AN170026 – Disability Service Providers Award
(a) A period of 28 consecutive days leave shall be allowed annually to an employee (other than casual or part-time employees (as defined) engaged to work less than 20 hours per week) after 12 months' continuous service in the service of the same employer (less the period of annual leave).
(b) Broken Leave
Leave allowed under the provisions of this subclause shall be given and taken in one consecutive period, or if the employer and employee so agree, in two separate periods, the lesser of which shall not be less than seven consecutive days, in any case leave shall be taken before a further accrual of leave occurs.
(c) Annual Leave Exclusive of Holidays with Pay
If any of the holidays prescribed in Part VI - Leave and Holidays with Pay, Clause 5 - Holidays with Pay, 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 leave one day for each such holiday as occurring.
(d) Payment in Lieu Prohibited
Except as provided in subclause (i) payment shall not be made or accepted in lieu of annual leave.
(e) Time of Taking Leave
Except in respect of paragraph (b) - Broken Leave, of this subclause, annual leave shall be given and taken within a period of six months of such leave falling due or where the employer and employee/s concerned agree, within 12 months of such leave falling due.
(f) Payment for Period of Leave
Each employee before going on leave shall be paid the ordinary amount of 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. Such payment shall exclude any shift penalty rates prescribed by Part V – Hours of Work, Penalty Payments, Shift Work and Overtime, Clause 9 - Shift Work, Shift Penalty Rates and Rosters, and shift penalties prescribed by Part V – Hours of Work, Penalty Payments, Shift Work and Overtime, Clause 7 - Saturday and Sunday Work.
(g) Leave Loading
All employees before proceeding on leave shall be paid a loading of 17½ per cent in addition to their annual leave payment.
PROVIDED that in the case of an employee who would have worked on shift work in accordance with Part V – Hours of Work, Penalty Payments, Shift Work and Overtime, Clause 9 - Shift Work, Shift Penalty Rates and Rosters, had the employee concerned not been on leave and would have been entitled to shift penalties in excess of 17½ per cent then the employee shall be paid the shift premiums in lieu of the 17½ per cent loading.
PROVIDED ALWAYS that leave loading shall not be payable on proportionate leave on termination.
(h) Leave Allowed before Due Date
An employer may allow annual leave to an employee before the entitlement has accrued due but where leave is taken in such a case 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.
Where leave has been granted to an employee pursuant to this subclause before the entitlement has accrued due 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 the employer may, for each complete month of the qualifying period of 12 months not served by the employee deduct from whatever remuneration is payable to the employee upon the termination of the employment, one twelfth of the amount of wages paid on account of annual leave, which amount shall not include any sums paid for any of the holidays with pay prescribed by Part VI – Leave and Holidays with Pay, Clause 5 - Holidays with Pay.
(i) Proportionate Leave on Termination of Service
If after one month's continuous service in respect of weekly employees and one week of continuous service in respect of part-time employees in any qualifying period, an employee lawfully leaves his/her employment or the employment is terminated by the employer through no fault of the employee, the employee shall be paid the ordinary rate of wages as follows:
(i) weekly employees - 12 2/3 hours for each completed month of continuous service;
(ii) part-time employees (as defined) - engaged to work more than 20 hours per week - 1/12th of a week's wages for each completed week of continuous service, subject to the provisions of paragraph (a)(ii) of this subclause;
(iii) employees regularly required to work on weekends and holidays with pay - 15 5/6 hours for each completed month of continuous service.
(j) Continuity of Service
For the purposes of this subclause, service shall be deemed to be continuous notwithstanding:
(i) Any interruption or determination of the employment by the employer if such interruption or determination has been made merely with the intention of avoiding obligations in respect of leave of absence.
(ii) Any absence from work on account of personal sickness or accident and in calculating the period of twelve months' continuous service, absence on account of personal sickness or accident to the extent of 91 days in any 12 months shall be deemed to be part of the period of continuous service.
(iii) Any absence with reasonable cause, proof of which shall be upon the employee, or leave lawfully granted by the employer, but such absence shall not be taken into account in calculating the period of 12 months' continuous service.
(k) Close Down
An employer may close down the establishment or a section of the establishment, for the purpose of allowing leave to employees in the establishment or section or sections concerned in accordance with the following provisions:
(i) Unless otherwise agreed between the employer and employee/s concerned the employer may, by giving not less than two months notice either close down for one period or for two separate periods.
(ii) Each employee affected shall be credited leave in accordance with the relevant scale in paragraph (k)(i) - Proportionate Leave on Termination of Service, of this subclause, for which leave has not already been granted.
(iii) Except to the extent that an employee has leave in credit under the provisions of paragraph (k)(ii) of this subclause, at the date of close down, the employee shall be stood down without pay during the period of any close down.
PROVIDED that where an employer has another service not subject to a close down, the employer shall take reasonable steps to give an employee who would originally be stood down without pay under this clause the option of working in that service.
(iv) All time during which an employee is stood down without pay in a close down period shall, for the purpose of annual leave credits be deemed to be time worked.
(v) Subject to paragraph (h) - Leave Allowed before Due Date, of this subclause, the next twelve months qualifying period for each employee affected by an annual close down shall commence from the day on which the establishment or section or sections re-open for work.
Subject to paragraph (h) - Leave Allowed before Due Date, of this subclause, employees affected by a second or third close down subject to paragraph (k)(i) of this subclause, the next twelve month qualifying period shall commence from the day on which the establishment or section or sections re-open after the first close down.
(vi) For establishments that observe a close down at the Christmas/New Year period the relevant date for the application of the provisions of paragraphs (k)(ii), (iv) and (v) of this subclause, shall be 31 December each year.
(vii) If in the first year of service with an employer an employee is allowed proportionate annual leave under this subclause and subsequently within such year lawfully leaves the employment or the employment is terminated by the employer through no fault of the employee, the employee shall be entitled to the benefit of subclause (k)(i) - Proportionate Leave on Termination of Service, of this subclause, subject to adjustment for any proportionate leave which the employee may have been allowed as provided.
(viii) Unless otherwise agreed between the employer and employees, where a close down is observed during the Christmas/New Year period the leave granted shall be not less than 14 consecutive days, exclusive of holidays with pay, except that where an employee is not entitled to 14 consecutive days leave at such close down, the employee may be granted leave then accrued in accordance with paragraph (k)(iii) of this subclause.
(l) Seven Day Shift Workers
(i) In addition to leave prescribed in paragraph (a) of this subclause an employee required to work a shift roster where the employee works not less than ten Saturdays and ten Sundays during any one leave year, shall be allowed seven consecutive days' additional leave including non-working days; or
(ii) Where an employee with twelve months continuous service is engaged for part of the twelve monthly period on a shift roster requiring the employee to work regularly on Saturdays and Sundays, the employee shall be entitled to have the period of annual leave prescribed in paragraph (a) of this subclause, increased by one day for each two months the employee is continuously engaged on a shift roster as contemplated in paragraph (l)(i) of this subclause.
(m) Notwithstanding provisions elsewhere in the award, the employer and the majority of employees at an enterprise may agree to establish a system of single day annual leave absences provided that:
(i) 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 a total of five days in any calendar year at a time or times agreed between them.
(ii) Access to annual leave, as prescribed in paragraph (i) above, shall be exclusive of any shutdown period provided for elsewhere under this award.
(iii) An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.
(iv) An employee or the employees may choose to request a union party to this award, to represent their interests in negotiations referred to in paragraph (i) of this subclause.
(v) Once a decision has been taken to introduce an enterprise system of single day annual leave, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to Regulation 25 of the Industrial Relations Regulations 1993.
(vi) An employer shall record these short term annual leave arrangements in the time and wages book, as prescribed in Part IX – Award Compliance and Union Related Matters, Clause 2 - Time and Wages Book of this award.
