AN160290 – Sheet Metal Workers' Award No. 10 of 1973
10. - 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 8. - 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 arrangement between the parties in lieu of any of the days named in this subclause.
(b) When any of the days mentioned in paragraph (a) hereof falls on a Saturday or a Sunday the holiday shall be observed on the next succeeding Monday and when Boxing Day falls on a Sunday or 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 a worker need not present himself 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) shall be allowed annually to a worker by his employer after a period of twelve months continuous service with that employer.
(b) (i) A worker before going on leave shall be paid wages he would have received in respect of the ordinary time he would have worked had he not been on leave during the relevant period.
(ii) Subject to paragraph (c) hereof a worker 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 him as prescribed in clause 6 Wages of this award and the rates prescribed by subclauses (6) and (7) of clause 7 - Special Rates and Provisions and clause 26 - Location Allowances of this award and;
(bb) Subject to paragraph (c)(ii) hereof the rate prescribed for work in ordinary time by clause 31 - Shift Work of this award according to the worker's roster or projected roster, including Saturday and Sunday shifts;
(cc) Any other rate to which the worker is entitled in accordance with his contract of employment for ordinary hours of work; provided that this provision shall not operate so as to include any payment which is of similar nature to or is paid for the same reasons as or is paid in lieu of those payments prescribed by clause 8 Overtime clause 7 - Special Rates and Provisions, Clause 24 - Car Allowance, Clause 23 - Fares and Travelling Time or Clause 25 - Distant Work, of this award, nor any payment which might have become payable to the worker as reimbursement for expenses incurred.
(c) In addition to the payment prescribed in paragraph (b) hereof, an employee shall receive a loading calculated on the rate of wage prescribed therein. This loading shall be as follows -
(i) Day Employees - An employee who would have worked on day work had the employee not been on leave - a loading on 17½%.
(ii) Shift Employees - An employee who would have worked on shift work had the employee not been on leave a loading of 17½%. Provided that where the employee would have received shift loadings prescribed by Clause 15. - Shift Work, of this Award and, if applicable, payment for work on a regularly rostered sixth shift in not more than one week in any four weeks had the employee not been on leave during the relevant period and such loadings would have entitled the employee to a greater amount than the loading of 17½%, then the shift loadings and, if applicable, the payment for the said regularly rostered sixth shift shall be added to the rate of wage prescribed by paragraph (b)(ii)(aa) hereof in lieu of the 17½% loading.
Provided further, that if the shift loadings and, if applicable, the payment for the said regularly rostered sixth shift would have entitled the employee to a lesser amount than the loading of 17½%, then such loading of 17½% shall be added to the rate of wage prescribed by paragraph (b) but not including paragraph (b)(ii)(bb) hereof in lieu of the shift loadings and the said payment.
(iii) Where annual leave is taken in accordance with paragraph (b) of subclause (10) of this clause, the loading referred to in this subclause shall be paid regardless of length of service.
Except as prescribed in subclause (5) hereof, the loading prescribed by this paragraph shall not apply to proportionate leave on termination.
(4) If any award holiday falls within a worker's period of annual leave and is observed on a day which in the case of that worker 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) (a) A worker whose employment terminates after he 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 in lieu of that leave or, in a case to which subclauses (8), (10) or (11) of this clause applies, in lieu of so much of that leave as has not been allowed unless:-
(i) he has been justifiably dismissed for misconduct; and
(ii) the misconduct for which he has been dismissed occurred prior to the completion of that qualifying period.
(b) 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 of wage prescribed by paragraph (b) of subclause (3) of this clause, divided by thirty-eight, in respect of each completed week of continuous service.
(6) Any time in respect of which a worker is absent from work, except time for which he 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 his right to annual leave.
(7) In the event of a worker being employed by an employer for portion only of a year, he shall only be entitled subject to subclause (5) of this clause, to such leave on full pay as is proportionate to his length of service during that period with such employer, and if such leave is not equal to the leave given to the other workers, he shall not be entitled to work or pay whilst the other workers of such employer are on leave on full pay.
(8) 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.
(9) The provisions of this clause shall not apply to casual workers.
(10) Where an employer closes down his business, or a section or sections thereof, for the purpose of allowing annual leave to all or bulk of the workers in the business, or section or sections concerned, the following provisions shall apply:-
(a) He may by giving not less than one month's notice of his intention so to do, stand off for the duration of the close-down all workers in the business or section or sections concerned.
(b) An employer may close down his business for one or two separate periods for the purpose of granting annual leave in accordance with this subclause. If the employer closes down his 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 workers 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 workers concerned of the proposed date of each close down before asking them for their agreement.
(11) (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. 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 arrangement.
(b) An employer may close down his 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 a worker 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 workers in the business, or a section or sections thereof respectively and before asking the workers 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.
(12) Nothing herein contained shall apply to any worker who left his employment or whose employment was terminated by his employer prior to the 30th day of September, 1974.
