 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.

 

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.  Flexible Work Practices

 

(a)        The parties agree that an improvement in efficiency and productivity will be achieved by improved training, interchange ability, and the flexibility to adapt to the requirements of specific job circumstances.

 

(b)        There shall be complete interchange ability and flexibility of labour between various classifications and between different unions, provided that the employees possess the necessary certificates and skills to perform the work. There shall also be flexibility in the use of non-award personnel from time to time. Employees will normally be employed to do a particular job within a particular award or agreement; however, the interchange ability and flexibility may be required in the event of machinery breakdown, production problems, and continuity of operations, absences and so forth.

 

(c)        This clause is dependent upon other unions agreeing to the same interchange- ability/flexibility.

 

22.  Consultation

 

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

 

(b)        Consultative mechanisms and procedures shall be established at each enterprise or workplace by the employer, employees and the union.  Such mechanism and procedures will be dependent upon the size, structure and needs of both the employer and the employees concerned.

 

(c)        The consultative mechanisms in subclause (b) of this clause shall examine matters affecting the productivity, efficiency and competitiveness of the business, which shall include flexible working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and positive assistance in the re-structuring process.

 

(d)        In the event of a disagreement that cannot be resolved through the consultative mechanism, the issue shall be resolved through the settlement of disputes procedure contained in clause 18, Settlement of Disputes.

 

23.  Enterprise Flexibility Processes

 

Without limiting the rights of either employer or the union to arbitration, any other measure designed to increase flexibility on a site or within an enterprise sought by any party shall be implemented, subject to the following requirements:

 

(i)         the changes sought shall not affect provisions reflecting national standards;

 

(ii)        the majority of employees affected by the change at the site or enterprise must genuinely agree to the change;

 

(iii)       no employee shall lose income as a result of the change;

 

(iv)       the union must be party to the agreement;

 

(v)        any agreement shall be subject, where appropriate, to approval by the Industrial Relations Commission of New South Wales and, if approved, shall operate as a schedule to this award and take precedence over any provisions of this award to the extent of any inconsistency.

 

24.  Training

 

(a)        The parties to this award recognise that in order to increase the efficiency, productivity and competitiveness of the 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 acquired.

 

(b)        Following proper consultation in accordance with clause 22, Consultation, 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 site and the asphalt industry through courses conducted by accredited educational institutions and providers and through on-site courses.

 

25.  Utilisation of Skills

 

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

 

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

 

(c)        Any direction given by an employer in accordance with subclauses (a) and (b) of this clause shall be consistent with the employer’s obligations under the relevant occupational health and safety regulations.

 

(d)        Disputes arising in relation to the operation of this clause shall be dealt with in accordance with clause 18, Settlement of Disputes, following prior consideration of the issue in accordance with the consultative mechanism in clause 22, Consultation.

 

26.  Introduction of Change

 

(a)        Employer’s Duty to Notify

 

(i)         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.

 

(ii)        "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.

 

(iii)       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.

 

(iv)       Employer’s Duty to Discuss Change

 

(v)        The employer shall discuss with the employees affected and the union, inter alia, the introduction of the changes referred to in subclause (a) of this clause, the effects the changes are likely to have on employees, 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.

 

(vi)       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 subclause (a) of this clause.

 

(vii)      For the purposes of such discussions, the employer shall provide in writing to the employees concerned and the union 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 an employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer’s interests.

 

27.  Redundancy

 

(A)       Application

 

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

 

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

 

(iii)       Notwithstanding anything contained elsewhere in this award, this clause shall not apply to employees with less than one year’s continuous service and the general obligation on employers shall be not more than to give such employees an indication of the impending redundancy at the first reasonable opportunity and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

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

 

(B)       Introduction of Change

 

(i)         Employer’s Duty to Notify

 

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

 

(b)       "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work 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 subclause (B), Introduction of Change, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(b)       The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of subparagraph (a) of this paragraph and shall cover, inter alia, any reason for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

 

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

 

(D)       Termination of Employment

 

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

 

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

 

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 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 provision to be applied to terminations by the employer for reasons arising from technology in accordance with subparagraph (a) of paragraph (i) of subclause (B) of this clause.

 

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

 

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

 

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

 

(iii)       Time Off During 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 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 employees, the employer shall notify the Centrelink thereof as soon as possible, giving relevant information, including the number and categories of employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(vii)      Centrelink Employment Separation Certificate - The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an Employment Separation Certificate in the form required by 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 subclause (D) of this clause, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the following severance pay in respect of a continuous period of service:

 

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

 

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.

 

(ii)        Incapacity to Pay - Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) of this subclause.

 

The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in the said paragraph (i) will have on the employer.

 

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

 

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

 

28.  Personal/Carer S Leave

 

28.1      Use of Sick Leave

 

28.1.1   An employee, other than a casual employee, with responsibilities in relation to a class of person set out in 28.1.3(ii) who needs the employee’s care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, provided for at clause 17, Sick Leave of the award, for absences to provide care and support for such persons when they are ill, or who require care due to an unexpected emergency.  Such leave may be taken for part of a single day.

 

28.1.2   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.

 

28.1.3   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 paragraph:

 

(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.

 

28.1.4   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 18, Dispute Resolution Procedure, should be followed.

 

28.2      Unpaid Leave for Family Purpose

 

28.2.1   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 28.1.3(ii) above who is ill or who requires care due to an unexpected emergency.

 

28.3      Annual Leave

 

28.3.1   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.

 

28.3.2   Access to annual leave, as prescribed in paragraph 28.3.1 above, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

28.3.3   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.

 

28.3.4   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.

 

28.4      Time Off in Lieu of Payment for Overtime

 

28.4.1   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.

 

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

 

28.4.3   If, having elected to take time as leave in accordance with paragraph 28.4.1, 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.

 

28.4.4   Where no election is made in accordance with paragraph 28.4.1, the employee shall be paid overtime rates in accordance with the award.

 

28.5      Make-up Time

 

28.5.1   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.

 

28.5.2   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.

 

28.6      Rostered Days Off

 

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

 

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

 

28.6.3   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.

 

28.6.4   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.

 

28.7      Personal Carers Entitlement for casual employees -

 

(1)        Subject to the evidentiary and notice requirements in 28.1.2 and 28.1.4 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 28.1.3(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.

 

29.  Anti-Discrimination

 

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

 

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

 

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

 

4.          Nothing in this clause is to be taken to affect:

 

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

 

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

 

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

 

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

 

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

 

Note:

 

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

 

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

 

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

 

30.  Long Service Leave

 

See Long Service Leave Act 1955.

 

30A.  Deduction of Union Membership Fees

 

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

 

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

 

(b)        the Union shall advise the employer of the amount to be deducted for each pay period applying at the employer's workplace and any changes to that amount;

 

(c)        deduction of union membership fees shall only occur in each pay period in which payment has or is to be made to an employee; and

 

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

 

(ii)        The employee's authorisation shall be in writing and shall authorise the deduction of an amount of Union fees (including any variation in that fee effected in accordance with the Union rules) that the Union advises the employer to deduct.  Where the employee passes any such written authorisation to the Union, the Union shall not pass the written authorisation on to the employer without first obtaining the employee's consent to do so.  Such consent may form part of the written authorisation.

 

(iii)       Monies so deducted from employees' pay shall be remitted to the Union on either a weekly, fortnightly, monthly or quarterly basis at the employer's election, together with all necessary information to enable the reconciliation and crediting of subscriptions to employees' membership accounts, provided that:

 

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

 

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

 

(iv)       Where an employee has already authorised the deduction of Union membership fees in writing from his or her pay prior to this clause taking effect, nothing in this clause shall be read as requiring the employee to make a fresh authorisation in order for such deductions to commence or continue.

 

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

 

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

 

(vii)      Where an employee who is a member of the Union and who has authorised the employer to make payroll deductions of Union membership fees resigns his or her membership of the Union in accordance with the rules of the Union, the Union shall inform the employee in writing of the need to revoke the authorisation to the employer in order for payroll deductions of union membership fees to cease.

 

(viii)     This clause shall take effect:

 

(a)        In the case of employers which currently deduct union membership fees, or whose payroll facilities are carried out by way of an outsourcing arrangement, or whose payroll calculations are made through the use of computerised means, from the beginning of the first pay period to commence on or after 12 March 2003;

 

(b)        In the case of employers who do not fall within subparagraph (a) above, but who currently make deductions, other than union membership fees deductions or mandatory deductions (such as for taxation instalments or superannuation contributions) from employees' pay, or have in place facilities to make such deductions, from the beginning of the first pay period to commence on or after 12 June 2003;

 

(c)        For all other employers, from the beginning of the first pay period to commence on or after 12 September 2003.

 

31.  Area, Incidence and Duration

 

(a)        This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Asphalt and Bitumen Industry (State) Award published 14 December 2001 (330 I.G. 347), as varied.

 

(b)        The award published on 14 December 2001 took effect from the beginning of the first pay period commencing on or after 20 August 2001.

 

(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 22 January 2008.

 

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

 

PART B

 

MONETARY RATES

 

Table 1 - Rates of Pay

 

	Current Rate	SWC 2007	SWC
			2007
Classification		Adjustment	Rate
	$	$	$
(A) Manufacturing plant employees
Plant Operator (mixing plant)	617.10	20.00	637.10
Front End Loader operator	609.10	20.00	629.10
General Hand	551.10	20.00	571.10
(B) Laying Crew
Asphalt paver operator	611.50	20.00	631.50
Paver Screed operator	611.50	20.00	631.50
Roller operator	593.10	20.00	613.10
Tack coat operator	591.30	20.00	611.30
Rotary broom operator	551.10	20.00	571.10
General Hand	551.10	20.00	571.10
(C) Other Classifications
Senior Allocator (operating or allocating for more two or	628.30	20.00	648.30
more weighbridges)
Weighbridge operator and or/allocator	602.90	20.00	622.90
Store person (asphalt specialist)	602.90	20.00	622.90
Laboratory Assistant	566.80	20.00	586.80
Profiler operator (rate to be determined)
Ganger	645.80	20.00	665.80
Foreperson	634.70	20.00	654.70
Equipment Operator group 1 includes: Sprayer Operator
over 7500 litres (including towing) leader operator (spray)	600.60	20.00	620.60
Equipment Operator group 2 includes: Sprayer Operator
up to 7500 litres (including towing)	591.70	20.00	611.70

 

Equipment Operator group 3 includes: Roller Operator
(spray) Broom Operator Aggregate Spreader Operator
(including towing) Spray Operator (rear) Aggregate
Spreader (rear) Kettle Hand	584.30	20.00	604.30
General Hand	551.10	20.00	571.10
Weighbridge Operator and or allocator	602.90	20.00	622.90
Storeperson (spray specialist)	602.90	20.00	622.90
Laboratory assistant	566.80	20.00	586.80

 

Table 2 - Other Rates and Allowances

 

Item No	Clause No	Brief Description	Current Amount	SWC 2007 Amount
			$	$
1	4(a)	Industry Allowance	22.05 per week	22.95
2	4(b)	Inclement weather	22.95 per week	23.85
3	4(c)	In Charge of plant	10.60 per week	11.00
4	4(d)	First Aid Allowance	2.15 per day	2.25
5	6(g)(I)	Meal Allowance	10.25 per meal	10.65
6	10(c)	Travelling Expenses	10.25 per meal	10.65
7	11(a)	Country Work	334.20 per week	342.20
8	11(a)(iii)	Incidentals Allowance	3.60 per night	3.70
9	4(e)	Leading Hand Allowance	18.60 per week	19.35

 

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

 

 

 

E. A. R. BISHOP, Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.