Woolworths (South Australia and Northern Territory) Award, 2003
AP825337 - Woolworths (South Australia and Northern Territory) Award, 2003
36.1 Period of leave
Every employee (other than a casual employee) shall after twelve months continuous service (less the period of annual leave) be entitled to and allowed a period of 28 consecutive days paid leave.
36.2 Annual leave exclusive of public holiday
36.2.1 Subject to this subclause, the annual leave prescribed by this clause shall be exclusive of any public holiday prescribed by this award. If any such holiday falls within any employee’s period of annual leave and if it is observed on a day which in the case of that employee would have been an ordinary working day, there shall be added to that period of annual leave one day for each such holiday.
36.2.2 Where a public holiday falls during an employee’s annual leave, and where the employee fails without reasonable cause (proof whereof shall be upon the employee) to attend for work at the ordinary starting time on the first working day following the end of the employee’s annual leave, the employee shall not be entitled to be paid for any such holiday.
36.3 Calculation of continuous service
For the purpose of this clause service shall be deemed to be continuous notwithstanding:
36.3.1 Any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;
36.3.2 Any absence from work on account of personal sickness or accident or on account of leave granted, imposed or agreed to by the employer; or
36.3.3 Any absence with reasonable cause proof whereof shall be upon the employee.
36.3.4 In the case of personal sickness or accident or absence with reasonable cause the employee to become entitled to the benefit of this subclause shall notify the employer if practicable within 24 hours of the commencement of such absence of the employee’s inability to attend for duty.
36.3.5 In calculating the period of twelve months’ continuous service any such absence as aforesaid shall not, except to the extent of not more than fourteen days in a twelve month period in the case of sickness or accident, be taken into account in calculating the period of twelve months’ continuous service.
36.3.6 Any absence from work by reason of any cause not being a cause specified in this subclause shall not be deemed to break the continuity of service for the purpose of this clause unless the employer during the absence or within fourteen days of the termination of the absence notifies the employee in writing that such absence will be regarded as having broken the continuity of service.
36.4 Calculation of service
36.4.1 Service before the date of this award shall be taken into consideration for the purpose of calculating annual leave but an employee shall not be entitled to leave or payment in lieu thereof for any period in respect of which leave or payment in lieu thereof for any period has been allowed.
36.4.2 This paragraph applies where the employer is a successor or assignee or transmittee of a business and where an employee was in the employment of the employer’s predecessor immediately prior to the time when the employer became such successor, assignee or transmittee. When this happens, the employee shall for the purposes of this clause be deemed to have been in the service of the employer during the period in which the employee was employed by the predecessor.
36.5 Calculation of month
For the purpose of this clause a month shall be reckoned as commencing with the beginning of the first day of the employment or period of employment in question and as ending at the beginning of the day which in the latest month in question has the same date number as that which the commencing day had in its month and if there be no such day in such subsequent month shall be reckoned as ending at the end of such subsequent month.
36.6 Leave to be taken
The annual leave provided for by this clause shall be allowed and shall be taken and except as provided by 36.10 and 36.11 hereof payment shall not be made or accepted in lieu of annual leave.
36.7 Time of taking leave
36.7.1 Annual leave shall be given at a time fixed by the employer within a period not exceeding twelve months from the date when the right to annual leave accrued and after not less than four weeks’ notice to the employee.
36.7.2 An employee entitled to annual leave shall be granted such annual leave in one continuous period if such is practicable or the employer may, if it is not practicable to grant such leave in one continuous period at the employer’s discretion, allow annual leave in two periods of which no period shall be less than seven days. Where in the exercise of this discretion an employer decides to allow annual leave in two periods, the employee concerned shall be notified of the fact within one month of becoming entitled to the leave.
36.7.3 An employee who considers that the granting of annual leave in two periods will cause hardship or is unfair on any ground may submit the case to the Australian Industrial Relations Commission which shall have power to determine that matter by disallowing the employee’s claim or by directing that leave be given or taken in one period. Notwithstanding the provisions of this clause the said annual leave, by agreement between the employer and the employee concerned, may be given and taken in a manner different to that set out herein provided that in any event the whole of the leave shall be given within twelve months from the date it first became due.
36.7.4 Where the employer and employee mutually agree to do so, an employee may be permitted to take annual leave in single days. Where this provision is utilised, no more than four single days of annual leave can be taken.
36.8 Leave allowed before due date
36.8.1 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.
36.8.2 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 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 annual leave, which amount shall not include any sums paid for any of the holidays prescribed by clause 35 - Public holidays of this award.
36.9 Payment for annual leave
Every full-time or part-time employee who satisfies 36.1 of this clause shall be entitled to the following payments before going on leave.
36.9.1 The ordinary weekly wage for the period of leave due or the appropriate weekly wage prescribed by clause 19 - Wages of this award for the period of leave due, plus a loading of 17.5% of the appropriate weekly wage prescribed by 20, whichever is the greater.
36.9.2 For all days added to the period of leave in the place of public holidays (as provided by 36.2 of this clause).
36.10 Payment for leave on termination of employment
36.10.1 Whenever the employment of an employee (other than a casual employee) has terminated, the employee shall be paid for any accrued annual leave not yet taken by that employee. In addition to any untaken accrued annual leave, the employee shall also be paid a pro rata payment in respect of the period from the last anniversary of the commencement of employment to the date of termination of employment. Pro rata annual leave shall be calculated on the basis of 1/3rd of one week’s pay for each completed month of service.
36.10.2 Payment for leave on termination shall be calculated in the same manner as is provided for in 36.9 of this clause.
36.11 Casual and temporary employees
36.11.1 Notwithstanding any other provisions of this clause a casual employee temporarily transferred to full-time or part-time duties or an employee temporarily engaged on full-time or part-time duties for a period of less than one month shall be allowed a period of annual leave in respect to each completed week of service.
36.11.2 While so employed as a full-time employee, the annual leave allowed shall be 2.92 hours for each completed week.
36.11.3 While so employed as a part-time employee, the annual leave credit allowed for each completed week shall be an average of the number of ordinary hours worked per week during the period of employment as a temporary employee. The average thus calculated shall be divided by 36 and then multiplied by 2.92. The final result thus obtained shall be multiplied by the number of completed weeks of service. The result of this calculation shall be the number of hours of pro rata annual leave payable to the part-time temporary employee upon termination of the temporary employment contract. A 17.5% annual leave loading calculated in the same manner as is provided for in 36.9 of this clause shall be paid in addition to the pro rata annual leave payment.
36.12 Interpretation
The days in a period of leave shall be deemed to be consecutive even though any of the public holidays named in clause 35 - Public holidays occur therein, provided that the necessary day or days are added as prescribed by 36.2 hereof.
36.13 Annual leave for part-time employees
36.13.1 A part-time employee who has completed twelve months’ continuous service with an employer is entitled to a period of 28 consecutive days’ annual leave on the same terms and conditions as a full-time employee.
36.13.2 After the completion of each twelve month period of continuous service of a part-time employee, a calculation shall be made of average number of ordinary hours worked per week by the employee over the preceding twelve month period. Payment for each week of annual leave shall be made as if the employee normally worked per week the average number of ordinary hours calculated in accordance with this paragraph.
36.13.3 Payment for pro rata annual leave for a part-time employee whose employment is terminated shall be based on the average number of ordinary hours worked per week over the period for which a pro rata payment is to be paid.
36.13.4 For the purposes of this paragraph, a part-time employee includes an employee who has been employed for part of the year as a full-time employee and for part of the year as a part-time employee. (In other words, where an employee has been employed during a twelve month period partly as a part-time employee and partly as a full-time employee, the averaging provisions shall be implemented.)
