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New South Wales Industrial Relations Commission
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Malthouses (State) Award
  
Date07/11/2008
Volume366
Part1
Page No.219
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C6602
CategoryAward
Award Code 259  
Date Posted07/10/2008

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(259)

SERIAL C6602

 

Malthouses (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1618 of 2007)

 

Before Commissioner Connor

28 February 2008

 

REVIEWED AWARD

 

1.  Arrangement

 

Clause No.       Subject Matter

 

l.         Arrangement

2.        Rates of Pay

3.        Casual Employees

4.        Hours

5.        Overtime

6.        Saturday Shifts

7.        Sunday and Holiday Work

8.        Public Holidays

9.        Sick Leave

10.      Personal/Carer's Leave

l0A.    Parental Leave

11.      Annual Leave

12.      Paid Stopwork Meetings

13.      Bereavement Leave

14.      First-aid Attendant

15.      Industrial Clothing

16.      Terms of Employment

17.      Anti-Discrimination

18.      Redundancy and Technological Change

18A    Secure Employment

19.      Introduction of Change

20.      Redundancy

21.      Termination of Employment

22.      Severance Pay

22A.   Traineeships

23.      Area, Incidence and Duration

 

PART B

 

Monetary Rates

 

Table 1 - Wages

Table 2 - Other Rates and Allowances

 

2.  Rates of Pay

 

2.1      The minimum rates of pay for adults shall be the rates in Table 1 - Wages and Table 2 - Other Rates and Allowances.

 

2.2      A flat rate allowance as set out in Item 1 of Table 2 - Other Rates and Allowances shall be paid to all employees for the special conditions of dust, dirt, heat or confined space which may apply in the Malting Industry. This allowance is also to apply while an employee is on paid sick leave, annual leave and long service leave.

 

2.3      A Shiftworker, as defined, shall be paid an allowance as set out in Item 2 of Table 2 - Other Rates and Allowances.

 

2.4      A Leading Hand shall be paid an allowance as set out in Item 3 of Table 2 - Other Rates and Allowances.

 

2.5      A laundry allowance shall be paid as set out in Item 4 of Table 2 - Other Rates and Allowances

 

3.  Casual Employees

 

3.1      "Casual Employees" shall mean and be deemed to be any employee engaged for a period of less than five days a week, Monday to Friday inclusive, and shall be paid 25 per cent extra per hour.

 

4.  Hours

 

4.1      For employees not working on shift work, the ordinary working hours shall be 40 per week to be worked on 5 days of 8 hours per day on Monday to Friday inclusive. The said hours shall be exclusive of a lunch break of 45 minutes and shall be worked between 6 a.m. and 6 p.m. An employee shall not be required to take a lunch break within four hours of the ordinary starting time or work longer than five hours from the ordinary starting time without a lunch break: provided that in any instance where it is not possible to grant the lunch break within five hours of the ordinary starting time, all time after the said five hours shall be treated as time worked and paid for at time and one-half, i.e. half-time extra until released for a meal interval of forty-five minutes.

 

4.2      Shiftworkers shall mean and be deemed to be two or three sets of employees working 16 hours or 24 hours respectively by shifts of eight hours' duration in sequence. They shall work their shift straight out, including crib time of at least 20 minutes during each shift. The ordinary working hours for shiftworker shall be forty per week and may be worked on five days of eight hours per day on Monday to Friday inclusive; provided that if the employer and the union agree, the ordinary working hours shall not exceed an average of forty per week, spread over a cycle of two, three or four weeks as provided by the appropriate rosters prepared by the employer, and to be worked in shifts of eight hours each. A roster when put into operation shall not, except in the case of emergency, be altered without seven days notice of such alteration being given to the employees concerned. Shiftworkers may relieve one another before the end of a shift without any liability on the part of an employer to pay overtime rates for time worked beyond the eight hours per shift.

 

4.3      There shall be a fixed time of starting and ceasing work for each employee which shall not, except in the case of emergency be altered by the employer without seven days' notice.

 

4.4      Notwithstanding anything contained in Clause 4.2 shiftworkers employed at Basett Bros and Burston and Co. Pty Ltd and Joe White Malting Limited may be employed between the hours of 3 p.m. and 7 a.m. on permanent shifts and such persons shall be treated as shiftworkers.

 

5.  Overtime

 

5.1      For all the time worked in excess of the hours prescribed in Clause 4, Hours, of this award, payment shall be made at the rate of time and one-half for the first two hours and double time thereafter.

 

5.2      An employee required to work overtime in excess of two hours after the usual finishing time shall be paid the amount as set out in Item 5 of Table 2 - Other Rates and Allowances.

 

5.3      An employee who works so much overtime between the termination of the ordinary work on one day the commencement of the ordinary work on the next day that they have not had at least ten consecutive hours off duty between those times shall, subject to Clauses 5.4 and 5.5, be released after completion of such overtime until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

 

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

 

5.5      The period of ten hours shall be reduced to a period of eight hours where necessary to effect the periodic rotation of weekly shifts.

 

6.  Saturday Shifts

 

6.1      Shifrworkers shall be paid for work performed between midnight Friday and midnight on Saturday at the rate of time and one-half unless they are working overtime between such hours in which case their payment shall be as prescribed by Clause 5, Overtime, of this award.

 

6.2      An employee not working on shift and who is required to work on a Saturday shall be paid for a minimum of four hours at the appropriate overtime rate.

 

7.  Sunday and Holiday Work

 

7.1      All time on duty by an employee on Sunday shall be paid for at the rate of double time, which shall be in lieu of any rate otherwise payable under this award with a minimum payment of four hours. All time of duty by any employee on a public holiday provided by this award, shall be paid for at double time and one-half with a minimum payment of four hours.

 

7.2      Where a public holiday falls on a shiftworker's rostered day off, they shall be paid one-day's pay in lieu thereof.

 

8.  Public Holidays

 

8.1      For the purposes of this award, the days on which the undermentioned days are ordinarily observed shall be public holidays:

 

New Year's Day, Anniversary Day, Good Friday, Easter Monday, Anzac Day, Sovereign's Birthday, Eight Hour Day, Christmas Day, Boxing Day, the third Monday in February and all other gazetted holidays observed throughout the State.

 

8.2      An employee shall not be called upon to work on a public holiday unless they have received twenty-four hours' notice of such duty. Provided that in the event of any of the said public holidays falling on a Sunday and another day in the following week being observed in lieu thereof throughout the State, then the latter shall be the day to be observed under this part of this award. No deduction shall be made from the wage of any employee engaged by the week because of absence from work on a public holiday. Payment for a public holiday shall be made to an employee absent through illness and for whom no payment is due in the pay week in which the holiday falls provided such absence does not exceed four weeks prior to such holiday.

 

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

 

9.  Sick Leave

 

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

 

9.1.1   An employee shall not be entitled to paid leave of absence for any period in respect of which they are entitled to workers' compensation.

 

9.1.2   An employee shall within twenty-four hours of the commencement of such absence inform the employer of their inability to attend for duty, and as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.

 

9.1.3   An employee shall prove to the satisfaction of their employer that they were unable on account of such illness or injury to attend for duty on the day or days for which sick leave is claimed.

 

9.1.4   An employee shall not be entitled during their first year of any period of service with an employer to leave in excess of 64 hours of working time. Provided that during the first six months of service with an employer they shall be entitled to sick leave which shall accrue on a pro-rata basis of 5.33 hours for each month of service.

 

9.1.5   An employee shall not be entitled during the second or subsequent years of any period of service with an employer to leave in excess of 80 hours of working time.

 

9.2      Single Day Absences - In the case of an employee who claims to be allowed paid sick leave in accordance with this clause for an absence of one day only such employee if in the year they have already been allowed paid sick leave on more than one occasion for one day only, shall not be entitled to payment for a day claimed unless they produce to the employer a certificate of a duly qualified medical practitioner that in the medical practitioner's opinion the employee was unable to attend for duty on account of personal illness or on account of injury by accident. However, an employer may agree to accept from the employee a Statutory Declaration, stating that they were unable to attend for duty on account of personal illness or on account of injury by accident in lieu of a certificate of a duly qualified medical practitioner as prescribed by this subclause. Nothing in this subclause shall limit the employer's rights under Clause 9.1.3.

 

9.3      Cumulative Sick Leave - Paid Sick Leave shall accumulate indefinitely.

 

9.4      Year of Service - Year of service for the purpose of this clause means the period between the date of commencement in employment in any year and the anniversary of the commencement of employment in the next year.

 

10.  Personal/Carer's Leave

 

10.1    Use of Sick Leave

 

10.1.1 An employee, other than a casual employee, with responsibilities m relation to a class of person set out in 10.1.3.2 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 9, 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.

 

10.1.2 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.

 

10.1.3 The entitlement to use sick leave in accordance with this subclause is subject to:

 

10.1.3.1         the employee being responsible for the care and support of the person concerned; and

 

10.1.3.2         the person concerned being:

 

10.1.3.2.1       a spouse of the employee; or

 

10.1.3.2.2       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;

 

10.1.3.2.3       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

 

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

 

10.1.3.2.5       a relative of the employee who is a member of the same household, where for the purposes of this paragraph:

 

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

 

10.1.3.2.5.2    "affinity" means a relationship, that one spouse because of marriage has to blood relatives of the other; and

 

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

 

10.1.4 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, should be followed.

 

10.2    Unpaid Leave for Family Purpose

 

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 10 1 3.2 above who is ill or who requires care due to an unexpected emergency.

 

10.3    Annual Leave

 

10.3.1 An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944 (NSW), to take annual leave not exceeding five days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.

 

(i)       Any casual employee who has a ri2ht 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.

 

(ii)       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.

 

(iii)      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.

 

(iv)      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 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.

 

(v)      Following an agreement being reached pursuant to paragraph NO, 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 full­time or part-time employment, it shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

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

 

(a)      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.

 

10.3.2 Access to annual leave, as prescribed in paragraph 10.3.1 above, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

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

 

10.4    Time Off in lieu of payment for overtime

 

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

 

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

 

10.4.3 If, having elected to take time as leave in accordance with subclause 10.4.1 above, the leave is not taken for whatever reason; payment for time accrued at overtime rates shall be made at the expiry of the twelve (12~month period or on termination.

 

10.4.4 Where no election is made in accordance with subclause 10.4.1, the employee shall be paid overtime rates in accordance with the award.

 

10.5    Make Up Time

 

10.5.1 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.

 

10.5.2 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.

 

10.6    Personal Carers Entitlement for casual employees -

 

(1)      Subject to the evidentiary and notice requirements in 10.1.2 and 10.1.4 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 10. 1.3.2 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 Lip 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.

 

10A.  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).

 

11.  Annual Leave

 

11.1    For annual leave provisions see Annual Holidays Act 1944, provided that the period of leave shall be deemed to be four weeks, and provided further that an employee when proceeding on their four weeks' paid annual leave or five weeks' in the case of a seven-day shift worker, shall be paid for the first week of such leave at double their ordinary rate of pay.  This additional week's pay is only payable where an employee is taking their full period of annual leave, and is not payable in respect of pro rata annual leave payments made at the time of termination of employment; provided that where the employee and the employer agree, leave may be taken in two separate periods and in such case the first week of the mutually agreed period of leave shall be paid at double rate.

 

11.2    Seven-day shiftworkers (i.e. Employees whose ordinary working period includes Sundays and Holidays on which they are regularly rostered for work) shall be allowed additional leave as specified below:  If during the year of service, an employee has served continuously as a seven-day shiftworker, the additional leave with respect to that year shall be one week to be paid at his ordinary rate of pay. If during the year of service, the employee has served for only a portion of it as a seven-day shiftworker, the additional leave shall be calculated on a pro rata basis provided that if such calculation includes a fraction of a day such fraction shall not form part of the leave period and any such fraction shall be discharged by payment only.

 

11.3    Where the employment of an employee has been terminated and they thereby become entitled under section 4 of the Annual Holidays Act, 1944, to payment in lieu of an annual holiday payment, a payment of 3.33 hours at his ordinary wage rate shall be made with respect to each twenty-one shifts of service as a seven-day shiftworker which they have rendered during such period of employment.

 

11.4    Employees shall receive one month's notice of commencement of annual leave.

 

12.  Paid Stopwork Meetings

 

12.1    The employer shall allow two paid meetings each year under the following conditions:

 

12.1.1 The Union Divisional Secretary shall give reasonable notice to the employer of the meetings.

 

12.1.2 The meetings shall be held at the workplace during the last two ordinary hours of day work.

 

12.1.3 The Union and the employer shall agree on steps to be taken to ensure the safety of the plant and product.

 

13.  Bereavement Leave

 

13.1    An employee, other than a casual employee, shall be entitled to up to three days bereavement leave in each year of employment without deduction of pay on the death of a person prescribed in 13.3 below.

 

13.2    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.

 

13.3    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 in 10.1.3, provided that for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

13.4    An employee shall not be entitled to bereavement leave under this clause during any period in respect of which employee has already been granted other leave.

 

13.5    Bereavement leave may be taken in conjunction with other leave available under subclauses 10.2, 10.3, 10.4 and 10.5 of clause 10, Personal Carer's Leave. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

13.6    Bereavement entitlements for casual employees

 

13.6.1 Subject to the evidentiary and notice requirements in 13.2 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 10.1.3.2 of clause 10, Personal/Carer's Leave.

 

13.6.2 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.

 

13.6.3 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 engage a casual employee are otherwise not affected.

 

14.  First-Aid Attendant

 

14.1    An employee qualified and authorised to act as a first-aid attendant shall be paid an allowance as set out in Item 6 of Table 2 - Other Rates and Allowances for all time worked.

 

15.  Industrial Clothing

 

15.1    The issue of industrial clothing shall be as agreed upon between the individual employer and the employees and/or the Union.

 

16.  Terms of Employment

 

16.1    Employment under this award shall be by the week, but an employee not attending for duty shall, except as provided by Clause 9 of this award, lose pay for the actual time of such non-attendance.

 

16.2    Employment shall be terminated by a week's notice on either side to be given at any time during the week or by the payment or forfeiture of a week's wages as the case may be.  This shall not affect the right of the employer to dismiss an employee without notice for inefficiency, misconduct or neglect of duty and in such cases wages shall be paid up to the time of dismissal only.

 

16.3    An employee shall perform such work as shall from time to time be required on the usual days and within the prescribed hours.

 

16.4    For the purpose of meeting the needs of the employer in the industry such employer may require any employee to work reasonable overtime including work on Saturdays, Sundays and Public Holidays at the rate prescribed by this part of this award and unless reasonable excuse exists the employee shall work in accordance with such requirement.

 

17.  Anti-Discrimination

 

17.1    It is the intention of the parties bound by this award to seek to achieve the object of 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.

 

17.2    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.

 

17.3    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 or unlawful discrimination or harassment.

 

17.4    Nothing in this clause shall 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 parry to this award from pursuing matters of unlawful discrimination in any State or federal jurisdiction.

 

17.5    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.

 

18.  Redundancy and Technological Change

 

APPLICATION

 

18.1    This Part shall apply in respect to full time and part time persons employed in the classifications within this Award.

 

18.2    In respect to employers who employ 15 or more employees immediately prior to the termination of employment of employees, in the terms of Clause 21.

 

18.3    Notwithstanding anything contained elsewhere in this Part, this Part 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.

 

18.4    Notwithstanding anything contained elsewhere in this Part, this Part 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.

 

18A.  Secure Employment

 

18A.1

 

(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 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.

 

(c)      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.

 

Secure Employment (OH&S)

 

18A.2. Occupational Health and Safety

 

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

 

(a)      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.

 

(b)      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 employees 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 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.

 

19.  Introduction of Change

 

19.1    Employer's Duty to Notify

 

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

 

19.1.2 "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, it shall be deemed not to have significant effect.

 

19.2    Employer's Duty to Discuss Change

 

19.2.1 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 subclause 19.1 above, 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.

 

19.2.2 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 19.1 of this Clause.

 

19.2.3 For the purpose of such discussions, the employer shall provide to the employees concerned and the Union to which they belong all relevant information about the changes, including the nature of the changes proposed; the expected effects of the changes on 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.

 

20.  Redundancy

 

20.1    Discussions Before Terminations

 

20.1.1 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 19.1.1, 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.

 

20.1.2 The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subclause 20.1.1 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.

 

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

 

21.  Termination of Employment

 

21.1    Notice for Changes in Production, Programme, Organisation or Structure

 

This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, program, organisation or structure, in accordance with subclause 19.1.1.

 

21.1.1 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 one 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

 

21.1.2 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.

 

21.1.3 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.

 

21.1.4 Unless and until the employer has complied with the requirements of Clause 19, Introduction of Change, and Clause 20, Redundancy, the status quo will be maintained; that is, the employer will not implement the redundancy or redundancies which is or are the subject of the dispute, and the employees will not take industrial action.

 

21.2    Notice for Technological Change

 

This subclause sets out the notice provisions to be applied to termination by the employer for reasons arising from technology in accordance with subclause 19.1.1 of this award:

 

21.2.1 In order to terminate the employment of an employee, the employer shall give to the employee three months' notice of termination.

 

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

 

21.2.3 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.

 

21.3    Time Off During the Notice Period

 

21.3.1 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.

 

21.3.2 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.

 

21.4    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 to which the employee would have been entitled had the employee remained with the employer until the expiry of such notice.  Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

 

21.5    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.

 

21.6    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 the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

21.7       Centrelink Employment Separation Certificate

 

The employer shall upon receipt of a request from an employee whose employment has been terminated provide to the employee an Employment Separation Certificate in the form required by Centrelink.

 

21.8       Transfer to Lower-Paid Duties

 

Where an employee is transferred to lower-paid duties for reasons set out in subclause 19.1; 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.

 

22.  Severance Pay

 

22.1    Where an employee is to be terminated pursuant to subclause 21, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the employee the following severance pay in respect of a continuous period of service.

 

22.1.1 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

 

22.1.2 Where an employee is 45 years old or over, the entitlement shall be 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

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

 

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

 

22.2    Incapacity To Pay

 

Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause 22.1 above.

 

The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect of paying the amount of severance pay in subclause 22.1 of this Clause will have on the employer.

 

22.3       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 subclause 22.1 above if the employer obtains acceptable alternative employment for an employee.

 

22A.  Traineeships

 

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

 

23.  Area, Incidence and Duration

 

This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Malthouses (State) Award published 7 December 2005 (330 IG 25).

 

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 28 February 2008.

 

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

 

Malt Houses (State) Industrial Committee Industries and callings.

 

All persons employed in or in connection with malt houses in the State, excluding the County of Yancowinna:

 

Excepting employees employed by members of the Brewers' Association of New South Wales within the jurisdiction of the Breweries, &c., (State) Industrial Committee;

 

And excepting all persons employed as administrative office cleaners;

 

And excepting also employees within the jurisdiction of the following Industrial Committees: Clerks (State);

 

Builders' Labourers (State); Carpenters, Bricklayers (State); Electricians, &c. (State) Engine Drivers, &c., General (State); Painters, &c. (State);

 

Plasterers, &c. (State); Plumbers and Gasfitters (State); Carters, &c. (State);

 

Sheet Metal Workers, &c. (State); Coopers (State);

 

Ironworkers' Assistants, &c. (State);

 

Commercial Travellers (State).

 

PART B

 

MONETARY RATES

 

Table 1- Wages

 

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 over award payments, and/or

 

(b)      award wage increases since 29 May 1991 other than safety net, State Wage Case, and minimum rates adjustments.

 

Classification

Wage Total

 

$

Malthouse Employee

554.40

 

Table 2 - Other Rates and Allowances

 

Item

Clause No.

Description

Amount

1

2.2

Flat Rate Allowance

9.70 per week

2

2.3

Shift Worker

48.40 per week

3

2.4

Leading Hand

31.40 per week

4

2.5

Laundry Allowance I

7.20 per week

 

 

 

P. J. CONNOR, Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

 

 

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