AP822300 - Milk Treatment and Distribution Employees (A.C.T.) Award 2003
27.1 An employee, other than a casual employee, shall be entitled to leave of absence on full pay for a period equal to four working weeks for each continuous twelve months service (less the period of annual leave) with his/her employer.
27.2 Provided that a shift work employee shall be entitled to an annual leave period of five weeks per annum.
27.3 An employee before going on leave shall be paid the amount of wages he/she would have received in respect of ordinary time he/she would have worked had he/she not been on leave during the relevant period.
27.4 Each employee shall, where applicable, have the amount of wages for annual leave calculated as follows:
27.4.1 the rate applicable to him/her as prescribed by 15.2;
27.4.2 any additional rate applicable to him/her for work in ordinary time including Saturday and Sunday shifts as prescribed by clause 23 - Shift work; and
27.4.3 any additional rate to which the employee is otherwise entitled in accordance with his/her contract of employment for ordinary hours of work, provided that this provision shall not operate so as to include any payment which is of a similar nature to or is paidfor the same reason as or is paid in lieu of those payments prescribed by clause 25 - Overtime, nor any payment which might have become payable to an employee as reimbursement for expenses incurred.
27.5 In the case of an employee carrying out work under any scheme of payment by results including a bonus or any other system of payments at the rate which is the weekly average of payments made to the employee under such scheme for the period actually worked by him/her during ordinary hours over the last three monthly period in respect of which such payments have been calculated prior to the time of going on leave or termination of employment as the case may be or if he/she worked under such scheme for a lesser period immediately prior to going on leave at the rate which is the weekly average of payments made during such lesser period provided that in circumstances where the amount of payment which the employee would have received had he/she not been on leave is ascertainable the rate so calculated shall be appropriately adjusted.
27.6 In the case of an employee engaged on mixed functions the rate payable pursuant to clause 17 - Higher grade work, 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.
27.7 This subclause shall not operate so as to entitle an employee in respect of a public holiday occurring during his/her period of annual leave, to any additional payment calculated as though the employee had worked on that day.
27.8 For the purposes of this clause, the ordinary time an employee would have worked had he/she not been on leave during the relevant period shall be determined by the roster which covers such period at a time immediately prior to commencement of his/her leave or the termination of his/her employment, as the case may be.
27.9 Continuous employment, as specified in 27.1, means constant weekly employment until the termination of an engagement. Absences up to one month owing to illness covered by a medical certificate after two days absence, or an absence with a medical certificate extending beyond one month in the case of an employee with an accumulation of sick leave to the extent of such accumulation, three months owing to injury received in the course of employment or one month owing to other causes for which leave has been granted by the employer concerned, shall not be deemed to break the continuity of employment.
27.10 Should an employee not complete twelve months service he/she shall on the termination of his/her employment, provided that he/she has been employed continuously for one month or more, be entitled to pay on a pro rata basis for each completed month of service at the appropriate rate of wage prescribed by 27.3 in respect of leave which has not been granted under this clause.
27.11 In the computation of pro rata leave, the period of any previous annual leave which may be involved shall be computed as a period of service.
27.12 Annual leave shall be taken at a time mutually agreed upon by the employer and the employee, and in the absence of agreement at a time fixed by the employer, within a period not exceeding six months from the date when the right to annual leave accrued due and after not less than six weeks notice to the employee.
27.13Annual leave shall be taken in a continuous period or in the event of an agreement between an employer and an employee in two separate periods and not otherwise.
27.14 In cases where an employer and an employee have agreed on two separate periods of leave, one of the periods shall be not less than two consecutive weeks exclusive of any public holiday or holidays which may occur during such period of leave. Any such two periods of leave shall be granted to an employee within six months from the date when the right to annual leave occurred.
27.15Notwithstanding the provisions of 27.12, an employer may give three months notice in writing exhibited on a notice board in his/her establishment, project or business, declaring that his/her establishment, project or business shall observe a complete Christmas/New Year close down period at the next following Christmas/New Year. In a case where an employee has not completed twelve months service at the Christmas/New Year close down, such employee shall, provided that he/she or she has been employed continuously for one month or more, be entitled to leave on a pro rata basis for each month of continuous service and such an employee may be stood off 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.
27.16 An employer may allow annual leave to an employee before the right thereto has accrued due but where leave is taken in such a case a further period of annual 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.
27.17 Where leave has been granted to an employee pursuant to this subclause before the right thereto has accrued due and the employee subsequently leaves or is discharged from the service of the employer before completing the twelve months continuous service in respect of which the leave was granted, the employer may for each one complete month of the qualifying period of twelve months not served by the employee deduct from whatever remuneration is payable upon the termination of the employment 1/12th of the amount of wage paid on account of the recreation leave, which amount shall not include any sums paid for any of the public holidays prescribed by this award.
27.18 For the purposes of 27.15, close down shall be deemed to mean a period of not less than three consecutive weeks, exclusive of public holidays, commencing not earlier nor later than two clear working days before Christmas Day. Provided that the close down period may not extend for longer than two consecutive weeks, exclusive of public holidays, where the employees agree with their employer that annual leave may be taken in two periods.
27.19 An employer in conjunction with an accredited representative of each of the unions involved may seek such an agreement with his/her employees on a particular project, establishment or business by means of a secret ballot. In the event of a majority in favour of two periods of leave, then that employer may close down that project for a period of two consecutive weeks at Christmas/New Year, exclusive of public holidays, and grant the remaining week’s leave at some other time of the year within six months from the date when the right to annual leave first occurred.
27.20 Payment in lieu of annual leave shall not be made by an employer nor accepted by an employee except in accordance with all the requirements of this clause. An employee shall not offer his/her services to any other employer during the period he/she is on paid annual leave and an employer shall not engage an employee who is on paid annual leave.
27.21 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 on which the last leave was taken.
27.22 Before an employee proceeds on annual leave he or she shall be paid any moneys then due to him or her in respect of the annual leave being taken, or which may accrue due to him or her during the period of leave.
27.23 Loading on annual leave
During a period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by 27.4.
27.23.1 The loading shall be as follows:
27.23.1(a) Day workers - An employee who would have worked on day work only had he/she not been on leave - a loading of 17.5%.
27.23.1(b) Shift workers - An employee who would have worked on shift work had he/she not been on leave - a loading of 17.5%.
27.24 Provided that where the employee would have received shift loadings prescribed by 23.2, 23.5 and 23.7 had he/she not been on leave during the relevant period and such loadings would have entitled him/her to a greater amount than the 17.5% loading would have entitled him/her, then the shift loadings shall be added to the rate of wage prescribed by 27.4 in lieu of the 17.5%.
27.25 Provided further that if the shift loadings would have entitled him/her 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 27.4 in lieu of the shift loadings.
27.26 The loading prescribed by this subclause 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 wilful disobedience.
