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New South Wales Industrial Relations Commission
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Supervisors, Breweries (State) Award
  
Date07/11/2008
Volume366
Part1
Page No.255
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C6561
CategoryAward
Award Code 065  
Date Posted07/10/2008

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(065)

(065)

SERIAL C6561

 

Supervisors, Breweries (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1619 of 2007)

 

Before Commissioner Connor

23 April 2008

 

REVIEWED AWARD

 

ARRANGEMENT

 

Applying to all Supervisors in the Brewing Industry

 

1.        Structural Efficiency

2.        Training

3.        Enterprise Arrangements

4.        Secure Employment

5.        Personal/Carers Leave

6.        Parental Leave

7.        Anti-Discrimination

8.        Savings

9.        Disputes Settling Procedure

10.      Redundancy

11.      Traineeships

12.      Area, Incidence and Duration

 

1.  Structural Efficiency

 

(i)       The parties to this award are committed to co-operating positively to increase the efficiency, productivity and international competitiveness of the brewing industry and to enhance the career opportunities and job security of employees in the industry. Accordingly, employees within each classification will perform a wider range of duties including work which is incidental or peripheral to their main tasks or functions.

 

(iii)      At each plant or enterprise, an employer and the employees and their relevant union shall establish a consultative mechanism and procedure appropriate to the size, structure and needs of that plant or enterprise. Measures raised by the employer, employees or union or unions for consideration consistent with the objectives of subclause (i) herein shall be processed through that consultative mechanism and procedures.

 

(iii)      Any dispute arising in relation to the implementation of structural efficiency items shall be subject to clause 9, Disputes Settling Procedure.  Any matter left unresolved out of Structural Efficiency Negotiations may be referred to the Industrial Commission of New South Wales for determination.

 

2.  Training

 

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

 

(a)      Developing a more highly skilled and flexible workforce.

 

(b)      Providing employees with career opportunities through appropriate training to acquire additional skills.

 

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

 

(ii)       Following proper consultation in accordance with subclause (ii) of clause 1, Structural Efficiency, or through the establishment of a training committee, an employer shall develop a training program consistent with:

 

(a)      The current and future skills needs of the enterprise.

 

(b)      The size, structure and nature of the operations of the enterprise.

 

(c)      The need to develop vocational skills relevant to the enterprise and the brewing industry through courses conducted on the job and also by accredited educational institutions and providers.

 

(iii)      Where it is agreed a training committee be established, that training committee should be constituted by equal numbers of employer and employee representatives and have a charter which providers.

 

(a)      Formulation of a training program and the availability of training courses and career opportunities to employees.

 

(b)      Dissemination of information on the training program and availability of training courses and career opportunities to the employees.

 

(c)      The recommending or otherwise of individual employees for training and reclassification.

 

(d)      Monitoring and advising management and employees on the ongoing effectiveness of the training.

 

(iv)

 

(a)      Where as a result of consultation in accordance with clause 1, Structural Efficiency or through a training committee and with the employee concerned, it is agreed that additional training in accordance with the program developed pursuant to subclause ( ii ) herein should be undertaken by that employee, that training may be undertaken either on or off the job.  Provided that if the training is undertaken during ordinary working hours, the employee concerned shall not suffer any loss of pay. The employer shall not unreasonably withhold such paid training leave.

 

(b)      Any costs associated with standard fees for prescribed courses and prescribed text books incurred in connection with the undertaking of training shall be reimbursed by the employer upon the production of evidence of such expenditure, provided that reimbursement shall also be on an annual basis subject to the presentation of reports of satisfactory progress.

 

3.  Enterprise Arrangements

 

(a)      As part of the Structural Efficiency exercise and as an ongoing process, improvements in productivity and efficiency discussions may take place at an enterprise to provide for:

 

*         more flexible working arrangements

 

*         improvements in the quality of working life

 

*         enhancement of skills

 

*         training and job satisfaction

 

*         positive assistance in the restructuring process

 

*         encouragement of consultation mechanisms across the workplace

 

*         consideration of a single bargaining unit

 

Union delegates at the place of work may be involved in such discussions.

 

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

 

(i)       A majority of employees affected genuinely agree.

 

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

 

(c)

 

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

 

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

 

(d)      Such enterprise arrangements shall be processed as follows:

 

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

 

(ii)

 

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

 

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

 

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

 

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

 

(iv)     Where an arrangement is objected to in accordance with subclause (c) (i) and the objection is not resolved, an employer may make application to the Industrial Commission to vary the award to give effect to the arrangement.

 

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

 

(vi)     If no party objects to the arrangement, then a consent application shall be made to the Industrial Commission to have the arrangement approved and the award varied in the manner specified in paragraph (vii).

 

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

 

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

 

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

 

4.  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.

 

5.  Personal/ Carer’s Leave

 

(1)      Use of Sick Leave

 

(a)      An employee, other than a casual employee, with responsibilities in relation to a class of person set out in 5.1(c) (ii) who needs the employee’s care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, for absences to provide care and support for such persons when they are ill, or who require care due to an unexpected emergency. Such leave may be taken for part of a single day.

 

(b)      The employee shall, if required,

 

(i)       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

 

(ii)       establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

 

In normal circumstances, an employee must not take carer's leave under this subclause where another person had taken leave to care for the same person.

 

(c)      The entitlement to use sick leave in accordance with this subclause is subject to:

 

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

 

(ii)       the person concerned being:

 

(a)      a spouse of the employee; or

 

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

 

(c)      a child or an adult child (including an adopted child, a step child, a foster child or an ex nuptial child), parent ( including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

 

(d)      a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or

 

(e)      a relative of the employee who is a member of the same household, where for the purposes of this subparagraph:

 

1.        "relative" means a person related by blood, marriage or affinity;

 

2.        "affinity" means a relationship that one spouse because of marriage has  blood relatives of the other; and

 

3.        "household" means a family group living in the same domestic dwelling.

 

(d)      An employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that person’s relationship to the employee, the reasons for taking such leave and estimated length of absence. If it is not practicable for the employee to give prior notice of absence, the employee shall notify by telephone of such absence at the first opportunity on the day of absence.

 

(e)      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 9, Disputes Settling Procedure, should be followed.

 

(2)      Unpaid Leave for Family Purpose

 

(a)      An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in 5.1(c) above who is ill or who requires care due to an unexpected emergency.

 

(3)      Annual Leave

 

(a)      An employee may elect, with the consent of the employer to take annual leave not exceeding ten days in single-day periods, or part thereof, in any calendar year at a time or times agreed by the parties.

 

(b)      Access to annual leave, as prescribed in paragraph (a) of this subclause, shall be exclusive of any shutdown period provided for elsewhere in this award.

 

(c)      An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

 

(d)      An employee may elect with the employers agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

(4)      Time Off in Lieu of Payment for Overtime

 

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

 

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

 

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

 

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

 

(5)      Make-Up Time

 

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

 

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

 

(6)      Rostered Days Off

 

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

 

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

 

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

 

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

 

(7)      Personal Carers Entitlement for casual employees -

 

(a)      Subject to the evidentiary and notice requirements in 5.1(b) 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 5.1(c) 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.

 

(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 to engage a casual employee are otherwise not affected.

 

(8)      Bereavement Leave

 

(a)      An employee other than a casual employee shall be entitled to up to two days bereavement leave without deduction of pay on each occasion of the death of a person prescribed in (c) below.

 

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

 

(c)      Bereavement leave shall not be available to the employee in respect to the death of a person prescribed for the purposes of Personal/Carers Leave in subclause (1) (c) of this clause, provided that for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

(d)      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, under subclauses 1, 2, 3, 4, 5, 6 and 7 of this clause. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

(e)      Bereavement entitlements for casual employees

 

(i)       Subject to the evidentiary and notice requirements in subclause 5.1(b), 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 5.1(c).

 

(ii)       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.

 

(iii)      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.

 

6.  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).

 

7.  Anti-Discrimination

 

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

 

(2)      It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take 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, 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.

 

(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.

 

NOTES

 

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

 

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

 

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

 

8.  Savings

 

Nothing in this award shall be read or construed so as to reduce any conditions of the existing contract of employment.

 

9.  Disputes Settling Procedure

 

Any grievance involving a foreman or supervisor covered by this award shall be dealt with by progression through the established management structure of each company.

 

If this process does not resolve the grievance, either party may refer the matter to the NSW Industrial Relations Commission for Conciliation and Arbitration if necessary.

 

10.  Redundancy

 

(1)      Application

 

(i)       This clause shall apply in respect of full-time and part-time employees employed in the classifications specified in this award.

 

(ii)      This clause shall only apply to employers who employ 15 or more employees immediately prior to termination of employment of an employee.

 

(iii)      Notwithstanding anything contained elsewhere in this clause, this clause shall not apply to employees with less than one year’s continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

(iv)     Notwithstanding anything contained elsewhere in this clause, 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 specified tasks or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

(2)      Introduction of Change-

 

(i)       Employers Duty to Notify-

 

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

 

(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 restructuring of jobs.

 

Provided that where paragraph (i) of subclause (1) makes provision for the 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, inter alia, the introduction of the changes referred to in subclause (2) above, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of 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 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.

 

(3)      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 pursuant to subparagraph (a) of paragraph (i) of subclause (2), and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union.

 

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

 

(c)      For the purposes of the discussions the employer shall, as soon as practicable, provide to the employees concerned and the union, 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.

 

(4)      Termination of Employment

 

(i)       Notice for Changes in Production, Program, Organisation and Structure

 

This subclause sets out the notice provisions to be applied to termination by the employer for reasons arising from "production", "program", "organisation" or "structure" in accordance with subparagraph (a) of paragraph (i) of subclause (2) of this clause.

 

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

 

Period of Continuous Service

Period of Notice

 

 

Less than 1 year

1 week

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 notice, with not less than two years continuous service, shall be entitled to an additional week’s notice.

 

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

 

(ii)      Notice for Technological Change- This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from "technology" in accordance with subparagraph (a) of paragraph (i) of subclause (2) 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 termination given by the employer an employee shall be allowed up to one day’s time off without loss of 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 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 Centrelink as soon as possible, giving relevant information, including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(vii)     Department of Social Security 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 Department of Social Security.

 

(viii)    Transfer to Lower-paid Duties- Where an employee is transferred to lower-paid duties for the reasons set out in paragraph (i) of subclause (2), the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee’s employment had been terminated and the employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary-time rates for the number of weeks of notice still owing.

 

(5)      Severance Pay

 

(i)       Where an employee is to be terminated pursuant to subclause (4), 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 or 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)      "Weeks 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, over-award payments, shift penalties and allowances paid in accordance with this award.

 

(ii)      Incapacity to Pay- Subject to application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount of severance pay than that contained in paragraph (i) of the subclause.

 

The Industrial Relations 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 of severance pay than that contained in paragraph (i) above if the employer obtains acceptable alternative employment for an employee.

 

11.  Traineeships

 

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

 

12.  Area, Incidence and Duration

 

(a)      This award is made following a review under section 19 of the Industrial Relations Act 1996 and replaces the Supervisors, Breweries (State) Award published 21 December 2001 (330 I.G. 528) and all variations thereof.

 

(b)      The award published on 15 April 1987 took effect from the first full pay period commencing on or after 29 April 1986.

 

(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 23 April 2008.

 

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

 

 

 

P. J. CONNOR, Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

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