AN120089 – Building and Construction Industry (State) Award
33.1 Sick Leave
33.1.1 An employee other than a casual employee as defined who is absent from their work on account of personal illness or on account of injury by accident, other than that covered by workers' compensation, shall be entitled to leave of absence, without deduction of pay, subject to the following conditions and limitations:
(a) They shall within 24 hours of the commencement of such absence inform the employer of their inability to attend for duty; and, as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.
(b) They shall prove to the satisfaction of their employer (or in the event of dispute the Industrial Relations Commission ) that they were unable on account of such illness or injury to attend for duty on the day or days for which sick leave is claimed.
(c) An employee during their first year of employment with an employer shall be entitled to sick leave entitlement at the rate of one day at the beginning of each of the first ten calendar months of the first year of employment. Provided that an employee who has completed one year of continuous service (as defined by this award shall be credited with a further ten days sick leave entitlement at the beginning of their second and each subsequent year, which, subject to clause 33.1.5, shall commence on the anniversary of engagement.
33.1.2 In the case of an employee who claims to be allowed paid sick leave in accordance with 33.1 for an absence on one day only such employee if in the year they have already been allowed paid sick leave on two occasions for one day only, 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 an employer may agree to accept from the employee a statutory declaration stating that the employee was unable to attend for duty on account of personal illness or injury in lieu of a medical certificate. Nothing in this subclause shall limit the employer's rights under 33.1.1(b).
33.1.3 Sick leave with an employer shall accumulate from year to year so that any balance of the period specified in 33.1.1(c), which in any year has not been allowed to an employee by that employer as paid sick leave may be claimed by the employee and subject to the conditions herein prescribed, shall be allowed by that employer in a subsequent year, without diminution of the sick leave prescribed in respect of that year.
Provided that sick leave which accumulates pursuant to 33.1.3 shall be available to the employee for a period of ten years, but for no longer from the end of the year in which it accrues.
33.1.4 Any sick leave for which an employee may become eligible under this award by reason of service with one employer shall not be cumulative upon sick leave for which the employee may become eligible by reason of subsequent service with another employer.
33.1.5 If an employee's employment is terminated by their employer and they are re-engaged by the same employer within a period of six months then the employee's unclaimed balance of sick leave shall continue from the date of re-engagement. In such case the employee's next year of service will commence after a total of twelve months has been served with that employer excluding the period of interruption in service from the date of commencement of the previous period of employment or the anniversary of the commencement of the previous period of employment, as the case may be.
33.1.6 Sick Leave (Apprentices)
(a) Each apprentice shall be allowed sick leave up to a maximum of a fortnight for each year of apprenticeship. Such sick leave shall be cumulative for the period of apprenticeship; provided that in the event of a transfer to another employer credit shall not be given for any balance of sick leave not taken whilst in the service of the previous employer.
(b) For absence due to sickness of two days or less the parent or guardian shall notify the employer by telephone and confirm the information by letter furnished on the day of resumption. Time lost for such absences shall not be paid for if the absence is not notified in the manner prescribed.
(c) A medical certificate shall be furnished for absence in excess of two days.
33.2 Personal/Carers Leave
33.2.1 Use of Sick Leave
(a) An employee, other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (ii) of paragraph (c), who needs the employees care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, provided for in subclause 33.1, Sick Leave, for absences to provide care and support, for such persons when they are ill. Such leave may be taken for part of a single day.
(b) The employee shall, if required, establish either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person. In normal circumstances, an employee must not take carers leave under this subclause where another person has taken leave to care for the same person.
(c) The entitlement to use sick leave in accordance with this subclause is subject to:
(i) the employee being responsible for the care of the person concerned; and
(ii) the person concerned being:
(a) a spouse of the employee; or
(b) a de facto spouse, who, in relation to a person, is a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person; or
(c) 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
(d) a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or
(e) a relative of the employee who is a member of the same household, where for the purposes of this subparagraph:
1. relative means a person related by blood, marriage or affinity;
2. affinity means a relationship that one spouse because of marriage has to blood relatives of the other; and
3. household means a family group living in the same domestic dwelling.
(d) An employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that persons 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.
33.2.2 Unpaid leave for Family Purpose An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a member of a class of person set out in 33.2.1(c)(ii) who is ill.
33.2.3 Annual Leave
(a) An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.
(b) Access to annual leave, as prescribed in paragraph (a) of 33.2.3, shall be exclusive of any shutdown period provided for elsewhere under this award.
(c) An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.
33.2.4 The Time Off in Lieu of Payment for Overtime
(a) an employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.
(c) If, having elected to take time as leave in accordance with paragraph (a) of 33.2.4 the leave is not taken for whatever reason payment for time accrued at overtime rates shall be made at the expiry of the 12 month period or on termination.
(d) where no election is made in accordance with the said paragraph (a) of 33.2.4, the employee shall be paid overtime rates in accordance with the award.
33.2.5 Make-up Time
(a) An employee may elect, with the consent of the employer, to work make-up time, under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.
(b) An employee on shift work may elect, with the consent of the employer, to work make-up time (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate which would have been applicable to the hours taken off.
33.2.6 Rostered Days Off
(a) An employee may elect, with the consent of the employer, to take a rostered day off at any time.
(b) an employee may elect, with the consent of the employer, to take rostered days off
in part day amounts.
(c) an employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.
(d) Subclause 33.2.6 is subject to the employer informing each union which is both party of 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.
33.3 Bereavement Leave
33.3.1 An employee, other than a casual employee, shall be entitled to up to two days bereavement leave without deduction of pay, up to and including the day of the funeral, on each occasion of the death in Australia of a person prescribed in 33.3.3. Provided that, with the consent of the employer, which consent shall not be unreasonably withheld, an employee shall, in addition to this entitlement to paid bereavement leave, be entitled to reasonable unpaid bereavement leave up to ten working days in respect of the death within Australia or overseas of a person to whom this clause applies.
33.3.2 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.
33.3.3 Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carers leave as set out in 33.2.1(c)(ii), provided that, for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.
33.3.4 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.
33.3.5 Bereavement leave may be taken in conjunction with other leave available under 33.2.2, 33.2.3, 33.2.4, 33.2.5 and 33.2.6. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.
33.4 Long Service Leave
NOTE: See Building and Construction Industry Long Service Payments Act 1986.
33.5 Trade Union Training Leave
33.5.1 Subject to all qualifications in this clause, an employee appointed or elected as an accredited representative of the union (as defined) to which they belong shall, upon application in writing to the employer, be granted up to 5 days leave with pay each calendar year non-cumulative to attend courses conducted or approved by the Australian Trade Union Training Authority.
(i) Such courses shall be designed and structured with the objective or promoting good industrial relations within the building and construction industry.
(ii) Consultation may take place between the parties and the Australian Trade Union Training Authority, where appropriate, in the furtherance of this objective.
33.5.2 For the purpose of this clause an "accredited representative of the union" shall mean a workplace delegate recognised by the employer in accordance with Clause 12.5 of this Award.
33.5.3 The following scale shall apply:-
No. of Employees covered by this Award |
Max. No. of employees eligible to attend per year |
Max. No. of Days Permitted per year |
Up to 15 |
1 |
5 |
16 - 30 |
2 |
10 |
31 - 50 |
3 |
15 |
51 - 100 |
4 |
20 |
101 and over |
5 |
25 |
33.5.4 The application for leave shall be given to the employer at least 6 weeks in advance of the date of commencement of the course. The application for leave shall contain the following details:-
(i) The name of the employee seeking the leave.
(ii) The period of time for which the leave is sought (including course dates and the daily commencing and finishing times); and
(iii) The title, general description and structure of the course to be attended and the location of where the course is to be conducted.
33.5.5 The employer shall advise the union within seven clear working days (Monday to Friday) of receiving the application as to whether or not the application for leave has been approved.
33.5.6 The time of taking leave shall be arranged so as to minimise any adverse effect on the employer's operations. The onus shall rest with the employer to demonstrate an inability to grant leave when an eligible employee is otherwise entitled.
33.5.7 An employer shall not be liable for any additional expenses associated with an employee's attendance at a course other than the payment of ordinary time earnings for such absence. For the purpose of this clause ordinary time earnings shall be defined as the relevant award classification rate including supplementary payments, shift work loadings where relevant plus overaward payments where applicable.
33.5.8 Leave rights granted in accordance with this clause will not result in additional payment for alternative time off to the extent that the course attended coincides with an employee's day off in the 19 day month work cycle or with any concessional leave.
33.5.9 An employee on request by their employer shall provide proof of their attendance at any course within 7 days. If an employee fails to provide such proof, the employer may deduct any amount already paid for attendance from the next week's pay or from any other moneys due to the employees.
33.5.10 Where an employee is sick during a period when leave pursuant to 33.5 has been granted proof of attendance at the course is not required for that period and the employee shall receive payment, if entitled, under the provisions of subclause 33.1 of this award.
33.5.11 Leave of absence granted pursuant to this clause shall count as service for all purposes of this award.
33.5.12 This clause shall not apply to government authorities in New South Wales bound by this award.
33.5.13 Any dispute as to any aspect of the operation of this clause shall be resolved in accordance with the dispute settlement procedure of this award.
