AN150011 – AWU/CFMEU Construction and Maintenance Award (South Australia) 1989
CLAUSE 28. ANNUAL LEAVE
OPDATE 15:03:91 1st pp on or after
Period of leave
(a) Subject to the provisions of subclauses (b), (d) and (e) hereof, 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 twelve months continuous service (less the period of annual leave) with an employer.
Provided that where a rostered day off, as prescribed in clauses 18 and 19 of this award, 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 subclause (g) hereof.
Method of taking leave
(b)(i) 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. Provided that by agreement between the employer and the employee concerned, annual leave may be taken in three separate periods of not less than seven consecutive days.
(ii) 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 Commission for decision.
(iii) In the circumstances where a public holiday falls within one day of a weekend or another public holiday the provision of paragraph (i) hereof 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.
(iv) 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 31 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.
Leave allowed before due date
(c)(i) An employer may allow an employee to take his 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 is taken.
(ii) Where an employer has allowed an employee to take annual leave pursuant to paragraph (i) hereof and the employee's service are terminated (by whatsoever cause) prior to the employee completing the twelve months continuous service for which leave was allowed in advance, the employer may for each complete week of the qualifying period of twelve months not served by the employee, deduct from whatever remuneration is payable upon the termination of the employment 1/52 of the amount of wages paid on account of the annual leave.
(iii) Notwithstanding anything contained in this subclause an employee who has worked for twelve months in the industry with a number of different employers without taking annual leave, shall be entitled to take annual leave and be paid 1/12 of an ordinary week's wages in respect of each completed 40 hours of continuous service with his current employer.
Proportionate leave on termination
(d) Where an employee has given five working days or more continuous service, inclusive of any day off as prescribed by clauses 16 and 17 of this award (excluding overtime), and he either leaves his employment or his employment is terminated by the employer he shall be paid 1/12 of an ordinary week's wages in respect of each complete five working days of continuous service with his current employer for which leave has not been granted or paid for in accordance with this award.
Broken service
(e) Where an employee breaks his continuity of service by an absence from work for any reason other than a reason set out in subclause (f) hereof, the amount of leave to which he would have been entitled under subclause (a) hereof shall be reduced by 1/48 for each week or part thereof during which any such absence occurs and the amount of payment in lieu of leave to which he would have been entitled under subclause (d) hereof shall be reduced by 1/12 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 his intention so to do within fourteen days of the termination of the absence.
Calculation of continuous service
(f) For the purposes of this clause service shall be deemed to be continuous notwithstanding an employee's absence from work for any of the following reasons:
(i) illness or accident up to a maximum of four weeks after the expiration of paid sick leave;
(ii) bereavement leave;
(iii) jury service;
(iv) injury received during the course of employment and up to a maximum of 26 weeks for which workers compensation has been received;
(v) where called up for military service for up to three months in any qualifying period;
(vi) long service leave;
(vii) any reason satisfactory to the employer or in the event of dispute satisfactory to the Commission. Provided that the reason shall not be deemed satisfactory unless the employee has informed the employer within 24 hours of the normal commencing time or as soon as practicable thereafter of the reason for the absence and probable duration thereof.
Leave payment
Payment for period of leave
(g)(i) Each employee, before going on leave, shall be paid in advance the wages which would ordinarily accrue to him during the currency of the leave.
Annual leave loading
(ii) In addition to the payment prescribed in paragraph (i) hereof a day worker shall receive during a period of annual leave a loading of 17 1/2% calculated on the rates, loadings, and allowances prescribed by clauses 12, 13, 17, and 23 of this award if applicable, together with any overaward payment for the ordinary hours of work per week.
Shift workers
(iii) An employee who would have worked on shift work had he not been on annual leave shall be paid an additional loading of 17 1/2% calculated in accordance with the provisions of paragraph (ii) hereof. Provided that where the employee would have received shift loadings prescribed by clause 19 of this award, had he not been on leave during the relevant period and such loadings would have entitled him to a greater amount than the loading of 17 1/2% then the shift loadings shall be added to the ordinary rate of wage prescribed in lieu of the 17 1/2% loading.
Provided further that if the shift loadings would have entitled the employee to a lesser amount than the loading of 17 1/2% then such percentage shall be added to the rate of wage prescribed in lieu of shift loadings.
(iv) The loadings prescribed above shall also apply to proportionate leave on lawful termination of employment.
Service under previous award
(h) For the purpose 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.
Annual close down
(i) Notwithstanding anything contained in this award an employer giving any leave in conjunction with the Christmas/New Year holidays may, either:
(i) stand off without pay during the period of leave any employee who has not yet qualified under subclause (a) hereof; or
(ii) stand off for the period of leave any employee who has not qualified under subclause (a) hereof and pay him (up to the period of leave then given) at a rate of 1/12 of an ordinary weeks wages in respect of each five days continuous service (excluding overtime).
Provided that where an employer decides to close down the 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 the employees then qualified for such leave, at least two months notice of the intention so to do shall be given to the employees.
Commencement of leave - distant jobs
(j) If an employee is still engaged on a distant job when annual leave is granted and the employee returns by the first reasonable means of transport to the place of engagement, or if employed prior to going to country work the place regarded as the employer's headquarters, annual leave shall commence on the first full working day following the employee's return to such place of engagement or headquarters as the case may be.
Prohibition against alternative arrangements
(k) An employer shall not make payment to an employee in lieu of 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.
