AP824979 - Clerks’ (Capral Aluminium Limited) Award 2003
6.1 Except as hereinafter provided, employment shall be by the week. Provided that in establishments where existing practices provide for a contract of employment in excess of one week such existing practices shall continue.
6.2 An employee shall perform such work as the company shall, from time to time, reasonably require.
6.3 An employee not attending for duty shall, except as provided in the following clauses: 15 - Holidays, 16 - Annual leave, 17 - Personal leave, 22 - Jury service, 23 - Make up pay on workers’ compensation and 28 - Classifications and wage rates of this award, lose his pay for the actual time of such non-attendance.
6.4 Notice of Termination
[6.4 Termination of employment title changed and substituted by PR949896 ppc 12Jul04]
6.4.1 Notice of termination by employer
6.4.1(a) In order to terminate the employment of an employee the employer must give to the employee the period of notice specified in the table below:
Period of continuous service |
Period of notice |
1 year or less |
1 week |
Over 1 year and up to the completion of 3 years |
2 weeks |
Over 3 years and up to the completion of 5 years |
3 weeks |
Over 5 years of completed service |
4 weeks |
6.4.1(b) In addition to the notice in 6.4.1(a), employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, are entitled to an additional week's notice.
6.4.1(c) Payment in lieu of the prescribed notice in 6.4.1(a) and 16.4.1(b) must be made if the appropriate notice period is not required to be worked. Provided that employment may be terminated by the employee working part of the required period of notice and by the employer making payment for the remainder of the period of notice.
6.4.1(d) The required amount of payment in lieu of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. That total must be calculated on the basis of:
6.4.1(d)(i) the employee's ordinary hours of work (even if not standard hours); and
6.4.1(d)(ii) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and
6.4.1(d)(iii) any other amounts payable under the employee's contract of employment.
6.4.1(e) The period of notice in this clause does not apply:
6.4.1(e)(i) in the case of dismissal for serious misconduct;
6.4.1(e)(ii) to employees engaged for a specific period of time or for a specific task or tasks;
6.4.1(e)(iii) to trainees whose employment under a traineeship agreement or an approved traineeship is for a specified period or is, for any other reason, limited to the duration of the agreement; or
6.4.1(e)(iv) to casual employees.
6.4.1(f) Continuous service shall include all consecutive periods of service with the employer. An authorised period of unpaid leave does not break an employee's continuity of service but does not otherwise count as service.
6.4.2 Notice of termination by an employee
6.4.2(a) The notice of termination required to be given by an employee is the same as that required of an employer, save and except that there is no requirement on the employee to give additional notice based on the age of the employee concerned.
6.4.2(b) If an employee fails to give the notice specified in 6.4.1(a) the employer has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received under 6.4.1(d).
6.4.3 Job search entitlement
Where an employer has given notice of termination to an employee, an employee shall be allowed up to one day's time off without loss of pay for the purpose of seeking other employment. The time off shall be taken at times that are convenient to the employee after consultation with the employer.
6.4.4 Transmission of business
Where a business is transmitted from one employer to another, as set out in clause 6.9 - Redundancy, the period of continuous service that the employee had with the transmittor or any prior transmittor is deemed to be service with the transmittee and taken into account when calculating notice of termination. However, an employee shall not be entitled to notice of termination or payment in lieu of notice for any period of continuous service in respect of which notice has already been given or paid for.
6.5 Conflict
In the event of any major change in employment conditions or award terms or in the event of any dispute arising between the employer management and the union members, the parties will consult together to reach settlement without loss of wages or production.
6.5.1 Dispute
Subject to the Workplace Relations Act 1996 any dispute or claim arising out of the operation of this award shall be dealt with in the manner prescribed in 6.5.2.
6.5.2 Grievance procedure
At any employer location where any matter between an employee and a member of the employer management becomes a matter of conflict the grievance should be resolved by:
6.5.2(a) Stage 1 - at a local level - the employee and supervisor should confer.
6.5.2(b) Stage 2 - at a local level - the employee and his/her accredited employee representative shall confer with his/her supervisor and departmental head or the latter’s representative.
6.5.2(c) Stage 3 - at a local level - the employee and his/her accredited employee representative shall confer with his/her departmental representatives (which must include his/her supervisor) and a personnel officer.
6.5.2(d) Stage 4 - at a local level - the employee, his/her local accredited employee representative and a union organiser or official shall confer with the location manager or his/her representative and a local personnel officer.
6.5.2(e) Stage 5 - at a local level - accredited employee representative and his/her union organiser and union branch secretary shall confer with employer officers (which must include the appropriate location manager or his/her representative) and the personnel officer.
6.5.2(f) Stage 6 - at a national level - a national official of the union shall confer with an officer from the employer’s head office.
6.5.2(g) Stage 7 - If the matter cannot be settled by the parties, it shall then be submitted to the Australian Industrial Relations Commission for resolution.
An accredited employee representative may include a union representative.
Each stage of the procedure will be undertaken with all possible expedition. At each location both parties may agree that one or more stages are redundant in a particular problem.
In all matters of conflict between the employer management and union it is the intent of this award that actions other than those described in this clause will not be taken before the parties have assured themselves that conciliation and negotiation have been exhausted.
6.5.3 Redundancy disputes
[6.5.3 inserted by PR949896 ppc 12Jul04]
6.5.3(a) Paragraphs 6.5.3(b) and 6.5.3(c) impose additional obligations on an employer where an employer contemplates termination of employment due to redundancy and a dispute arises (a redundancy dispute).
6.5.3(b) Where a redundancy dispute arises, and if it has not already done so, an employer must provide affected employees and the union (if requested by any affected employee) in good time, with relevant information including:
6.5.3(c) Where a redundancy dispute arises and discussions occur in accordance with this clause the employer will, as early as possible, consult on measures taken to avert or to minimise any proposed redundancies and measures to mitigate the adverse affects of any proposed redundancies on the employees concerned.
6.6 Higher duties
6.6.1 Where an employee is required by the direction of the company to perform the range of duties of an employee who is classified in a higher graded position for more than 2 hours at a time the employee shall be paid the minimum award rate for the classification of the higher graded employee for the full day or shift. However, this clause shall not apply in the event of the higher graded employee temporarily absenting himself/herself from the premises with employer permission for a period of less than four hours to attend to business of a personal or other nature nor shall it apply in the event of absence due to sickness, injury etc. of less than four hours by the higher graded employee.
6.6.2 In this latter case the employee required to perform the full range of duties of the higher graded classification shall only receive the higher rate if he/she performs the duties for 4 hours or more. Such additional rate shall operate for all purposes of the award.
6.7 Part-time employment
A part-time employee is one engaged and paid as such. Entitlements shall apply to part-time employees in the same proportion as their ordinary hours bear to 38 hours.
6.8 Casual employment
[6.8 substituted by PR970041 ppc 16Mar06]
6.8.1 Casual employee
A casual employee is one engaged and paid as such. A casual employee, for working ordinary time, shall be paid per hour, for a period of not less than 4 hours for each day of engagement, 1/38 of the appropriate rate prescribed by this award for the work which he/she performs, plus 33.33%.
6.8.2 Caring responsibilities
6.8.2(a) Subject to the evidentiary and notice requirements in 17.6 and 17.7, casual employees are entitled to not be available to attend work, or to leave work:
6.8.2(b) The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.
6.8.2(c) An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.
6.9 Redundancy
[6.9 inserted by PR949896 ppc 12Jul04]
6.9.1 Definitions
6.9.1(a) Business includes trade, process, business or occupation and includes part of any such business.
6.9.1(b) Redundancy occurs where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and that decision leads to the termination of employment of the employee, except where this is due to the ordinary and customary turnover of labour.
6.9.1(c) Transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transmitted has a corresponding meaning.
6.9.1(d) Week's pay means the ordinary time rate of pay for the employee concerned. Provided that such rate shall exclude:
6.9.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary rate of pay and the new ordinary time rate for the number of weeks of notice still owing.
6.9.3 Severance pay
6.9.3(a) Severance pay
An employee whose employment is terminated by reason of redundancy is entitled to the following amount of severance pay in respect of a period of continuous service:
Period of continuous service |
Severance pay |
Less than 1 year |
Nil |
1 year and less than 2 years |
4 weeks' pay* |
2 years and less than 3 years |
6 weeks' pay |
3 years and less than 4 years |
7 weeks' pay |
4 years and less than 5 years |
8 weeks' pay |
5 years and less than 6 years |
10 weeks' pay |
6 years and less than 7 years |
11 weeks' pay |
7 years and less than 8 years |
13 weeks' pay |
8 years and less than 9 years |
14 weeks' pay |
9 years and less than 10 years |
16 weeks' pay |
10 years and over |
12 weeks' pay |
* Week's pay is defined in subclause 6.9.1.
6.9.3(b) Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date.
6.9.3(c) Continuity of service shall be calculated in the manner prescribed by clause 6.4.1(f).
6.9.3(d) Application may be made for variation of the severance pay provided for in this clause in a particular redundancy situation in accordance with the Redundancy Case Decision [PR032004, 26 March 2004] and the Redundancy Case Supplementary Decision [PR062004, 8 June 2004].
6.9.4 Employee leaving during notice period
An employee given notice of termination in circumstances of redundancy may terminate his/her employment during the period of notice set out in clause 6.4 - Notice of Termination. In this circumstance the employee will be entitled to receive the benefits and payments they would have received under this clause had they remained with the employer until the expiry of the notice, but will not be entitled to payment in lieu of notice.
6.9.5 Alternative employment
6.9.5(a) An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.
6.9.5(b) This provision does not apply in circumstances involving transmission of business as set in 6.9.7.
6.9.6 Job search entitlement
6.9.6(a) During the period of notice of termination given by the employer in accordance with 6.4.1, an employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment.
6.9.6(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or he or she shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
6.9.6(c) The job search entitlements under this subclause apply in lieu of the provisions of 6.4.3.
6.9.7 Transmission of business
6.9.7(a) The provisions of this clause are not applicable where a business is before or after the date of this award, transmitted from an employer (in this subclause called the transmittor) to another employer (in this subclause called the transmittee), in any of the following circumstances:
6.9.7(a)(i) Where the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service of the employee with the transmittee; or
6.9.7(a)(ii) Where the employee rejects an offer of employment with the transmittee:
6.9.7(b) The Commission may vary 6.9.7(a)(ii) if it is satisfied that this provision would operate unfairly in a particular case.
6.9.8 Employees exempted
This clause does not apply to:
6.9.9 Incapacity to pay
The Commission may vary the severance pay prescription on the basis of an employer's incapacity to pay. An application for variation may be made by an employer or a group of employers.
