Confectioners
(State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1531 of 2007)
|
Before Commissioner
Bishop
|
7 March 2008
|
REVIEWED AWARD
Arrangement
Clause No. Subject Matter
1. Definitions
2. Classifications
(Definitions)
3. Contract
of Employment
4. Utilisation
of Skills
5. Part-time
and Casual Employees
5.1 Secure Employment
6. Hours
7. Shift Work
8. Overtime
and Sunday Work
9. Meal Hours
and Rest Periods
10. Wages
11. Mixed
Functions
12. First-aid
Allowance and Heat Allowance
13. Payment of
Wages
14. Supported
Wage
15. Holidays
16. Long
Service Leave
17. Annual
Leave
18. Annual
Holidays Loading
19. Sick Leave
20. Personal /
Carer's Leave
20A Parental
Leave
21. Bereavement
Leave
22. Jury
Service
23. Redundancy
24. Protective
Clothing
25. Tools of
Trade
26. First-aid
27. Amenities
28. Dispute
Procedure
29. Anti-Discrimination
30. Right of
Entry
31. Posting of
Notices
32. Enterprise
Consultative Mechanism
33. Award to be
Posted
34. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1 - Rates of Pay
Table 2 - Other Rates and Allowances
1. Definitions
In this award, except where otherwise clearly intended:
(a) "Operating
Machine" shall mean controlling the working action of a machine and
accepting responsibility for the observance of the manufacturing specifications
of the process. This shall not be taken
to mean the sole process of starting or stopping a machine.
(b) "Assisting
with Machine Operation" shall mean assisting with the operation of a
machine under the direction of the operator in charge or of the supervisory
staff.
(c) "Setting up
Machine" shall mean the carrying out of final machine adjustments and
making ready before a machine can be successfully operated.
(d) "Attending
Machine" shall mean the feeding or removal of raw materials or partly
manufactured materials to or from the feeding or delivery ends of a machine
performed under the direction of a higher group employee or of the supervisory
staff.
(e) "Part-time
Employee" shall mean and Employee who is employed or who offers for
employment in accordance with the provisions of Clause 5, Part-time and Casual
Employees, or within the provisions of the Industrial Relations Act 1996.
(f) "Casual
Employee" shall mean an employee engaged and paid in accordance with
Clause 5, Part Time and Casual Employees, providing a 20 per cent ratio of
casual employees to the total number of employees employed under this award.
2. Classifications
(Definitions)
|
Level 5 - Trainee Entry Level
|
Relativity 76%
|
A new employee, i.e., one who is within the first six months
of continuous employment undertaking training which may include, for example,
food hygiene and basic quality control.
|
Level 4 - Unskilled Employee
|
Relativity 79%
|
An employee engaged primarily in manual duties such as
packing at the end of a production line or general labouring duties. Although an employee at this level is not
required to use the types of machinery set out in Level 3 and above, duties may
include the use of simple hand tools (including staple guns, etc.) and
equipment which is ancillary to the production process (e.g., case sealing).
|
Level 3 - Semi-skilled Employee
|
Relativity 82%
|
An employee whose primary function is the operation of
semi-automatic or automatic production/packaging machinery. Here the machine operation is generally of a
repetitious nature requiring basic machine set up and adjustment, quality
control and fault finding.
|
Level 2 - Skilled Employee
|
Relativity 89%
|
An employee at this level uses a high degree of product and
process knowledge and has considerable input into the quality of the finished
product.
These skills may be used:
(a) in the operation
of machinery which is of a more complex nature than specified at Level 3,
requiring fine machine adjustment and
the exercise of individual judgement; and/or
(b) in the
manufacture of the product.
The employee operates under routine supervision individually
or in a team environment and may have some V.D.U. skills. The employee can be engaged in inventory
control recording and fork lift operation. The employee is also able to assist
in training.
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Level 1 - Multi-skilled Employee
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Relativity 93%
|
An employee who is capable of performing the tasks within
Levels 2, 3 and 4. In addition, because
of the skills and experience attained within the plant, is called upon to
operate a wide range of machines or perform a wide range of tasks and train
other employees.
NOTE: It is agreed
between the parties that workers should not be placed in a level unless they
have the training and experience necessary to perform the full range of
functions comprehended by the level and are actually required to perform those
functions.
3. Contract of
Employment
(a) All employees
other than casual employees shall be engaged as weekly hands. The employment of a weekly hand shall be
terminated by a week's notice on either side or payment or forfeiture of a
week's pay in lieu of such notice. Notice shall not be continued from week to
week; provided that employment shall be terminated by one hour’s notice on
either side, to be given at any time during the first four weeks of employment.
(b) The foregoing
shall not affect the right of an employer to dismiss an employee without notice
for malingering, inefficiency, neglect of duty or misconduct and in such cases
wages shall be paid up to the time of dismissal only.
(c) For the purposes
of this clause, weekly hand shall include part-time employee.
(d) No employer
shall discharge any person merely be reason of the fact that the work they
perform can be done by a junior.
4. Utilisation of
Skills
(a) Employees shall
be employed to carry out such duties as directed by an employer that are within
the limits of the employee’s skill, competence and training.
(b) An employee may
at any time be directed by an employer to carry out such duties and use such
tools and equipment, provided that the employee has been properly trained in
the use of such tools and equipment.
5. Part-Time and
Casual Employees
(a) Part-time
Employees -
(i) Ordinary hours
of work of part-time employees shall not be less than 20 per week or more than
35 per week such hours to be fixed on a regular daily basis.
(ii) The provisions of
this award with respect to annual leave, sick leave and holidays shall apply,
pro rata, to part-time employees. In
addition, general conditions of employment shall apply.
(iii) Notwithstanding
the provisions of subclauses (a) and (b) of this clause, an employee and an
employer may agree, in writing, to observe other conditions in accordance with
the Industrial Relations Act 1996.
(iv) Part-time
employees shall be paid at an hourly rate equal to the appropriate weekly rate
divided by 38 calculated to the nearest ten cents, any broken part of ten cents
in the result not exceeding half of ten cents to be disregarded.
(b) Casual Employees
-
Casual employees shall be paid an hourly rate equal to the
appropriate weekly rate divided by 38 plus 15 per cent, calculated to the
nearest half cent with a minimum payment on any one day of four hours. The 15 per cent loading shall be in lieu of
payment for sick leave and public holidays.
Notation: The Annual Holidays Act 1944 provides that casual
employees under this award are entitled to receive an additional amount equal
to one twelfth of their ordinary-time earnings in lieu of annual leave.
5.1 Secure
Employment
(a) Objective of
this Clause
The objective of this clause is for the employer to
take all reasonable steps to provide its employees with secure employment by
maximising the number of permanent positions in the employer’s workforce, in
particular by ensuring that casual employees have an opportunity to elect to
become full-time or part-time employees.
(b) Casual
Conversion
(i) A casual
employee engaged by a particular employer on a regular and systematic basis for
a sequence of periods of employment under this Award during a calendar period
of six 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 six months. However, the employee retains his or her right of
election under this subclause if the employer fails to comply with this notice
requirement.
(iii) Any casual
employee who has a right to elect under paragraph (b)(i), upon receiving notice
under paragraph (b)(ii) or after the expiry of the time for giving such notice,
may give four weeks’ notice in writing to the employer that he or she seeks to
elect to convert his or her ongoing contract of employment to full-time or
part-time employment, and within four weeks of receiving such notice from the
employee, the employer shall consent to or refuse the election, but shall not
unreasonably so refuse. Where an employer refuses an election to convert, the
reasons for doing so shall be fully stated and discussed with the employee
concerned, and a genuine attempt shall be made to reach agreement. Any dispute
about a refusal of an election to convert an ongoing contract of employment
shall be dealt with as far as practicable and with expedition through the
disputes settlement procedure.
(iv) Any casual
employee who does not, within four weeks of receiving written notice from the
employer, elect to convert his or her ongoing contract of employment to
full-time employment or part-time employment will be deemed to have elected
against any such conversion.
(v) Once a casual
employee has elected to become and been converted to a full-time employee or a
part-time employee, the employee may only revert to casual employment by
written agreement with the employer.
(vi) If a casual
employee has elected to have his or her contract of employment converted to
full-time or part-time employment in accordance with paragraph (b)(iii), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph (b)(iii), discuss and agree upon:
(1) whether the
employee will convert to full-time or part-time employment; and
(2) if it is agreed
that the employee will become a part-time employee, the number of hours and the
pattern of hours that will be worked either consistent with any other part-time
employment provisions of this award or pursuant to a part time work agreement
made under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW);
Provided that an employee who has worked on a full-time
basis throughout the period of casual employment has the right to elect to
convert his or her contract of employment to full-time employment and an
employee who has worked on a part-time basis during the period of casual
employment has the right to elect to convert his or her contract of employment
to part-time employment, on the basis of the same number of hours and times of
work as previously worked, unless other arrangements are agreed between the
employer and the employee.
(vii) Following an
agreement being reached pursuant to paragraph (vi), the employee shall convert
to full-time or part-time employment. If there is any dispute about the
arrangements to apply to an employee converting from casual employment to
full-time or part-time employment, it shall be dealt with as far as practicable
and with expedition through the disputes settlement procedure.
(viii) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
(c) Occupational
Health and Safety
(i) For the
purposes of this subclause, the following definitions shall apply:
(1) A "labour
hire business" is a business (whether an organisation, business
enterprise, company, partnership, co-operative, sole trader, family trust or
unit trust, corporation and/or person) which has as its business function, or
one of its business functions, to supply staff employed or engaged by it to
another employer for the purpose of such staff performing work or services for
that other employer.
(2) A "contract
business" is a business (whether an organisation, business enterprise,
company, partnership, co-operative, sole trader, family trust or unit trust,
corporation and/or person) which is contracted by another employer to provide a
specified service or services or to produce a specific outcome or result for
that other employer which might otherwise have been carried out by that other
employer’s own employees.
(ii) Any employer
which engages a labour hire business and/or a contract business to perform work
wholly or partially on the employer’s premises shall do the following (either
directly, or through the agency of the labour hire or contract business):
(1) consult with
employees of the labour hire business and/or contract business regarding the workplace occupational health
and safety consultative arrangements;
(2) provide
employees of the labour hire business and/or contract business with appropriate
occupational health and safety induction training including the appropriate
training required for such employees to perform their jobs safely;
(3) provide
employees of the labour hire business and/or contract business with appropriate
personal protective equipment and/or clothing and all safe work method
statements that they would otherwise supply to their own employees; and
(4) ensure employees
of the labour hire business and/or contract business are made aware of any
risks identified in the workplace and the procedures to control those risks.
(iii) Nothing in
this subclause (c) is intended to affect or detract from any obligation or
responsibility upon a labour hire business arising under the Occupational
Health and Safety Act 2000 or the Workplace Injury Management and
Workers Compensation Act 1998.
(d) Disputes
Regarding the Application of this Clause
Where a dispute arises as to the application or
implementation of this clause, the matter shall be dealt with pursuant to the
disputes settlement procedure of this award.
(e) This clause has
no application in respect of organisations which are properly registered as
Group Training Organisations under the Apprenticeship and Traineeship Act 2001
(or equivalent interstate legislation) and are deemed by the relevant State
Training Authority to comply with the national standards for Group Training
Organisations established by the ANTA Ministerial Council.
6. Hours
(a) The ordinary
hours of day workers shall be an average of 38 per week worked on one of the
following basis:
(i) 38 hours within
a period not exceeding seven consecutive days;
(ii) 76 hours within
a period not exceeding 14 consecutive days;
(iii) 114 hours
within a period not exceeding 21 consecutive days;
(iv) 152 hours within
a period not exceeding 28 consecutive days;
to be worked on
not more than five days per week,
Monday to Friday, inclusive,
between the hours of 6.00
a.m. and 6.00 p.m. Provided that rostered days off may accrue
by agreement between the employee and the employer to be taken at a mutually
convenient time.
(b) Every employer
shall exhibit a notice whereon shall be printed the starting and finishing
times. The starting and finishing times having once been fixed by an employer
shall not be altered, unless by mutual agreement between the employer and their
employees, without giving once week’s notice thereof. Such notice as to either
starting or finishing times, or to change such times, shall be displayed in a
prominent position in the factory where it may be perused by all concerned.
(c) Working time
shall commence from when an employee is present at their designated work
station ready and willing to work.
(d) By arrangement
between the employer, the union and the majority of employees in the plant or
work sections concerned ordinary hours not exceeding 12 on any day may be
worked, subject to:
(i) the employer
and the employees concerned being guided by the occupational health and safety
provisions of the ACTU Code of Conduct on 12-Hour Shifts;
(ii) proper health
monitoring procedures being introduced;
(iii) suitable
roster arrangements being made; and
(iv) proper
supervision being provided.
7. Shift Work
An employer may work employees on afternoon and/or night
shift subject to the following conditions:
(a) The hours of
work shall be an average of 38 per week, exclusive of meal time. The time to be taken for a meal shall be 30
minutes, or as may be agreed upon by employers and the union.
(b) Unless the union
otherwise agrees, no employee who is employed during ordinary working hours
shall be employed on afternoon or night shift unless they have had a break of
at least 24 hours.
(c)
(i) Employees
working afternoon shift shall be paid a shift allowance of 15 percent of the
appropriate rate prescribed by clause 10, Wages.
(ii) Employees
working night shift shall be paid a shift allowance of 20 percent of the
appropriate rate prescribed by the said clause 10.
(d) When three
shifts are worked the time shall be within the hours of 10:00p.m. Sundays and
7:00a.m. Saturdays. Rates of pay shall be double time from 10:00p.m. to 12
midnight Sundays, and as shown in subclause (c) of this clause from 12 midnight
Sundays to 12 midnight Fridays and at time and a half from 12 midnight Fridays
to 7:00a.m. Saturdays. Provided that, in lieu of the rate of time and a half,
the shift allowance prescribed in subclause (c) of this clause shall continue
to be paid after 12 midnight Friday where the major portion of the shift is
worked prior to midnight.
Provided further that the rates of time and a half and
double time prescribed in this subclause shall be in substitution for and not
cumulative upon the allowance prescribed in subclause (c) of this clause.
(e) All time worked
outside the usual fixed times of the shift shall be paid for as overtime at the
rate of time and a half of the shift rate.
(f) Juniors 18
years of age and over employed on night shift shall be paid at least the award
rate for a Confectioner Level 5, prescribed in the said clause 10, and the
shift allowance prescribed in paragraph
(ii) of subclause (c) of this
clause calculated on such rate.
(g) Juniors under 18
years of age shall not be employed on night shift.
(h) Employees
engaged on shift work shall be allowed two eight-minute rest periods within the
duration of the shift. Such rest
periods shall be counted as time worked.
The above provisions may be varied by agreement between
the employer and the union.
(i) Starting and
finishing times of shifts shall be agreed upon mutually between the employer
and the employee.
8. Overtime and
Sunday Work
(a) All time worked
outside the ordinary hours shall be paid for at the rate of time and a half for
the first two hours and double time thereafter.
(b) All time worked
on a Sunday (other than the two hours provided for shift workers in subclause
(d) of clause 7, Shift Work) shall be paid for at double rates.
(c) All time worked
on Saturday, except on shift work from 12 midnight Friday to 7.00 a.m. Saturday, as prescribed in subclause (d) of
the said clause 7, shall be deemed to be overtime and shall be paid for at the
rate of time and one-half for the first two hours and double time thereafter.
(d) Except as
provided in subclause (e), an employee required to work overtime in excess of
one and one-half hours after working ordinary hours shall be paid by their
employer an amount as set out in Item 3 of Table 2 - Other Rates and
Allowances, of Part B, Monetary Rates, to meet the cost of a meal.
(e) Where an
establishment works a short working day during the week, employees may work
overtime up to 6.00 p.m. without 24 hours' notice and without payment of tea
money.
(f) An employer may
require any employee to work reasonable overtime at overtime rates and such
employee shall work overtime in accordance with such requirement.
(g) Any employee
shall not in any way, whether directly or indirectly, be a party to or
concerned in any ban, limitation or restriction upon the working of overtime in
accordance wit the requirements of this clause.
(h) All overtime
worked shall be calculated to the nearest minute.
(i) In computing
overtime each day's work shall stand alone.
(j) An employee
working overtime on a Saturday, Sunday or public holiday shall be paid the
appropriate overtime rate in accordance with this clause, or clause 15,
Holidays, as the case may be, and be subject to the following provisions:
(i) An employee
directed to work four or more hours' overtime on any of the said days and after
commencing overtime such overtime is cancelled by the employer, then a minimum
payment of four hours' work at the appropriate rate shall apply.
(ii) An employee
directed to work less than four hours' overtime on any of the said days and
after commencing overtime such overtime is cancelled by the employer, then a
minimum payment equal to the hours previously directed to work at the
appropriate rate shall apply.
(iii) Excepting that
in respect of subclauses (i) and (ii) of this clause, the minimum payment shall
not apply where overtime is cancelled by the employer through circumstances
beyond the employer's control.
9. Meal Hours and
Rest Period
(a) The minimum time
allowed for a meal shall be 30 minutes and the maximum 45 minutes.
(b) No employee
shall be called upon to work more than five hours without a meal.
(c) In the case of
an emergency the meal time may be taken earlier or later than between the fixed
hours, but the meal time having once been fixed shall not be altered more than
once in any one working week.
(d) Employees called
upon to work during their fixed meal time, except in case of emergency, shall
be paid time and one-half for the first half hour or part thereof and double
time thereafter until such meal time is allowed.
(e) Any employee
using or handling any materials from which confectionery is made will be deemed
to be employed during such meal hours and such time shall be counted as time
worked.
(f) Employees
engaged on day work shall be allowed an eight-minute rest period each morning
and afternoon. Such rest periods shall
be counted as time worked.
(g) The above
provision may be varied by agreement between the employer and the union
10. Wages
(a) The minimum
weekly rates of pay shall be those contained in (i) Adults, of Table 1 - Rates
of Pay, of Part B, Monetary Rates.
(b) The minimum rate
of pay for juniors shall be as is set out in (ii) Juniors, of Table 1 Rates of
Pay, of Part B, Monetary Rates. The
rates of pay for juniors shall be calculated to the nearest 10 cents.
(c) Special Rate -
(i) Employees
engaged on hand or fork dipping chocolate goods and/or hand filling and tapping
chocolate moulds for casing or shell work shall be paid at the rate of ten per
cent above the appropriate rate.
(ii) Employees
engaged on hand decorating, hand marking by means of fork, piping bag or any
other contrivance, filling chocolate with cream or other substance with bag,
pot or other contrivance, hand frosting, dipping French bon bons in cream or
any other substance, shall be paid ten per cent in addition to the appropriate
rates prescribed for employees.
(iii) Foreperson
shall be paid not less than 15 per cent above the rate for a Confectioner Level
5.
NOTATION: It is
recommended that in circumstances where wage rates prescribed by this clause
are increased by order of the Industrial Relations Commission of New South
Wales pursuant to section 17 of the Industrial Relations Act 1996,
a result of a decision
of a Full Bench of the
Australian Industrial Relations
Commission to reflect movements in the
Consumer Price Index as a result of wage indexation cases, employers
party to this award apply the indexation increase to an employee's actual rate
of pay as defined hereunder.
"Actual rate of pay" in respect of this award
is defined, as the total amount an employee would normally receive for
performing 38 hours of ordinary work.
Provided that such rate shall expressly exclude overtime, penalty rates,
disability allowances, shift allowances, special rates, and any other ancillary
payments of a like nature. Provided
further that this definition shall not include production bonuses and other
methods of payment by results which, by virtue of their basis of calculation,
already produce the result intended hereby.
(d) Any wage rate
increased in a restructuring and efficiency agreement, whether ratified by the
Industrial Relations Commission or otherwise, shall not be subject to any
increase in rates of pay in this award.
(e) The rates of pay
in this Award include the adjustments payable under the State Wage Case
2007. These adjustments may be offset
against:
(i) any equivalent
overaward payments, and/or
(ii) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustments.
11. Mixed Functions
An employee engaged for more than four hours on a day or
shift, on duties carrying a higher rate than their ordinary skill level, shall
be paid the higher rate for such day or shift.
If an employee is engaged for four hours or less during a day or shift,
they shall be paid the higher rate for the time so worked.
12. First-Aid
Allowance and Heat Allowance
(a) First-aid
Allowance - An employee appointed by
the employer to perform first-aid duties and who holds a current first-aid
certificate, shall be paid an allowance per week extra as set out in Item 1 of
Table 2 - Other Rates and allowances, of Part B, Monetary Rates.
(b) Heat Allowance -
Employees required to work in areas where the temperature exceeds 46 degrees
Celsius shall be paid the additional allowances for the duration of such work
as set out in Item 2 of Table 2.
13. Payment of Wages
(a) Wages shall be
paid weekly or fortnightly.
(b) An employer
shall not keep more than two days in hand.
(c) All wages shall
be paid during working hours.
(d) If an employee
leaves their employment or is dismissed they shall, provided that the necessary
money is then available at the factory office, be paid their wages upon
leaving, or they shall be forwarded to them by post as soon as practicable.
(e) Wages may be
paid by means of cash, electronic funds transfer or cheque.
14. Supported Wage
(a) Workers Eligible
for a Supported Wage - This clause defines the conditions which will apply to
employees who, because of the effects of a disability, are eligible for a
supported wage under the terms of this award.
In the context of this clause, the following definitions will apply:
(i) "Supported
Wage System" means the Commonwealth Government system to promote
employment for people who cannot work at full award wages because of a disability,
as documented in "Supported Wage System: Guidelines and Assessment
Process".
(ii) "Accredited
Assessor" means a person accredited by the management unit established by
the Commonwealth under the Supported Wage System to perform assessments of an
individual's productive capacity within the Supported Wage System.
(iii) "Disability
Support Pension" means the Commonwealth pension scheme to provide income
security for persons with a disability as provided for under the Social
Security Act 1991, or any successor to that scheme.
(iv) "Assessment
Instrument" means the form provided for under the Supported Wage System
that records the assessment of the productive capacity of the person to be
employed under the Supported Wage System.
(b) Eligibility
Criteria - Employees covered by this
clause will be those who are unable to perform the range of duties to the
competence level required within the class of work for which the employee is
engaged under this award, because of the effects of a disability on their productive
capacity, and who meet the impairment criteria test for a disability support
pension. This clause does not apply to any existing employee who has a claim
against the employer which is subject to the provisions of workers'
compensation legislation or any provision of this award relating to the
rehabilitation of employees who are injured in the course of their employment.
The clause also does not apply to employers in respect of their facility,
program, undertaking, service or the like which receives funding under the
Disability Services Act 1986 and fulfils the dual role of service provider and
sheltered employer to people with disabilities who are in receipt of, or are
eligible for a disability support pension, except with respect to an organisation
which has received recognition under section 10 or section 12A of the said Act
or, if a part only has received recognition, that part.
(c) Supported Wage
Rates - Employees to whom this clause applies shall be paid the applicable
percentage of the minimum rate of pay prescribed by this award for the class of
work which the person is performing, according to the following schedule:
|
Assessed capacity
|
Percentage of
Prescribed
|
|
(subclause (iv))
|
Award Rate
|
|
*10%
|
10%
|
|
20%
|
20%
|
|
30%
|
30%
|
|
40%
|
40%
|
|
50%
|
50%
|
|
60%
|
60%
|
|
70%
|
70%
|
|
80%
|
80%
|
|
90%
|
90%
|
(Provided that the minimum amount payable shall not be
less than $66.00 per week.)
* Where a
person's assessed capacity is 10 per cent, they shall receive a high degree of
assistance and support.
(d) Assessment of
Capacity - For the purpose of establishing the percentage of the award rate to
be paid to an employee under this award, the productive capacity of the
employee will be assessed in accordance with the Supported Wage System and
documented in an assessment instrument by either:
(i) the employer
and a union party to the award, in consultation with the employee or, if
desired by any of these;
(ii) the employer
and an accredited assessor from a panel
agreed by the parties to the award and the employee.
(e) Lodgement of
Assessment Instrument -
(i) All assessment
instruments under the conditions of this clause, including the appropriate
percentage of the award wage to be paid to the employee, shall be lodged by the
employer with the Registrar of the Industrial Relations Commission of New South
Wales.
(ii) All assessment
instruments shall be agreed and signed by the parties to the assessment;
provided that, where a union which is party to the award is not a party to the
assessment, it shall be referred by the Registrar to the union by certified
mail and will take effect, unless an objection is notified to the Registrar
within ten working days.
(f) Review of
Assessment - The assessment of the
applicable percentage should be subject to annual review, or earlier on the
basis of a reasonable request for such a review. The process of review shall be in accordance with the procedures
for assessing capacity under the Supported Wage System.
(g) Other Terms and
Conditions of Employment - Where an assessment has been made, the applicable
percentage shall apply to the wage rate only.
Employees covered by the provisions of this clause will be entitled to
the same terms and conditions of employment as all other workers covered by
this award paid on a pro rata basis.
(h) Workplace Adjustment
- An employer wishing to employ a
person under the provisions of this clause shall take reasonable steps to make
changes in the workplace to enhance the employee's capacity to do the job. Changes may involve redesign of job duties,
working time arrangements and work organisation in consultation with other
workers in the area.
(i) Trial Period -
(i) In order for an
adequate assessment of the employee's capacity to be made, an employer may
employ a person under the provisions of this clause for a trial period not
exceeding 12 weeks, except that in some cases additional work adjustment time
(not exceeding four weeks) may be needed.
(ii) During the
trial period, the assessment of capacity shall be undertaken and the proposed
wage rate for a continuing employment relationship shall be determined.
(iii) The minimum
amount payable to the employee during the trial period shall be no less than
$66.00 per week.
(iv) Work trials
should include induction or training as appropriate to the job being trialled.
(v) Where the
employer and employee wish to establish a continuing employment relationship
following the completion of the trial period, a further contract of employment
shall be entered into, based on the outcome of assessment under this subclause.
15. Holidays
(a) Employees shall
be paid for the following holidays: New Year's Day, Australia Day, Good Friday,
Easter Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day, Boxing
Day and any other gazetted public holidays; provided that no payment shall be
made for any of the holidays mentioned should they be observed on a Saturday or
Sunday.
(b)
(i) In addition to
the above holidays all employees shall be entitled to one additional day as a
paid
holiday each year.
(ii) Such holiday
shall be at a date to be agreed upon each year between the employer and the
union.
(iii) If in any
establishment there are employees who are in receipt of an additional public
holiday or picnic day which is on a date other than the day agreed in
accordance with paragraph (ii) of this subclause, then that other day may be
substituted for this additional public holiday at the sole discretion of the
employer.
(c) Any work
performed on the abovementioned holidays shall be paid for at the rate of
double time and one-half except as provided in subclauses (e) and (f) of this
clause.
(d) An employee
entitled to payment for holidays who has been employed for at least three
months shall not have his services dispensed with (except in cases of
malingering, inefficiency, neglect of duty or misconduct) for at least one week
prior to any of the abovementioned holidays without payment for such holidays.
(e) Non-continuous
shift workers for any work performed on the abovementioned holidays shall be
paid at the rate of double time and one-half of the shift work rate. Continuous shift workers for any work
performed on the abovementioned holidays shall be paid at the rate of double
the shift work rate.
(f) Employees shall
be entitled to and shall receive payment for the holidays prescribed in this
clause; provided that, except in the case of employees absent on account of
sickness or accident or with the consent of the employer, they shall be
available for duty on the last working day preceding and the first working day
succeeding such holiday.
16. Long Service
Leave
See Long Service Leave Act 1955.
17. Annual Leave
See Annual Holidays Act 1944.
18. Annual Holidays
Loading
(a) In this clause
the Annual Holidays Act 1944 is referred to as "the Act".
(b) Before an
employee is given and takes their annual holidays, or where by agreement
between the employer and employee the annual holiday is given and taken in more
than one separate period, then before each of such separate periods the
employer shall pay their employee a loading determined in accordance with this
clause. (NOTE: The obligation to pay in advance does not
apply where an employee takes an annual holiday wholly or partly in advance - see
subclause (f) of this clause.)
(c) The loading is
payable in addition to the pay for the period of holiday given and taken and
due to the employee under the Act and this award.
(d) The loading is
to be calculated in relation to any period of annual holiday to which the
employee becomes or has become entitled to under the Act and this award or,
where such a holiday is given and taken in separate periods, then in relation
to each such separate period.
(e) The loading is
the amount payable for the period or the separate periods, as the case may be,
stated in subclause (d) of this clause at the rate per week of 17.5 per cent of
the appropriate ordinary weekly time rate of pay prescribed by this award for
the classification in which the employee was employed immediately before
commencing their annual holiday together with, where applicable, the additional
special rates as prescribed in subclause (iii) of clause 10, Wages, but shall
not include any other allowances, penalty rates, shift allowances, overtime or
any other payments prescribed by this award.
(f) No loading is
payable to an employee who takes an annual holiday wholly or partly in advance;
provided that, if the employment of such an employee continues until the day
when the employee would have become entitled under the Act to an annual
holiday, the loading then becomes payable in respect of the period of such
holiday and is to be calculated in accordance with subclause (g) of this
clause, applying the award rates of wages payable on that day.
(g) Where, in
accordance with the Act the employer's establishment or part of it is temporarily
closed down for the purpose of giving an annual holiday or leave without pay to
the employees concerned:
(i) An employee who
is entitled under the Act to an annual holiday and who is given and takes such
a holiday shall be paid the loading calculated in accordance with subclause (f)
of this clause.
(ii) An employee who
is not entitled under the Act to an annual holiday and who is given and takes
leave without pay shall be paid, in addition to the amount payable to them
under the Act, such proportion of the loading that would have been payable to
them under this clause if the employee had become entitled to an annual holiday
prior to the close-down as their qualifying period of employment in completed
weeks bears to 52.
(h)
(i) When the employment
of an employee is terminated by their employer for a cause other than
misconduct and at the time of the termination the employee has not been given
and has not taken the whole of an annual holiday to which they became entitled
they shall be paid a loading calculated in accordance with subclause (e) of
this clause for the period not taken.
(ii) Except as
provided by paragraph (i) of this subclause no loading is payable on the
termination of an employee's employment.
(i) This clause
extends to an employee who is given and takes an annual holiday and who would
have worked as a shift worker if the employee had not been on holiday; provided
that, if the amount to which the employee would have been entitled by way of
shift work allowances and weekend penalty rates for the ordinary time (not
including time on a public or special holiday) which the employee would have
worked during the period of the holiday exceeds the loading calculated in
accordance with this clause, then that amount shall be paid to the employee in
lieu of the loading.
19. Sick Leave
(a) Any employee who
is absent from work on account of illness or 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:
(i) The employee
shall not be entitled to such leave of absence unless they have been in the
service of the employer concerned for at least three months immediately prior
to such absence.
(ii) Subject to the
provisions of section 50 of the Workers’ Compensation Act 1987 they
shall not be entitled to such leave of absence for any period in respect of
which they are entitled to workers’ compensation.
(iii) The employee
shall, within 24 hours of the commencement of such absence, inform the employer
of their inability to attend at their work and, as far as practicable, state
the nature of the illness or injury and the estimated duration of the absence.
(iv) The employee
shall prove to the satisfaction of the employer that they were unable on
account of such illness or injury to attend at their work on the day or days in
respect where of such leave is claimed. (For the purpose hereof the employer
may require an employee to make a statutory declaration verifying the cause and
length of their absence.)
(v) The employee
shall not be entitled in any year (whether during such year in the employ of
one or more than one employer) to sick leave of absence in excess of 38 hours
of working time nor to payment in excess of 40 hours at the ordinary rate. Provided that after the first year of
service with an employer, the entitlement to sick leave during the second and
subsequent years shall be sixty and eight-tenths hours.
(vi) Where an
employee claims sick leave in accordance with this clause for an absence of one
day only, and in the past 12 months they have already been allowed paid sick
leave on two occasions for one day only they shall not be entitled to payment
for the 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
injury. Provided that in lieu of a medical certificate, the employee may submit
a statutory declaration stating that the employee was unable to attend for duty
on account of personal illness or injury.
(b) For the purpose
of paragraph (v) of subclause (a) of this clause, within two weeks of an
employee entering their employment an employer may require an employee to make
a statutory declaration or other written statement as to what leave of absence
without deduction of pay they have had from any employer during the then
current year and the employer shall be entitled to rely and act upon such
statement.
(c) For the purpose
of this clause, "year" shall mean a year of service in the employ of
the employer concerned
(d) If the full
period of sick leave is not taken in any year, the whole or any untaken portion
shall be cumulative from year to year; provided that an employee’s entitlement
shall be calculated on the basis of 38 hours in the first year of employment
and 60.8 hours in the second and subsequent years of employment.
(e) Where an
employee other than a seasonal employee is retrenched by their employer on
account of depressed economic conditions and they are re-engaged by the same
employer within a period of three months, then any sick leave rights that
previously accrued to that employee shall be recredited to them on their re- employment.
20. Personal /
Carer's Leave
(a) Use of Sick
Leave
(i) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in 20(a)(iii)(B) 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 19, 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.
(ii) 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.
(iii) The
entitlement to use sick leave in accordance with this subclause is subject to:
(A) the employee
being responsible for the care of the person concerned; and
(B) the person
concerned being:
(I) a spouse of the
employee; or
(II) 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
(III) 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
(IV) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(V) 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.
(iv) An employee
shall, wherever practicable, give the employer notice prior to the absence of the
intention to take leave, the name of the person requiring care and that
person's relationship to the employee, the reasons for taking such leave and
the estimated length of absence. If it
is not practicable for the employee to give prior notice of absence, the
employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at clause 28, Dispute Procedure, should be followed.
(b) Unpaid Leave for
Family Purpose
(i) 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 20(a)(iii)(B)
above who is ill or who requires care due to an unexpected emergency.
(c) Annual Leave
(i) An employee may
elect, with the consent of the employer to take annual leave not exceeding ten
days in single-day periods, or part thereof, in any calendar year at a time or
times agreed by the parties.
(ii) Access to
annual leave, as prescribed in subclause (c)(i), shall be exclusive of any
shutdown period provided for elsewhere under this award.
(iii) 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.
(iv) An employee may
elect with the employers agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
(d) Time Off in Lieu
of Payment for Overtime
(i) 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.
(ii) 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.
(iii) If, having
elected to take time as leave in accordance with subclause (d)(i), 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.
(iv) Where no
election is made in accordance with the said subclause (d)(i), the employee
shall be paid overtime rates in accordance with the award.
(e) Make-up Time
(i) 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.
(ii) 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.
(f) Rostered Days
Off
(i) An employee may
elect, with the consent of the employer, to take a rostered day off at any
time.
(ii) An employee may
elect, with the consent of the employer, to take rostered days off in part day
amounts.
(iii) 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.
(iv) 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.
(g) Personal Carers
Entitlement for casual employees -
(1) Subject to the
evidentiary and notice requirements in 20(a)(ii) and 20(a)(iv) 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 20(a)(iii)(B) of this clause who
are sick and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(2) The employer and
the employee shall agree on the period for which the employee will be entitled
to not be available to attend work. In the absence of agreement, the employee
is entitled to not be available to attend work for up to 48 hours (i.e. two
days) per occasion. The casual employee is not entitled to any payment for the
period of non-attendance.
(3) An employer must
not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
20A. Parental Leave
(1) Refer to the Industrial
Relations Act 1996 (NSW). The
following provisions shall also apply in addition to those set out in the Industrial
Relations Act 1996 (NSW).
(2) An employer must
not fail to re-engage a regular casual employee (see section 53(2) of the Act)
because:
(a) the employee or
employee's spouse is pregnant; or
(b) the employee is
or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee's circumstances and,
provided the request is genuinely based on the employee's parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer's business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
(c) Employee's
request and the employer's decision to be in writing
The employee's request and the employer's decision made
under 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(i) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(ii) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee's decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return to work on a part-time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer's capacity to comply with paragraph (a).
21. Bereavement Leave
(a) An employee,
other than a casual employee, shall be entitled to two days bereavement leave
without deduction of pay, up to and including the day of the funeral, on each
occasion of the death of a person within Australia as prescribed in subclause
(c) of this clause. Where the death of a person as prescribed by the said
subclause (c) occurs outside Australia, the employee shall be entitled to two
days bereavement leave.
(b) The employee
must notify the employer as soon as practicable of the intention to take
bereavement leave and will provide to the satisfaction of the employer proof of
death.
(c) Bereavement
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of personal/carer's leave as set out in subclause
(a)(iii)(B) of clause 20, Personal Carer s Leave, provided that, for the
purpose of bereavement leave, the employee need not have been responsible for
the care of the person concerned.
(d) An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which the employee has been granted other leave.
(e) Bereavement
leave may be taken in conjunction with other leave available under subclauses
(b), (c), (d), (e) and (f) of the said clause 20. In determining such a
request, the employer will give consideration to the circumstances of the
employee and the reasonable operational requirements of the business.
(f) Bereavement
entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in 21(b) casual employees are entitled to
not be available to attend work, or to leave work upon the death in Australia
of a person prescribed in subclause 20(a)(iii)(B) of clause 20, Personal /
Carer's Leave.
(b) The employer and
the employee shall agree on the period for which the employee will be entitled
to not be available to attend work. In the absence of agreement, the employee
is entitled to not be available to attend work for up to 48 hours (i.e. two
days) per occasion. The casual employee is not entitled to any payment for the
period of non-attendance.
(c) An employer must
not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not engage a casual employee are otherwise not affected.
22. Jury Service
An employee on weekly hiring required to attend for jury service
during their ordinary working hours shall be reimbursed by the employer an
amount equal to the difference between the mount paid in respect of their
attendance for such jury service and the amount of wage they would have
received in respect of the ordinary time they would have worked had they not
been on jury service.
An employee shall notify their employer as soon as possible
of the date upon which they are required to attend for jury service. Further, the employee shall give the
employer proof of their attendance, the duration of such attendance and the
amount received in respect of such jury service.
23. Redundancy
(a) Application -
(i) This clause
shall apply in respect of full-time and part-time persons employed in the
classifications specified by clause 2, Classifications (Definitions).
(ii) In respect to
employers who employ 15 employees or more immediately prior to the termination
of employment of employees, in the terms of subclause (d), termination of
Employment, of this clause.
(iii) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply to
employees with less than one year's continuous service, and the general
obligation on employers shall be no more than to give such employees an
indication of the impending redundancy at the first reasonable opportunity, and
to take such steps as may be reasonable to facilitate the obtaining by the
employees of suitable alternative employment.
(iv) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply where
employment is terminated as a consequence of conduct that justifies instant
dismissal, including malingering, inefficiency or neglect of duty, or in the
case of casual employees, apprentices or employees engaged for a specific period
of time or for a specified task or tasks or where employment is terminated due
to the ordinary and customary turnover of labour.
(b) Introduction of
Change -
(i) Employer's duty
to notify -
(A) Where an employer
has made a definite decision to introduce major changes in production, program,
organisation, structure or technology that are likely to have significant
effects on employees, the employer shall notify the employees who may be
affected by the proposed changes and the union to which they belong.
(B) "Significant
effects" include termination of employment, major changes in the
composition, operation or size of the employer's workforce or in the skills
required, the elimination or diminution of job opportunities, promotion
opportunities or job tenure, the alteration of hours of work, the need for
retraining or transfer of employees to other work or locations and the
restructuring of jobs.
Provided that where this award makes provision for
alteration of any of the matters referred to herein, an alteration shall be
deemed not to have significant effect.
(ii) Employer's duty
to discuss change -
(A) The employer
shall discuss with the employees affected and the union to which they belong,
inter alia, the introduction of the changes referred to in subclause (b)(i),
the effects the changes are likely to have on employees and measures to avert
or mitigate the adverse effects of such changes on employees, and shall give
prompt consideration to matters raised by the employees and/or the union in
relation to the changes.
(B) The discussions
shall commence as early as possible after a definite decision has been made by
the employer to make the changes referred to in subclause (b)(i).
(C) 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.
(c) Redundancy -
Discussions before terminations -
(i) Where an
employer has made a definite decision that the employer no longer wishes the
job the employee has been doing to be done by anyone pursuant to subclause
(b)(i)(A) 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.
(ii) 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 (c)(i), 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.
(iii) 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, the number and categories of
employees likely to be affected, and the number of employees normally employed
and the period over which the terminations are likely to be carried out. Provided that any employer shall not be
required to disclose confidential information the disclosure of which would
adversely affect the employer.
(d) Termination of
Employment -
(i) Notice for
changes in production, programme, organisation or structure - This subclause
sets out the notice provisions to be applied to terminations by the employer
for reasons arising from production, programme, organisation or structure, in
accordance with subclause (b)(i)(A), of this clause:
(A) In order to
terminate the employment of an employee, the employer shall give to the
employee the following notice:
|
Period of
continuous
|
Period of notice
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|
|
|
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Less than 1 year
|
1 week
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1 year and less than 3 years
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2 weeks
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3 years and less than 5 years
|
3 weeks
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5 years and over
|
4 weeks
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(B) In addition to
the notice above, employees over 45 years of age at the time of the giving of
the notice, with not less than two years' continuous service, shall be entitled
to an additional week's notice.
(C) Payment in lieu
of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(ii) Notice for
technological change - This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from technology in
accordance with subclause (b)(i)(A).
(A) In order to
terminate the employment of an employee, the employer shall give to the employee
three months' notice of termination.
(B) Payment in lieu
of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(C) The period of
notice required by this subclause to be given shall be deemed to be service
with the employer for the purposes of the Long Service Leave Act 1955,
the Annual Holidays Act 1944, or any Act amending or replacing either of
these Acts.
(iii) Time off
during the notice period -
(A) During the period
of notice of termination given by the employer, an employee shall be allowed up
to one day's time off without loss of pay during each week of notice, to a
maximum of five weeks, for the purpose of seeking other employment.
(B) If the employee
has been allowed paid leave for more than one day during the notice period for
the purpose of seeking other employment the employee shall, at the request of
the employer, be required to produce proof of attendance at an interview or the
employee shall not receive payment for the time absent.
(iv) Employee leaving
during the notice period - If the employment of an employee is terminated
(other than for misconduct) before the notice period expires, the employee
shall be entitled to the same benefits and payments under this clause 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.
(v) Statement of
employment - The employer shall, upon receipt of a request from an employee
whose employment has been terminated, provide to the employee a written
statement specifying the period of the employee's employment and the
classification of or the type of work performed by the employee.
(vi) Notice to
Centrelink - Where a decision has been made to terminate employees, the
employer shall notify Centrelink 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.
(vii) 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.
(viii) Transfer to
lower-paid duties - Where an employee
is transferred to lower-paid duties for reasons set out in subclause (b)(i),
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.
(e) Severance Pay -
(i) Where an
employee is to be terminated pursuant to subclause (d), Termination of
Employment, of this clause, 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:
(A) If an employee is
under 45 years of age, the employer shall pay in accordance with the following
scale:
|
Years of service
|
Under 45 Years of
Age Entitlement
|
|
|
|
|
Less than 1 year
|
Nil
|
|
1 year and less than 2 years
|
4 weeks
|
|
2 years and less than 3 years
|
7 weeks
|
|
3 years and less than 4 years
|
10 weeks
|
|
4 years and less than 5 years
|
12 weeks
|
|
5 years and less than 6 years
|
14 weeks
|
|
6 years and over
|
16 weeks
|
(B) Where an
employee is 45 years of age or over, the entitlement shall be in accordance
with the following scale:
|
Years of service
|
45 Years of Age and
Over Entitlement
|
|
|
|
|
Less than 1 year
|
Nil
|
|
1 year and less than 2 years
|
5 weeks
|
|
2 years and less than 3 years
|
8.75 weeks
|
|
3 years and less than 4 years
|
12.5 weeks
|
|
4 years and less than 5 years
|
15 weeks
|
|
5 years and less than 6 years
|
17.5 weeks
|
|
6 years and over
|
20 weeks
|
(C) "Week's
pay" means the all-purpose rate for the employee concerned at the date of
termination and shall include, in addition to the ordinary rate of pay,
overaward payments, shift penalties and allowances paid in accordance with this
award.
(ii) Incapacity to
pay - Subject to an application by the employer and further order of the
Industrial Relations Commission of New South Wales, an employer may pay a
lesser amount (or no amount) of severance pay than that contained in paragraph
(i) of this subclause.
The Commission shall have regard to such financial and
other resources of the employer concerned as the Commission thinks relevant,
and the probable effect paying the amount of severance pay in paragraph (i) of
this subclause, will have on the employer.
(iii) Alternative
employment - Subject to an application by the employer and further order of the
Commission, an employer may pay a lesser amount (or no amount) of severance pay
than that contained in paragraph (i) of this clause, if the employer obtains
acceptable alternative employment for an employee.
(f) Savings Clause
- Nothing in this award shall be construed so as to require the reduction or
alteration of more advantageous benefits or conditions which an employee may be
entitled to under any existing redundancy arrangement, taken as a whole,
between the union and any employer bound by this award.
24. Protective
Clothing
(a) An employer
shall periodically provide or make provision for the supply to all employees
with one week's service or more of two sets of overalls or uniforms and caps,
for use while working. For the purpose
of this clause "uniform" shall mean:
Males: Such clothing as affords protection equivalent to a
short- sleeved shirt and long trousers.
Females: Such clothing as affords protection equivalent to a
short - sleeved dress.
(b) If the nature of
an employee's work requires that they wear special footwear, gloves or suitable
aprons, then these shall be supplied by the employer.
(c) The articles so
supplied, or for which provision has been made, shall be the property of the
employer, who may deduct an appropriate amount from any monies due if such
clothing is not returned on termination of employment.
(d) Overalls,
uniforms and caps supplied by the employer shall be laundered by the employer
or, in lieu thereof, the employer shall pay a laundry allowance as set out in
Item 4 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates.
25. Tools of Trade
The employer shall provide all tools of trade required to be
used by employees in the course of their employment.
26. First-Aid
The employer shall provide and maintain in every factory or
workshop a properly equipped first-aid ambulance chest which shall be a suitable
dustproof receptacle made of either metal or wood and shall make it available
for the use of employees in some accessible place in the said factory or
workshop. (See also the Occupational Health and Safety Act 2000, the
Occupational Health and Safety Regulation 2001 and WorkCover's First Aid in the
Workplace Guide 2001).
27. Amenities
See the Occupational Health and Safety Act 2000, the
Occupational Health and Safety Regulation 2001 and WorkCover's Workplace
Amenities Code of Practice 2001
28. Dispute Procedure
(a) Procedures
relating to grievances of individual employees:
(i) The employee is
required to notify (in writing or otherwise) the employer as to the substance
of the grievance, request a meeting with the employer for bilateral discussions
and state the remedy sought.
(ii) A grievance
must initially be dealt with as close to its source as possible, with graduated
steps for further discussion and resolution at higher levels of authority.
(iii) Reasonable
time limits must be allowed for discussion at each level of authority.
(iv) At the
conclusion of the discussion, the employer must provide a response to the
employee's grievance, if the matter has not been resolved, including reasons
for not implementing any proposed remedy.
(v) While a
procedure is being followed, normal work must continue.
(vi) The employee may
be represented by an industrial organisation of employees.
(b) Procedures
relating to disputes, etc., between employers and their employees -
(i) A question,
dispute or difficulty must initially be dealt with as close to its source as
possible with graduated steps for further discussion and resolution at higher
levels of authority.
(ii) Reasonable time
limits must be allowed for discussion at each level of authority.
(iii) While a
procedure is being followed, normal work must continue.
(iv) The employer may
be represented by an industrial organisation of employers and the employees may
be represented by an industrial organisation of employees for the purposes of
each procedure.
29.
Anti-Discrimination
(a) 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.
(b) 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.
(c) 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.
(d) Nothing in this
clause is to be taken to affect:
(i) any conduct or
act which is specifically exempted from anti-discrimination legislation.
(ii) offering or providing
junior rates of pay to persons under 21 years of age.
(iii) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977.
(iv) a party to this
award from pursuing matters of unlawful discrimination in any state or federal
jurisdiction.
(e) This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by the legislation referred to in this clause.
NOTES
(i) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(ii) Section 56(d)
of the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.
30. Right of Entry
See Chapter 5, Part 7 of the Industrial Relations Act
1996.
31. Posting of
Notices
The Union, subject to the employer’s approval, shall be
permitted to post notices in each factory regarding union business on notice
boards provided for the purpose.
32. Enterprise
Consultative Mechanism
At each enterprise, there shall be established a
consultative mechanism and procedures appropriate to their size, structure and
needs for consultation and negotiation on matters affecting their efficiency
and productivity.
33. Award to be
Posted
See Chapter 7, Part 1 of Industrial Relations Act 1996.
34. 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
Confectioners (State) Award published 23 November 2001 (329 I.G. 926), as
varied.
This award shall apply to confectioners, assistants and
other employees engaged in the manufacture of confectionery, chocolate, cocoa,
licorice, chewing gum or sweetmeat to the finished article, whether by hand or
machine, in the State, excluding the County of Yancowinna, within the industries
and callings of this award.
The changes made to the award pursuant to the Award Review
under 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 7 March 2008.
This award remains in force until varied or rescinded, the
period for which it was made already having expired.
Confectioners
(State) Industrial Committee
Industries and
Callings
Confectioners, assistants and other employees engaged in the
manufacture of confectionery, chocolate, cocoa, licorice, chewing gum or
sweetmeat to the finished article, whether by hand or machine, in the State,
excluding the County of Yancowinna;
Excepting -
Engine drivers and firepersons, greasers, trimmers, cleaners
and pumpers, engaged in or about the driving of engines, electrical crane,
winch and motor drivers; and
Carter, grooms, stablepersons, yard persons, and drivers of
motor and other power propelled vehicles.
PART B
MONETARY RATES
Table 1 - Rates of
Pay
(i) Adult Employees
-
|
Level
|
Total Rate Per Week
|
|
|
$
|
|
Level 5
|
516.10
|
|
Level 4
|
531.40
|
|
Level 3
|
541.10
|
|
Level 2
|
570.30
|
|
Level 1
|
587.00
|
(ii) Juniors -
|
|
Percentage of
Confectioner Level 4 Rate
|
|
|
%
|
|
Under 16 Years of age
|
55
|
|
At 16 years of age
|
65
|
|
At 17 years of age
|
75
|
|
At 18 years of age
|
85
|
|
At 19 years of age
|
Appropriate adult
rate
|
Table 2 - Other
Rates and Allowances
|
Item No.
|
Clause No.
|
Brief Description
|
Amount
|
|
|
|
|
$
|
|
1
|
12
|
First-Aid Allowance
|
10.49 per week
|
|
2
|
12
|
Heat Allowance -
|
|
|
|
|
In excess of 46° Celsius
|
0.35 per hour
|
|
|
|
In excess of 56° Celsius
|
0.44 per hour
|
|
3
|
8
|
Meal Allowance
|
9.38 per week
|
|
4
|
24
|
Laundry Allowance
|
2.65 per week
|
E.
A. R. BISHOP, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.