AT832792 - Retail and Wholesale Industry - SDAEA Wholesale Grocers Award 2003 [Transitional]

AT832792 - Retail and Wholesale Industry - SDAEA Wholesale Grocers Award 2003 [Transitional]

PART 6 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS

25. ANNUAL HOLIDAY

25.1 Except as otherwise provided in this award every employee shall at the end of each year of his/her employment by an employer become entitled to an annual holiday of four weeks on five weeks ordinary pay.

25.1.1 The annual holiday shall be given and taken in four consecutive weeks or, if the employee and the employer so agree, in two separate periods and not otherwise.

25.1.2 If the employee and the employer so agree the annual holiday or either of such separate periods may be taken wholly or partly in advance before the employee has become entitled to the annual holiday.

[25.1.3 substituted by PR968998 ppc 05Dec05]

25.1.3 Annual leave must be taken at a time mutually agreed upon by the employer and the employee, within a period not exceeding three months from the date when the right to annual leave accrued was due, provided that, at the request of the employee, annual leave may be carried forward for a maximum of two years from the date of entitlement. Notwithstanding the above, at the request of the employee, annual leave may be carried forward for a maximum of two years from the date of entitlement. Annual leave may be taken in single days up to a maximum of 10 days.

25.1.4 Except as provided in the next succeeding clause payment shall not be made by an employer to an employee in lieu of any annual holiday or part thereof to which the employee is entitled under this award nor shall any such payment be accepted by the employee:

25.1.4(a) except in the case of mutual agreement to the contrary the employer shall give each employee at least one month’s notice of the date from which his/her annual leave shall be taken;

25.1.4(b) the employer shall pay each employee in advance before the commencement of the employee’s annual holiday his/her ordinary pay for the holiday period in accordance with the provisions of 25.1.

25.1.5 Where the annual holiday or any part thereof has been taken before the right to the annual holiday has accrued the right to a further annual holiday shall not commence to accrue until after expiration of the year of employment in respect to which the annual holiday or part has been so taken.

25.1.6 Where any holiday for which the employee is entitled to payment under this award or under his/her contract of employment occurs during any period of an annual holiday taken by an employee under this clause, the period of the holiday shall be increased by one day in respect of that holiday.

25.2 Where:

25.2.1 the employment of an employee who has become entitled to the annual holiday provided by this award is terminated; and

25.2.2 the employee has not taken any part of that holiday the employer shall be deemed to have given the holiday to the employee from the date of the termination of the employment and shall forthwith pay to the employee in addition to all other amounts due to him/her, his/her ordinary pay for the period of that annual holiday in accordance with the provisions of 25.1.

25.3 Where:

25.3.1 the employment of an employee who has become entitled to the annual holiday provided by this award is terminated; and

25.3.2 the employee has taken part of that holiday,

the employer shall be deemed to have given the remaining part of that holiday to the employee from the date of the termination of the employment, and shall forthwith pay to the employee, in addition to other amounts due to him/her, his/her ordinary rate for the period of that remaining part pro rata in accordance with the provisions of 25.1.

25.4 This paragraph applies with respect to every period of employment of an employee by any employer which is less than one year, such period being computed from the date of commencement of the employment or (where the employee has during the employment become entitled to any holiday or holidays under the last preceding subclause) computed from the date upon which he/she became entitled to that annual holiday, or to the last annual holiday as the case may be.

25.5 Where the employment of any employee by an employer is terminated at the end of a period of employment to which this paragraph applies, the employer shall forthwith pay to the employee, in addition to all other amounts due to him/her, an amount equal to 5/49ths of his/her ordinary pay for that period of employment.

25.6 Where the annual holiday under the last preceding subclause or any part thereof has been taken in advance by an employee pursuant to 25.4:

25.6.1 the employment of the employee is terminated before he/she has completed the year of employment in respect of which such annual holiday or part was taken; and

25.6.2 the sum paid by the employer to the employee as ordinary pay for the annual holiday or part so taken in advance exceeds the sum which the employer is required to pay to the employee under 25.4,

the employer shall not be liable to make any payment to the employee under 25.4 and shall be entitled to deduct the amount of such excess from any remuneration payable to the employee upon the termination of the employment.

25.7 Where an employer intends temporarily to close (or reduce to nucleus) his/her establishment or a section thereof, for the purpose (inter alia) of allowing annual leave to the employees concerned, or a majority of them, he/she may give in writing to such employees one month’s notice (or in the case of any employee engaged after giving of such notice, notice on the date of the employee’s engagement) that he/she elects to apply the provisions of this paragraph and thereupon:

25.7.1 any such employee who at the date of closing is entitled to his/her annual holiday shall be given his/her annual holiday commencing as on and from the date of closing and in addition, shall be paid 5/49ths of his/her ordinary pay for any period of employment after the accrual of his/her right to the annual holiday and up to but excluding the date of closing;

25.7.2 any such employee who at the date of closing is not entitled to his/her annual holiday, shall be given leave without pay as on and from the date of closing and shall be paid 5/49ths of his/her ordinary pay for the period of his/her employment since the commencement thereof, or the accrual of his/her latest annual holiday (whichever is the later) and up to but excluding the date of closing, together with pay for any holiday during such leave for which he/she is entitled to payment under this award, or under his/her contract of employment; and

25.7.3 the next twelve-monthly qualifying period of employment for every such employee shall commence as on and from the date of closing.

25.8 In this clause date of closing in relation to each employee means the first day of his/her annual holiday or leave pursuant to this subclause.

25.8.1 For the purposes of the two last preceding subclauses:

25.8.1(a) ordinary pay in relation to any employee means his/her actual weekly rate of pay and, where the employee is provided with board or lodging by his/her employer, includes the cash value of that board or lodging;

25.8.1(b) week in relation to any employee means the employee’s ordinary working week; and

25.8.1(c) employee means any person employed by any employer to do any work for hire or reward.

25.8.2 For the purposes of the definition of the term ordinary pay in 25.8.1(a), the cash value of any board or lodging provided for an employee shall be deemed to be its cash value as fixed by or under the terms of the employee’s employment or, if it is not so fixed, shall be computed at the rate of $4.00 a week for board and $2.00 a week for lodging.

Provided that the value of any board or lodging, or the amount of any payment in respect of board or lodging, shall not be included in any case where the board or lodging is provided or the payment is made not as part of his/her ordinary pay, but because the work done by the employee is in such a locality as to necessitate sleeping elsewhere than at his/her genuine place of residence, or because of any other special circumstances.

25.8.3 For the purposes of this award a year of employment shall be deemed to be unbroken notwithstanding:

25.8.3(a) any annual leave or long service leave taken therein;

25.8.3(b) any interruption or ending of the employment by the employer if such interruption or ending is made with the intention of avoiding obligations in respect of annual leave or long service leave;

25.8.3(c) any absence from work of not more than fourteen days in the year of employment on account of sickness or accident;

25.8.3(d) any absence on account of leave (other than annual leave or long service leave) granted, imposed or agreed to by the employer;

25.8.3(e) any absence on any other account not involving termination of employment.

25.8.4 In calculating a year of employment any absence of a kind mentioned in 25.8.3(a), 25.8.3(b) and 25.8.3(c), shall be counted as part of the year of employment but in respect of absences of a kind mentioned in 25.8.3(d) and 25.8.3(e) it will be necessary for the employee as part of his/her qualification for annual leave to serve such additional period as equals the periods of such absences.