AT805114CRV - Federal Meat Industry (Retail and Wholesale) Award 2000 [Transitional]
[33 inserted by PR928382 from 04Mar03]
33.1. An employee to whom this award applies shall be entitled to long service leave with pay in respect of service with an employer as provided in this clause.
33.2 Service entitling to leave:
For the purposes of this clause the service of an employee with an employer means the period during which the employee has been employed by their employer under an unbroken contract of employment; provided that a contract of employment shall be deemed not to have been broken by reason only of an interruption or determination thereof if the interruption or determination:
33.2.1 has been made by the employer with the intention of avoiding any obligation imposed on him by this award or by State law dealing with long service leave; or
33.2.2 has arisen directly or indirectly from a dispute concerning industrial matters, if the employee returns to duty with the same employer in accordance with the terms of settlement of the said dispute; or
33.2.3 has been made redundant by the employer by reason of slackness of trade (including unavailability of stock for slaughter) if the employee is re-employed by the same employer within six months of such interruption or determination; or
33.2.4 has been made redundant by the employer for any reason other then those referred to in sub-clauses 33.2.1, 33.2.2 and 33.2.3 hereof, if the employee is re-employed by the same employer within two months of such interruption or determination.
Provided further that the period during which the employment has been so interrupted or determined shall not, except when due to the reasons referred to in paragraph 33.2.1 hereof, be taken into account in calculating the period of service.
33.3 Where an employee has entered or enters into a contract of employment with an employer within a period of twelve months after the completion of an apprenticeship or traineeship with the employer the period of the apprenticeship or traineeship shall be taken into account for the purpose of calculating the period of service with that employer under that contract of employment.
33.4 Any period of service as a member of the naval, military or air forces (other than as a member of the permanent forces) of the Commonwealth of Australia shall be deemed to be service with the employer by whom the employee concerned was last employed before he commenced to serve as such member.
33.5 Transmission of Business
33.5.1 Where a business is, whether before or after the date of operation of this award, transmitted from an employer (in this sub-clause called “the transmittor”) to another employer (in this sub-clause called the “transmittee”) and an employee who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee:-
33.5.2 The continuity of the service of the employee shall be deemed not to have been broken by reason of such transmission.
33.5.3 The period of service which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee.
33.5.4 In the sub-clause “business” includes trade process business or occupation and includes part of such business, and “transmission” includes transfer conveyance assignment or succession whether by agreement or by operation of law, and “transmitted” has a corresponding meaning.
33.6 Amount of Leave
The Long service leave to which an employee is entitled shall be as follows:-
33.6.1 in the case of an employee who has completed at least fifteen years of service with an employer;
33.6.1.1 in respect of fifteen years service so completed; thirteen weeks;
33.6.1.2 in respect of each ten years service with the employer completed since he last became entitled to long service leave, eight and two thirds weeks; and
33.6.1.3 on the termination of the employees’ employment or his death, in respect of the number of years service with the last employer completed since he last became entitled to an amount of long service leave, a proportionate amount on the basis of thirteen weeks for fifteen years service;
33.6.2 in the case of an employee who has completed at least ten years but less than fifteen years service with an employer and whose employment is terminated;
33.6.2.1 by the employer for any cause other than serious and wilful misconduct; or
33.6.2.2 by the employee on account of illness incapacity or domestic or any other pressing necessity where such illness incapacity or necessity is of such nature as to justify such termination; or
33.6.2.3 by death of the employee;
a proportionate amount on the basis of thirteen weeks for fifteen years service.
33.6.3 in the case of an employee who has completed at least ten but less than fifteen years’ service with an employer and whose employment is terminated by the employer, other than as provided in sub-paragraphs 33.6.2.2 and 33.6.2.3, a proportionate amount on the basis of thirteen weeks for fifteen years’ service.
33.6.4 Such leave shall be granted and taken and, except as permitted by this award, payment in lieu thereof shall not be made or accepted.
33.7 Payment for Leave
The rate of payment to which an employee on leave shall be entitled shall be the actual rate of pay to which the employee would be entitled if the employee was performing their ordinary hours of work during the period of such leave, provided however that:-
33.7.1 if the employee was, immediately prior to the taking of such leave, employed wholly or partly under a tally, piecework or incentive scheme under which the amount of the employee’s pay was regulated wholly or substantially by the quantum or work performed, then the actual rate of pay shall be the average (calculated on weekly rests) pay actually received by such employee during the 12 months preceding the taking of leave, for all work done, or time spent at the employer’s establishment during the ordinary hours of work prescribed for such employee; and
33.7.2 the rate of pay calculated under this clause shall not include overtime, penalty rates, disability allowances, shift allowances, special rates, fares and travelling time allowances, protective clothing allowance or any other extraneous payments of a like nature; and
33.7.3 in no case shall the actual rate of pay be less than the minimum timework rate prescribed in this Award for the classification in which the employee is engaged.
33.8 Taking Leave - Time of Taking Leave
33.8.1 When an employee becomes entitled pursuant to this clause to long service leave such leave shall be granted by the employer as soon as practicable having regard to the needs of his establishment, or subject to paragraph 33.8.4 hereof at such time or times as may be agreed between the employer and the employee.
33.8.2 Subject to the provisions of paragraph 33.6.2 an employer shall not be required to grant an employee leave to which he has become entitled pursuant to this clause until the amount of leave to which he has become entitled equals thirteen weeks in respect of his first period of entitlement and eight and two thirds weeks in respect of any subsequent period or entitlement.
33.8.3 Notice to Take Leave
Except where an employee agrees otherwise the employer shall give an employee at least twenty-eight days’ notice of the date from which his leave is to be taken;
33.8.4 Broken Leave
Leave shall be granted and taken in one continuous period; or if the employer and the employee so agree, in not more than three separate periods in respect of the first thirteen weeks entitlement, and not more than two separate periods in respect of any subsequent period of entitlement.
33.8.5 Holidays and Annual Leave
Long service leave is exclusive of annual leave but is inclusive of all other holidays occurring during the taking of any period of long service leave.
33.8.6 Restriction Upon Employment While on Leave
No employee shall during any period when he is on leave pursuant to this award engage in any employment for hire or reward with an employer known to him to be bound by this clause. No employer bound by this clause shall employ any such employee for hire or reward during any period when such employee is know by him to be on leave pursuant to this clause.
33.9 Payment on Termination for Leave not taken
33.9.1 Where the employment of an employee is terminated otherwise then by his death and any long service leave -
33.9.1.1 to which the employee was entitled has not been taken or;
33.9.1.2 accrues to the employee upon such termination; then the employer shall forthwith pay to the employee in full the amount in respect of such leave calculated as at the date of termination in the manner set our in sub-clause 7, less any amount already paid to the employee in respect of that leave;
33.9.2 where an employee dies and any long service leave -
33.9.2.1 to which the employee was entitled has not been taken; or
33.9.2.2 accrues upon termination of the employment by reason of his death;
the employer shall upon request by the employee’s personal representative pay to the employee’s personal representative in full the amount in respect of such leave calculated as at the date of the death of the employee in the manner set out in sub-clause 33.7 of this clause less any amount already paid to the employee in respect of that leave.
33.10 Granting leave in advance
33.10.1 An employer may be agreement with an employee allow long service leave to such employee before the right thereto has accrued, but where leave is so taken the employee shall not become entitled to any further leave under this award or to payment in lieu thereof for the period in respect of which such leave was taken before it accrued.
33.10.2 Where leave has been granted to an employee pursuant to the preceding sub-clause before the right thereto has accrued and the employment is subsequently terminated the employer may deduct from whatever remuneration is payable upon the termination of the employment such amount as represents payment for any period from which the employee has been granted leave to which he was not entitled at the date of termination of his employment.
