AP806816CRV - Hairdressing and Beauty Services - Victoria - Award 2001

PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 

31. ANNUAL LEAVE

31.1 Basic entitlement

Except as otherwise provided in this award, every employee is entitled, at the end of each year of his or her employment with an employer, to annual leave on ordinary pay. The amount of annual leave each year will be 152 hours for full-time employees and proportional for part-time and casual employees.

31.2 How leave is to be taken

[31.2 substituted by PR967595 ppc 09Dec05]

Annual leave must be taken and given on the following basis:

31.2.1 in one continuous period; or

31.2.2 in 2 separate periods each of less than 3 weeks duration; or

31.2.3 an employee may with the consent of his or her employer take short term annual leave not exceeding 10 single days in any calendar year, at a time or times separate from any of the periods determined in accordance with clauses 31.2.1 and 31.2.2. Should an employee use part of their annual leave entitlement as single days, the remainder is to be used in accordance with 31.2.1 or 31.2.2.

31.3 Taking leave in advance

31.3.1 Upon agreement between the employer and employee, annual leave may be taken fully or partly in advance of the employee becoming entitled to the leave.

31.3.2 Where the annual leave or any part thereof has been taken before the right to the annual leave has accrued, the right to a further annual leave will not commence to accrue until after the expiration of the year of employment in respect of which the annual leave or part has been so taken.

31.4 Postponement may be agreed

[31.4 When leave is to be taken by, title changed and substituted by PR967595 ppc 09Dec05]

Annual leave must be given by the employer and must be taken by the employee within six months from the date the entitlement falls due, however by agreement between the employer and the employee, annual leave may be taken at any time within a period of 24 months from the date at which it falls due.

31.5 Payment instead of annual leave

Except as allowed in 31.8, payment instead of any annual leave must not be made by an employer and must not be accepted by an employee.

31.6 Notification of leave

31.6.1 The employer must give each employee at least seven days' notice of the date from which his or her annual leave is to be taken.

31.6.2 The employer is to pay each employee in advance before the commencement of the employee's annual leave his or her ordinary pay for the leave period.

31.7 Public holidays falling during period of leave

Where any holiday for which the employee is entitled to payment under this award or under his or her contract of employment occurs during any period of annual leave taken by an employee under this clause, the period of the leave must be increased by one day in respect of that holiday.

31.8 Payment of annual leave on termination

31.8.1 Where the employment of an employee who has become entitled to one or more periods of annual leave provided by this award is terminated, the employer will be deemed to have given all of the leave (except so much, if any, as has already been taken) to the employee as from the date of the termination of the employment, and will pay to the employee, in addition to all other amounts due to the employee, the employee's ordinary pay for the period of that leave.

31.8.2 Clause 31.8.1 applies to and in respect of any annual leave (except so much, if any, as has already been taken) whether or not the employee concerned continues to be entitled (apart from this clause) to take it, and so applies as if the employee's right to take it had accrued immediately before the date of the termination of the employee's employment.

31.8.3 Nothing in 31.8.1 and 31.8.2 affects the obligation of an employer to give or an employee to take, annual leave in accordance with this award.

31.8.4 This clause applies with respect to every period of employment of an employee by any employer which is less than one year, such period being computed from the date of the commencement of the employment or (where the employee has during the employment become entitled to any annual leave or holidays under the last preceding clause) computed from the date upon which he or she became entitled to that annual leave, or to the last annual leave as the case may be.

31.8.4(a) Where the employment of an employee by an employer is terminated at the end of a period of employment to which this clause applies the employer must pay to the employee, in addition to all other amounts due to him or her, an amount equal to one twelfth of his or her ordinary pay for the period of employment.

31.8.5 Where the annual leave has been taken in advance by an employee in accordance with 31.3, and completed the year of employment in respect of which the annual leave or part was taken; and 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 31.8.4, the employer will not be liable to make any payment to the employee under 31.8.4 and will be entitled to deduct the amount of the excess from a remuneration payable to the employee upon the termination of the employment.

31.9 Annual closedown

31.9.1 Where an employer intends temporarily to close (or reduce to nucleus) his or her establishment or a section thereof for the purpose (among other things) of allowing annual leave to the employees concerned or a majority of them he or she may give in writing to such employees one month’s notice (or, in the case of any employee engaged after giving such notice, notice on the date of the employee’s engagement) that he or she elects to apply the provisions of this clause; and thereupon:

31.9.1(a) any such employee who at the date of closing is entitled to his or her annual leave is to be given his or her annual leave commencing as on and from the date of closing and, in addition, is to be paid 1/12th of his or her ordinary pay for any period of employment after the accrual of his or her right to the annual leave and up to but excluding the date of closing;

31.9.1(b) any such employee who at the date of closing is not entitled to his or her annual leave is to be given leave without pay as on and from the date of closing and must be paid 1/12th of his or her ordinary pay for the period of his or her employment since the commencement thereof or the accrual of his or her last annual leave (whichever is the later) and up to but excluding the date of closing together with pay for any holiday during such leave for which he or she is entitled to payment under this award or under his or her contract of employment; and

31.9.1(c) the next twelve-monthly qualifying period of employment for every such employee will commence as on and from the date of closing.

31.9.2 Where the majority of employees concerned agree, an employer may close down the establishment section or sections in one, two or three separate periods for the purpose of granting annual leave in accordance with this clause. However if an employer closes down the establishment on more than one occasion, one of those periods must be for a period of at least fourteen consecutive days including non-working days. In these cases, the employer is to advise the employees concerned of the proposed dates of each closedown before asking them for their agreement.

31.9.3 By agreement with the majority of employees concerned, an employer may close down the salon for a period of at least fourteen consecutive days including non-working days and grant the balance of the annual leave due to an employee by mutual agreement.

31.9.4 In this clause date of closing in relation to each employee means the first day of his or her annual leave or leave under this clause.

31.10 Definitions

For the purposes of this clause:

31.10.1 Apprentice means any person of not more than 21 years of age bound by indenture of apprenticeship or any person over 21 years of age who with the sanction of the Secretary for Labour and Industry is bound by indenture of apprenticeship.

31.10.2 Ordinary pay means remuneration for the employee's normal weekly number of hours of work calculated at the ordinary time rate of pay and where the employee is provided with board or lodging by his or her employer, includes the cash value of that board or lodging.

31.10.3 Week means an employee's ordinary working week.

31.10.4 Employee means any person employed by any employer to do any work for hire or reward and includes an apprentice and any other person whose contract of employment requires him or her to learn or to be taught any occupation.

31.11 Ordinary pay

For the purposes of the definition of the term ordinary pay in 31.10.2.

31.11.1 where no ordinary time rate of pay is fixed for an employee's work under the terms of his or her employment, the ordinary time rate of pay is considered to be the average weekly rate earned by him or her during the period in which the right to annual leave accrues;

31.11.2 where no normal weekly number of hours is fixed for an employee under the terms of his or her employment the normal weekly number of hours of work is considered to be the average weekly number of hours worked by him or her during the period in which the right to the annual leave accrues;

31.11.3 the cash value of any board or lodging provided for an employee is considered to be its cash value as fixed by or under the terms of the employee's employment. Where the cash value is not fixed, it must be computed at the rate of $4.00 a week for board and $2.00 a week for lodging.

31.11.3(a) However, the value of any board or lodging or the amount of any payment in respect of board or lodging must not be included in any case where the board or lodging is provided or the payment is made not as a part of his or her ordinary pay, but because the work done by the employee is in such a locality as to necessitate his or her sleeping elsewhere than at his or her genuine place of residence, or because of any other special circumstances.

31.12 Casual entitlement may be included in the hourly rate

The entitlement of a casual employee to annual leave may, at the election of the employer be paid to the employee by increasing the hourly rate of pay by 1/12th of the appropriate ordinary hourly rate payable to a weekly employee. An employer in these circumstances must advise the employee of this decision in writing.