AN140103 – Electrical Contracting Industry Award - State 2003

PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 

7.1 ANNUAL LEAVE

7.1.1 Entitlement

(a) An employee shall be entitled to leave of absence on full pay, for a period equal to 4 weeks for each period of 12 months' Service (less the period of leave ) with their employer: Provided that, employees employed on Shift Work where 3 shifts per day are worked over a period of 7 days per week, shall be entitled to not less than 5 weeks for each period of 12 months' Service (less the period of leave).

(b) The annual leave prescribed by clause 7.1 shall be exclusive of any of the holidays prescribed by clause 7.6 (Public holidays) of 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.

(c) Where a holiday falls during the period of annual leave and the employee fails to attend for work without reasonable cause at the expected resumption of work, they shall not be entitled to payment for any such holiday.

(d) By agreement between the employer and employee, an employee may take annual leave in 2 separate periods. The second period is to be taken within 6 months of the leave falling due.

(e) Provided that if an employee, who works an average of 38 ordinary hours per week, is granted leave in 2 portions they shall not be entitled to a greater number of rostered days off per year than an employee who is granted annual leave in only one portion.

7.1.2 Payment for annual leave

(a) An employee before going on leave shall be paid the amount of wages they would have received in respect of ordinary time they would have worked had they not been on leave during the relevant period.

(b) For the purpose of clause 7.1 wages payable for annual leave shall be calculated by including the following where applicable:

(i) The rate prescribed by clauses 5.5 (Employees Wages), 5.8.16 (Tradespersons Allowance), 5.8.9 (Leading Hand), 5.8.14 (Nominees Allowance) and 5.8.7 (Forepersons Allowance) for the classification in which the employee was ordinarily employed immediately prior to the commencement of their leave or the termination of their employment as the case may be.

(ii) The rate prescribed for work in ordinary time by clause 6.3 (Shift Work) according to the employee's roster or projected roster including Saturday and Sunday shifts.

(iii) Any other rate to which the employee is entitled in accordance with their 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 these payments prescribed by clause 8.1.5 (Travelling Time and Fares) and clause 6.2 (Overtime) nor any payment to the employee for reimbursement for expenses incurred.

7.1.3 Annual leave loading

(a) During a period of annual leave an employee shall receive a loading calculated on the wages they would have received, in respect of the ordinary time they would have worked, prior to the commencement of their leave or the termination of their employment.

(b) The loading shall be 17.5% of the wages as prescribed in clause 7.1.2.

(c) The loading prescribed above shall also apply to proportionate leave on lawful termination, but shall not apply where an employee is dismissed by the employer for reasons of malingering, inefficiency or neglect of duty:

Provided that where the employee would have received shift loadings prescribed by clause 4.4 (Shift Work), had they not been on leave during the relevant period and such loadings would have entitled them to a greater amount than the loading of 17.5%, then the shift loadings shall be added to the rate of wages prescribed by clause 7.1.12 in lieu of the 17.5% loading.

Provided further that if the shift loading would have entitled them to a lesser amount, than the loading of 17.5%, then such loading of 17.5% shall be added to the rate of wage prescribed by clause 7.1.2 in lieu of the shift loadings.

7.1.4 Employment during leave

An employee shall not offer their services to any other employer during the period they are on paid annual leave and an employer shall not engage an employee who is on paid annual leave.

7.1.5 Payment in lieu of annual leave

The annual leave provided for shall be allowed and shall be taken and except as specially provided, payment shall not be made or accepted in lieu of annual leave.

7.1.6 Leave to be taken

Annual leave shall be taken, at a time mutually agreed upon by the employer and employee, and in the absence of agreement annual leave shall be given at a time fixed by the employer, within a period not exceeding 6 months from the date when the right to annual leave accrued and after not less than 2 weeks' notice to the employee.

7.1.7 Calculation of service with the employer

(a) 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 a payment in lieu thereof has been allowed.

(b) The period of annual leave shall be calculated to the nearest day; any broken part of a day in the result not exceeding half a day is to be disregarded.

(c) Where the employer is a successor, assignee or transmittee of a business, if an employee was in the employment of the employer's predecessor at the time when they became such a successor or assignee or transmittee, Service with the employer's predecessor shall be deemed to be service of the employer.

7.1.8 Calculation of continuous service for annual leave

(a) Continuous employment, for the purposes of clause 7.1, means weekly employment until termination of employment.

(b) For the purpose of clause 7.1 Service shall be deemed to be continuous notwithstanding:

(i) Any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding obligations hereunder in respect of leave or absence.

(ii) Any absence from work on account of personal sickness or accident or on account of leave lawfully granted by the employer; or

(iii) Any absence with reasonable cause, proof whereof shall be upon the employee.

(iv) In cases of personal sickness or accident or absence with reasonable cause for the employee to become entitled to the benefit of clause 7.1.8 they shall inform the employer in writing if practicable, within 24 hours of the commencement of such absence, of their inability to attend for duty and as far as practicable, the nature of the illness, injury or cause and the estimated duration of their absence. A notification given by an employee pursuant to clause 7.2 (Sick Leave) shall be accepted as a notification under clause 7.1.8.

(v) Any absence from work by reason of any cause not being a cause specified in clause 7.1.8(b) shall not be deemed to break the continuity of Service for the purpose of clause 7.1.8, unless the employer during the absence or within 14 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.

(vi) 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 a position reasonably accessible to them in the manner in which general notifications to employees are usually made by the employer and by posting to the Union whose members have participated in such concerted or collective absenteeism a copy of it not later than the day it is posted up.

(vii) A notice to an individual employee may be given by delivering it to the employee personally, or by posting it to their recorded address, in which case it shall be deemed to have reached them in due course of post.

(viii)In calculating the period of 12 months' continuous Service, any such absence as aforesaid shall not, except to the extent of not more than 13 weeks in a 12 monthly period in the case of sickness or accident, be taken into account in calculating the period of 12 months' continuous Service.

7.1.9 Leave allowed before due time

(a) An employer may allow an employee to take annual leave before the right to take it has accrued, but where such 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.

(b) Where annual leave or part thereof has been granted before the right to take it 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; 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 on termination, the employer shall not be liable to make any payment to the employee under clause 4.4.2 (Payment on discharge) and shall be entitled to deduct the amount of excess from any remuneration payable to the employee upon the termination of employment.

7.1.10 Proportionate leave on termination

(a) If after one week's continuous Service in any qualifying 12 monthly period, an employee lawfully leaves their employment or their employment is terminated by the employer through no fault of the employee, the employee shall be paid at the appropriate rate of wage prescribed in clause 5.4 (Employees Wages) for 2.923 hours for each completed week of continuous Service.

Continuous Service is as defined in clause 7.1.8

Provided that continuous shift workers shall be paid for 3.654 hours for each completed week of continuous Service.

(b) In addition to the provisions of 7.1.8(a) an employee who has accrued annual leave entitlements during previous 12 monthly periods as prescribed by clause 7.1 shall be paid their cumulative entitlements upon termination.

7.1.11 Annual close down

(a) Notwithstanding the provisions of clause 7.1.1 a principal employer may by 2 months notice in writing exhibited on a noticeboard in their establishment, project or business, declare that their establishment, project or business shall observe a complete Christmas - New Year close-down period at the next following Christmas - New Year. In a case where an employee has not completed 12 months' Service at the Christmas - New Year close-down, such employee shall, provided that they have been employed continuously for one week or more, be entitled to leave on a pro rata basis for each week of continuous Service and such an employee may be stood down for the duration of the close-down period, provided that any such employee shall be paid for all public holidays occurring during the close-down period.

(b) For the purpose of clause 7.1.11(a), close-down shall be deemed to mean a period of not less than 4 consecutive weeks, inclusive of public holidays, commencing not earlier nor later than one clear working day before Christmas Day. Provided that the close-down period may not extend for longer than 3 consecutive weeks, exclusive of public holidays, where the employees agree with their employer that annual leave may be taken in 2 periods.

(c) An employer in conjunction with an accredited representative of the Union involved may seek such an agreement with their employees on a particular project, establishment or business by means of a secret ballot. In the event of a majority in favour of 2 periods of leave, then that employer may close down that project for a period of 2 consecutive weeks at Christmas - New Year, exclusive of public holidays, and grant the remaining weeks leave at some other time of the year within 6 months from the date when the right to annual leave first occurred.

7.1.12 Annual leave records

Every employer shall keep or cause to be kept an annual leave record showing the date of commencement of employment, the date on which the last leave became due, and the date upon which the last leave was taken.

7.1.13 Emergency persons

In addition to the leave hereinbefore prescribed for other than shift workers, employees engaged as emergency persons who make agreements in writing with their employers to hold themselves in readiness to do overtime work at all hours shall be allowed one week's leave exclusive of statutory holidays, if any such holidays fall within the period of annual leave.

7.1.14 Accrual of annual leave

If any such annual leave shall not have been taken as it falls due from time to time, such leave shall be cumulative from year to year for a period not exceeding 3 years.