AP792504 - Pest Control Industry (Victoria) Award 2000
PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
23. ANNUAL LEAVE
23.1 How long is annual leave?
An employee other than a casual employee is entitled to at least four weeks annual leave after every twelve months continuous service.
23.2 What are the pay rates for annual leave?
The pay rate for annual leave is the employee’s pay rate at the time the employee takes the annual leave, plus 17.5% of the rates prescribed in the award for the classification in which the employee was engaged immediately prior to the employee proceeding on leave. The employer shall pay each worker in advance before the commencement of the employees annual leave.
23.3 When to take annual leave
23.3.1 Annual leave shall be given by the employer upon request from the employee before the expiration of a period of six months after the date upon which the right to such holiday accrues. Provided that by mutual agreement a period of annual leave may be postponed.
23.3.2 The employer and the employee should seek to reach agreement on the time for taking the leave. In the absence of agreement, the employer may give at least seven days notice of the commencement of leave or part of leave which is due to the employee.
23.4 How annual leave is to be taken
23.4.1 This subclause shall apply to all annual leave taken according to roster, in the form of a part close-down or a part close down/part rostered leave.
23.4.1(a) Due to the seasonal nature of the pest and weed control industry, except where majority agreement is reached, annual leave shall be given other than during the months of December, January, February and March, and taken as directed by the employer in accordance with 23.4.2 hereof.
23.4.1(b) Provided that an employee may request annual leave during the December to March period and taking into account the seasonal nature of the industry and the needs of the employer, such a request shall not be unreasonably refused.
23.4.2 Annual leave shall be taken as directed by the employer on the following basis:
23.4.2(a) In one continuous period.
23.4.2(b) In two separate periods, one of which shall be of at least three weeks duration.
23.4.2(c) In three separate periods, each period to be of least one weeks duration.
23.4.2(d) In any other way agreed to between the employer and the employee, provided that it is taken in no less than one day periods.
23.5 Leave allowed before due date
23.5.1 Where annual leave has been taken in advance by agreement and:
23.5.1(a) the employment of the employee is terminated before the employee has completed the year of employment in respect of such annual leave or part was taken; and
23.5.1(b) the sum paid by the employer to the employee as ordinary pay (as defined) for the annual leave or part so taken in advance exceeds the sum which the employer is required to pay to the employee under this clause, the employer shall not be liable to make any payment to the employee under this clause and shall be entitled to deduct the amount of such excess from any remuneration payable to the employee upon the termination of employment.
23.6 Close down
23.6.1 Where an employer intends to temporarily close the establishment, or a section thereof, for the purposes of allowing annual leave to the employee concerned or a majority of them, the employer may give one month's notice in writing to the employees (or in the case of an employee engaged after giving of such notice, notice on the date of the employee’s engagement) that the employer elects to apply the provisions of this subclause; and thereupon:
23.6.1(a) any such employee who at the date of closing is entitled to annual leave shall be given the annual leave commencing on and from the date of closing and, in addition, shall be paid one-twelfth of the employee’s ordinary pay for any period of employment after accrual of the employee’s right to the annual leave and up to but excluding the date of closing;
23.6.1(b) any such employee who at the date of closing is not entitled to annual leave shall be given leave without pay on and from the date of closing and shall be paid one-twelfth of the employee’s ordinary pay for the period of the employment since the commencement thereof or the accrual of the last annual leave (whichever is the later) and up to but excluding the date of closing, together with pay for any public holiday during such leave for which the employee is entitled to payment under this award or under the contract of employment; and
23.6.1(c) the next twelve-monthly qualifying period of employment for every such employee shall commence on and from the date of closing.
23.6.2 In this subclause date of closing in relation to each employee means the first day of the employee’s annual leave or leave pursuant to this subclause.
23.7 Taking of annual leave in advance
If the employer and employee agree, annual leave may to be taken wholly or partly in advance.
23.7.1 Where annual leave is taken in advance and:
23.7.1(a) the employment is terminated before the employee has completed the year of employment in respect of which such annual leave or part was taken; and
23.7.1(b) the sum paid by the employer to the employee as ordinary pay for the annual leave or part so taken in advance exceeds the sum which the employer is required to pay to the employee under 23.2 hereof, the employer shall not be liable to make any such payment to the employee under 23.2 hereof and shall be entitled to deduct the amount of such excess from any remuneration payable to the employees upon the termination of the employment.
23.8 Definitions
23.8.1 For the purposes of this clause ordinary pay in relation to any employee means remuneration for the employee's normal weekly number of hours of work calculated at the ordinary time rate of pay and in addition shall include:
23.8.1(a) overaward payments for ordinary hours of work;
23.8.1(b) leading hand allowance;
23.8.1(c) first aid allowance;
23.8.1(d) where the employee is provided with board or lodging by the employer, the cash value of the board or lodging.
23.8.2 Week in relation to any employee means the employee's ordinary working week.
23.8.3 Employee means any person employed by any employer to do any work for hire or reward.
23.8.4 For the purpose of the definition of the term ordinary pay in 23.7.1 hereof:
23.8.4(a) where no ordinary time rate of pay is fixed for work under the terms of the employment, the ordinary time rate of pay shall be deemed to be the average weekly rate earned by the employee during the period in respect of which the right to the annual leave accrues;
23.8.4(b) where no normal weekly number of hours is fixed for an employee under the terms of the employment, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by the employee during the period in respect of which the right to the annual leave accrues;
23.8.4(c) the case value of any board or lodging provided for an employee shall be deemed to be its cash value as fixed by or under the terms of the employment or, if it is not so fixed, shall be computed at the rate of $4.00 a week for board and $2.00 a week for lodging.
23.8.4(d) Provided that the value of any board or lodging or the amount of any payment in respect of board or lodging shall not be included in any case where the board or lodging is provided or payment is made not as a part of the employee’s ordinary pay, but because the work done by the employee is in such a locality as to necessitate the employee sleeping elsewhere than at the employee’s genuine place of residence, or because of any other special circumstances.
23.8.5 Calculation of continuous service
For the purposes of this award a year of employment shall be deemed to be unbroken notwithstanding:
23.8.5(a) any annual leave or long service leave taken therein;
23.8.5(b) any interruption or ending of the employment by the employer if such interruption or ending is made with the intention of avoiding obligations in respect of annual leave or long service leave;
23.8.5(c) any absence from work or not more than fourteen days in the year of employment on account of sickness or accident;
23.8.5(d) any absence on account of leave (other than annual leave or long service leave) granted, imposed or agreed to by the employer;
23.8.5(e) any absence on any other account not involving termination of employment:
and in calculating a year of employment any absence of a kind mentioned in 23.8.5(a), 23.8.5(b) or 23.8.5(c) hereof, shall be counted as part of the year of employment but in respect of absences of a kind mentioned in 23.8.5(d) and 23.8.5(e) hereof it will be necessary for the employee as part of the employee’s qualification for annual leave to serve such additional period as equals the period of such absences.
23.9 Proportionate leave on termination
An employee must take annual leave. However, if the employee leaves or is dismissed, 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 on the basis of 1/12th of the employees ordinary pay for that period. Such pro rata annual leave pay does not include leave loading.
23.10 Public holidays falling within annual leave
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 the extra time equivalent to the public holiday is added to the employee’s annual leave.
