AN160140 – Gate, Fence and Frames Manufacturing Award

9. - HOLIDAYS AND ANNUAL LEAVE

(1) (a) The following days or the days observed in lieu shall, subject to this subclause and to paragraph (c) of subclause (1) of Clause 7. - Overtime of this award, be allowed as holidays without deduction of pay, namely -

New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign's Birthday, Christmas Day and Boxing Day.

Provided that another day may be taken as a holiday by agreement between the employer and majority of employees in the section or sections concerned in lieu of any of the days named in this subclause.

(b) When Christmas Day or New Year's Day falls on a Saturday or a Sunday such holiday shall be observed on the next succeeding Monday and where Boxing Day falls on a Sunday or on a Monday the holiday shall be observed on the next succeeding Tuesday. In each case the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.

(2) On any public holiday not prescribed as a holiday under this award the employer's establishment or place of business may be closed, in which case an employee need not present for duty and payment may be deducted, but if work be done, ordinary rates of pay shall apply.

(3) (a) Except as hereinafter provided a period of four consecutive weeks' leave with payment as prescribed in paragraph (b) of this subclause shall be allowed annually to an employee by the employer after a period of twelve months' continuous service with that employer.

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

(ii) Subject to paragraph (c) of this subclause an employee shall, where applicable, have the amount of wages to be received for annual leave calculated by including the following where applicable.

(aa) The rate applicable to the employee as prescribed in the First Schedule - Wages of this Award.

(bb) Subject to placitum (ii) of paragraph (c) of this subclause the rate prescribed for work in ordinary time by Clause 8. - Shift Work of this Award according to the employee's roster or projected roster including Saturday and Sunday shifts.

(cc) The rate payable pursuant to Clause 10. - Higher Duties of this Award 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.

(dd) Any other rate to which the employee is entitled in accordance with the 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 7. - Overtime, Clause 14. - Special Rates and Provisions, Clause 19. - Fares and Travelling Time or Clause 20. - Distant Work, of this award, nor any payment which might have come payable to the employee as reimbursement for expenses incurred.

(c) During the period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by paragraph (b) of this subclause. This loading shall be as follows:

(i) Day Employees: A employee who would have worked on day work had he not been on leave - a loading of 17 1/2 percent.

(ii) Shift Employees: An employee who would have worked on shift work had he/she not been on leave - a loading of 17 1/2 percent. Provided that where the employee would have received shift loadings prescribed by Clause 8. - Shift Work of this Award had he/she not been on leave during the relevant period and such loadings would have entitled him/her to a greater amount than the loading of 17.1/2 percent, then the shift loadings shall be added to the rate of wage prescribed by paragraph (b)(ii)(aa) of this subclause in lieu of the 17.1/2 per cent loading.

Provided further that if the shift loadings would have entitled him/her to a lesser amount than the loading of 17.1/2 per cent then such loading of 17.1/2 per cent shall be added to the rate of wage prescribed by paragraph (b) of this subclause but not including paragraph (b)(ii)(bb) of this subclause in lieu of the shift loadings.

The loading prescribed by this subclause shall not apply to proportionate leave on termination.

(4) If any award 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 that period one day being an ordinary working day for each such holiday observed as aforesaid.

(5) Any time in respect of which an employee is absent from work except time for which the employee is entitled to claim sick pay or time spent on holidays or annual leave as prescribed by this award shall not count for the purpose of determining the employee's right to annual leave.

(6) (a) If, after one month's continuous service in any qualifying twelve monthly period an employee lawfully leaves the employment or the employment is terminated by the employer through no fault of the employee, the employee shall be paid 2.923 hours pay at the rate prescribed by paragraph (b) of subclause (3) this clause, divide by thirty-eight, in respect of each completed month of continuous service.

(b) In addition to any payment to which an employee may be entitled under paragraph (a) of this subclause, an employee whose employment terminates after an employee has completed a twelve monthly qualifying period and who has not been allowed the leave prescribed under this Clause in respect of that qualifying period shall be given payment as prescribed in paragraphs (b) and (c) of subclause (3) of this Clause in lieu of that leave or, in a case to which subclauses (7), (8), or (9) of this Clause applies, in lieu of so much of that leave as has not been allowed unless:

(i) the employee has been justifiably dismissed for misconduct; and

(ii) the misconduct for which the employee has been dismissed occurred prior to the completion of that qualifying period.

(7) Annual leave shall be given and taken in one or two continuous periods. If the annual leave is given in two continuous periods then one of those periods must be at least three consecutive weeks. Provided that if the employer and an employee so agree then the employee's annual leave entitlement may be given and taken in two separate periods, neither of which is of at least three consecutive weeks, or in three separate periods.

Provided further that an employee may, with the consent of his/her employer, take short-term annual leave not exceeding five days in any calendar year at a time or times separate from any of the periods determined in accordance with this subclause.

(8) Where an employer closes down the business, or a section or sections thereof, for the purposes of allowing annual leave to all or bulk of the employees in the business, or section or sections concerned, the following provisions shall apply:

(a) The employer may by giving not less than one month's notice of the intention so to do, stand off for the duration of the close-down all employees in the business or section or sections concerned.

(b) An employer may close down the business for one or two separate periods for the purpose of granting annual leave in accordance with this subclause. If the employer closes down the business in two separate periods one of those periods shall be for a period of at least three consecutive weeks. Provided that where the majority of the employees in the business or section or sections concerned agree, the employer may close down his business in accordance with this subclause in two separate periods neither of which is of at least three consecutive weeks, or in three separate periods. In such cases the employer shall advise the employees concerned of the proposed date of each close-down before asking them for their agreement.

(9) (a) An employer may close down the business, or a section or sections thereof for a period of at least three consecutive weeks and grant the balance of the annual leave due to an employee in one continuous period in accordance with a roster.

(b) An employer may close down the business, or a section or sections thereof for a period of less than three consecutive weeks and allow the balance of the annual leave due to an employee in one or two continuous periods, either of which may be in accordance with a roster. In such a case the granting and taking of annual leave shall be subject to the agreement of the employer and the majority of the employees in the business, or a section or sections thereof respectively and before asking the employees concerned for their agreement, the employer shall advise them of the proposed date of the close-down or close-downs and the details of the annual leave roster.

Provided that by agreement with the majority of employees concerned, an employer may close down the plant for a period of at least 14 consecutive days including non-working days and grant the balance of the annual leave due to an employee by mutual agreement.

(10) The provisions of this clause shall not apply to casual employees.