AN170120 – Metal and Engineering Industry Award

AN170120 – Metal and Engineering Industry Award

PART VI - LEAVE AND HOLIDAYS WITH PAY

1. ANNUAL LEAVE

(a) Period of Leave

(i) Day Workers

A period of 152 hours shall be allowed annually to an employee after 12 month's continuous service (less the period of annual leave).

(ii) Shift Workers

In addition to the leave herein before prescribed seven-day shift workers who are rostered to work regularly on Sundays and holidays with pay as prescribed in Part VI - LEAVE AND HOLIDAYS WITH PAY, Clause 6 - Holidays with Pay shall be allowed 38 hours.

Where an employee with 12 months' continuous service is engaged for part of the 12 monthly period as a seven-day shift worker they shall be entitled to have the period of annual leave prescribed in paragraph (i) increased by 3.16 hours for each calendar month the employee is continuously engaged.

(b) Annual Leave Exclusive of Holidays with Pay

(i) Subject to this subclause, the annual leave prescribed by this clause shall be exclusive of any of the holidays with pay prescribed by Part VI - LEAVE AND HOLIDAYS WITH PAY, Clause 6 - Holidays with Pay, and if any such 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 the period of annual leave, time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday.

(ii) Where a holiday with pay as prescribed in Part VI - LEAVE AND HOLIDAYS WITH PAY, Clause 6 - Holidays with Pay falls as mentioned in subclause (b) (i) and the employee fails without reasonable cause, (proof of which shall be supplied by the employee to the employer at their ordinary starting time on the working day immediately following the last day of the period of annual leave) shall not be entitled to be paid for such holiday.

For the purposes of this clause, service shall be deemed to be continuous notwithstanding:

(i) any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;

(ii) any absence from work on account of personal sickness or accident, and in calculating the period of 12 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 whereof shall be upon the employee or leave lawfully granted by the employer, shall not be taken into account in calculating the period of 12 months' continuous service.

(d) Broken Leave

The 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 two periods must be of at least 21 consecutive days, including non-working days.

PROVIDED that if the employer and employee so agree, the annual leave entitlement may be given and taken in two separate periods, or in three separate periods.

PROVIDED FURTHER that an employee may, with the consent of the employer, take short term annual leave, not exceeding four days in any calendar year, at a time or times separate from any of the periods determined in accordance with this subclause.

(e) Proportionate Leave on Termination of Service

If, after one calendar month of continuous service in any qualifying 12 monthly period an employee lawfully leaves their employment, or their employment is terminated by the employer through no fault of the employee the employee shall be paid at 12.666 hours of ordinary time earnings (as defined) for each completed calendar month of continuous service.

(f) Payment in Lieu Prohibited

The annual leave provided for by this clause shall be allowed and shall be taken and except as provided in subclause (e) hereof payment shall not be made or accepted in lieu of annual leave.

(g) Payment for Period of Leave

(i) All employees, before going on leave, are to be paid the wages they would have received in respect of the ordinary time they would have worked had they not been on leave during the relevant period, including allowances, loadings and penalties paid for all purposes of the award.

(ii) Annual Leave Loading

During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed by subclause (g)(i).

The loading shall be as follows:

(1) Day Workers - employees who would have worked on day work only had they not been on leave - a loading of 17½ per cent.

(2) Shift Workers - employees who would have worked on shift work had they not been on leave - a loading of 17½ per cent or the shift loading whichever is the greater but not both.

(h) Calculation of Service

Where the employer is a successor or assignee or transmittee of a business, if an employee, in the employment of the employer's predecessors at the time when the employer became such successor or assignee or transmittee, then that employee shall, in respect of the period during which the employee was in the service of the predecessor, be deemed to be in the service of the employer.

(i) Time of Taking Leave

Annual leave shall be given at a time fixed by the employer within a period not exceeding six months from the date when the right to annual leave accrued. Where practicable, and unless otherwise mutually arranged between the employer and the employee, at least two weeks' notice shall be given to the employee that the period of annual leave is to be taken.

PROVIDED that by agreement between an employer and an employee, annual leave may be taken within the period of 12 months from the date at which it falls due.

(j) Annual Close Down

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

(i) The employer may, by giving not less than four weeks notice of the intention so to do, stand off for the duration of the close down all employees in the plant, or section or sections concerned, and allow for those who are not then qualified for a full entitlement to annual leave for 12 months continuous service, pursuant to subclause (a) of this clause, paid leave on a proportionate basis at the appropriate rate of wage as prescribed in subclause (g) hereof for 2.923 hours for each 38 ordinary hours worked. The hourly rate shall be calculated in accordance with Part III - WAGES AND RELATED MATTERS, Clause 1 – Wage Rates of this award.

(ii) An employee who has then qualified for a full entitlement to annual leave for 12 months continuous service pursuant to subclause (a) hereof, and has also completed a further week or more shall also be paid at the appropriate rate of wage as prescribed by subclause (g) of this clause for 2.923 hours for each 38 ordinary hours worked since the close of the employee's last 12 monthly qualifying period. The hourly rate shall be calculated in accordance with Part III - WAGES AND RELATED MATTERS, Clause 1 – Wage Rates of this award.

(iii) The next 12 monthly qualifying period for each employee affected by such close down shall commence from the day on which the plant, or section or sections concerned, is reopened for work.

PROVIDED that all time during which an employee is stood off without pay for the purposes of this subclause shall be deemed to be time of service in the next 12 monthly qualifying period.

(iv) If in the first year of service with an employer an employee is allowed proportionate annual leave under subclause (j) paragraph (i) hereof, and subsequently within such year lawfully leaves the employment of the employer or employment is terminated by the employer through no fault of the employee, the employee shall be entitled to the benefit of subclause (e) of this clause subject to adjustment for any proportionate leave which may have been allowed as aforesaid.

(v) An employer may close down the plant for one or two separate periods for the purpose of granting annual leave in accordance with this subclause. If the employer closes down the plant in two separate periods one of those periods shall be for a period of at least 21 consecutive days, including non-working days.

PROVIDED that where the majority of employees concerned agree, an employer may close down the plant, section or sections in one, two or three separate periods for the purposes of granting annual leave in accordance with this subclause.

PROVIDED FURTHER that if an employer closes down the plant on more than one occasion, one of those periods shall be for a period of at least 14 consecutive days including non-working days. In such cases, the employer shall advise the employees concerned of the proposed dates of each close down before asking them for their agreement.

(k) Part Close Down and Part Rostered Leave

(i) An employer may close down the plant, or a section or sections thereof, for a period of at least 21 consecutive days, including non-working days 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.

(ii) An employer may close down the plant, or a section or sections thereof, for a period less than 21 consecutive days including non-working days 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 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 plant, 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.

(l) 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 1 - Time and Wages Record of this award.