FOOD PRESERVERS (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales
Branch, industrial organisation of employees.
(No. IRC 475 of 2002)
Before The Honourable
Justice Walton, Vice-President
The Honourable Justice
Marks
Commissioner McLeay
|
28 August 2002
|
VARIATION
1. Insert into the
Arrangement of the award published 16 November 2001 (329 I.G. 489), as varied,
the following new clause number and subject matter:
10A. Implementation of
a 38 Hour Week
2. Delete
paragraph 5.10.3 of clause 5, Contracts of Employment, and insert in lieu
thereof the following:
5.10.3 Saturdays,
Sundays and Holidays - Overtime - The rates of pay for casual employees for
overtime or for work on Saturdays, Sundays and holidays shall be time and a
half or double time, double time and a half, or treble time, as appropriate, in
accordance with clauses 12, Overtime - Rates and Conditions, and 19, Sunday and
Holiday Rates, calculated as to casual day workers or day-shift workers on 1/38th
of the appropriate weekly rate for the work; for such work by a casual employee
on afternoon or night shift the rates ascertained for day workers or day
shift workers shall have added to them
in the case of afternoon
shift 15 per cent or in the case of
night shift 30 per cent.
3. Delete clause
10, Hours of Work, and insert in lieu thereof the following::
10. Hours of Work
10.1. The ordinary
hours of work shall be 38 per week.
10.2. Except for
shift workers, the ordinary hours of work shall be worked in five days of not more
than eight hours continuously except for breaks for meals between 6.00 a.m. and
6.00 p.m. on Mondays to Fridays inclusive.
Provided that where as a result of the introduction of 6.00 am - 6.00
p.m. as ordinary hours of work an existing employee (as at 28 August 2002) may
lose regular or usual overtime, that change with respect to that employee shall
be preceded by consultation with the employee (and where the employee is a
member, consultation with the union) and if the consultation fails to resolve the
matter it shall be settled in accordance with the settlement of disputes
procedure.
10.3. The daily
starting and finishing times for day work shall be fixed by the employer within
the spread of hours prescribed by 10.2 hereof and shall not be altered except
on one week's notice, or during the season, two days' notice, given to the
employee.
10.4. An employee on
day work or day shift may be transferred to an afternoon or night shift on at
least 48 hours notice by the employer.
Where an employee is so transferred without at least 48 hours notice,
the shift or part thereof worked by the employee without that notice shall, for
the purpose of this clause be deemed to be part of the employee's ordinary 38
hours of work. Such work shall be paid
for at an extra half rate for the first three hours and an extra full rate
thereafter on a daily basis in addition to the employee's ordinary rate of pay
and appropriate shift penalties.
Provided that this subclause shall not apply where with the consent of
the employer, an employee agrees with
another employee independently to exchange a rostered shift to suit the
mutual convenience of the employees concerned.
10.5. Rostered days
off falling on a public holiday
10.5.1 An employee who
work continuous work and who by the circumstances of the arrangement of the
employee's ordinary hours of work is entitled to a rostered day off which falls
on a public holiday prescribed by this clause shall, at the discretion of the
employer, be paid for that day 7.6 hours at ordinary rates or have an
additional day added to the employee's annual leave. This provision shall not apply when the public holiday on which
the employee is rostered off falls on a Saturday or Sunday.
10.5.2 In the case of
an employee whose ordinary hours of work are arranged in accordance with
10A.2.2 or 10A.2.4, the week day to be taken off shall not coincide with a
public holiday fixed in accordance with clause 18, Holidays. Provided that, the event that a public holiday
is prescribed after an employee is given notice of the employee's week day off
and the public holiday falls on the week day the employee is to take off, the
employer shall allow the employee to take the day off on an alternate week
day.
4. Insert after
clause 10, Hours of Work, the following new clause 10A, Implementation of 38
Hour Week:
10A. Implementation
of 38 Hour Week
10A.1 Ordinary hours of
work shall be an average of 38 per week as provided in clauses 10, Hours of
Work, and 11, Shift Work.
10A.2 Except as provided
by 10A.4 and 10A.5 hereof, the method of implementation of the 38 hour week may
be any of the following:
10A.2.1 by
employees working less than eight ordinary hours each day; or
10A.2.2 by
employees working less than eight ordinary hours on one or more days each week;
or
10A.2.3 by
fixing one weekday on which all employees will be off during a particular work
cycle; or
10A.2.4 by
rostering employees off on various days of the week during a particular work
cycle so that each employee has one week day off during the cycle.
10A.3 In each plant, an
assessment should be made as to which method of implementation best suits the
business and the proposal shall be discussed with the employees concerned, the
objective being to reach agreement on the method of implementation.
10A.4 Subject to 10.4,
the employer and the majority of employees in the plant or sections or sections
concerned may agree that the hours of work are to exceed eight on any day, thus
enabling a weekday off to be taken more frequently than would otherwise apply.
10A.5 Circumstances may
arise where different methods of implementation of the 38 hour week apply to
various groups or sections of employees in the plant or establishment
concerned.
10A.6 Notice of days off
Except as provided in 10A.7 and 10A.8 hereof, in cases
where, by virtue of the arrangement of employee's ordinary working hours, an
employee, in accordance with 10A.2.3 and 10A.2.4 hereof, is entitled to a day
off during the employee's work cycle, such employee shall be advised by the
employer at least four weeks in advance of the weekday the employee is to take
off. Provided that lesser period of
notice may be agreed by the employer and majority of employees or section or
sections concerned.
10A.7 Substitute days
10A.7.1 An
employer, with the agreement of the majority of employees concerned may
substitute the day an employee is to take off in accordance with 10A.2.3 and
10A.2.4 hereof for another day in the case of a breakdown in machinery or a
failure or shortage of electric power or to meet the requirements of the
business in the event of rush orders or some other emergency situation.
10A.7.2 An
individual employee, with the agreement of the employer, may substitute the day
the employee is to take off for another day.
10A.8 Flexibility in
relation to rostered days off
10A.8.1 Notwithstanding
any other provision of this clause, where the ordinary hours of work of an
establishment, plant or section are organised in accordance with 10A.2.3 and
10A.2.4 hereof an employer, the union and the majority of employees in the
establishment, plant, section or sections concerned may agree to accrue up to a
maximum of five rostered days off in special circumstances such as where there
are regular and substantial fluctuations in production requirements in any
year.
10A.8.2 Where
such agreement has been reached the accrued rostered days off must be taken
within twelve months on which they fall due.
10A.8.3 It is
understood between the parties that the involvement of the union would be
necessary in cases where it has members in the plants concerned and not in
non-union establishments.
5. Delete clause
11, Shift Work, and insert in lieu thereof the following:
11. Shift Work
11.1 Definitions of
Shift Work
"Day Shift'' shall not commence before 6.00 a.m.
"Afternoon Shift'' means any shift commencing
after 6.00 p.m. and at or before midnight.
"Night Shift'' means any shift finishing after
midnight and at or before 8.00 a.m.
11.2 Requirements to
Work Shift Work
Subject to 11.1, 11.6 and 11.7 hereof and clause 10A,
Implementation of 38 Hour Week, an employer may require any employee to perform
a week's work on shift work of five shifts of 8 hours each. Such shifts shall be worked between 11.00
p.m. on a Sunday and 8.00 a.m. on the following Saturday.
11.3 Shift Rates
Except where a higher rate of pay is provided under
clause 19, Sunday and Holiday Rates, for work on a Sunday or holiday, payment
for any afternoon shift shall be at ordinary time plus 15 per cent, and for any
night shift shall be at ordinary time plus 30 per cent. Provided that as to casual employees on
shift work, subclause 5.10.2 of clause 5, Contracts of Employment, shall apply.
11.4 Meal Breaks on
Shift Work
A meal break of 30 minutes shall be allowed to shift
workers on all shifts, other than day shift, to be taken as nearly as possible
in the middle of the shift. Where three
shifts (day, afternoon and night) are worked, the time of such meal break will
be counted and paid for as time worked.
11.5 Restrictions
No employees under the age of 18 years shall be
employed on night shift.
11.6 Alteration -
Times of Duties
The commencing and finishing times of shift work shall
be fixed by the employer and shall not be altered except on one week's notice or,
during the season, two days' notice, given to the employee.
11.7 Shift Transfers
An employee on afternoon or night shift may be
transferred to day work, day shift or another shift on at least 48 hours'
notice by the employer. Where an
employee is so transferred without at least 48 hours' notice, any day or shift
or part thereof worked by the employee shall be deemed to be part of the
employee's 38 hours of employment. Such
work shall be paid for at an extra half-rate for the first 3 hours and an extra
full rate thereafter on a daily basis in addition to the employee's ordinary
rate of pay and shift penalties, if applicable. Provided that this subclause shall not apply where, with the
consent of the employer, an employee agrees with another employee independently
to exchange a rostered shift to suit the mutual convenience of the employees
concerned.
6. Delete
paragraphs 12.1.1 and 12.1.3. of clause 12, Overtime, and insert in lieu
thereof the following:
12.1.1 Day Workers
Monday to Friday Inclusive
For all time worked before 6.00a.m. or after 6.00p.m.
or before the fixed starting time or after the fixed finishing time on any day,
Monday to Friday inclusive, or in excess of 8 ordinary hours on any such day -
time and one-half for the first three hours and double time thereafter, such
double time to continue until the completion of the overtime work.
12.1.3 Shift Workers
(a) For all time
worked before the fixed starting time of any shift or after the fixed finishing
time of any shift or in excess of 8 hours on any shift, or in excess of 38
ordinary hours on shift in any week - time and one-half for the first three
hours and double time thereafter, plus, for all such overtime, 15 per cent of
ordinary time if on afternoon shift or 30 per cent of ordinary time if on night
shift. Such entitlements shall continue
until the completion of overtime work.
(b) Where work
commences on a Saturday, until noon - time and one- half for the first three
hours and double time thereafter up to noon, plus for all such work 15 per cent
of ordinary time if on afternoon shift; and after noon - double time, plus 15
per cent of ordinary time if on afternoon shift or 30 per cent of ordinary time
if on night shift.
7. Delete
subclause 21.1 of clause 21, Sick Leave, and insert in lieu thereof the
following:
21.1 Except as
otherwise provided, an employee (other than a casual) who is absent from work
during ordinary hours on account of personal illness, injury, elective surgery,
or dental work other than routine dental maintenance, shall in the case of a
day worker, be entitled to leave of absence at the ordinary time rate of pay of
the appropriate classification and in the case of a shift worker at the
ordinary time rate of pay of the appropriate classification plus the employee’s
relevant shift allowance, of 38 hours of paid sick leave during the employee’s
first year of employment with the employer and to 61 hours of paid sick leave
during each subsequent year of continuous employment, subject to the following
conditions and limitations:
8. Delete
clause 29, Payment of Wages, and insert in lieu thereof the following:
29. Payment of Wages
29.1. The employer
may determine the method of payment of wages which shall be paid weekly, during
working hours, by one of the following ways:
(a) Cash;
(b) Cheque; or
(c) Electronic
funds transfer (EFT) into the employees' nominated financial institution
account, without cost to the employee.
29.2 Payment of cash
or cheque wages - if cash or cheque wages are to be paid, such cash or cheque
wages shall be paid without delay prior to the employee ceasing work on the
nominated pay day. Employees who are
kept waiting for their cash or cheque wages for more than ten minutes after the
usual time for ceasing work shall be paid overtime rates for all waiting
time. This subclause shall not apply if
cash or cheque wages cannot be paid within working time due to circumstances
beyond the employer's control.
29.3 Payment of wages
by EFT - where wages are paid by into an employee's nominated bank account,
wages shall be available on the nominated pay day. If the wages are not available on the designated pay day, the
employee shall contact the employer, who shall contact the relevant financial
institution for the wages to be made available.
If, by the day following the designated pay day, the
wages are still not available, employees who are kept waiting for wages to be
credited into their nominated bank account for more than ten minutes after the
usual time for ceasing work on pay day shall be paid overtime rates for all
waiting time. This subclause shall not
apply if wages cannot be paid within working time due to circumstances beyond the
employer's control.
29.4 Payment on termination
- upon termination of employment, in the case of cash payment of wages or
payment of wages by electronic funds transfer, all wages due to an employee
(including a casual) shall be paid to an employee on the day of termination. In the case of payment of wages by cheque,
such wages shall be forwarded to the employee by post on the next ordinary
working day.
9. This
variation shall take effect from the first full pay period to commence on or
after 28 August 2002.
M. J. WALTON J,
Vice-President.
F.
MARKS J.
J. McLEAY, Commissioner.
____________________
Printed by
the authority of the Industrial Registrar.