QCM (OZROCK) PTY LTD AND AUSTRALIAN WORKERS' UNION, PORT KEMBLA (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by QCM Pty Ltd.

 

(No. IRC 4030 of 2003)

 

 

AWARD

 

Clause No.          Subject Matter

 

1.         General

2.         Purpose

3.         Scope

4.         References

5.         Definitions

6.         Award

6.1        Administration

6.2        Terms of Employment

6.3        Remuneration

6.4        Hours of Work

6.5        Overtime and Meals

6.6        Public Holidays

6.7        Annual Leave

6.8        Representative

6.9        Resolution of Issues

7.         Document Authorisation

8.         Classification

9.         Casual Employees

10.       Training Rates

11.       Mixed Functions

12.       Hours Of Duty

13.       Shift Work Allowances for Shift Workers

14.       Saturday Rates for Shift Workers

15.       Night Work for Day Workers and Day Shift Workers

16.       Transfer of Day Workers from Day Work to Shift Work

17.       Transfer of Shift Workers

18.       Overtime

19.       Requirement to Work in Accordance with the Needs of the Industry

20.       Holidays

21.       Sunday and Holiday Rates

22.       Maximum Payment

23.       Employees Presenting Themselves for Work and Not Required

24.       Sick Pay

25.       Annual Leave

26.       Days Added to the Period of Annual Leave or Long Service Leave

27.       Long Service Leave

28.       Jury Service

29.       Compassionate Leave

30.       Contract of Employment

31.       Automation

32.       Retrenchment

33.       Retention Rate

34.       Definitions

35.       Time and Payment of Wages

36.       Shop Delegates or Stewards

37.       Procedure for Resolving Claims, Issues and Disputes

38.       Maternity Leave

39.       Clothing and Footwear

40.       Area, Incidence and Duration

42.       Personal/Carer's Leave

43.       Anti-Discrimination

 

Appendix 1 - Wages

 

1.  General

 

This award, made on 24 July 2003 pursuant to section 11 of the Industrial Relations Act 1996, is between QCM Pty Ltd. (the Company) and The Australian Workers’ Union, New South Wales (the Union)

 

2.  Purpose

 

The purpose of this document is to describe the working relationship between the manager and operators of the Rocky Lite Plant, to ensure a balanced, comprehensive, integrated approach is taken to achieve safety, quality and productivity.

 

3.  Scope

 

This award applies to all operators (members of The Australian Workers’ Union, New South Wales) employed at the RLP.

 

4.  References

 

RL.03.01 Position Description.

 

5.  Definitions

 

RLP - Rocky Lite Plant

 

AWU - The Australian Workers’ Union, New South Wales

 

6.  Award

 

6.1        Administration

 

This award will operate from 1 December 2002 and will continue in force until 1 December 2004.  Authorisation of the award will be by the Manager and the AWU Branch Secretary.

 

6.2        Terms of Employment

 

6.2.1     Employment of operators will be by the week.

 

6.2.2     Employment can be terminated by either party on one week's notice.  Where the manager terminates an operator, one week's salary in lieu of notice can be paid.  Where the operator leaves without notice, they forfeit one week's salary.

6.3        Remuneration

 

6.3.1     Salary will be paid into bank account(s) fortnightly as nominated by the operator.

 

6.3.2     The following base salaries are applicable:

 

Refer Appendix 1

 

6.3.3     Operators will be covered by an accredited superannuation fund.

 

6.4        Hours of Work

 

6.4.1     Hours of work will be mutually agreed between the manager and operators, taking due account of the needs of the business.  The hours will be based on an average of 38 ordinary hours per week, to be worked Monday to Friday.

 

6.4.2     Operators will maintain their own rosters for accomplishing work required in the agreed hours of work.

 

6.4.3     Operators required to work regular afternoon or night shift will be entitled to an allowance of 15% of base salary.

 

6.5        Overtime and Meals

 

6.5.1     All work performed outside the agreed working hours (except Sundays and public holidays) will be paid at the rate of time and a half for the first two hours and double time thereafter.  Sundays will be paid at double time and public holidays at double time and one half.

 

6.5.2     When operators work overtime and it extends beyond normal meal times, meals will be provided by QCM.

 

6.5.3     The operators’ salary includes four hours' pre-paid overtime per week.  This paragraph, whilst agreed, is on a ‘leave reserved’ basis to examine it through the life of the award should the overtime situation change.

 

6.6        Public Holidays

 

Public holidays are those gazetted in New South Wales.

 

6.7        Annual Leave

 

Operators are entitled to four weeks' annual leave for each year of service.  A loading of 20% of base salary will apply.

 

6.8        Representative

 

Operators shall elect a representative to act only as the focal point for any required Union business.  This representative is not the communication channel between the manager and other operators.

 

6.9        Resolution of Issues

 

Any issues not covered within or by this award are to be resolved by the manager and operators.  If necessary, qualified, professional advice will be sought in order to resolve the issue.

 

7.  Document Authorisation

 

This award has been signed for and on behalf of QCM and The Australian Workers' Union, Port Kembla, South Coast & Southern Highlands Branch, pursuant to the Industrial Relations Act 1996 between QCM Pty Ltd (the Company) and The Australian Workers' Union, New South Wales (the Union)

 

It has been agreed by the Company and the Union that this award shall be called the QCM (OzRock) Pty Ltd. and Australian Workers’ Union, Port Kembla (State) Award.

 

8.  Classification

 

The parties to this award are committed to a classification structure which will create a highly skilled workforce with a clearly defined career path which is appropriate to the efficient conduct of the Company’s business.

 

The parties recognise that, for the efficiency of the business, employees shall work in accordance with flexible work practices, including any work the employee is competent to perform within the agreed classifications/groupings and that the employee will be paid for skills possessed and not for actual work he or she performs.

 

9.  Casual Employees

 

(i)         Casual employees are engaged by the hour

 

(ii)        Casual employees shall be paid for each hour worked, 1/38th of the appropriate weekly wage prescribed by Appendix 1, plus 25%.

 

10.  Training Rates

 

(i)         Employees, during training, shall be paid at the rate immediately below that for which they are training.

 

(ii)        Training periods are not to exceed 30 full working days.

 

11.  Mixed Functions

 

(i)         An employee who is required to do work carrying a higher rate than his ordinary classification for two hours or more on any day or shift shall be paid at the higher rate for the whole of the day or shift.

 

(ii)        Subject to subclause (i) of this clause, an employee who on any day or shift is required to do work of a higher paid classification for at least one hour shall be paid the rate prescribed for such work whilst so engaged.

 

12.  Hours of Duty

 

(i)         All Employees

 

Ordinary working hours shall be an average of 38 hours per week over the full cycle of the relevant work roster.  Ordinary working hours shall not exceed:

 

(a)        Eight during any consecutive 24 hours; or

 

(b)        152 in 28 consecutive days

 

except in the case of rostering arrangements which provide for the weekly average of 38 ordinary hours to be achieved over a period which exceeds 28 consecutive days.

 

The starting and finishing times of ordinary work and shifts shall be determined by the Company and may be varied by consultation with employee representatives.

 

(ii)        Day Workers

 

(a)        Ordinary working hours shall be worked Monday to Friday inclusive, between the hours of 6.00am and 6.00pm.

 

(b)        On each day worked, Monday to Friday inclusive, not less than 30 minutes nor more than 45 minutes shall be allowed to day workers for a meal and, except in the case of urgent breakdown work necessary to secure an immediate resumption of operations, shall be allowed between the hours of 11.30am and 1.20pm.

 

(iii)       Shift Workers

 

20 minutes shall be allowed each shift for crib which shall be counted as time worked.

 

13.  Shift Work Allowances for Shift Workers

 

(i)         Shift workers shall be paid, in addition to the rates payable under this award, shift work allowances.

 

(a)        Shift workers whilst working rotating shifts (day shift, night shift, afternoon shift), with regular weekly changes - at the rate of $35.10 per 38-hour week in respect of all shifts worked.

 

Provided that each such rotating shift worker, when engaged under a roster system which does not provide for at least one-third of his working time in the full cycle of the roster being on day shift, shall be paid an additional shift allowance at the rate of $23.00 per 38-hour week in respect of each of any number of afternoon and/or night shifts more than two thirds of his working time in the roster worked by him.

 

Provided further that working time on day shift shall, if necessary, include shifts rostered off on day shift not exceeding an average over the full cycle of the roster of one per week.

 

(b)        Adult shift workers whilst working shift work which involves regular weekly changes as follows:

 

	Shift	Rate per 38-hour week
		$
(1)	day shift, night shift	35.10
(2)	day shift, afternoon shift	29.30
(3)	day shift, day shift, afternoon shift	29.30
(4)	day shift, day shift, night shift	29.30

 

(c)        Junior shift workers when working under any of the shift systems set out in paragraph (b) of this subclause - at the rate of $35.10 per 38-hour week.

 

(d)        Adult shift workers whilst working shift work on shift systems as follows:

 

(1)        night shift, afternoon shift

 

(2)        night shift only

 

(3)        afternoon shift only

 

at the rate of $46.90 per 38 hour week.

 

(e)        Shift workers who work any after noon or night shift other than under the shift systems set out in subparagraphs (a), (b) and (d) of this subclause, and are not paid in respect of any day shift worked shall be paid at the rate of $13.90 per shift for each afternoon or night shift worked.

 

(ii)        ‘Night Shift’ means any shift finishing subsequent to midnight and at or before 8.00am and ‘Afternoon Shift’ means any shift finishing after 6.00pm and at or before midnight.

 

(iii)       A shift shall be determined as being a Saturday, Sunday of public holiday if the major portion of that shift is worked on that day.

 

14.  Saturday Rates for Shift Workers

 

Shift workers for their ordinary shift of eight hours performed on Saturday shall be paid at the rate of time and a half.

 

15.  Night Work for Day Workers and Day Shift Workers

 

(i)         Subject to clause 22, Maximum Payment, of this award, but otherwise notwithstanding anything contained herein:

 

(a)        a day worker who is required in lieu of ordinary day work; or

 

(b)        a day shift worker who is required in lieu of a day shift on which he would ordinarily be rostered

 

to work at night for periods of not less that eight hours on less than five consecutive nights or on less than four consecutive nights when the fifth night is his 38-hour week rostered off night shall be paid at the rate of time and one half of the ordinary rate of pay under Appendix 1 of this award, or the corresponding clause of a Federal award, except:

 

(c)        on Saturdays, Sundays, 38-hour week rostered off days and holidays; and

 

(d)        in respect of any night of which he has not been given at least 48 hours’ notice

 

when he shall be paid at overtime rates for day workers.  No shift allowance is payable in respect of night work under this clause.

 

(ii)        In this clause ‘night’ means any hours between 4.00pm and 6.00am, and ‘day shift workers’ means a shift worker employed on a shift system involving day shift only.

 

16.  Transfer of Day Workers from Day Work to Shift Work

 

Day workers may be employed as and become shift workers for a period of not less than five shifts or not less than four shifts when the fifth shift is his 38-hour week rostered off shift and shall be paid accordingly.

 

Provided that an employee shall be paid overtime rates for any shift upon which he is employed as a shift worker under this clause in respect of which he has not been given at least 48 hours’ notice.

 

17.  Transfer of Shift Workers

 

A shift worker is who is required to work on a shift other than the shift on which he would ordinarily be rostered shall be paid at overtime rates for any such shift in respect of which he has not been given at least 48 hours’ notice.

 

This provision shall not apply when the employee reverts to the shift on which he would ordinarily have been rostered.

 

18.  Overtime

 

(i)         Day Workers

 

(a)        Day workers for all time worked in excess of or outside the ordinary working hours and times prescribed by this award shall be paid at the rate of time and one half for the first two hours and at the rate of double time thereafter.

 

(b)        Except in the case of urgent breakdown work necessary to secure an immediate resumption of operations, overtime shall be paid for all time worked in excess of five hours without a meal break.

 

(ii)        Shift Workers

 

For all time worked:

 

(a)        in excess of the ordinary working shift hours prescribed by this award; or

 

(b)        on more than 11 shifts in 12 consecutive days; or

 

(c)        on a rostered shift off; or

 

(d)        in excess of five and one half hours without a crib break

 

shall be paid at the rate of time and one half for the first two hours and at the rate of double time thereafter.  This clause shall not apply when the time is worked:

 

(1)        by arrangement between the employees themselves; or

 

(2)        for the purpose of effecting the customary rotation of shifts.

 

(iii)       General

 

(a)        When overtime work is necessary, it shall, wherever reasonably practicable, be so arranged that employees have at least eight consecutive hours off duty between work of successive days.  An employee who works so much overtime between the termination of his ordinary work on one day and the commencement of his ordinary work on the next day that he has not had at least eight consecutive hours off duty between those times shall, subject to this subclause, be released after completion of such overtime until he has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.  If on the instructions of the Company such an employee resumes or continues working without having had eight consecutive hours off duty, he shall be paid at double rates until he is released from duty for such period and he then shall be entitled to be absent until he has had eight consecutive hours off duty, without loss of pay, for ordinary working time occurring during such period. Where, immediately after taking an eight-hour rest period pursuant to this subclause, an employee is required to report for work at other than his ordinary day or shift commencing time and reasonable means of transport are not available to him, the Company shall convey him or supply him with conveyance to the works.

 

(b)        A day worker required to work on a Saturday, Sunday, a 38-hour week rostered day off, or a holiday, or a Monday to Saturday shift worker required to work on a Sunday, a 38-hour week rostered day off, or a holiday, shall be paid for a minimum of four hours’ work.  Provided that an employee recalled from his home to work overtime shall be paid for a minimum of four hours’ work.  Where the actual time worked is of shorter duration than the applicable minimum specified in this paragraph, the working period shall not be regarded as overtime for the purpose of paragraph (a) of this subclause.

 

(c)        An employee required to continue at work on overtime for more than one and a half hours after his ordinary ceasing time without having been notified before leaving his work on the previous day that he would be required to work overtime shall, at the employee’s option:

 

(1)        be provided, free of cost, with a suitable meal and another meal for each subsequent meal break into which the work extends; or

 

(2)        be paid $7.30 for each meal.

 

(d)        If an employee, pursuant to notice, has provided a meal and is not required to work overtime or is required to work for less than one and a half hours, he shall be recompensed suitably for the meal which he has provided but which is surplus.

 

(e)        A fraction of a quarter of an hour of overtime shall count as a quarter of an hour if more than five minutes thereof have been worked.

 

(f)         Where an employee working overtime finishes work at a time when reasonable means of transport are not available to him the Company shall:

 

(1)        within a reasonable time convey him or supply him with conveyance to:

 

(a)        a reasonable distance from his home; or

 

(b)        a place to which he usually travels by public conveyance when returning home from work; or

 

(c)        a place from which he can, within a reasonable time, obtain public conveyance to reasonable distance from his home or the place to which he usually travels by public conveyance when returning home from work, or

 

(2)        pay him his current rate of pay for the time reasonably occupied in reaching his home.

 

(g)        An employee who is recalled from his home to work overtime shall, at the employee’s option:

 

(1)        be provided, free of cost, with a suitable meal for each normal meal break falling during the overtime for which he was called out; or

 

(2)        be paid $7.30 for each such meal.

 

(iv)       For the purposes of this clause, a recall from home to work overtime takes place when an employee is notified at home of the requirement to return to work.

 

19.  Requirement to Work in Accordance with the Needs of the Industry

 

(i)         For the purpose of meeting the needs of the industry, the Company may require and employee to work reasonable overtime, including work on a Sunday and a holiday, at the rate prescribed by this award and, unless reasonable excuse exists, the employee shall work in accordance with such requirement.

 

(ii)        Subject to clause 16, Transfer of Day Workers from Day Work to Shift Work, and clause 17, Transfer of Shift Workers, of this award, for the purpose of meeting the needs of the industry the Company may require any employee to transfer from one system of work to another system of work prescribed by this award at the rate applicable thereto and, unless reasonable cause exists, an employee shall transfer in accordance with such requirement.

 

20.  Holidays

 

(i)         The days on which New Year’s Day, Good Friday, the Saturday following Good Friday, Easter Monday, Anzac Day, Queen’s Birthday, the local Eight-hour Day, Christmas Day and Boxing Day and the picnic day of The Federal Ironworkers’ Association of Australia, Port Kembla Branch, if any, are observed and special days appointed by proclamation as public holidays throughout the State shall be holidays and day workers and Monday to Saturday shift workers not required to work on a holiday shall be paid for the holiday at the ordinary rates of pay under Appendix 1.

 

(ii)        This provision for payment does not apply to:

 

(a)        employees whose rostered shift off falls on a holiday (subject to the provisions of paragraph (b) of subclause (ii) of clause 26, Days Added to the Period of Annual Leave or Long Service Leave, of this award);

 

(b)        employees absent without leave or reasonable excuse on the working day preceding or the working day succeeding a holiday.

 

21.  Sunday and Holiday Rates

 

(i)         Employees shall be paid at the rate of double time for all work done on Sundays and at the rate of double time and one half for all work done on the holidays prescribed by this award.

 

22.  Maximum Payment

 

(i)         Shift allowance and special rates shall not be subject to any premium or penalty additions.

 

(ii)        All rates prescribed by this award shall not exceed double the rate prescribed by Appendix 1 of this award, provided that this subclause shall not apply to any excess due to payments under clause 13, Shift Work Allowance for Shift Workers, or clause 21, Sunday and Holiday Rates (in respect of work done on holidays) of this award.

 

23.  Employees Presenting Themselves for Work and Not Required

 

Subject to the provisions of clause 30, Contract of Employment, of this award, an employee who presents himself for his ordinary work without notice that he will not be required shall be paid at least four hours’ pay.

 

24.  Sick Pay

 

(i)         An employee who is unable to attend for duty during his ordinary working hours by reason of personal illness or personal incapacity not due to his own serious and wilful misconduct shall be entitled to be paid at ordinary time rates of pay and which would have been payable if he had attended for duty, for the time of such non-attendance subject to the following:

 

(a)        he/she shall not be entitled to be paid leave of absence for any period in respect of which he/she is entitled to workers’ compensation;

 

(b)        he/she shall, within 24 hours of commencement of such absence, inform the Company of his/her inability to attend for duty and, as far as possible, state the nature of the illness or incapacity and the estimated duration of the same;

 

(c)        any absence for which payment under this clause is claimed will require a medical certificate as proof of illness or injury;

 

(d)        he/she shall not be entitled in respect of any year of continued employment to sick pay for more than the number of ordinary working hours specified in paragraph (e) of this subclause.  Any period of paid sick leave allowed by the Company to an employee in any such year shall be deducted from the period of sick leave which may be allowed of may be carried forward under this award in or in respect of the earliest year of employment for which the employee has an accumulated of accrued right;

 

(e)        the number of ordinary working hours referred to in paragraph (d) of this subclause shall be:

 

(1)        in the case of an employee with less than one year's continued employment: 40

 

(2)        in the case of an employee with one or more year’s continued employment: 80

 

(ii)

 

(a)        The rights under this clause shall accumulate from year to year so long as the employment continues with the Company, whether under this or any other award, so that any part of the number of ordinary working hours specified in paragraph (e) of subclause (i) of this clause which has not been allowed in any year may be claimed by the employee and shall be allowed by the Company, subject to the conditions prescribed by this clause, in a subsequent year of such continued employment.

 

(iii)       In the case of an employee who otherwise is entitled to payment under this clause but who, at the time the absence concerned, has not given three months’ continuous service in his current employment with the Company, the right to receive payment shall not arise until he has given such service.

 

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

 

(a)        any absence from work on leave granted by the Company; or

 

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

 

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

 

25.  Annual Leave

 

(i)         Day workers and Monday to Saturday shift workers:

 

For annual leave provision, see Annual Holidays Act 1944.

 

(ii)        Shift workers whose working period includes Sundays and holidays as ordinary working days:

 

(a)        In addition to the benefits provided by section 3 of the Annual Holidays Act 1944, with respect to an annual holiday of four weeks, an employee who, during the year of his employment with the Company with the respect to which he becomes entitled to the said annual holiday of four weeks, gives service to the Company as a seven-day shift worker, shall be entitled to the additional leave as below specified:

 

(1)        If during the year of his employment he has served the Company continuously as such seven-day shift worker, the additional leave with respect to that year shall be one week;

 

(2)        Subject to subparagraph (4) of this paragraph, if during the year of his employment he has served for only portion of it as such seven-day shift worker, the additional leave shall be one day for every 33 ordinary shifts worked as a seven-day shift worker;

 

(3)        Subject to the said subparagraph (4), an employee shall be paid for such additional leave at the annual leave rate of pay, for the number of ordinary hours of work for which such employee would have been rostered for duty during the period of additional leave had such employee not been on such additional leave;

 

(4)        Where the additional leave calculated under this subclause is or 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.

 

(5)        In this clause reference to one week and one day includes holidays and non-working days.

 

(b)        Where the employment of a worker has been terminated and he thereby becomes entitled under section 4 of the Annual Holidays Act 1944 to payment in lieu of an annual holiday with respect to a period of employment, he also shall be entitled to an additional payment of three and one half hours at the annual leave rate of pay with respect to such 21 shifts of service as such seven-day shift worker which he has rendered during such period of employment.

 

(iii)       Monday to Saturday shift workers who are regularly rostered for duty on Saturdays as ordinary working days:

 

In addition to the benefits provided by section 3 of the Annual Holidays Act 1944, with regard to an annual holiday of four weeks, an employee who, during the year of his employment with the Company with respect to which he becomes entitled to the said annual holiday of four weeks, gives service to the Company as a Monday to Saturday shift worker who is regularly rostered for duty on Saturdays as ordinary working days, shall be entitled to the additional leave as hereunder specified:

 

(a)        For every 13 Saturdays upon which the employee worked an ordinary shift as a Monday to Saturday shift worker who is rostered for duty on Saturdays as ordinary working days, the additional leave with respect to that year shall be one day.

 

(b)        Where the additional leave calculated under this subclause is or 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.

 

(iv)       All Employees - Annual Leave Loading

 

(a)        In respect of a period of annual leave an employee shall be paid a loading, namely 20%, or

 

(1)        His ordinary pay pursuant to the Annual Holidays Act 1944 and, where applicable, his annual leave rate of pay pursuant to this clause and clause 24, Days Added to the Period of Annual Leave or Long Service Leave, of this award; or

 

(2)        The sum of his award rate of pay for ordinary time at the commencement of his annual leave as prescribed by Appendix 1, provided that an employee who would have worked on shift work had he not been on annual leave shall be paid whichever is the greater of the said loading, or the shift work allowance pursuant to clause 13, Shift Work Allowances for Shift Workers, and the weekend penalty rates pursuant to clause 14, Saturday Rates for Shift Workers, and (in respect of Sundays only), clause 21, Sunday and Holiday Rates, that would have been payable to him in respect of ordinary time during his period of annual leave had he not been on annual leave.

 

(b)        The loading prescribed by this subclause shall apply to payment in lieu of a fully due annual holiday on termination of employment, but shall not apply to proportionate annual holiday payment on termination of employment.

 

26.  Days Added to the Period of Annual Leave or Long Service Leave

 

(i)         In the case of an employee who was, at the commencement of his annual leave or long service leave, employed as a seven-day shift worker and whose working period includes Sundays and holidays as ordinary working days, one day shall be added to his annual leave or long service leave period in respect of any holiday prescribed by this award which falls within the period of annual leave or long service leave to which he is entitled under this award.

 

(ii)        An employee who is rostered off duty on a day which is a holiday prescribed by this award and who is not required to work on that day shall:

 

(a)        have one day added to his annual leave or long service leave period; or

 

(b)        by mutual consent, be paid, in the pay for the period in which the holiday falls, for the holiday at the rate payable pursuant to subclause (i) of clause 20, Holidays, of this award.

 

This subclause shall not apply when the holiday falls:

 

(1)        on a Saturday or Sunday except in the case of employees employed as seven-day shift workers; or

 

(2)        on a Sunday in the case of employees employed as Monday to Saturday shift workers who are regularly rostered for duty on Saturdays as ordinary working days.

 

(iii)       Any day or days added shall be paid for at the annual leave rate of pay and in the case of long service leave shall be paid for at the long service leave rate of pay.

 

(iv)       Any day or days added in accordance with subclauses (i) or (ii) of this clause shall be the working day or working days immediately following the period of annual leave of long service leave to which the employee is entitled under clause 25, Annual Leave or clause 27, Long Service Leave, of this award.

 

(v)        For the purposes of subclause (iv) of this clause, working days shall be:

 

(a)        In the case of an employee who, at the commencement of his period of annual leave or long service leave, was employed as a day worker - any day of the week, including a day on which the employee concerned would have been rostered off duty if he were not of annual leave or long service leave, but excluding a Saturday, a Sunday, or a holiday prescribed by this award.

 

(b)        In the case of an employee who, at the commencement of his period of annual leave or long service leave, as the case may be, was employed as a Monday to Saturday shift worker - any day of the week other than a Sunday or a holiday prescribed by this award including a day on which the employee concerned would have been rostered off duty if he were not on annual leave or long service leave.

 

(c)        In the case of an employee who, at the commencement of his period of annual leave or long service leave, as the case may be, was employed as a seven-day shift worker - any day of the week, including a day on which the employee concerned would have been rostered off duty if he were not on annual leave or long service leave.

 

(vi)       Where the employment of a worker has been terminated and he thereby becomes entitled under section 4 of the Annual Holidays Act 1944 to payment in lieu of an annual holiday with respect to a period of employment, he also shall be entitled to an additional payment for each day accrued to him under subclause (ii) of this clause, at the annual leave rate of pay.

 

(vii)      An employee who is employed as a seven-day shift worker who:

 

(a)        has a day added to his annual leave or long service leave pursuant to subclauses (i) and (ii) of this clause; and

 

(b)        such a day falls on a holiday prescribed by clause 20, Holidays, of this award, on which the employee would have been rostered to work an ordinary shift were it not for his entitlement to an added day,

 

shall be paid for such day, in addition to his entitlement under subclause (iii) of this clause, at the rate prescribed by subclause (i) of the said clause 20.

 

27.  Long Service Leave

 

13 weeks after ten years.  Pro rata after five years.

 

28.  Jury Service

 

An employee required to attend for jury service:

 

(i)         during ordinary working hours; or

 

(ii)        immediately following an ordinary night shift or immediately preceding an ordinary afternoon shift on which the employee is rostered to work and, as a result of attending jury service, is not reasonably able to report for work on the night shift or afternoon shift, as the case may be,

 

shall be reimbursed by the Company an amount equal to the difference between the amount paid in respect of his attendance for such jury service and his ordinary time rate of pay.

 

An employee shall notify the Company as soon as possible of the date upon which he is required to attend for jury service.  Further, the employee shall give the Company proof of his attendance, the duration of such attendance and the amount received in respect of such jury service.

 

29.  Compassionate Leave

 

An employee shall, on production of acceptable proof of the death of a person prescribed for the purposes of personal/carer's leave in subparagraph (ii) of paragraph (c) of subclause (1) of clause 42, or of a step-parent, parent-in-law or grandparent-in-law, be entitled on notice to compassionate leave without deduction from ordinary wages for such a period not exceeding five days as is reasonable in the circumstances.

 

Compassionate leave will not be granted if the period of leave coincides with any period of paid leave.

 

Compassionate leave may be taken in conjunction with other leave available under subclauses (2), (3), (4), (5) and (6) of the said clause 42.

 

30.  Contract of Employment

 

(i)         Subject as provided for elsewhere in this award, employment shall be on a weekly basis.

 

(ii)        Employment of employees on probation for the first eight weeks of service shall be from day to day at the weekly rate fixed determinable at a day’s notice.

 

(iii)       Employees shall perform such work as the Company shall, from time to time, reasonably require and an employee not attending for or not performing his duty shall, except as provided by clause 24, Sick Pay, of this award, lose his pay for the actual time of such non-attendance or non-performance.

 

(iv)       Subject as aforesaid, employment shall be terminated by a week’s notice on either side, given at any time during the week, or by the payment of forfeiture of a week’s wages, as the case may be.  Where an employee has given notice or has been given notice by the Company, he shall, upon request, be granted leave of absence without pay for one day or shift during the period of notice in order to look for alternative employment.

 

(v)        Notwithstanding the provisions of this clause, the Company shall have the right to suspend an employee for refusal of duty, malingering, inefficiency, neglect of duty or misconduct on the part of the employee and to deduct payment for any day or portion of a day during which the employee is so suspended, provided that:

 

(a)        No employee shall be suspended before an adequate investigation of the circumstances of the alleged offence has been made or, except in the case of a group suspension, before he has had an opportunity to state his case and adduce witnesses to the facts.

 

(b)        Where the superintendent is on duty, any decision as to the suspension of the employee shall be made by him.

 

(c)        Where no superintendent is on duty in the department, a foreman may suspend an employee for a period not exceeding the balance of the shift where the employee refuses duty or where the foreman reasonable is of the opinion that the continued presence of the employee on the plant would be likely to:

 

(1)        constitute a hazard either to the employee himself or to other employees or to plant and equipment; or

 

(2)        interfere with normal and orderly functioning of the Company’s operations; or

 

(3)        be prejudicial to discipline.

 

(d)        Where a foreman suspends an employee, he shall arrange for the employee to be interviewed by the superintendent not later than the commencement of the employee’s next rostered shift of duty or at such other time as may be arranged mutually and the superintendent after reviewing the case shall inform the employee of his decision on the matter.

 

(e)        An employee shall be entitled to appeal against any decision of the superintendent but the decision shall take effect pending the determination of the appeal.

 

(f)         Superintendent shall include:

 

(1)        any officer with authority higher  than the superintendent

 

(2)        any officer acting as a superintendent’s deputy in the absence of the superintendent.

 

(g)        Group suspension shall mean the suspension under this clause of a group of not less than four employees who have refused duty or who have committed misconduct whilst acting in concert.

 

(vi)       This clause shall not affect the right of the Company to deduct payment for any day during which an employee cannot be employed usefully because of any strike or through any breakdown of machinery or due to any cause for which the Company reasonably cannot be held responsible.

 

(vii)      This clause shall not affect the right of the Company to dismiss an employee without notice for refusal of duty, malingering, inefficiency, neglect of duty or misconduct and in such cases wages shall be payable up to the time of dismissal only, provided that:

 

(a)        No employee shall be dismissed without notice before an adequate investigation of the circumstances of the alleged offence has been made.

 

(b)        Any decision as to the dismissal of an employee without notice shall be made by the superintendent.

 

(c)        When a superintendent decides to dismiss an employee without notice, the superintendent shall so tell the employee and give the employee the reasons for the dismissal without notice.

 

(d)        If immediately following a dismissal without notice, the dismissed employee, or his delegate, tells the superintendent that the dismissal will be contested:

 

(1)        The dismissal shall take effect seven calendar days from the time that the employee was told of his dismissal; and

 

(2)        During these seven days, notwithstanding the provisions of subclause (v) of this clause, the employee shall be suspended without pay.

 

(viii)     Abandonment of Employment

 

(a)        The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer shall be prima facie evidence that the employee has abandoned his/her employment.

 

(b)        Provided that, if within a period of 14 days from his last attendance at work or the date of his last absence in respect of which notification has been given of consent has been granted, an employee has not established to the satisfaction of his employer that he/she was absent for reasonable cause, he/she shall be deemed to have abandoned his employment.

 

(c)        Termination of employment by abandonment in accordance with this subclause shall operate as from the date of the last attendance at work or the last day’s absence in respect of which notification was given to the employer, whichever is the later.

 

31.  Automation

 

(i)         Notwithstanding the provisions of clause 30, Contract of Employment, of this award where, on account of the introduction or proposed introduction by the Company of mechanisation or technological changes in the industry covered by this award, the Company proposes to terminate the employment of an employee who has been employed by it for the preceding 12 months, it shall give the employee three months’ notice of the termination of his employment; provided that, if the employment of such employee is terminated on that account and the Company fails to give such notice in full:

 

(a)        the Company shall pay the employee at the ordinary rate of pay for the employee’s classification in Appendix 1 of this award, for a period equal to the difference between three months and the period of the notice given; and

 

(b)        the period of notice required by this clause to be given shall be deemed to be service with the Company for the purpose of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of those Acts; and provided further that the right of the Company to dismiss an employee for the reasons specified in the said clause 30 shall not be prejudiced by the fact that the employee has been given notice pursuant to this clause of the termination of his employment.

 

(ii)        Where the Company proposes to introduce into the industry covered by this award mechanisation or technological changes which will result in one or more employees becoming redundant, the Company shall give notification in accordance with this subclause at least six months before the introduction of such mechanisation or technological changes and, if it is not practicable for the Company to give such notifications at least six months before such introduction, then the Company shall give the notifications as early as it is practicable for the Company to give them.

 

The notification to be given in accordance with this subclause are notifications in writing to the Industrial Registrar, the Director of the Vocational Guidance Bureau, the Director of Technical and Further Education and the State Secretaries of the relevant unions, of the number of employees who may become redundant on account of the introduction or proposed introduction of mechanisation or technological changes by the Company in the industry covered by this award, and of their occupation and of the approximate date when their employment is likely to terminate on account of such introduction.

 

32.  Retrenchment

 

This clause shall apply to collective dismissals by way of retrenchment, whether made at the same time or over a period of time and where the dismissals relate to circumstances affecting the employer’s enterprise and not to the conduct of the employees.

 

(i)         The following payment shall be made by way of severance pay in addition to other pay entitlements:

 

(a)        Four weeks' basic pay as defined in Appendix 1;

 

(b)        Payments related to age and service, according to the following table:

 

Age at the time of termination	Less than 6 months	Benefit after 6 months'
		continuous service
Under 45	No Payment	1.25 weeks’ basic pay
		for each year of
		continuous service, or
		part thereof on a pro
		rata basis.
45 or older	No Payment	1.5 weeks’ basic pay for
		each year of continuous
		service, or part thereof
		on a pro rata basis.

 

(ii)        With the respect to retrenchments other than those falling within subclause (i) of this clause:

 

(a)        the Company is obliged to inform the unions party to the award and the Company’s employees who may be affected by any retrenchments, as soon as the Company becomes aware that the retrenchments are necessary, of the facts and circumstances of the proposed retrenchments;

 

(b)        notwithstanding anything elsewhere in this award, four weeks’ notice in writing of dismissal shall be given to any persons being dismissed under this clause, or four weeks’ pay on lieu of notice made;

 

(c)        where the said four weeks of notice are required to be worked out, the employee shall be entitled to one day’s leave with pay in each of the four weeks to enable him to look for alternative employment;

 

(d)        the following payments shall be made by way of severance pay in addition to any other pay entitlements:

 

(1)        four weeks’ basic pay as defined;

 

(2)        payments related to age and service, according to the table set out in paragraph (b) of subclause (i) of this clause.

 

(iii)       Nothing in this clause shall require the payment of any sums by way of severance pay where the employee retrenched has less than six months’ continuous service.

 

(iv)       This clause shall not apply to the termination of employment on account of the introduction of mechanisation or technological change.

 

33.  Retention of Rate

 

(1)        Where, as a result of the rationalisation of the Company’s operations, the introduction of technological change or changes in work practices and employee is appointed to a classification or classifications which receive lower earnings than did his classification immediately prior to the appointment or the first appointment ("the previous classification"):

 

(a)        if the employee has two or more years’ continuous service with the Company, he shall retain the rate of pay applicable to the previous classification subject to the following adjustments:

 

(i)         in the first and second years after the date of his appointment, all changes in pay applicable to the pervious classification;

 

(ii)        in the third year after the date of appointment, half of any changes in pay applicable to the previous classification;

 

(iii)       thereafter, no further adjustments.

 

Provided that, when the pay of the employee’s new classification exceeds the pay, he then receives he shall thereafter receive payment according to his new classification.

 

(b)        if the employee has less than two years’ continuous service with the Company, he shall retain the rate of pay applicable to the previous classification subject to the following adjustments:

 

(i)         in the first year after the date of appointment half of all changes in pay applicable to the previous classification;

 

(ii)        thereafter, no further adjustment.

 

Provided that, when the rate of pay of the employee’s new classification exceeds the pay he then receives, he shall thereafter receive payment according to his new classification.

 

(2)        Where, as a result of a market change affecting the Company’s operations, an employee is appointed to a classification or classifications which receive lower earnings than did his classification immediately prior to the appointment or the first appointment ("the previous classification"), if the employee has two or more years’ continuous service with the Company, he shall retain the pay applicable to the previous classification subject to the following adjustments:

 

(a)        in the first year after the date of his appointment, all changes in pay applicable to the previous classification;

 

(b)        in the second year after the date of his appointment, half of any changes in pay applicable to the previous classification;

 

(c)        thereafter, no further adjustments.

 

Provided that, when the rate of pay of the employee’s new classification exceeds the pay he then receives, he shall thereafter receive payment according to his new classification.

 

34.  Definitions

 

(i)         Day workers are employees, other than shift workers, and include employees on night shift work within clause 15, Night Work for Day Workers and Day Shift Workers, of this award.

 

(ii)        Shift workers are employees working on a one, two or three shift system.

 

(iii)       Monday to Saturday shift workers are shift workers whose ordinary working hours are worked between Monday and Saturday.

 

(iv)       Annual leave rate of pay means:

 

(a)        In the case of:

 

(1)        annual leave under clause 25, Annual Leave, of this award and days added to the period of annual leave under clause 26, Days Added to the Period of Annual Leave or Long Service Leave, of this award taken by an employee immediately before or after leave under the Annual Holidays Act 1944;

 

(2)        payment in respect of annual leave or days added to the period of annual leave being made to an employee under the said clauses 25 and 26 of this award upon the termination of the employment of an employee at the same time as payment is being made under the Annual Holidays Act 1944 in respect of such termination;

 

the ordinary pay of the employee calculated in accordance with the Annual Holidays Act 1944 for the leave taken or payment made under that Act.

 

(b)        In the case of annual leave under the said clause 25 and days added to the period of annual leave under the said clause 26 of this award being taken otherwise than immediately before or after leave under the Annual Holidays Act 1944, as if such leave had been taken under the Act.

 

35.  Time and Payment of Wages

 

At the Company’s option, all wages shall be paid monthly by Electronic Funds Transfer. Funds shall be deposited into employees’ accounts by the 15th of each month except in circumstances beyond the Company’s control.

 

36.  Shop Delegates or Stewards

 

The Company shall give recognition to an employee who is the delegate representing the employees in a shop or department where he is employed and he shall be allowed the necessary time to interview the Company or its representatives, during working hours, in case of a dispute affecting employees in his shop or department, provided that the Company shall not be bound to give recognition as delegate to any employee in respect of whom a written notification has been received from the Union concerned that the Union does not recognise that employee as a delegate.  The Company shall, upon request, provide each recognised delegate with a suitable locker for the purpose of storing relevant material at the workplace.

 

37.  Procedure for Resolving Claims, Issues and Disputes

 

The following procedure shall be complied with for handling grievances and settling disputes.  The objective of the procedure is to promote the resolution of disputes and grievances by consultation, co-operation and discussion.

 

(i)         In the event of an employee having a grievance, he/she will discuss the matter with the immediate supervisor and with a Union representative if desired.

 

(ii)        If the matter is not resolved, the employee and/or the delegate will discuss the grievance with the manager and/or a Company personnel officer.  A reply will be given as soon as possible.  If a reply cannot be given within 24 hours, a progress report will be given.

 

(iii)       If the matter is still not resolved, an official of the Union will be involved.

 

(iv)       If the matter is still not resolved, the grievance will be referred to the Industrial Relations Commission of New South Wales for resolution.

 

In pressing circumstances, the Commission may be notified before step (i) to (iv) have been completed.

 

(v)        Without prejudice to either party and except where a bona fide safety issue is involved, work shall continue in accordance with this award while matters in dispute are being negotiated in good faith.  Where a bona fide safety issue is involved, an attempt should be made to notify the appropriate safety authority.

 

38.  Maternity Leave

 

See the Industrial Relations Act 1996.

 

39.  Clothing and Footwear

 

(i)         The Company will supply two pairs of overalls per year or two pairs of pant/shirt combinations.

 

(ii)        Commencing employees shall be issued with one pair of safety boots, one pair of gloves, one safety helmet, non-prescription safety glasses.  Safety boots will be re-issued on a "needs" basis whereby employees shall tender old articles in exchange for the new.

 

(iii)       The Company will supply a jacket every two years.

 

40.  Area, Incidence and Duration

 

(i)         This award shall apply to all employees of the Company classified in it at the Company’s B.H.P - S.P.P.D. Port Kembla plant.

 

(ii)        This award shall take effect from the beginning of the first pay period to commence on or after 1 December 2002 and shall remain in force for two years.

 

41.  No Extra Claims

 

It is a term of this award (arising from the judgment of the Industrial Relations Commission of New South Wales in Court Session for the State Wage Case of 4 October 1989) that the Union undertakes, for the duration of the principles determined by the decision, not to pursue any extra claims, award or over-award, except when consistent with those principles.

 

42.  Personal/Carer's Leave Case

 

(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 subparagraph (ii) of paragraph (c) of this subclause, 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 in clause 24, Sick Pay, for absences to provide care and support for such persons when they are ill.  Such leave may be taken for part of a single day.

 

(b)        The employee shall, if required, 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.  In normal circumstances, an employee must not take carer's leave under this subclause where another person has 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 stepchild, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

 

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

 

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

 

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

 

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

 

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

 

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

 

(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 member of a class of person set out in subparagraph (ii) of paragraph (c) of subclause (1) of this clause who is ill.

 

(3)        Annual Leave

 

(a)        An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944, 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.

 

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

 

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

 

(4)        Time Off in Lieu of Payment for Overtime

 

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

 

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

 

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

 

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

 

(5)        Make-up Time

 

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

 

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

 

(6)        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 day 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 upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the 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.

 

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

 

(3)        Under the Anti-Discrimination Act 1977, 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 legislation referred to in this clause.

 

NOTES

 

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

 

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

 

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

 

APPENDIX 1

 

WAGES

 

	As of Oct. 2002	As of Dec. 2002	As of Dec. 2003
	$	$	$
Operator in Training (during 3 months' probationary training)
Gross p/w	720.00	747.00	777.00
Base Rate	606.00	628.00	653.00
Overtime	114.00	119.00	124.00
Operator Thereafter
Gross p/w	814.00	844.00	878.00
Base Rate	685.00	710.00	739.00
Overtime	129.00	134.00	139.00

 

All pay rises as per BHP timing and amount.

 

All salaries contain four hours per week, built in overtime (does not include overtime worked on public holidays)

 

This clause to stay open for life of award for further negotiation.

 

 

 

J. P. GRAYSON  D.P.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.