AP791396CRV - National Electrical, Electronic and Communications Contracting Industry Award 1998
PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
24. ANNUAL LEAVE
24.1 Annual leave entitlements
24.1.1 An employee is entitled to leave of absence on full pay for a period equal to 4 weeks for each period of 12 months’ service (less the period of leave) with the employer.
24.1.2 The pay rate for annual leave is the employee’s gross weekly rate of pay (less special allowances paid for fares and travelling, disabilities and reimbursement of expenses) at the time the employee takes the annual leave.
24.1.3 An employee before going on leave shall be paid the amount of wages that would have been received in respect of ordinary time that would have been worked had they not been on leave during the relevant period, plus an annual leave loading of 17.5%.
24.2.1 For the purpose of this clause, wages shall be calculated by including the following where applicable:
24.2.1(a) The gross weekly rate of pay as for the classification in which the employee was ordinarily employed immediately prior to the commencement of leave or the termination of employment, as the case may be.
[24.2.1(b) varied by Q9130 ppc 30Jun98]
24.2.1(b) The rate prescribed for work in ordinary time by clause 23 - Shift work of this award, according to the employee’s roster or projected roster including Saturday and Sunday shifts.
[24.2.1(c) varied by Q9130 ppc 30Jun98]
24.2.1(c) Any other rate to which the employee is entitled in accordance with the contract of employment for ordinary hours of work.
24.3.1 During a period of annual leave an employee shall receive a loading calculated on the wages the employee would have received in respect of the ordinary time the employee would have worked prior to the commencement of leave or the termination of employment.
24.3.2 The loading shall be 17.5% of the wages as prescribed in the preceding subclause.
24.3.3 The loading prescribed above shall also apply to proportionate leave on lawful termination but shall not apply where an employee is dismissed by the employer for reasons of malingering, inefficiency or neglect of duty.
24.3.4 Provided that where the employee would have received shift loadings 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 17.5% then the shift loadings shall be added to the rate of wage prescribed by this subclause in lieu of the 17.5% loading.
24.3.5 Provided further that if the shift loading would have entitled the employee to a lesser amount than the loading of 17.5% then such loading of 17.5% shall be added to the rate of wage prescribed by this subclause in lieu of the shift loadings.
24.3.6 In addition in the Australian Capital Territory only
24.3.6(a) In the case of an employee engaged on higher grade work the rate payable pursuant to 14.2.4 - Higher grade work 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.
24.3.6(b) For the purposes of this subclause, the ordinary time an employee would have worked had the employee not been on leave during the relevant period shall be determined by the roster which covers such period at a time immediately prior to the commencement of leave or the termination of employment, as the case may be.
24.4 Annual leave for seven day shift workers
In addition to the leave herein before prescribed seven day shift workers, that is shift workers who are rostered to work regularly on Sundays and holidays shall be allowed seven consecutive days leave including non-working days.
24.5 In the Australian Capital Territory only
24.5.1 Employees on shift work shall, on completion of each twelve months continuous service, be entitled to leave of absence on full pay for a period equal to five working weeks exclusive of public holidays.
24.5.2 Any day shift employee called upon to work shift work for short periods during the year shall be entitled to annual leave for the total period so worked on the same basis as a shift worker and shall be granted additional leave of absence on full pay on a pro rata basis to time worked on shift work.
24.5.3 Where an employee with twelve months continuous service is engaged for part of the twelve monthly period as a seven day shift worker, the employee shall be entitled to have the period of leave to which the employee is entitled increased by half a day for each month the employee is continuously engaged as aforesaid.
24.5.4 Provided that where the employee would have received shift loadings had the employee not been on leave during the relevant period and such loadings would have entitled the employee to a greater amount that the loading of 17.5%, then the shift loadings shall be added to the rate of wage prescribed by this subclause in lieu of the 17.5% loading.
24.5.5 Provided, further, that if the shift loadings would have entitled the employee to a lesser amount than the loading of 17.5%, then such loading of 17.5% shall be added to the rate of wage prescribed by this subclause in lieu of the shift loadings.
24.6.1 The employer and employee shall seek to reach agreement on the taking of annual leave at a mutually convenient time. In the absence of agreement, 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 and after at least 14 days notice due to the employee, except in the Australian Capital Territory where 6 weeks notice is required.
24.6.2 By agreement between the employer and employee an employee may take annual leave in two separate periods. The second period is to be taken within six months of the leave falling due.
24.6.3 Provided that an employee who works an average of 38 ordinary hours per week and is granted leave in two portions shall not be entitled to a greater number of rostered days off per year than an employee who is granted annual leave in only one portion.
24.7 Proportionate leave on termination
24.7.1 If after one week’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 at the appropriate rate of wage prescribed in clause 17.3 of this award for 2.923 hours for each completed week of continuous service. Continuous service is as defined in this clause.
24.7.2 In addition to the provisions of 24.7.1 hereof an employee who has accrued annual leave entitlements during previous twelve monthly periods as prescribed by this clause shall be paid the cumulative entitlements upon termination.
24.8 Annual leave loading entitlement on termination
24.8.1 Victoria
The loading prescribed shall also apply to proportionate leave on termination but shall not apply where an employee is dismissed by the employer for reasons of malingering, inefficiency, neglect of duty, misconduct or refusing duty.
24.8.2 South Australia
When an employer terminates the employment through no fault of the employee, the employee shall be paid a loading in respect of each week of pro rata annual leave entitlement.
24.8.3 Australian Capital Territory
The loading prescribed shall apply to proportionate leave on termination of employment where employment is terminated by the employer, but it shall not apply where the reason for termination is misconduct or willful disobedience.
24.8.4 Tasmania
During a period of annual leave an employee shall receive a loading calculated on the wages which would have been received in respect of the ordinary time that would have been worked prior to the commencement of leave or the termination of employment.
An employee must take annual leave. However, if the employee leaves or is terminated, the employer must pay the employee any leave entitlement including a proportionate amount for each full month worked since the employee began working or last qualified for leave, calculated at 2.923 hours per week of service.
24.10 Public holidays falling within annual leave
24.10.1 If a public holiday falls within an employee's annual leave, as prescribed in this award, and is on a day which would have been an ordinary working day, then;
24.10.2 Extra time equivalent to the public holiday is added to the employee's annual leave.
24.11 Sickness on annual leave in the Australian Capital Territory only
Illness during recreation leave when such illness exceeds one week, and is covered by a medical certificate, shall be regarded as sick leave and an equivalent number of days shall be added to such recreation leave.
24.12 Calculation of service with the employer for annual leave
24.12.1 Service before the date of this award shall be taken into consideration for the purpose of calculating annual leave, 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.
24.12.2 The period of annual leave to be allowed under this clause shall be calculated to the nearest day, any broken part of a day in the result not exceeding half a day to be disregarded.
24.12.3 Where the employer is a successor, assignee or transmittee of a business, if an employee was in the employment of the employer's predecessor at the time when they became such successor or assignee or transmittee, service with the employer's predecessor shall be deemed to be service of the employer.
24.13 Working whilst on annual leave
Except in accordance with all the requirements of this clause an employee shall not offer their services to any other employer during the period the employee is on paid annual leave and an employer shall not engage an employee who is on paid annual leave.
24.14 Annual leave allowed before due time
24.14.1 An employer may allow an employee to take annual leave before the right to take it has accrued, but where such leave is taken, a further period of leave shall not commence to accrue until after the expiration of the twelve months in respect of which annual leave had been taken before it accrued.
[24.14.2 varied by Q9130 ppc 30Jun98]
24.14.2 Where annual leave or part thereof has been granted before the right to take it has accrued and the employee subsequently leaves before completing twelve months continuous service, and the amount paid by the employer to the employee for the annual leave taken exceeds the amount the employer is required to pay to the employee on termination, the employer shall not be liable to make any payment to the employee for annual leave and shall be entitled to deduct the amount of excess from any remuneration payable to the employee upon termination of employment.
24.15.1 An employer may by two months notice in writing declare that the establishment, project or business shall observe a complete Christmas - New Year close down, such employee shall, provided that the employee has been employed continuously for one week or more, be entitled to leave on a pro rata basis for each week of continuous service and such an employee may be stood down for the duration of the close-down period, provided that any such employee shall be paid for all public holidays occurring during the close-down period.
24.15.2 Close-down shall be deemed to mean a period of not less than four consecutive weeks, inclusive of public holidays, commencing not earlier nor later than one clear working day before Christmas Day. Provided that the close-down period may not extend for longer than three consecutive weeks, exclusive of public holidays, where the employees agree with their employer that annual leave may be taken in two periods.
Every employer shall keep or cause to be kept an annual leave record showing the date of commencement of employment, the date on which the last leave became due, and the date upon which the last leave was taken.
