AN120089 – Building and Construction Industry (State) Award
PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
32. ANNUAL LEAVE
32.1 Period of Leave Subject to the provisions of clauses 32.2, 32.4 and 32.5, a period of 28 consecutive days, exclusive of any public holidays occurring during the period, shall be given and taken as leave annually to all employees, other than casual employees, after 12 months' continuous service (less the period of annual leave) with an employer. Provided that where a rostered day off, as prescribed in clause 27 or 30 falls during the period annual leave is taken, payment of accrued entitlements for such day shall be made in addition to annual leave payments prescribed in 32.6.
32.2 Method of Taking Leave
(a) Either 28 consecutive days, or two separate periods of not less than seven consecutive days in all cases exclusive of any public holidays occurring therein, shall be given and taken within six months from the date when the right to annual leave accrued.
(b) Where an employee requests that leave be allowed in one continuous period such request shall not be unreasonably refused. In the event of lack of agreement between the parties the matter shall be referred to the Industrial Relations Commission for decision.
(c) In the circumstances where a public holiday falls within one day of a weekend or another public holiday the provision of 32.2(a) may be altered by agreement between the employer and a majority of employees affected under this award to provide that a day of annual leave entitlement may be granted on the day between the said public holidays and/or weekend if an employee, or employer, requests it.
(d) Where annual leave is proposed to be given and taken in two periods, one of which is to be in conjunction with the Christmas and New Year holidays representatives of the employers and employees, parties to this award shall meet not later than the 31st day of July in each year in order to fix the commencing and finishing dates for the following Christmas-New Year period of leave. Where no agreement can be reached between the representatives the matter shall be referred to the Commission for determination.
32.3 Proportionate Leave on Termination Where an employee has given five working days or more continuous service, inclusive of any day off as prescribed by clause 27 and 30 of this award (excluding overtime) and they either leave their employment or their employment is terminated by the employer they shall be paid one-twelfth of an ordinary week's wages in respect of each completed five working days of continuous service with their current employer for which leave has not been granted or paid for in accordance with this award.
32.4 Proportionate Leave on Termination Where an employee has given 40 hours or more continuous service (excluding overtime) and they either leave their employment or their employment is terminated by the employer, they shall be paid one-twelfth of an ordinary week's wages in respect of each completed 40 hours of continuous service with their current employer for which leave has not been granted or paid for in accordance with this award.
32.5 Broken Service Where an employee breaks their continuity of service by an absence from work for any reason other than a reason set out in 4.29, the amount of leave to which they would have been entitled under 32.1 shall be reduced by one-forty-eighth for each week or part thereof during which any such absence occurs and the amount of payment in lieu of leave to which they would have been entitled under 32.4 shall be reduced by one-twelfth of a week's pay for each week or part thereof during which any such absence occurs: Provided, however, that no reduction shall be made in respect of any absence unless the employer informs the employee in writing of their intention so to do within fourteen (14) days of the termination of the absence.
32.6 Calculation of continuous service (see clause 4, Classification Definitions of this award)
(a) illness or accident up to a maximum of four weeks after the expiration of paid sick leave;
(b) bereavement leave;
(c) jury service;
(d) injury received during the course of employment and up to a maximum of 26 weeks for which they received worker's compensation;
(e) where called up for military service for up to three months in any qualifying period;
(f) long service leave;
(g) any reason satisfactory to the employer or in the event of dispute decided through the process set out in 3.11. Provided that the reason shall not be deemed satisfactory unless the employee has informed the employer within 24 hours of the time when they were due to attend for work or as soon as practicable thereafter of the reason for the absence and probable duration thereof.
32.7 Leave Payment
(a) Payment for period of leave Each employee, before going on leave, shall be paid in advance the wages which would ordinarily accrue to them during the currency of the leave.
(b) Annual Leave Loading In addition to the payment prescribed in paragraph (a) hereof an employee shall receive during a period of annual leave a loading of 171/2 per centum calculated on the rates, loadings, and allowances prescribed by clauses 18.1, 24.1, 24.3 and 38 and leading hand rates as prescribed by subclause 18.4, of this award, if applicable. The loading prescribed above shall also apply to proportionate leave on lawful termination.
32.8 Service under Previous Award For the purposes of calculating annual leave the service of the employee prior to the operative date of this award shall be taken into account 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 any previous award.
32.9 Annual Close Down Notwithstanding anything contained in this award an employer giving any leave in conjunction with the Christmas-New Year holidays may, at their option, either:
(a) stand off without pay during the period of leave any employee who has not yet qualified under 32.1 , or
(b) stand off for the period of leave any employee who has not qualified under 32.1 and pay them (up to the period of leave then given) at a rate of one-twelfth of an ordinary week's wages in respect of each 40 hours' continuous service (excluding overtime): Provided that where an employer at their option decides to close down their establishment at the Christmas-New Year period for the purpose of giving the whole of the annual leave due to all, or the majority, of their employees then qualified for such leave, they shall give at least two months' notice to their employees of their intention so to do.
32.10 Commencement of Leave Distant Jobs -If an employee is still engaged on a distant job when annual leave is granted and the employee returns to the place of engagement, or if employed prior to going to country work the place regarded as their headquarters, by the first reasonable means of transport their annual leave shall commence on the first full working day following their return to such place of engagement or headquarters as the case may be.
32.11 Prohibition of Alternative Arrangements An employer shall not make payment to an employee in lieu of their annual leave or any part thereof except as is provided for in this clause and no contract, arrangement, or agreement shall annul, vary, or vitiate the provisions of this clause whether entered into before or after the commencement of this award.
32.12 Leave allowed before due date
(a) An employer may allow an apprentice to take his/her annual leave prior to the employee's right thereto. In such circumstances the qualifying period of further annual leave shall not commence until the expiration of twelve months in respect of which the leave so allowed was taken.
(b) Where an employer has allowed an apprentice to take his/her annual leave and the apprentice's services are terminated (by whatsoever cause) prior to the apprentice completing the 12 months' continuous service for which leave was allowed in advance, the employer may, for each complete week of the qualifying period of 12 months not served by the apprentice, deduct from whatever remuneration is payable upon the termination of the employment one-fifty-second of the amount of wages paid on account of the annual leave.
(c) Notwithstanding anything contained in this subclause an apprentice who has worked for 12 months in the industry with a number of different employers without taking annual leave shall be entitled to take annual leave and be paid one-twelfth of an ordinary week's wages in respect of each completed 40 hours of continuous service with his/her current employer.
