AP829982 - Metal Industry (Victorian Public Hospitals) Award 2002
28.1 Period of leave
A period of 152 hours leave shall be allowed annually to an employee (other than a part-time or casual employee) after twelve months’ continuous service (inclusive of the period in which accrued annual leave is to be taken). For casual or part-time employees the relevant award provisions shall apply.
28.2 Continuous shift workers
28.2.1 In addition to the leave prescribed in 28.1 hereof, continuous shift workers, that is shift workers who are rostered to work regularly on Sundays and holidays shall be allowed five rostered days leave.
28.2.2 Where an employee with twelve months’ continuous service is engaged for that part of the twelve month period as a continuous shift worker they shall be entitled to have the period of 152 hours leave prescribed in 28.1 hereof increased by 3.17 ordinary hours for each month they are continuously engaged as aforesaid.
28.3 Annual leave exclusive of public holidays
28.3.1 Subject to this clause, the annual leave prescribed by this clause shall be exclusive of any of the holidays prescribed by clause 25 - Holidays and Sunday work, or granted by the Authority and if any such holiday falls within an employee’s period of annual 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 annual leave time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday.
28.3.2 Where a holiday falls as aforesaid and the employee fails without reasonable cause (proof whereof shall be upon them) to attend for work at their ordinary starting time on the working day immediately following the last day of the period of their annual leave they shall not be entitled to be paid for any such holiday.
28.4 Broken leave
28.4.1 Annual leave may be taken in one or two continuous periods plus the period between Christmas and the New Year.
[28.4.2 inserted by PR970582 ppc 24Mar06]
28.4.2 However if the employer and employee agree, annual leave may be taken in up to 10 single days per year.
28.5 Calculation of continuous service
28.5.1 For the purpose of this clause service shall be deemed to be continuous notwithstanding:
28.5.1(a) any interruption or determination of the employment by the employer if such interruption or determination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;
28.5.1(b) any absence from work on account of personal sickness or accident or on account of leave lawfully granted by the employer; or
28.5.1(c) any absence with reasonable cause proof whereof shall be upon the employee.
[28.5.2 varied by PR970582 ppc 24Mar06]
28.5.2 In cases of personal sickness or accident or absence with reasonable cause the employee to become entitled to the benefit of this clause shall inform the employer, in writing if practicable, within 24 hours of the commencement of such absence of their inability to attend for duty and as far as practicable the nature of the illness, injury or cause and the estimated duration of their absence. A notification given by an employee pursuant to 27.7 and 27.8 of this award shall be accepted as a notification under this clause.
28.5.3 Any absence from work by reason of any cause not being a cause specified in this clause shall not be deemed to break the continuity of service for the purposes 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.
28.5.4 In cases of individual absenteeism such notice shall be given in writing to the employee concerned, but in cases of concerted or collective absenteeism notice may be given to employees by the posting up of a notification in the plant, in the manner in which general notifications to employees are usually made in that plant and by posting to each union whose members have participated in such concerted or collective absenteeism a copy of it not later than the day it is posted up in the plant.
28.5.5 A notice to an individual employee may be given by delivering it to them personally or by posting it to their last recorded address, in which case it shall be deemed to have reached them in due course of post.
28.5.6 In calculating the period of twelve months continuous service any such absence as aforesaid shall not except to the extent of not more than 152 working hours in a twelve-monthly period in the case of sickness or accident, be taken into account in calculating the period of twelve months continuous service. Provided that for the purposes of this clause in calculating continuous service for periods of less than twelve months such absences due to sickness or accident shall be taken into account and counted as time worked on a pro rata basis of 152 ordinary working hours for twelve months service.
28.6 Calculation of service
28.6.1 Service before the date of the operation of this order 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 a payment in lieu thereof has been allowed. The period of annual leave to be allowed under this clause shall be calculated to the nearest day any broken part of a day in the result not exceeding half a day to be disregarded.
28.6.2 Where the employer is a successor or assignee or transmittee of a business if an employee was in the employment of the employer’s predecessor at the time when they became such successor or assignee or transmittee the employee in respect of the period during which they were in the service of the predecessor shall for the purpose of this clause be deemed to be in the service of the employer.
28.7 Leave to be taken
The annual leave provided by this clause shall be allowed and shall be taken and except as provided by 28.12 and 28.13 hereof payment shall not be made or accepted in lieu of annual leave.
28.8 Time of taking leave
[28.8 substituted by PR970582 ppc 24Mar06]
28.8.1 Annual leave shall be given at a time fixed by the employer within a period not exceeding six months from the date when the right to annual leave accrued and after not less than four weeks notice to the employee.
28.8.2 However by agreement, leave may be taken at any time, provided it is done within 2 years from the date the right to the leave accrued.
28.9 Leave allowed before due date
28.9.1 An employer may allow an employee to take annual leave either wholly or partly in advance before the right thereto has accrued due. In such case a further period of annual leave shall not commence to accrue until after the expiration of the twelve months in respect of which the annual leave or part thereof had been taken before it accrued.
28.9.2 Where annual leave or part thereof has been granted pursuant to 28.9.1, before the right thereto has accrued due, and the employee:
28.9.2(a) resigns or has their services terminated before completing the year of service to which the leave was applicable; and
28.9.2(b) the leave taken in advance exceeds the period calculated under 28.12.2 of this clause;
the Authority shall not be liable to make any payment to the employee under 28.12.2 of this clause and shall be entitled to obtain from the employee a refund of an amount for any annual leave taken in excess of the leave accruing at the date of termination.
28.10 Payment for period of leave
28.10.1 Each employee before going on leave shall be paid four weeks wages except as a shift worker or an employee taking their leave pursuant to 28.4 of this clause either of whom shall be paid the amount of wage they would have received in respect of the ordinary time which they would have worked had they not been on leave during the relevant periods.
28.10.2 For the purposes of this clause and 28.12 hereof wages shall be at the rate prescribed from time to time by:
28.10.2(a) Clauses 13 - Classifications and wage rates, 16 - Unapprenticed juniors and 18 - Apprenticeship of this award, for the occupation in which the employee was ordinarily employed immediately prior to the commencement of their leave or the termination of their employment as the case may be.
28.10.2(b) The rates payable pursuant to 13.4.
28.10.2(c) The rate payable pursuant to clause 15 - Mixed function, 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.
28.10.2(d) Any overaward payment for 38 ordinary hours of work per week.
28.10.3 Payment in the case of employees employed on piece or bonus work or any other system of payment by results shall be at time rates.
28.11 Loading on annual leave
28.11.1 During a period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by 28.10 of this clause.
28.11.2 The loading shall be as follows:
28.11.2(a) Day workers - an employee who would have worked on day work only had they not been on leave - a loading of 17-1/2 per cent.
28.11.2(b) Shift workers - an employee who would have worked on shift work had they not been on leave - a loading of 17-1/2 per cent.
28.11.3 Provided that where the employee would have received shift loading prescribed by clause 22 - Shiftwork, had they not been on leave during the relevant period and such loadings would have entitled them to a greater amount than the loading of 17-1/2 per cent, then the shift loadings shall be added to the rate of wage prescribed by 28.10 of this clause in lieu of the 17-1/2 per cent loading.
28.11.4 Provided further, that if the shift loadings would have entitled them to a lesser amount than the loading of 17-1/2 per cent then such loading of 17-1/2 per cent shall be added to the rate of wage prescribed by 28.10 of this clause in lieu of the shift loadings.
28.11.5 The loading prescribed by this clause shall apply to proportionate leave on termination.
28.12 Pay where annual leave not taken
28.12.1 Where an employee who has become entitled to annual leave under this award resigns or has their services terminated they shall be entitled to be paid their ordinary pay for any portion of such leave not taken at the date of their resignation or termination.
28.12.2 Where an employee resigns or has their services terminated prior to completing any one year of service they shall be entitled to be paid an amount equivalent to their ordinary pay for a period calculated on the basis of 4/52 of their period of service, in respect of the uncompleted year of service.
28.13 Annual close down
Where an employer elects to close down a section or sections of its operations during the Christmas/New Year period for the purpose of allowing annual leave to such employees engaged therein the following provisions shall apply:
28.13.1 The employer shall notify all employees concerned of its intention to close down their area of work not later than three months prior to the close down.
28.13.2 Such notification shall specify the actual dates of close down.
28.13.3 Employees who do not have an entitlement to annual leave at that time under the relevant award shall be granted proportionate paid leave.
28.14 Exemptions
This clause shall not apply to any employer in respect of any employee to whom pursuant to an award or agreement - Federal or State - they are required to allow annual leave to an extent equal to or greater than that prescribed herein.
