AP799690 - Transport Workers’ (Oil Companies) Award 1998
The terms and conditions set out in this clause shall govern all matters relating to long service leave on and from 1 January 1985, notwithstanding the provisions of any Act, statutory instrument, award, determination or agreement.
27.1 Actual rate of pay
In this clause, unless the context otherwise indicates or requires actual rate of pay means the total amount an employee would have received for performing ordinary hours of work but shall not include overtime, shift premiums, penalty rates and other extraneous payments of a like nature.
27.2 Service with an employer
27.2.1 For the purposes of this award service with an employer means the period during which an employee has served an employer under an unbroken contract of employment, provided that a contract of employment shall be deemed not to have been broken by reason only of any interruption or determination thereof, if the interruption or determination has been made by an employer with the intention of avoiding any obligation imposed by this clause or by any State law dealing with long service leave, or:
27.2.1(a) has arisen, either directly or indirectly, from an industrial dispute concerning industrial matters, and an employee returns to duty with the same employer in accordance with the terms of settlement of the said dispute; or,
27.2.1(b) has been made by an employer by reason of slackness of trade, and the employee is re-employed by the same employer within six months of such interruption or determination; or
27.2.1(c) has been made by an employer for any reason other than those referred to in 27.2.1(a), 27.2.1(b) and 27.2.1(c) hereof, and the employee is re-employed by the same employer within two months of such interruption or determination.
27.2.2 Any period of interruption or determination of the contract of employment referred to in 27.2.1 of this definition shall not, except in the case referred to in 27.2.1(a) hereof, be taken in account in calculating the period of service.
27.2.3 Any period of service by an employee as a member of the navy, military or air forces of the Commonwealth (otherwise than as a permanent member of such forces) shall be deemed to be service with the employer by whom the employee concerned was last employed before the employee commenced to serve as such member for the purposes of this award.
27.2.4 Service with the employer before the commencement of the Long Service Leave (Oil Companies) Award 1985 [Print F8412 [L0052]] shall, as well as service with the employer after such commencement, be taken into account for the purposes of this award.
27.3 Transmission
Transmission includes transfer, conveyance, assignment, or succession whether by agreement or by operation of law, and transmitted has a corresponding meaning.
27.4 Right to leave
27.4.1 An employee shall be entitled to, and, subject to 27.6 hereof, an employer shall grant, long service leave with pay in respect of service with an employer as provided by this award.
27.4.2 Except as provided by this award, payment in lieu of long service leave shall not be made by an employer, or accepted by an employee.
27.5 Amount of leave
Subject to the provisions of 27.5.2 hereof, the amount of long service leave to which an employee shall be entitled shall be:
27.5.1(a) in the case of an employee who has completed at least ten years’ service with an employer:
27.5.1(a)(i) in respect of ten years’ service so completed, thirteen consecutive weeks’ leave, provided that an employee shall not be granted more than 455 hours leave; and
27.5.1(a)(ii) in respect of each ten years’ service with an employer completed since the employee last became entitled to long service leave, thirteen consecutive weeks’ (455 hours); leave and
27.5.1(a)(iii) on the termination of the employee’s employment, in respect of the number of years’ service with an employer since the employee became entitled to an amount of long service leave, a proportionate amount on the basis of thirteen consecutive weeks’(455 hours) leave for ten years’ service; and
27.5.1(b) in the case of an employee who has completed at least five years’ service with an employer and whose employment is terminated for any cause, other than the employee’s serious or willful misconduct, a proportionate amount on the basis of thirteen consecutive weeks’ (455 hours) leave for ten years’ service.
27.5.2 In the case of an employee whose service with an employer commenced before 1 January 1985, and whose service would have provided an entitlement to long service leave under this award, the amount of long service leave to which such employee shall be entitled shall be the sum of the following amounts:
27.5.2(a) an amount calculated on the basis of thirteen consecutive weeks’ (455 hours) leave for twenty years’ service in respect of the employee’s service with the employer:
27.5.2(a)(i) in New South Wales, before 1 April 1963;
27.5.2(a)(ii) in Queensland, before 11 May 1964;
27.5.2(a)(iii) in Victoria, before 1 January 1965;
27.5.2(a)(iv) in South Australia, before 1 January 1966;
27.5.2(a)(v) in Western Australia, before 1 October 1964;
27.5.2(a)(vi) in Tasmania, before 17 December 1964;
27.5.2(a)(vii) in the Australian Capital Territory, before 11 May 1964; and
27.5.2(a)(viii) in the Northern Territory, subject to the provisions of the Long Service Ordinance 1965, before 11 May 1964; and
27.5.2(b) an amount calculated on the basis of thirteen consecutive weeks’ (455 hours) leave for fifteen years’ service in respect of the period of the employee’s service with the employer:
27.5.2(b)(i) in New South Wales on and from 1 April 1963;
27.5.2(b)(ii) in Queensland on and from 11 May 1964;
27.5.2(b)(iii) in Victoria on and from 1 January 1965;
27.5.2(b)(iv) in South Australia on and from 1 January 1966;
27.5.2(b)(v) in Western Australia on and from 1 October 1964;
27.5.2(b)(vi) in Tasmania on and from 17 December 1964;
27.5.2(b)(vii) in the Australian Capital Territory on and from 11 May 1964;
27.5.2(b)(viii) in the Northern Territory on and from 11 May 1964; and
27.5.2(c) an amount calculated on the basis of thirteen consecutive weeks’ (455 hours) leave for ten years’ service in respect of the period of the employee’s service with the employer:
27.5.2(c)(i) in South Australia on and from 1 January 1972;
27.5.2(c)(ii) in the Northern Territory on and from 30 September 1974.
27.6 Payment for period of leave
27.6.1 Subject to the provisions of 27.6.3 hereof, the rate of payment to which an employee on leave shall be entitled shall be the employee’s actual rate of pay, as defined in 27.2.1 hereof.
27.6.2 Payment shall be made in one of the following ways:
27.6.2(a) in advance for the whole of the period when the employee commences the period of leave, at the rate calculated in accordance with the provisions of 21.6.1 hereof; or
27.6.2(b) by agreement with the employee, at the same time as payment would have been made if the employee had remained on duty, in which case payment shall, if the employee, in writing, so requires, be made by cheque posted to an address specified by the employee; or
27.6.2(c) in any other way agreed between the employer and the employee.
27.6.3 Where, during the period of leave, a variation occurs to an employee’s actual rate of pay, the rate of payment to which the employee shall be entitled, for the leave period, shall include the varied rate from the date of such variation.
27.6.4 Where payment has been made in advance to an employee, in accordance with this clause, the employer shall, upon the employee’s return to duty, adjust such advance payment to include the varied rate of pay.
27.7 Taking leave
27.7.1 Where an employee has become entitled to long service leave pursuant to this clause, such leave shall be granted by the employer as soon as practicable having regard to the needs of the establishment, or as provided by 27.7.3 hereof, at such time, or times, as may be agreed between the employer and the employee.
27.7.2 Except where an employee agrees otherwise, the employer shall give an employee at least 28 days’ notice of the date from which leave is to be taken.
27.7.3 The leave prescribed by this clause shall be granted, and taken, in one continuous period, or if the employer and the employee so agree, in not more than three separate periods.
27.7.4 The long service leave prescribed by this award shall be exclusive of annual leave and all other holidays prescribed by an award, industrial agreement, or other statutory enactment applicable to the employee’s contract of employment occurring during the taking of any period of long service leave. If any such holiday, to which an employee is entitled, falls within the employee’s period of long service 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 long service leave, time equivalent to the ordinary time which the employee would have worked if such a day had not been a holiday.
27.8 Granting leave in advance
27.8.1 An employee may, by mutual agreement with the employer, be granted long service leave before the right to such leave has accrued due.
27.8.2 Where leave is taken in accordance with 27.8.1 hereof, the employee shall not become entitled to any further leave under this clause for the period in respect of which such leave was taken before it accrued due.
27.8.3 Where leave has been granted to an employee, pursuant to 27.8.1 hereof, before the right thereto has accrued due, and the employment is subsequently terminated, the employer may deduct from any remuneration payable to the employee on the termination of employment such amount as represents payment for any period for which the employee has been granted, and has taken, leave to which the employee was not entitled at the date of termination of the employee’s employment.
27.9 Restriction upon employment while on leave
An employee shall not engage in any employment for hire or reward during any period of long service leave pursuant to this clause.
27.10 Payment on termination for leave not taken
27.10.1 Where the employment of an employee is terminated, otherwise than by the employee’s death, and any long service leave:
27.10.1(a) to which the employee was entitled has not been taken; and/or
27.10.1(b) accrues to the employee on such termination, the employer shall immediately pay, in full, to the employee, the amount in respect of such leave, calculated at the date of the termination in the manner set out in 27.6.1 hereof, less any amount already paid to the employee in respect of that leave.
27.10.2 Where an employee dies, and any long service leave:
27.10.2(a) to which the employee was entitled has not been taken; and/or
27.10.2(b) accrues upon termination of the employment by reason of the employee’s death, the employer shall, upon request by the employee’s personal representative, pay, in full, to the employee’s personal representative, the amount in respect of such leave calculated as at the date of the death of the employee in the manner set out in 27.7.1 hereof less any amount already paid to the employee in respect of that leave.
27.11 Benefits to be brought into account
Any long service leave allowed, or payment in lieu thereof made before 1 January 1985, shall be taken into account, and shall be deemed to have been leave granted, and taken, in satisfaction of any entitlement to leave due under this clause:
27.11.1 in the case of leave with pay - to the extent of the period of such leave; and
27.11.2 in the case of payment in lieu thereof - to the extent of a period of leave equivalent to the amount of payment at the date thereof.
27.12 Transmission of business
27.12.1 Where, a business or part thereof is transmitted from an employer (called the transmittor) to another employer (called the transmittee) and an employee who, at the time of such transmission, was an employee of the transmittor in that business or part thereof, becomes an employee of the transmittee:
27.12.1(a) the continuity of the contract of employment of the employee shall be deemed not to have been broken by reason of such transmission; and
27.12.1(b) the period of service which the employee has had with the transmittor, or any prior transmittor, shall be deemed to be service with the transmittee, and the employee shall be entitled to long service leave as if the employee had, during the whole period of service, been employed, with the one employer, at the date at which the employee’s entitlement to long service leave accrues.
27.12.2 Nothing in 27.12.1 hereof shall be construed as entitling an employee to leave, or payment in lieu thereof, more than once in respect of any period of service.
27.13 Records to be kept
27.13.1 An employer shall:
27.13.1(a) during the employment, and for a period of twelve months thereafter; or
27.13.1(b) in the case of termination by the death of an employee - until settlement with an employee’s personal representative has been made; or until the expiration of three years from the date of death, whichever occurs first,
27.13.1(c) keep a record from which can be readily ascertained:
27.13.1(c)(i) the name of each employee;
27.13.1(c)(ii) the award classification in which the employee is classified;
27.13.1(c)(iii) the date of commencement of the employee’s employment;
27.13.1(c)(iv) the employee’s entitlement to long service leave; and
27.13.1(c)(v) any long service leave which has been granted to the employee or in respect of which payment has been made, whether under this clause or otherwise.
27.13.2 The records required to be kept by 27.13.1 hereof shall be open for inspection, by a duly accredited official of an organisation of employees bound by this award, during the usual office hours at the employer’s office or other convenient place designated by the employer.
27.13.3 A duly accredited official, referred to in 27.13.2 hereof, shall be entitled to make, and carry away, a copy of any entry in such record.
