AN170010 – Building and Construction Industry Award

AN170010 – Building and Construction Industry Award

PART VI – LEAVE AND HOLIDAYS WITH PAY

32. ANNUAL LEAVE

(a) Period of Leave

(i) 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.

(ii) Where a rostered day off (as prescribed in Clause 27 – Hours of Work and Clause 30 – Shift Work 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. Such entitlement to payment for a rostered day off shall not apply to an employee working on a part-time basis unless the employer and employee have entered into an agreement pursuant to subclause 34(k) of this award.

(b) Method of Taking Leave

(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 an employee may elect, with the consent of the employer, to take annual leave in single day periods or part of a single day not exceeding five days in any calendar year at a time or times agreed between them.

(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 employer and the employees the matter shall be dealt with in accordance with Clause 37 – Settlement of Disputes of this award.

(iii) In the circumstances where a public holiday falls within one day of a weekend or another public holiday the provision of paragraph (b)(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. This provision will not affect an employee’s right to take up to five single days as provided in (b)(i) hereof.

(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.

(v) Where no agreement can be reached between the representatives pursuant to paragraph (b)(iv) hereof the matter shall be referred to the Commission for determination.

(i) An employer may allow an employee to take 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 12 months in respect of which the leave so allowed was taken.

(ii) Where an employer has allowed an employee to take annual leave pursuant to paragraph (c)(i) hereof and the employee’s services are terminated (by whatsoever cause) prior to the employee completing the 12 months’ continuous service for which leave was allowed in advance, the employer may for each complete week of the qualifying period of 12 months not served by the employee, deduct from whatever remuneration is payable upon the termination of the employment one-fifty-second 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 12 months in the industry with a number of different employers without taking annual leave, shall be entitled to take annual leave and be paid one-twelfth of an ordinary week’s wages in respect of each completed 38 hours of continuous service with the current employer.

(d) Proportionate Leave on Termination

Where an employee has given five working days or more continuous service, inclusive of any day off as prescribed by Clause 27 – Hours of Work or Clause 30 – Shift Work of this award (excluding overtime), and either leaves employment or the employee’s employment is terminated by the employer the employee shall be paid one-twelfth of an ordinary week’s wages in respect of each completed five working days of continuous service with the current employer for which leave has not been granted or paid for in accordance with this award.

(e) Broken Service

(i) Where an employee breaks continuity of service by an absence from work for any reason (other than a reason set out in the definition of ‘continuous service’ in Clause 7 – Definitions of this award) the amount of leave to which the employee would have been entitled under subclause (a) hereof shall be reduced by one-forty-eighth for each week or part thereof during which any such absence occurs, and the amount of payment in lieu of leave to which the employee would have been entitled under subclause (d) hereof shall be reduced by one-twelfth of a week’s pay for each week or part thereof during which any such absence occurs.

(ii) PROVIDED however, that no reduction shall be made in respect of any absence unless the employer informs the employee in writing of the employer’s intention so to do within 14 days of the termination of the absence.

(f) Calculation of Continuous Service

Continuous service under this award is to be calculated in accordance with the definition of ‘continuous service’ in Clause 7 - Definitions of this award.

(g) Leave Payment

(i) Payment for Period of Leave

Each employee, before going on leave, shall be paid in advance the wages which would ordinarily accrue during the currency of the leave.

(ii) Annual Leave Loading

In addition to the payment prescribed in paragraph (g)(i) hereof an employee shall receive during a period of annual leave a loading of 17.5 percent calculated on the rates, loadings and relevant allowances prescribed by Clause 13 – Wage Rates, Clause 20 – Industry Allowance, Clause 21 – Underground Allowance, Clause 22 – Tool and Boot Allowances and Clause 45 – Fares and Travel Patterns Allowance of this award. The loading prescribed above shall also apply to proportionate leave on lawful termination.

(h) Service Under Previous Award

For the purposes 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.

(i) Annual Close Down

(i) Notwithstanding anything contained in this award an employer giving any leave in conjunction with the Christmas - New Year holidays may, at the employer’s option, either:

(1) stand off without pay during the period of leave any employee who has not yet qualified under subclause (a) hereof; or

(2) stand off for the period of leave any employee who has not qualified under subclause (a) hereof and pay the employee (up to the period of leave then given) at a rate of one-twelfth of an ordinary week’s wages in respect of each 38 hours’ continuous service (excluding overtime).

(ii) PROVIDED that where an employer at their option decides to close down their 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 their employees then qualified for such leave, the employer shall give at least two months’ notice to their employees of their intention so to do.

(j) Commencement of Leave - Distant Jobs

If an employee is still engaged on a distant job when annual leave is granted and the employee returns to the place of engagement, or if employed prior to going to country work the place regarded as the employer’s headquarters, by the first reasonable means of transport the employee’s 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.

(k) Prohibition of Alternative Arrangements

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.