AP818456CRV - Wool Scourers and Carbonisers Award 2002
PART 7 - TYPES OF LEAVE AND PUBLIC HOLIDAYS
30. ANNUAL LEAVE
30.1 Period of leave
A period of 28 consecutive days' leave (including non-working days) shall be allowed annually to an employee after twelve months' continuous service (less the period of annual leave) as a weekly employee in any one or more of the occupations to which this award applies.
30.2 Annual leave exclusive of public holidays
30.2.1 The annual leave prescribed by this clause shall be exclusive of any public holidays prescribed by this award and if any such holiday falls within an employee's period of annual leave, and is observed on a day which, in the case of that employee, would have been an ordinary working day, there shall be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday.
30.2.2 Where a holiday falls and the employee fails without reasonable cause, proof whereof shall be upon the employee, to attend for work at his/her ordinary starting time on the working day immediately following the last day of the period of his/her annual leave and remains at work thereafter for the number of working days equivalent to the number of such holidays he/she shall not be entitled to be paid for any such holiday.
30.3 Broken leave
The annual leave shall be given and taken in one or two continuous periods. If the annual leave is given in two continuous periods then one of those two periods must be of at least 21 consecutive days. Provided that if the employer and an employee so agree then his/her annual leave entitlement may be given and taken in two separate periods neither of which is of at least 21 consecutive days or in three separate periods.
30.4 Calculation of continuous service
30.4.1 For the purpose of this clause, service shall be deemed to be continuous notwithstanding:
30.4.1(a) Any interruption or determination of the employment by the employer if such interruption or determination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence,
30.4.1(b) Any absence from work on account of personal sickness or accident or on account of leave lawfully granted by the employer; or
30.4.1(c) Any absence with reasonable cause proof whereof shall be upon the employee.
30.4.2 In cases of personal sickness or accident or absence with reasonable cause the employee to become entitled to the benefit of this subclause shall inform the employer, in writing if practicable, within 24 hours of the commencement of such absence of his/her inability to attend for duty and as far as practicable the nature of the illness, injury or cause and the estimated duration of his/her absence.
30.4.3 Any absence from work by reason of any cause not being a cause specified in this subclause shall not be deemed to break the continuity of service for the purposes of this clause unless the employer, during the absence or within fourteen days of the termination of the absence, notified the employee in writing that such absence will be regarded as having broken the continuity of service.
30.4.4 In cases of individual absenteeism, such notice shall be given in writing to the employee concerned but in cases of concerted or collective absenteeism, notice may be given to employees by the posting up of a notification in the plant in the manner in which general notification to the employees are usually made in the plant and by posting to each union whose members have participated in such concerted or collective absenteeism a copy of same not later than the day it is posted up in the plant.
30.4.5 A notice to an individual employee may be given by delivering same to him personally or by posting it to his/her last recorded address in which case it will be deemed to have reached him in due course of post.
30.4.6 In calculating the period of twelve months' continuous service any absence from work not exceeding ten working days in a qualifying period of twelve months on account of sickness or accident, provided that an employee with an accumulation of sick leave entitlement in excess of ten working days may be absent for a period not more than fifteen working days, in a twelve monthly period, shall be taken into account in calculating the period of twelve months continuous service.
30.5 Calculation of service
30.5.1 Service before the date of this award shall be taken into consideration for the purpose of calculating annual leave, but an employee shall not be entitled to leave or payment in lieu thereof for any period in respect of which leave or payment in lieu thereof has been allowed or made under the award hereby superseded. The annual leave shall be allowed at the rate of ten hours for each completed one month of continuous service. The period of annual leave to be allowed under this subclause shall be calculated to the nearest day, any broken part of a day in the result not exceeding half a day to be disregarded.
30.5.2 Where the employer is a successor or assignee or transmittee of a business, if an employee was in the employment of the employer's predecessor at the time when he/she became such successor or assignee or transmittee, the employee in respect of the period during which he/she was in the service of the predecessor shall for the purpose of this clause be deemed to be in the service of the employer.
30.6 Calculation of month
For the purpose of this clause, a month shall be reckoned as commencing with the beginning of the first day of the employment or period of employment in question and as ending at the beginning of the day which the latest month in question has the same date number as that which the commencing day had in its month and if there be no such day in such subsequent month, shall be reckoned as ending at the end of the subsequent month.
30.7 Leave to be taken
Except on termination of employment the annual leave provided for by this clause shall be allowed and shall be taken and payment shall not be made or accepted in lieu of annual leave.
30.8 Time of taking leave
Annual leave shall be given at a time fixed by the employer within a period not exceeding six months from the date when the right to annual leave accrued and after not less than one month's notice to the employee.
30.9 Leave allowed before due date
30.9.1 An employer may allow an employee to take annual leave either wholly or partly in advance before the right thereto has accrued due. In such case a further period of annual leave shall not commence to accrue until after the expiration of the twelve months in respect of which the annual leave or part thereof had been taken before it accrued.
30.9.2 Where annual leave or part thereof has been granted pursuant to 30.9.1, before the right thereto has accrued due, and the employee subsequently leaves or is discharged from the service of the employer before completing the twelve months continuous service in respect of which the leave was granted, and the amount paid by the employer to the employee for the annual leave or part so taken in advance exceeds the amount which the employer is required to pay to the employee under 30.11, the employer shall not be liable to make any payment to the employee under 30.13, and shall be entitled to deduct the amount of excess from any remuneration payable to the employee upon the termination of employment.
30.10 Payment for period of leave
30.10.1 Each employee before going on leave shall be paid the wages he/she would have received in respect of the ordinary time he/she would have worked had he/she not been on leave during the relevant period.
30.10.2 For the purpose of this subclause, wages shall be at the rates prescribed by clauses 17 - Wage rates - adults and 12.6 for the occupation in which the employee was ordinarily employed immediately prior to the commencement of his/her leave or the termination of his/her employment as the case may be, and, in addition to the above payment;
30.10.2(a) any leading hand allowance, first aid allowance, average shift rates according to the respective full roster cycle preceding the annual leave, and/or
30.10.2(b) in the case of employees on over-award payments, piece or bonus work or any other system of payment by results, the average of their over-award payments, piece or bonus work earnings during ordinary hours over the period of twenty weeks ending four weeks prior to the commencement of such leave.
Provided that where an employee is not employed during the whole of the twenty weeks, the average shall be calculated on the period of employment falling within the said twenty weeks.
30.11 Loading on annual leave
30.11.1 During a period of annual leave an employee shall receive a loading of 17-½% calculated on the rate of wage prescribed by clauses 17 - Wage rates - adults and 12.6.
30.11.2 The loading shall not apply to proportionate leave on termination.
30.12 Payment of proportionate leave on termination
If after one months’ continuous service in any qualifying twelve-monthly period an employee lawfully leaves his or her employment, or his or her employment is terminated by the employer through no fault of the employee, the employee shall be paid for 2.923 hours for each 38 ordinary hours worked, and in respect of which leave has not been granted under this clause, at the rate specified in clause 30.10.
30.13 Annual close-down
Where an employer closes down his/her plant, or a section or sections thereof for the purposes of allowing annual leave to all or the bulk of the employees in the plant, or section or sections concerned, the following shall apply:
30.13.1 The employer may, by giving not less than four weeks notice of intention to do so, stand off for the duration of the close down all employees in the enterprise or part of the enterprise concerned and allow to those who are not then qualified for a full entitlement to annual leave for twelve months continuous service, paid leave on a proportionate basis at the appropriate rate of wage as prescribed in 30.10 for 2.923 hours for each 38 ordinary hours worked.
30.13.2 An employee who has then qualified for a full entitlement to annual leave for twelve months continuous service and has also completed a further week or more of continuous service, shall be allowed leave, and shall also be paid at the appropriate rate of wage in accordance with this clause for 2.923 hours for each 38 ordinary hours worked since the close of the employee’s last twelve monthly qualifying period.
30.13.3 The next twelve-monthly qualifying period for each employee affected by such close-down shall commence from the day on which the plant or section or sections concerned is re-opened for work. Provided that all time during which an employee is stood off without pay for the purposes of this subclause shall be deemed to be time of service in the next twelve-monthly qualifying period.
30.13.4 If in the first year of service with an employer, an employee is allowed proportionate annual leave under 30.13.1 and subsequently within such year lawfully leaves his/her employment or his/her employment is terminated by the employer through no fault of the employee he/she shall be entitled to the benefit of 30.11 subject to adjustment for any proportionate leave which he/she may have been allowed.
30.13.5 An employer may close down his/her plant for one or two separate periods for the purposes of granting annual leave in accordance with this subclause. If the employer closes down his/her plant in two separate periods one of those periods shall be for a period of at least 21 consecutive days. Provided that where the majority of the employees in the plant or section or sections concerned agree the employer may close down his/her plant in accordance with this subclause in two separate periods neither of which is of at least 21 consecutive days, or in three separate periods. In such cases the employer shall advise the employees concerned of the proposed dates of each close-down before asking them for their agreement.
30.14 Part close-down and part rostered leave
30.14.1 An employer may close down his/her plant or a section or sections thereof for a period of at least 21 consecutive days and grant the balance of the annual leave due to an employee in one continuous period in accordance with a roster.
30.14.2 An employer may close down his/her plant or a section or sections thereof for a period of less than 21 consecutive days and allow the balance of the annual leave due to an employee in one or two continuous periods either of which may be in accordance with a roster. In such a case the granting and taking of annual leave shall be subject to the agreement of the employer and the majority of employees in the plant, or a section or sections thereof respectively and before asking the employees concerned for their agreement the employer shall advise them of the proposed date of the close-down or close-downs and the details of the annual leave roster.
30.15 Annual leave
[30.15 inserted by PR942852 from 07Oct02]
The following provisions shall apply to employees employed in the wool sorting, wool scouring and carbonising and wool store sections at GH Michell & Sons Pty Ltd (Laverton), Warrnambool Textiles Division of Onkaparinga Woollen Co. Ltd, GH Michell & Sons (Aust) Pty Ltd (Salisbury North) (in so far as their wool scouring and carbonising operations are concerned), Onkaparinga Woollen Co. Ltd, Lobethal, Coats Patons (Australia) Ltd (Launceston), Canobolas Wool Topmaking Pty Ltd (Orange).
30.15.1 Summary
This clause describes an employee’s entitlement to annual leave. Essentially, that entitlement is four weeks or in the case of seven day shift workers, five weeks.
A loading of 17.5 per cent (higher percentage in the case of certain shift workers) is payable in addition to the payment for the leave. Payment for the period of leave both for full-time and regular part-time employees is based on the principle that the employee will be paid what he or she would normally have received if he or she had not been on leave, which may include overtime.
30.15.1(a) Period of annual leave
30.15.1(a)(i) A weekly or regular part time employee is entitled to a period of 28 consecutive days leave including non-working days, shall be allowed annually to an employee after 12 months continuous service (less the period of annual leave).
30.15.1(a)(ii) A weekly or regular part time employee shall accrue annual leave at a rate of 2.923 hours for each 38 ordinary working hours worked.
30.15.1(b) Seven day-shift workers
In addition to 30.15.1, seven day shift workers (that is shift workers, who are rostered to work regularly on Sundays and holidays) shall be allowed seven consecutive days' leave, including non-working days. Where an employee with 12 months' continuous service is engaged for part of the twelve monthly period as a seven day shift worker he or she shall be entitled to have the period of 28 consecutive days annual leave prescribed in 30.15.1(a) increased by 0.73 of one hour for each week he or she is continuously engaged as aforesaid.
30.15.2 Annual leave exclusive of public holidays
30.15.2(a) Annual leave shall be exclusive of any of the holidays prescribed by clause 34 – Public holidays. If any such holiday falls within an employee's period of annual leave, and is observed on a day which is an ordinary working day for an employee, an additional ordinary working day shall be added to the period of annual leave in respect of each such holiday.
30.15.2(b) Where a holiday falls as above and the employee fails without reasonable cause (proof lying on the employee) to attend for work at his or her ordinary starting time on the working day immediately following the last day of the period of his or her annual leave, he or she shall not be entitled to be paid for any such holiday.
30.15.3 Annual leave may be taken in more than one period
30.15.3(a) Annual leave may be given and taken in one or two continuous periods. If the annual leave is given in two continuous periods then one of those two periods must at least 21 consecutive days.
30.15.3(b) An employer and an employee may agree that the employee takes his or her annual leave in up to three separate periods, none of which is 21 consecutive days, provided such agreement is in accordance with clause 9.1 – Consultative mechanism and procedures.
30.15.4 How to calculate the annual leave entitlement
30.15.4(a) When calculating an employee’s annual leave entitlement in 30.15.1, the following absences must be counted as time worked:
30.15.4(a)(i) any interruption of employment caused by the employer with the intention of avoiding his or her annual leave obligations under this clause;
30.15.4(a)(ii) any absence from work during leave granted by the employer;
30.15.4(a)(iii) any absence because of illness or accident of up to 21 days in the period of 12 months’ service.
30.15.4(a)(iv) any absence with reasonable cause, proof of which lies with the employee;
30.15.4(a)(v) any absence, except where the employer has notified the employee in writing during the absence that such absence will be regarded as having broken the continuity of service.
30.15.4(b) The employer may reduce an employee’s entitlement to annual leave by 2.923 hours per week where the employee:
30.15.4(b)(i) is absent because of illness or accident for a period of more than 21 days; or
30.15.4(b)(ii) is absent on unpaid leave granted by the employer;
30.15.4(c) When calculating annual leave under 30.15.1 or 30.15.10 all service will be taken into account including:
30.15.4(c)(i) time served but for which leave has not been granted under an award which this award superseded; and
30.15.4(c)(ii) any time served under a previous employer, where the current employer is a successor, assignee or transmittee of a business of the previous employer.
30.15.5 Leave must be taken
The annual leave provided for by this clause must be taken by the employee. Except as provided by 30.15.10 and 30.15.11, payment must not be made or accepted in lieu of annual leave.
30.15.6 Time of taking leave
30.15.6(a) An employer must give an employee four months notice of when annual leave is to be taken, provided that the time fixed by the employer is within:
30.15.6(a)(i) 6 months from when the right to take leave accrued, in the case of an employee taking the leave in one period; or
30.15.6(a)(ii) 9 months from when the right to take leave accrued, in the case of an employee taking the leave in two or three periods.
30.15.7 Leave allowed before due date
30.15.7(a) An employer may allow annual leave to an employee before the right has accrued. Where leave is taken a further period of annual leave shall not commence to accrue until after the expiration of the 12 months in respect of which annual leave had been taken before it accrued.
30.15.7(b) Where leave has been granted to an employee pursuant to this part before the right has accrued and the employee subsequently leaves or is discharged from the service of the employer before completing the 12 months’ continuous service, in respect of which the leave was granted, the employer may deduct from whatever remuneration is payable upon the termination of the employment an amount equivalent to 2.923 hours for each week of uncompleted service.
30.15.8 Payment for period of leave
30.15.8(a) Each employee before going on annual leave shall be paid the wages he or she would have received in respect of the ordinary time which he or she would have worked had he or she not been on leave during the relevant period.
30.15.8(b) Subject to subclause 30.15.8(a), each employee shall, where applicable, have the amount of wages to be received for annual leave calculated by including the following, where applicable:
30.15.8(b)(i) Day workers
The ordinary rate the employee would have received if he or she were working including clause 20 – Allowances, in respect only of clause 20.7 – First aid attendant allowance and clause 20.11 - Instructors allowance, where applicable, and where the employee works under a system of payment by results, bonus or payments calculated in accordance with 30.15.12.
30.15.8(b)(ii) Shift workers
The ordinary rate the employee would have received according to the employee's roster or projected roster including Saturday or Sunday shifts and payment for the regularly rostered eight hours overtime shift which is worked once in every four weeks to maintain the continuity of the roster cycle.
30.15.8(b)(iii) The rate payable pursuant to clause 20.12 – Higher duties allowance, calculated on a daily basis which the employee would have normally received for ordinary time during the relevant period whether on a shift roster or otherwise.
30.15.8(b)(iv) Payment in the case of employees employed on piece or bonus or any other system of payment by results shall be in accordance with subclause 35.15.12.
30.15.8(b)(v) Part-time employees shall in respect of annual leave, be paid only at the rate actually being received by them at such time.
30.15.9 Loading on annual leave
During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed by clause 17 – Wage rates - adults.
30.15.9(a) The loading shall be as follows:
30.15.9(a)(i) Day Workers - employees who would have worked on day work only had they not been on leave - a loading of 17 1/2 per cent.
30.15.9(a)(ii) Shift Workers - employees who would have worked on shift work had they not been on leave - a loading of 17 1/2 per cent or the shift loading whichever is the greater but not both.
30.15.9(a)(iii) The loading prescribed in this part shall be payable when services are terminated in respect of any untaken part of a full twelve month entitlement to annual leave for which payment in lieu is made upon the termination of employment by either party.
30.15.10 Proportionate payment on termination
30.15.10(a) An employee who has one month’s service in the first year of employment who lawfully leaves his or her employment or is terminated by the employer through no fault of the employee, must be paid as follows:
30.15.10(a)(i) at his or her ordinary wage for 2.923 hours for each completed week of service;
30.15.10(a)(ii) at his or her ordinary wage for an additional .73 hours for each week he or she was employed as a seven day continuous shift worker;
30.15.10(b) An employee with more than twelve months’ continuous service who leaves his or her employment or is terminated by the employer for any reason other than serious misconduct, is entitled to proportionate payment as provided in clause 35.15.10, and where the employee is employed under a system of payment by results, any additional bonus or payment calculated in accordance with clause 30.15.12.
30.15.11 Annual close-down
An employer may close down his or her workplace for the purpose of allowing annual leave accrued in the previous 12 months to all or the bulk of employees, subject to the following conditions:
30.15.11(a) The employer must give at least two months’ notice of his or her intention to close down.
30.15.11(b) The employer may stand down employees for any period of close down for which the employee does not have a credit for annual leave. The time during which an employee is stood down counts as service in the next twelve monthly qualifying period.
30.15.11(c) If an employee with less than 12 months service is terminated through no fault of the employee or who lawfully leaves his or her employment, he or she is entitled to proportionate payment for leave in accordance with 35.15.10 subject to any leave he or she may have been allowed.
30.15.11(d) Where the employee closes down, employees will be allowed at the time of close down:
30.15.11(e) The employer may close down the enterprise or part of the enterprise for one or two separate periods for the purpose of granting annual leave.
30.15.11(e)(i) Where the employer closes down in one period, the next twelve monthly period commences from 1 January each year.
30.15.11(e)(ii) If the employer closes down the enterprise or part of the enterprise in two separate periods one of these periods will be for a period of at least 21 consecutive days including non-working days.
30.15.11(f) The employer and the majority of employees concerned may agree to the annual leave being taken in one, two or three close downs provided that one of these periods will be a period of at least 14 days including non working days, in accordance with clause 9.1 – Consultative mechanism and procedures.
30.15.11(g) In the case of seven day continuous shift workers an employer may close down his or her workplace or section or sections of it for a period of less than 21 consecutive days and allow the balance of annual leave due to an employee in one or two continuous periods. In such cases the granting and taking of annual leave will be subject to the agreement of the employer and a majority of employees or the employer and an individual employee in accordance with clause 9.1 – Consultative mechanism and procedures.
30.15.12 Average pay for annual leave
30.15.12(a) An employee working under a system of payment by results will receive, an additional payment based on the average overaward payment and/or average bonus when taking annual leave. The averages will be calculated on a twenty week qualifying period applied to ordinary hours only.
30.15.12(b) The qualifying period of employment means:
30.15.12(b)(i) In the case of an employee taking annual leave at Christmas, the period of 20 consecutive weeks commencing with the first pay in July.
30.15.12(b)(ii) Where an employee is not employed during the whole of the qualifying period, the average will be calculated on the period of employment falling within 20 consecutive weeks.
30.15.12(b)(iii) In the case of an employee taking annual leave at any other time, the first 20 consecutive weeks in the six months immediately preceding the date of taking annual leave.
30.15.12(b)(iv) Where an employee does not qualify for calculation over a 20 week period then the number of weeks will be averaged by the actual number of weeks worked.
30.15.12(c) In the case of an employee absent on long service leave during any qualifying period of employment, both the period of such leave and the payment based on that period will be excluded in the calculation of the averages.
30.15.12(d) In calculating the average bonus, all amounts in respect of overtime, shift work, penalty or special rates will be excluded.
