AN120196 – Engine Drivers General (State) Award
31.1 Employees shall be entitled to and shall be allowed annual leave to the same extent and subject to the same conditions as are prescribed by statute, award, determination or industrial agreement - Commonwealth or State - for the general body of employees in the industry in which they are employed: Provided that an employee shall be entitled in any case to annual leave not less than hereinafter provided.
31.2 Period of Leave - A period of twenty-eight 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 an employee on weekly hiring in any one or more of the occupations to which the award applies. An employee on weekly hiring shall accrue annual leave at a rate of 2.923 hours for each 38 ordinary working hours worked.
31.3 In addition to the leave hereinbefore prescribed 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 twelve 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 leave to which he is entitled as prescribed in subclause 31.2 of this clause, increased by half a day for each month he is continuously engaged as aforesaid.
31.4 Subject to this subclause the annual leave prescribed by this clause shall be exclusive of any of the holidays prescribed by clause 26, Holidays, 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. Where a holiday falls as aforesaid and the employee fails without reasonable cause, proof whereof shall be upon him, to attend for work at his ordinary starting time on the working day immediately following the last day of the period of his annual leave he shall not be entitled to be paid for any such holiday.
31.5 "Broken leave - Annual leave shall be given and taken in one, two, three or four continuous periods. Provided that an employee may, with the consent of his or her employer, take short term annual leave, not exceeding four days in any calendar year
31.6 For the purpose of this clause service shall be deemed to be continuous notwithstanding:
(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;
(b) Any absence from work on account of personal sickness or accident or on account of leave lawfully granted by the employer; or
(c) Any absence with reasonable cause, proof whereof shall be upon the employee. 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 twenty-four hours of the commencement of such absence of his or 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 or her absence. A notification given by an employee pursuant to clause 27 - Sick Leave shall be accepted as a notification under this subclause.
Any absence from work by reason of any cause being not 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 notifies the employee in writing that such absence will be regarded as having broken the continuity of service.
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 notifications to 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 it not later than the day it is posted up in the plant. A notice to an individual employee may be given by delivering it to him or her personally or by posting it to his or her last recorded address, in which case it shall be deemed to have reached him or her in due course of post.
Calculation of Continuous Service - In calculating the period of twelve months' continuous service the following absences shall be taken into account and counted as time worked:
(1) up to 152 ordinary working hours in a twelve-monthly period in the case of sickness or accident;
(2) long service leave taken by an employee in accordance with the Long Service Leave Act of New South Wales;
Providing that for the purpose of this clause in calculating continuous service for periods of less than twelve months such absences due to sickness or accident shall be taken into account and counted as time worked on a pro rata basis of 152 ordinary hours for twelve months' service. Other absences from work shall not be taken into account and shall not count as time worked in calculating the period of twelve months' continuous service.
31.7 Calculation of Service - 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. The period of annual leave to be allowed under this subclause shall be calculated to the nearest day with any broken part of a day in the result not exceeding half a day to be disregarded.
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 became such successor or assignee or transmittee, the employer in respect of the period during which he was in the service of the predecessor shall, for the purpose of this clause, be deemed to be in the service of the employer.
31.8 Leave to be Taken - The annual leave provided by this clause shall be allowed and shall be taken and except as provided by subclause 31.13 and 31.14 hereof payment shall not be made or accepted in lieu of annual leave.
31.9 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 four weeks' notice to the employee.
Provided that by agreement between an employer and an employee, and ratified by the Industrial Registrar pursuant to section 3(4) of the Annual Holidays Act, annual leave may be taken at any time within a period of twelve months from the date at which it falls due and with less than four weeks notice to the employee.
31.10 Leave Allowed Before Due Date
(a) 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.
(b) Where annual leave or part thereof has been granted pursuant to paragraph (a) of this subclause 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 subclause 31.13 of this clause the employer shall not be liable to make any payment to the employee under the said subclause 31.13 and shall be entitled to deduct the amount of excess from any remuneration payable to the employee upon the termination of employment.
31.11 Each employee before going on leave shall be paid the wages he or she would have received in respect of the ordinary time he or she would have worked had he or she not been on leave during the relevant period.
Subject to subclause 31.12 hereof each employee shall, where applicable, have the amount of wages to be received for annual leave calculated by including the following where applicable:
31.12 The rate applicable to him or her as prescribed by clauses 5, Rates of Pay, 15, Junior Labour; and
(a) Subject to subclauses (a) and (b) the rate prescribed for work in ordinary time by clause 19, Shift Work, according to the employee's roster or projected roster including Saturday and Sunday shifts;
(b) The rate payable pursuant to clause 25, Mixed Functions, calculated on a daily basis which the employee would have received for ordinary time during the relevant period whether on a shift roster or otherwise;
(c) Any other rate to which the employee is entitled in accordance with his or her contract of employment for ordinary hours of work; provided that this provision shall not operate so as to include any payment which is of a similar nature to or is paid for the same reasons as or is paid in lieu of those payments prescribed by clause 6, Special Rates, clause 21, Overtime, and clause 7, Travelling and Camping Allowances, nor any payment which might have become payable to the employee as reimbursement for expenses incurred.
During a period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by subclause 31.11 of this clause, subject to the provisions of paragraph 31.2, of this subclause. The loading shall be as follows:
(a) Day Workers - An employee who would have worked on day work only had he or she not been on leave - a loading of 17.5 per cent.
(b) Shift Workers - An employee who would have worked on shift work had he or she not been on leave - a loading of 17.5 per cent: Provided that where the employee would have received shift loading prescribed by clause 19, Shift Work, of this award, had he or she not been on leave during the relevant period and such loadings would have entitled him or her to a greater amount than the loading of 17.5 per cent, then the shift loadings shall be included in the rate of wage prescribed by subclause 31.11 in lieu of the 17.5 per cent loading: Provided further that if the shift loading would have entitled him or her to a lesser amount than the loading of 17.5 per cent shall be added to the rate of wage prescribed by subclause 31.11 in lieu of the shift loading.
31.13 An employee on weekly hiring who –
(a) After one week's continuous service in his or her first qualifying twelve monthly period with an employer, lawfully leaves the employment of the employer or his or her employment is terminated by the employer through no fault of the employee; or
(b) Proportionate Leave on Termination - After 12 months' continuous service with an employer, leaves the employment of the employer or his or her employment is terminated by the employer for any reason; shall be paid 2.923 hours for each 38 ordinary hours worked and in respect of which leave had not been granted under this clause at the appropriate rate of wage calculated in accordance with clause 9 of this clause and calculated in accordance with clause 9, Payment of Wages.
31.14 Annual Close Down - Where an employer closes down his or 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 provisions shall apply:
(a) He or she may by giving not less than 4 weeks' notice of his or her intention so to do, stand off for the duration of the close down all employees in the plant, or section or sections concerned and allow to those who are not then qualified for a full entitlement to annual leave for twelve months' continuous service, pursuant to subclause 31.2 of this clause, paid leave on a proportionate basis at the appropriate rate of wage as prescribed in subclause 31.11 and 31.12 of this clause for 2.923 hours for each 38 ordinary hours worked. The hourly rate shall be calculated in accordance with subclause 31.11 of clause 7, Payment of Wages.
(b) An employee who has then qualified for a full entitlement to annual leave for twelve months' continuous service pursuant to subclause 31.2 of this clause, and has also completed a further week or more of continuous service shall be allowed his or her leave, and shall subject to subclause 31.7 of this clause, also be paid at the appropriate rate of wage as prescribed by subclause 31.11 and 31.12 of this clause 2.923 hours for each 38 ordinary hours worked since the close of his or her last twelve monthly qualifying period. The hourly rate shall be calculated in accordance with subclause 31.11 of clause 7, Payment of Wages.
(c) 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.
(d) If in the first year of his or her service with an employer an employee is allowed proportionate annual leave under paragraph (a) of this subclause, and subsequently within such year lawfully leaves his or her employment or his or her employment is terminated by the employer through no fault of the employee, he or she shall be entitled to the benefit of subclause 31.13 of this clause subject to adjustment for any proportionate leave which he or she may have been allowed as aforesaid.
(e) An employer may close down his or her plant for one or two separate periods for the purpose of granting annual leave in accordance with this subclause. If the employer closes down his or her plant in two separate periods one of those periods shall be for a period of at least 21 consecutive days, including non-working days.
Provided, that where the majority of employees concerned agree, an employer may close down the plant, work section/s in one, two or three separate periods for the purpose of granting annual leave in accordance with this subclause.
Provided further, that if an employer closes down his or her plant on more than one occasion, one of those periods shall be for a period of at least fourteen consecutive days including non-working days. In such cases, the employer shall advise the employees concerned of the proposed dates of each close-down before asking them for their agreement.
31.15 Nothing in this clause shall affect the operations of subclause 19.7 and any annual leave required to be given under that subclause shall be given in addition to the annual leave prescribed by this clause.
