AT812785CNV - Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001 [Transitional]

PART 6 – LEAVE AND PUBLIC HOLIDAYS 

37. ANNUAL LEAVE

37.1 Period of leave

A period of 28 consecutive days leave shall be allowed annually to an employee after twelve months continuous service (less the period of annual leave) as an employee on weekly hiring.

37.2 Public holidays excluded

37.2.1 Such period of annual leave shall not include award holidays observed on working days but shall include all other non-working days.
37.2.2 If any award holiday falls within an employee’s period of annual leave and is observed on the day which, in the case of that employee, would have been an ordinary working day, there shall be added to that period one day, being an ordinary working day, for each such holiday observed as aforesaid.
37.2.3 Where an employee, without reasonable excuse, proof whereof upon him, is absent from his/her employment on the working day or part of the working day prior to the commencement of his/her annual leave or fails to resume work at his/her ordinary starting time on the working day immediately following the last day of the period of his/her annual leave, the employee shall not be entitled to payment for the public holidays which fall within his/her period of annual leave.

37.3 Notice to be given

At least 28 days notice shall be given to an employee as to when he/she is to commence his/her leave; and, if such notice be withdrawn by an employer, the employee, if he/she postpones his/her leave, shall be compensated by the employer for any reasonable out-of-pocket loss occasioned thereby.

37.4 Time when leave is to be granted

37.4.1 Any leave to which an employee may become entitled hereunder shall be granted by the employer within four calendar months of its becoming due.
37.4.2 Provided that if, because of circumstances over which he/she has no control, an employer considers it impossible for him to grant leave to any employee within the said period, he/she may by mutual agreement postpone such leave until a later day.
37.4.3 Where an employee has become entitled to annual leave hereunder, but leaves or is dismissed for any cause before such leave is granted, to the employee shall be paid wages in lieu of such leave at the appropriate rate accrued under 37.6.

37.5 Leave to be given or taken

The annual leave provided for by this clause, shall be allowed and shall be taken, and except as provided in 37.4.3 payment shall not be made or accepted in lieu of annual leave. If an employer fails to grant leave within the period of any postponement thereof mentioned in 37.4, and is convicted on that ground for a breach of this award and the employee is not a consenting party to such failure, the employer shall, in addition to the wages payable under 37.6 hereof, also pay to such employee a further sum equal to the wages payable under 37.6 hereof.

37.6 Payment for period of leave

37.6.1 Each employee before going on leave shall be paid the wages he/she would have received in respect of the ordinary time he/she would have worked had he/she not been on leave during the relevant period.
37.6.2 Subject to 37.7 hereof each employee shall, where applicable, have the amount of wages to be received for annual leave calculated by including the following where applicable:

37.6.2(a) The rate applicable to him as prescribed by 15.2.1 - Base wage rates, clause 16 - Juniors, and clause 19 - District allowances of this award.

37.6.2(b) The rate payable pursuant to clause 18 - Highest function calculated on a daily basis which the employee would have received for ordinary time during the relevant period.

37.6.2(c) Any other rate to which the employee is 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 paid for the same reasons as or is paid in lieu of those payments prescribed by clause 35 - Overtime, and clause 24 - Travelling allowance, of this award, nor any payment which might have become payable to the employee as reimbursement for expenses incurred.

37.7 Loading on annual leave

37.7.1 During a period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by 37.6.2 of this clause.
37.7.2 The loading shall be as follows:

37.7.2(a) An employee who would have worked within the ordinary spread of hours prescribed under clause 32 - Hours of work of this award only had he/she not been on leave a loading of 17.5%.

37.7.2(b) Provided that where an employee would have received the loading prescribed in clause 33 - Shiftwork had the employee not been on leave during the relevant period and such loading would have entitled the employee to a greater amount than the loading of 17.5% the greater amount shall be added to the rate of wage prescribed by clause 15 in lieu of the 17.5% loading.

37.7.2(c) The loading prescribed in this subclause shall not apply to proportionate leave on termination.

37.8 Leave in advance

37.8.1 An employer may grant 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 the expiration of the twelve months in respect of which annual leave had been taken before it accrued.
37.8.2 Where leave has been granted to an employee pursuant to 37.8.1 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 annual leave, which amount shall not include any sums paid for any of the holidays prescribed in clause 38 - Holidays of this award.
37.8.3 Provided that, in cases where such leave is granted at the request of the employee, the employer may when making payment under 37.6 hereof withhold from the employee a sum equal to 1/12th for each complete month of the qualifying period not served by the employee at the time of going on such leave and retain such sum until the expiration of such qualifying period.

37.9 Proportionate leave on termination

37.9.1 Proportionate payment shall be made to an employee on weekly hiring who after one month of continuous service in the first qualifying twelve monthly period:

37.9.1(a) leaves his/her employment, or his/her employment is terminated by his/her employer through no fault of the employee; or

37.9.1(b) after twelve months continuous service with an employer, leaves the employment of the employer, or his/her employment is terminated by the employer for any reason;

and such payment shall be made in respect of each completed month of continuous service for which leave has not been granted under this clause and shall be paid at the appropriate rate of wage prescribed by 37.6 of this clause.

37.10 Calculation of continuous service

37.10.1 Continuity of service shall be deemed to be continuous notwithstanding:

37.10.1(a) any interruption or determination of the employment by the employer if such interruption or determination has been made with the intention of avoiding obligations hereunder in respect of annual leave;

37.10.1(b) any absence from work of not more than fourteen days in the twelve months on account of sickness or accident (proof whereof shall be on the employee);

37.10.1(c) any absence on account of leave granted, imposed or agreed to by the employer; or

37.10.1(d) any absence due to reasonable cause (including absence on account of sickness or accident of more than fourteen days), proof whereof shall be on the employee. Provided that in cases of personal sickness or accident or absence with reasonable cause, the employee, to become entitled to the benefit of this subclause shall, if practicable, inform the employer in writing within 24 hours after the commencement of such absence of his/her inability to attend for duty and, as far as practicable, the nature of the illness, injury or cause and the estimated duration of his/her absence.

[37.10.2 corrected by PR913218 ppc 21Dec01]

37.10.2 In calculating a period of twelve months continuous service:

37.10.2(a) any annual leave taken therein; or

37.10.2(b) any absences of the kind mentioned in 37.10.1(a) and (b) of this subclause shall be counted as part of such period.

37.10.2(c) in respect of absences of the kind mentioned in 37.10.1(c) and (d) of this subclause the employee shall serve such additional period as part of his/her qualification for annual leave as will equal the period of such absences.

37.10.2(d) where an employee is absent from work for any cause whatever, the employer shall notify the employee within fourteen days of the employees return to work whether the employer regards such absence as breaking, either conditionally or unconditionally, the continuity of service of such employee. If the employer does not give such notice within the said fourteen days, such absence shall not be deemed to be such a break. The employer shall give the notification to the employee by having it delivered to such employee in writing.

37.10.2(e) where an employee has been absent from his/her employment and the employer has notified him that such absence is regarded as a break in continuity of service, the employee through the union or other nominated representative may within fourteen days of such notification from the employer invoke the provisions of clause 11 Settlement of disputes, against such notification of the employer.

37.11 Calculation of month

For the purposes 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.

37.12 Successor or assignee or transmitee

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 he/she became such successor or assignee or transmittee, the employee, in respect of the period during which he/she was in service of the predecessor, shall for the purpose of this clause be deemed to be in the service of the employer.

37.13 Annual close down

37.13.1 Where an employer bound by this award is required because of his/her contractual arrangements to cease operations because of the closing down of a plant or sections of a plant for the purposes of allowing annual leave, the following provisions shall apply:

37.13.1(a) The employer may, by giving to the employees concerned not less than one month’s notice of his/her intention so to do, stand off for the duration of the close-down all those employees concerned and allow to those who are not then qualified for a full entitlement to annual leave for twelve months continuous service pursuant to 37.1, paid leave on a proportionate basis at the appropriate rate of wage as prescribed by 37.6 for 12.66 hours for each completed month of continuous service.

37.13.1(b) An employee who has then qualified for a full entitlement to annual leave for twelve months continuous service pursuant to 37.1, and has also completed a further month or more of continuous service shall be allowed his/her leave, and shall subject to 37.6 also be paid at the appropriate rate of wage as prescribed by 37.7 hereof for 12.66 hours for each completed month of continuous service since the close of his/her last twelve monthly qualifying period.

37.13.1(c) The next twelve monthly qualifying period of each employee affected by such close-down shall commence from the day on which the plant or section or sections concerned is reopened for work.

37.13.1(d) If in the first year of his/her service with an employer an employee is allowed proportionate annual leave under 37.12.1(a) of this subclause, and subsequently within such year leaves his/her employment or his/her employment is terminated by the employer through no fault of the employee, he/she shall be entitled to the benefit of 37.9 of this clause, subject to adjustment for any proportionate leave which he/she may have been allowed as aforesaid.

37.14 Broken leave

The annual leave shall be given and taken in a continuous period; or if, because of special circumstances an employee requests an employer to grant his/her leave in two separate periods, the leave may be so granted; provided that the longer of the two periods shall be at least 21 consecutive days.

37.15 Annual leave single days

[37.15 substituted by PR969534 ppc 19Jan06]

37.15.1 Notwithstanding the provision of this clause, an employee may elect, with the consent of the employer, to take annual leave in single day periods not exceeding ten days in any calendar year at a time or times agreed between them.
37.15.2 Access to annual leave, as prescribe in 37.15.1, shall be exclusive of any shutdown period provided for elsewhere under this Award.
37.15.3 An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days taken.

37.16 Rostered day off falling during annual leave

Upon an employee taking annual leave, his/her work cycle in respect of which he/she becomes entitled to a weekly accrual for a rostered day off pursuant to 32.3, shall be suspended and he/she shall not become entitled to further accrual until his/her return from leave. Upon resumption of work, the entitlement period for accrual shall resume and the employee shall be entitled to be rostered to take a day off, and shall so take a rostered day off upon completing the balance of the work cycle.

37.17 Annual Leave Accrual / Carrying Forward

[37.17 inserted by PR969534 ppc 19Jan06]

To assist employees in balancing their work and family responsibilities, an employee may elect, with the consent of the employer, to accrue and carry forward any amount of annual leave for a maximum of two years from the date of entitlement.