PR927235 AW770075 PR927235 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 Review of Award pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (C No. 00840 of 1999) BHP TRANSPORT STEEL TERMINAL AWARD 1996 (ODN C No. 20413 of 1996) [Print M9895 [AW770075]] Various employees Public transport industry SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 5 FEBRUARY 2003 Award simplification. DECISION [1] This Decision reflects a review of the BHP Transport Steel Terminal Award 1996 , pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the ` WROLA Act '). [2] This review has been substantially undertaken by the parties to this Award, who have cooperated to produce an agreed draft for the Commission's consideration. [3] The proposed revised Award now generally incorporates Australian Industrial Relations Commission standard test case provisions. [4] The Award clauses have been substantially reviewed by the parties to ensure that it contains: · updated non-discriminatory provisions; · the necessary facilitative provisions; · provisions enabling the employment of regular part-time employees; · provisions that are expressed (insofar as is possible) in plain English; and · provisions that support training arrangements. [5] Attached to this Decision is a Draft Order (Attachment A) which fundamentally reflects the position agreed between the parties. This Draft Order is provided to the parties so that it can be finally checked prior to the publication of a formal Order. [6] Whilst this Draft Order is fundamentally founded on the position agreed upon between the Parties it does involve a number of changes which the Parties may wish to consider. I have outlined below the key changes and basis upon which these have been made. · The Communication and Consultation clause has been deleted. I consider that the proposed provision reflected a statement of intention and objectives which the Commission found not to be allowable in the Hospitality Decision (Print P7500 at p 71). · I have similarly removed the preamble to the Procedure for Resolving Claims, Issues and Disputes on the basis that it reflects a statement of objectives. Other changes have been made to provide for employee representation options and the clarification of the role of the Commission. · Minor changes have been made to the Contract of Employment clause to reflect the later adoption of the standard Parental leave provision. · Rates of Pay clause: Wage rates and Classifications are specifically addressed later in this Decision. The proposed provisions relating to a commitment to training have been deleted on the basis that they reflect statement of intent. The Classification definitions have been revised so as to adopt the competency standards provided to the Commission by the employer. This has allowed the deletion of the reference to the employer's Training and Development Manual which has the potential to give rise to conjecture over possible future changes. · The Overtime provisions have been changed to give effect to minor grammatical changes. Additionally, the Commission's standard test case provision arising from the Reasonable Hours Test case has been inserted. · Minor changes to Allowance provisions have been made to ensure that allowances are expressed in an allowable manner. I have noted that Allowances have been indexed by agreement with the Parties. The Annual Leave clause has been modified with respect to Proportionate leave on termination so as to reflect general practices. · The Commission's standard Personal Leave test case provision has been inserted. · The Parental Leave clause has been varied in that I have applied the Commission's test case provision which provides for Parental leave for eligible casual employees. I have not included time limitations relevant to eligible casual employees, but will do so if requested by the parties. · The Commission's standard test case clause, relative to Termination of Employment, has been adopted. Additionally, the provisions relating to drug and alcohol use of work have been removed on the basis that I do not consider these to be allowable in the context of the Commission Decision in Kenworth Trucks (Print R2700 at pages 66 and 72). · The Commission's standard redundancy clause has been adopted, with the exception that the small employer exemption and incapacity to pay provisions have not been included. Whilst the agreed draft generally reflected the standard provisions, a number of omissions created the potential for future misunderstanding. Wage rates and Classifications. [7] Wage rates in this Award have not been reviewed since the establishment of the Award in 1996. The parties advise that Certified Agreements apply to employees covered by this Award. There is no information available to me which establishes the foundation upon which the current rates of pay were established in 1996. [8] The classifications and minimum rates of wage in the current Award do not, in my assessment, meet the criteria established by the Commission such that they could be termed "Properly Fixed Minimum Rates of Pay". [9] The Paid Rates Review Decision (Print Q7661) determined that awards which provide for rates of pay which are not operating, or are not intended to operate as minimum rates, and which do not bear a proper work value relationship to Award rates which are properly fixed minima, should be the subject of a conversion process so that they do contain properly fixed minimum rates of pay. [10] The information able to be provided to me by the parties in relation to the actual work done and competencies of employees classified under this Award, does not allow for a properly informed comparison of these classification rates with other minimum rate awards. In this respect, I have considered the decision of Marsh SDP ( PR903241 ) in relation to the National Rail Corporation Award 2001 . I have also noted the decision of Ross VP (Print T3683) in relation to the Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award 1995 wherein the relativity of Forklift and Gantry Crane operators is considered. [11] Without additional information from the parties relating to the work that is actually done by employees under this Award, the competencies required and the extent to which this work is consistent for the employees covered by the Award, I am not prepared to either adopt the General Transport Operator 2 classification as the key classification nor indeed, to set the rate of pay for this classification at 105% of the Metal Trades rate, as the parties have proposed. I propose to review the rates of pay on the basis of a comparison with the properly fixed minimum rates of pay determined in a range of other comparable awards. [12] I have not implemented this approach in this particular Decision, nor outlined it in the Draft Order attached to this Decision. I propose to give the parties an opportunity over the next month to review the proposed new classification definitions and rates of pay according to the criteria established by the Commission in the Paid Rates Review Decision [Q7661]. . If the Parties do not take up this opportunity, the Order I will issue after this time will reflect the approach outlined above. It is appropriate that I observe that this invitation also gives the parties the opportunity to consider the updating of the Award rates of pay, so as to take account of the most recent Safety Net Adjustments. [13] In the absence of any advice from the parties to the contrary received by my office, on or before 5 March 2003, a final Order founded on this Draft Order and the approach to wage rates outlined in this Decision will be confirmed on, or shortly after this date. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code G> AW770075 PRXXXXXX ATTACHMENT A AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 Review of award pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (C No. 00840 of 1999) BHP TRANSPORT STEEL TERMINAL AWARD 1996 (ODN C No. 20413 of 1996) [Print M9895 [AW770075]] Various employees Public transport industry SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, DAY MONTH YEAR Award simplification. DRAFT ORDER A. Further to the decision issued by the Commission on {insert date}, [{insert Print No.}] the above award is varied as follows: By deleting all clauses, schedules and appendices and inserting the following: PART 1 - APPLICATION AND OPERATION OF AWARD 1. TITLE This award shall be known as the BHP Transport and Logistics Steel Terminal Award 2003. 2. ARRANGEMENT 1. Title 2. Arrangement 3. Anti-discrimination 4. Definitions 5. Area, incidence and duration 6. Procedure for resolving claims, issues and disputes 7. Contract of employment 8. Hours of work and meal breaks 9. Rates of pay 10. Shift work 11. Overtime 12. Time and payment of wages 13. Allowances 14. Public holidays 15. Penalties not cumulative 16. Annual leave 17. Long service leave 18. Personal leave 19. Parental leave 20. Jury service 21. Termination of employment 22. Redundancy 3. ANTI-DISCRIMINATION 3.1 It is the intention of the parties to this award to achieve the principal object in s.3(j) of the Workplace Relations Act 1996 through respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 3.2 Accordingly, in fulfilling their obligations under the dispute avoidance and settling clause, the parties must make every endeavour to ensure that neither the award provisions nor their operation are directly or indirectly discriminatory in their effects. 3.3 Nothing in this clause is taken to affect: 3.3.1 any different treatment (or treatment having different effects) which is specifically exempted under the Commonwealth anti-discrimination legislation; 3.3.2 junior rates of pay, 3.3.3 an employee, the Employer or union, pursuing matters of discrimination in any State or federal jurisdiction, including by application to the Human Rights and Equal Opportunity Commission; 3.3.4 the exemptions in s.170CK (3) and (4) of the Act. 4. DEFINITIONS In this award: 4.1 Employer shall mean BHP Transport and Logistics Pty Ltd a wholly owned subsidiary of BHP Limited at the Melbourne Steel Terminal and Islington Steel Terminal. 4.2 Afternoon shift means any ordinary hour shift finishing after 6.00 p.m. and at or before midnight. 4.3 Night shift means any ordinary hour shift finishing subsequent to midnight and at or before 8.00 a.m. 5. AREA, INCIDENCE AND DURATION This award shall apply to employees employed by BHP Transport and Logistics Pty. Ltd. a wholly owned subsidiary of BHP Limited at the Melbourne Steel Terminal and the Islington Rail Terminal (the Terminals) in the classifications set out in clause 10 - Rates of pay, and the Australian Rail, Tram and Bus Industry Union (the Union), whether or not such employees are members or not of the Union. 5.1 This award shall take effect from the beginning of the first pay period to commence on or after DAY MONTH YEAR and shall remain in force for a period of twelve (12) months. 5.2 This award shall operate to the exclusion and shall supersede all prior awards, orders and agreements and all customs and practices in connection with this award and no right, obligation or liability accrued or incurred under any such prior provision shall be effected. 6. PROCEDURE FOR RESOLVING CLAIMS, ISSUES AND DISPUTES 6.1 In the event that an employee(s) has a problem which is likely to cause conflict, discussions should take place with the immediate supervisor within one working day. A union delegate or employee nominated representative may also be present. 6.2 If the matter is not resolved it shall be referred to the local management and the local union representative if the union is involved. These discussions should conclude within two working days of the issue being moved to this level. 6.3 Should the matter remain unresolved, reference will be made to a representative from the state branch of the union concerned or other employee representative together with the appropriate level of management who should endeavour to confer and report their conclusions to the relevant parties within two working days of the matter being moved to this level. 6.4 If the matter remains unresolved, discussions will include senior national officials of the union or other employee representative and the Employer's relevant management who should endeavour to meet and conclude their discussions within two working days from the time the matter is being moved to this level. 6.4.1 If an issue in dispute is beyond the authority of the parties, the issue will be immediately raised to the appropriate higher level in these procedures. 6.4.2 These procedures will be facilitated by the earliest possible advice by one party to the other of any issue or problem which may give rise to a grievance or dispute. Throughout all stages of the procedures, all relevant facts and notifications shall be clearly identified and recorded. Emphasis shall be placed on negotiated settlement at the earliest possible stage in the process. 6.4.3 If the negotiation process is exhausted without the dispute being resolved, the parties may jointly or individually refer the matter to the Australian Industrial Relations Commission for assistance in resolving the dispute by conciliation or, ultimately, arbitration. 6.4.4 The status quo before the emergence of the grievance or dispute, except in the case of summary dismissal, should continue whilst the above procedures are being followed. For this purpose status quo means the work procedures and practices in place immediately prior to the change that caused the dispute. 7. CONTRACT OF EMPLOYMENT 7.1 Employment shall be on a weekly basis other than for casual employees. 7.2 A casual employee is an employee who is engaged and paid as such. A casual employee shall not be entitled to the provisions of the following clauses: 15. Public holidays 17. Annual leave 18. Long service leave 19. Personal leave 21. Jury service nor shall a casual employee be entitled to any payment for a holiday, as specified in clause 14 - Public holidays, unless the casual employee works on the holiday. 7.2.1 Casual employees will be entitled to a loading of 20% on the ordinary employee's rate of pay. 7.3 An employee shall be on probation for the first three months of service. Employment during this period shall be from day to day at the weekly rate terminable at a day's notice. 7.4 The Employer may direct an employee to carry out such duties as are within the limits of the employee's skill competence and training consistent with the classification structure of this award. 7.5 The Employer may direct an employee to carry out such duties and use such equipment as may be required provided that the employee has been properly trained in the use of such equipment. 7.6 An employee not attending to or not performing their duty shall, except as provided by this award or any other form of authorised leave, not be entitled to be paid for the actual time of such non-attendance or non-performance. 7.7 An employee will participate in training and where appropriate, gain accreditation in work skills and knowledge to become a member of a flexible work team. The employee will utilise the skills where the employee's duties require and the only limitations on the use of the employee's skills will be whether or not it is safe for the employee to perform those duties. 7.8 The employee will notify the Employer if unable to work: 7.8.1 where practicable prior to the commencement of the employee's next rostered shift; 7.8.2 of the reason for the absence; and 7.8.3 the anticipated duration of the absence. 7.9 An employee will utilise the skills and knowledge they possess throughout the terminal without reservation, subject to such utilisation being safe. 7.10 The Employer may require an employee to work reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirement. 8. HOURS OF WORK AND MEAL BREAKS 8.1 Ordinary hours for a full-time employee shall be an average of 38 hours per week over the roster cycle agreed between the parties to operate from time to time. 8.2 Weekly hours may vary in accordance with the roster cycle. 8.3 An employee is required to observe the nominated commencement and finishing time for the work day, including designated breaks to maximise available working time. 8.4 Where practicable, an employee will be provided with a rest break of twenty minutes duration each shift. Such rest break will be paid for by the Employer and shall constitute part of the ordinary hours. 8.5 An employee will be provided with a meal break of thirty minutes duration for each day worked, Monday to Friday inclusive. The meal break is to be taken no later than five hours from the commencement of duty. 8.6 The timing of the rest break and meal break, which are provided for in this clause, may be adjusted to suit operational requirements. 9. RATES OF PAY Rates of Pay under this Award have yet to be reviewed pursuant to the WROLA Act. 9.1 Except as otherwise provided in this award, the rates of pay specified in this clause shall be all inclusive and be in full compensation for all facets of the work of the employees and circumstances connected with or arising out of their employment. Classification Trainee operator General Transport operator 1 General Transport operator 2 General Transport operator 3 9.2 Arbitrated safety net adjustment The Application of Safety Net Adjustments has yet to be determined 9.3 Classification Structure There will be four classifications operating at the terminals; viz: 9.3.1 Trainee operator 9.3.1(a) This is a training position. During the first nine months the trainee will be required to obtain all the qualifications applicable to the General transport operator Level 1 or 2 dependant on the skills required at the relevant terminal. 9.3.1(b) Should an employee fail to successfully complete the training required within the nine month period, then the parties shall consider any extenuating circumstances which may have prevented the employee from completing the training within the specified period. If the training committee considers that extenuating circumstances have existed then the employee will be given a further opportunity to continue training. The employee during this time will remain classified as a Trainee operator. If the training committee considers no extenuating circumstances have occurred, then the employee's employment will cease and the employee shall be entitled to receive a payment in lieu of notice as set out in clause 21 - Termination of employment. 9.3.2 General transport operator Level 1 A General transport operator Level 1 is an employee who has obtained all the necessary qualifications, and appropriate skills required to undertake the following: Operate mechanical equipment, Consolidate product, Undertake forklift loading and unloading functions, Basic equipment care, Production of dispatch advices, and product tallying, Risk assessment, hazard identification and defect reporting, and Daily interaction with customers, suppliers and management. 9.3.3 General transport operator Level 2 A General transport operator Level 2 is an employee who has obtained all the necessary qualifications and appropriate skills required to undertake the following: Gantry Crane operation over 30 tonnes, Assist with recruitment, accreditation, assessment and training duties, Produce rosters 9.3.4 General transport operator Level 3 A General transport operator Level 3 is an employee who has obtained all the necessary qualifications, classifications and appropriate skills required to undertake the following: Supervisory skills Record and report KPIs regarding equipment, throughput, safety and labour Undertake internal disciplinary processes and input into performance appraisals Lead and motivate teams and individuals Liaise with customers, suppliers and management to meet the needs of the organisation Control and direct operations 10. SHIFT WORK A shift loading will apply of 15% for afternoon shift and 20% for night shift. 11. OVERTIME 11.1 Subject to clauses 14 - Public holidays and 15 - Penalties not cumulative, for all time worked in excess of or outside the ordinary hours, an employee shall be paid at a rate of time and one-half for the first three hours, after which double time shall be paid. 11.2 For the purposes of calculating overtime, each day will stand by itself, except where an employee commences overtime on one day and continues to work such overtime into the next day. 11.3 All overtime worked by an employee on a Sunday shall be paid for at the rate of double time, with a minimum payment of three hours at such overtime rate. Such minimum payment shall not apply where the overtime immediately precedes or follows ordinary working hours. 11.4 Should employees be called upon to work overtime commencing on Saturday they shall be paid at one and a half times the ordinary rate for the first three hours and double time thereafter with a minimum period of three hours work or payment therefore, provided that such minimum payment shall not apply where the overtime immediately precedes or follows ordinary working hours. 11.5 An employee shall have eight consecutive hours off duty between overtime worked on one day and the commencement of ordinary work on the next day. 11.6 If on the instruction of the Employer an employee resumes work and does not have eight consecutive hours off duty the employee shall be paid double time for time worked until the employee has that period off. 11.7 Systematic overtime shall not be worked. The assignment of overtime by the Employer to an employee shall be based on specific work requirements and the practice of "one in, all in" overtime shall not apply. 11.8 A fraction of a quarter of an hour of overtime shall count as a quarter of an hour if more than five minutes thereof have been worked. 11.9 When overtime is cancelled, no extra payment will be made. 11.10 Subject to clause 11.11 an employer may require an employee to work reasonable overtime at overtime rates. 11.11 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to: 11.11.1 any risk to employee health and safety; 11.11.2 the employee's personal circumstances including any family responsibilities; 11.11.3 the needs of the workplace or enterprise; 11.11.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 11.11.5 any other relevant matter. 11.12 An employee recalled from home to work overtime shall be paid for a minimum of four hours work. Where the actual time worked is of shorter duration than the specified four hours minimum, the working period shall not be regarded as overtime for the purposes of 11.5. For the purposes of this subclause an employee will be considered to have commenced overtime from the time the employee commences duties at the terminal. 11.13 Overtime shall be paid for all time worked in excess of five hours without a meal break, except in the case of urgent breakdown work necessary to secure an immediate resumption of operations, which shall be paid at ordinary time. 11.14 An employee who is required to continue work after the usual ceasing time shall be entitled to a 30 minute paid meal break after two hours. After each further period of four hours the employee shall be allowed 45 minutes for each meal break. No deduction of pay shall be made in respect of any such meal breaks. 11.15 An employee who is required to continue work more than two hours overtime after the usual ceasing time shall be reimbursed a meal allowance of $7.95. 11.16 Should the employee continue to work overtime the employee shall after the completion of each further four hours overtime worked be paid $7.95 for each additional meal break. 11.17 When an employee has provided himself or herself with customary meals because of receipt of notice of intention to work overtime the employee shall be entitled to an allowance of $7.95 for each meal so provided in the event of the work not being performed, or ceasing before the respective meal break. 11.18 This allowance shall be adjusted on the first Monday in July on the basis of the percentage change in the food component of the CPI for the year ending 30 June. The parties may make an application to the Australian Industrial Relations Commission for a variation of the award to adjust this allowance. 12. TIME AND PAYMENT OF WAGES 12.1 All wages shall be paid fortnightly in arrears with each pay period to begin at the time of the commencement of work on Mondays. The payment of wages shall be made on Thursdays. 12.2 Payment of wages shall be by direct deposit into a bank account nominated by an employee and approved by the Employer. 12.3 The Employer shall provide to an employee in writing each pay period the amount of wages to which the employee is entitled, the amount of deduction made there from, and the net amount being paid to the employee. 12.4 The Employer may deduct from wages owing to an employee such amounts as are authorised, in writing, by the employee. 13. ALLOWANCES 13.1 Where the Employer requires an employee to wear protective or special clothing such as shirts, trousers, overalls, footwear, hard hats, vests or sunglasses, the Employer must reimburse the employee for the cost of purchasing such protective or special clothing, provided that there will be no reimbursement for protective clothing over and above: · 3 Shirts; · 2 Trousers or overalls; · 1 Safety Footwear; · 1 Safety Vest; · 1 Hard Hat; · 1 Sunglasses. 13.2 The provisions of 13.1 do not apply where the protective or special clothing is paid for or provided by the employer. 13.3 A casual employee will be entitled to reimbursement for a pair of overalls, safety footwear, safety vest, hard hat and safety glasses at the terminal, unless the employee is given a personal issue of one pair of overalls and safety footwear which they will be required to use when employed by the Employer and will be given access to a safety vest, hard hat and safety glasses at the terminal. 13.4 The Employer shall reimburse an employee for replacement of any such item(s) if an employee notifies the Employer that the item(s) concerned has been destroyed, stolen or rendered unusable by no fault and/or neglect of the employee in the course of carrying out the employee's duties, or whilst at the workplace or that the employee has outgrown the item(s) concerned and that it is now unsuitable for its intended use. 13.5 The reimbursement of an employee's original clothing issue, in accordance with this subclause will occur up to a maximum of twice per calendar year. 14. PUBLIC HOLIDAYS 14.1 An employee shall be entitled to holidays on the following days: 14.1.1 New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day/Proclamation Day; 14.1.2 The following days, as prescribed in the relevant States, Territories and locations: Australia Day, Anzac Day, Queen's Birthday and Eight Hours' Day or Labour Day; and 14.1.3 One other day as determined in the relevant terminal. At the Melbourne Steel Terminal this day shall be Melbourne Cup Day and at the Islington Rail Terminal this day shall be Adelaide Cup Day. 14.2 When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December. 14.3 When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December. 14.4 When New Years Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday. 14.5 Where in a State, Territory of Locality, public holidays are declared or prescribed on days other than that set out in 14.1 - 14.4, those days shall constitute additional holidays for the purpose of this award. 14.6 The Employer and its employees may agree to substitute another day for any prescribed in this clause. For this purpose, the consent of the majority of affected employees shall constitute agreement. 14.6.1 An agreement pursuant to 14.6 shall be recorded in writing and be available to every affected employee. 14.6.2 The relevant Union shall be notified of the intention to substitute a public holiday and shall be given the opportunity to participate in the discussions. 15. PENALTIES NOT CUMULATIVE All rates prescribed by this award shall not exceed double the ordinary rate prescribed by clause 9 - Rates of pay, provided that this clause shall not apply to any excess due to payments under clause 14 - Public holidays, in respect of work done on holidays. 16. ANNUAL LEAVE 16.1 An employee, other than a casual employee, covered by this award shall at the end of each year of employment be entitled to an annual holiday of four weeks paid as calculated in accordance with 16.7. 16.2 Such annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave and subject to 16.7 shall be paid by the Employer in advance at the ordinary time rate of pay payable to the employee concerned immediately prior to that leave being taken under this award. 16.3 Should the employment of an employee be terminated at the expiration of a full year of employment, the Employer shall be deemed to have given the annual holiday to the employee from the date of termination of the employment and the Employer shall pay to the employee in addition to all other amounts due, pay calculated in accordance with 16.7. 16.4 Should the employment of an employee be terminated before the expiration of a full year of employment, the employee shall be paid, in addition to all other amounts due, a pro rata annual leave payment for the period of employment, calculated in accordance with 16.7. 16.5 Reasonable notice, with a minimum period of fourteen days, before the commencement of annual leave shall be given by the employee to the Employer. 16.6 The Employer may close down the terminal for the purposes of allowing all or part of the annual holidays to be taken by the employees. 16.7 In respect of a period of annual holidays, an employee shall be paid the employee's ordinary rate of pay as prescribed by the award plus a loading of 17.5% of the employee's ordinary rate of pay. 17. LONG SERVICE LEAVE 17.1 Employees shall be entitled to long service leave on full pay. The basis of such entitlement will be following a period of fifteen years continuous employment, employees will be entitled to thirteen weeks leave on full pay. Additional service will accrue leave on the basis of thirteen weeks for each additional fifteen years service. 17.2 Where an employee has completed at least ten years service but less than fifteen years' service with the Employer and their employment is terminated by the Employer for any cause other than serious and wilful misconduct, they are entitled to a pro rata payment. If an employee resigns and has completed ten but less than fifteen years service they will receive full pro rata entitlement if the termination by the employee is on account of illness, incapacity or domestic or any other pressing necessity where such illness, incapacity or necessity is of such a nature as to justify termination. 18. PERSONAL LEAVE 18.1 Paid personal leave 18.1.1 Paid personal leave will be available to an employee when they are absent; 18.1.1(a) due to personal illness or injury (sick leave); 18.1.1(b) for the purposes of caring for an immediate family or household member who is sick and requires the employee's care and support (carer's leave); 18.1.1(c) for bereavement on the death of an immediate family or household member (bereavement leave). 18.1.2 The amount of personal leave to which an employee is entitled depends on how long he or she has worked for the employer and accrues as follows: 18.1.2(a) 100 hours will be available in the first year of service; 18.1.2(b) 100 hours will be available per annum in the second and subsequent years of service. 18.1.3 In any year unused personal leave accrues by the lesser of: 18.1.3(a) 76 hours less the amount of sick leave and carer's leave taken during the year; or 18.1.3(b) the balance of that year's unused personal leave. 18.1.4 Personal leave may accumulate from year to year . 18.2 Immediate family or household 18.2.1 The entitlement to carer's or bereavement leave is subject to the person being either: 18.2.1(a) a member of the employee's immediate family; or 18.2.1(b) a member of the employee's household. 18.2.2 The term immediate family includes: 18.2.2(a) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and 18.2.2(b) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, parent in-law, grandparent, grandchild or sibling of the employee or spouse of the employee. 18.3 Sick leave 18.3.1 An employee shall be entitled to use up to 76 hours sick leave for each completed year of service with the Employer. 18.3.2 An employee is entitled to use accumulated personal leave for the purposes of sick leave where the current year's sick leave entitlement has been exhausted. 18.3.3 Additional paid leave of absence may be provided to cover genuine personal illness and injury by accident at the Employer's discretion. 18.3.4 Sick leave will be provided for the period of time the employee is unable to attend for duty, subject to satisfactory proof of that employee's illness or injury. The Employer reserves the right to review each individual case as appropriate and if considered appropriate cease payment under this paragraph. 18.3.5 Payment will be at the ordinary weekly rate. 18.3.6 An employee shall not be entitled to paid sick leave for any period in respect of which he or she is entitled to workers' compensation. 18.4 Bereavement leave 18.4.1 An employee is entitled to use up to three days personal leave as bereavement leave on each occasion. 18.4.2 Where an employee has exhausted all personal leave entitlements, including accumulated entitlements, they may be entitled to unpaid bereavement leave at the discretion of the Employer. 18.4.3 Proof of death shall be furnished by the employee to the Employer. 18.4.4 Bereavement leave will not be granted if the period of leave coincides with any other period of paid leave. 18.5 Carers leave 18.5.1 Use of sick leave entitlement An employee is entitled to use up to 38 hours of accrued personal leave as carer's leave. Such leave may be taken for part of a single day. 18.5.2 Notice required The employee taking carer's leave will notify the Employer of: · The name of the person requiring care and support and their relationship to the employee; · The employee must, if required, establish by production of a medical certificate, the illness of the person concerned and that such illness requires care by another. 18.5.3 An employee may take unpaid leave by agreement with the Employer. 19. PARENTAL LEAVE Subject to the terms of this clause employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child. The provisions of this clause apply to full-time, part-time and eligible casual employees, but do not apply to other casual employees. An eligible casual employee means a casual employee: (a) employed by the Employer on a regular and systematic basis for several periods of employment or on a regular and systematic basis for an ongoing period of employment during a period of at least 12 months; and (b) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment. For the purposes of this clause, continuous service is work for the Employer on a regular and systematic basis (including any period of authorised leave or absence). The Employer must not fail to re-engage a casual employee because: (a) the employee or employee's spouse is pregnant; or (b) the employee is or has been immediately absent on parental leave. The rights of the Employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause. 19.1 Definitions 19.1.1 For the purpose of this clause child means a child of the employee under the age of one year except for adoption of a child where `child' means a person under the age of five years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more. 19.1.2 Subject to 19.1.3, in this clause, spouse includes a de facto or former spouse. 19.1.3 In relation to 19.5, spouse includes a de facto spouse but does not include a former spouse. 19.2 Basic entitlement 19.2.1 After twelve months continuous service, parents are entitled to a combined total of 52 weeks unpaid parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may be taken and for males, paternity leave may be taken. Adoption leave may be taken in the case of adoption. 19.2.2 Subject to 19.3.6, parental leave is to be available to only one parent at a time, in a single unbroken period, except that both parents may simultaneously take: 19.2.2(a) for maternity and paternity leave, an unbroken period of up to one week at the time of the birth of the child; 19.2.2(b) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child. 19.3 Maternity leave 19.3.1 An employee must provide notice to the Employer in advance of the expected date of commencement of parental leave. The notice requirements are: 19.3.1(a) of the expected date of confinement (included in a certificate from a registered medical practitioner stating that the employee is pregnant) - at least ten weeks; 19.3.1(b) of the date on which the employee proposes to commence maternity leave and the period of leave to be taken - at least four weeks. 19.3.2 When the employee gives notice under 19.3.1(a) the employee must also provide a statutory declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for the period of maternity leave she will not engage in any conduct inconsistent with her contract of employment. 19.3.3 An employee will not be in breach of this clause if failure to give the stipulated notice is occasioned by confinement occurring earlier than the presumed date. 19.3.4 Subject to 19.2.1 and unless agreed otherwise between the Employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth. 19.3.5 Where an employee continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, the Employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties. 19.3.6 Special maternity leave 19.3.6(a) Where the pregnancy of an employee not then on maternity leave terminates after 28 weeks other than by the birth of a living child, then the employee may take unpaid special maternity leave of such periods as a registered medical practitioner certifies as necessary. 19.3.6(b) Where an employee is suffering from an illness not related to the direct consequences of the confinement, an employee may take any paid sick leave to which she is entitled in lieu of, or in addition to, special maternity leave. 19.3.6(c) Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take any paid sick leave to which she is then entitled and such further unpaid special maternity leave as a registered medical practitioner certifies as necessary before her return to work. The aggregate of paid sick leave, special maternity leave and parental leave, including parental leave taken by a spouse, may not exceed 52 weeks. 19.3.7 Where leave is granted under 19.3.4, during the period of leave an employee may return to work at any time, as agreed between the employer and the employee provided that time does not exceed four weeks from the recommencement date desired by the employee. 19.4 Paternity leave 19.4.1 An employee will provide to the Employer at least ten weeks prior to each proposed period of paternity leave, with: 19.4.1(a) a certificate from a registered medical practitioner which names his spouse, states that she is pregnant and the expected date of confinement, or states the date on which the birth took place; and 19.4.1(b) written notification of the dates on which he proposes to start and finish the period of paternity leave; and 19.4.1(c) a statutory declaration stating: 19.4.1(c)(i) he will take that period of paternity leave to become the primary care-giver of a child; 19.4.1(c)(ii) particulars of any period of maternity leave sought or taken by his spouse; and 19.4.1(c)(iii) that for the period of paternity leave he will not engage in any conduct inconsistent with his contract of employment. 19.4.2 The employee will not be in breach of 19.4.1 if the failure to give the required period of notice is because of the birth occurring earlier than expected, the death of the mother of the child, or other compelling circumstances. 19.5 Adoption leave 19.5.1 The employee will notify the Employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of a child takes place earlier. 19.5.2 Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating: 19.5.2(a) the employee is seeking adoption leave to become the primary care-giver of the child; 19.5.2(b) particulars of any period of adoption leave sought or taken by the employee's spouse; and 19.5.2(c) that for the period of adoption leave the employee will not engage in any conduct inconsistent with their contract of employment. 19.5.3 The Employer may require an employee to provide confirmation from the appropriate government authority of the placement. 19.5.4 Where the placement of child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the Employer will nominate a time not exceeding four weeks from receipt of notification for the employee's return to work. 19.5.5 An employee will not be in breach of this clause as a consequence of failure to give the stipulated periods of notice if such failure results from a requirement of an adoption agency to accept earlier or later placement of a child, the death of a spouse, or other compelling circumstances. 19.5.6 An employee seeking to adopt a child is entitled to unpaid leave for the purpose of attending any compulsory interviews or examinations as are necessary as part of the adoption procedure. The employee and the Employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the employee is entitled to take up to two days unpaid leave. Where paid leave is available to the employee, the Employer may require the employee to take such leave instead. 19.6 Variation of period of parental leave Unless agreed otherwise between the Employer and employee, an employee may apply to the Employer to change the period of parental leave on one occasion. Any such change to be notified at least four weeks prior to the commencement of the changed arrangements. 19.7 Parental leave and other entitlements An employee may in lieu of or in conjunction with parental leave, access any annual leave or long service leave entitlements which they have accrued subject to the total amount of leave not exceeding 52 weeks. 19.8 Transfer to a safe job 19.8.1 Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee will, if the Employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave. 19.8.2 If the transfer to a safe job is not practicable, the employee may elect, or the Employer may require the employee to commence parental leave for such period as is certified necessary by a registered medical practitioner. 19.9 Returning to work after a period of parental leave 19.9.1 An employee will notify of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave. 19.9.2 An employee will be entitled to the position which they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to 19.8, the employee will be entitled to return to the position they held immediately before such transfer. 19.9.3 Where such position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee will be entitled to a position as nearly comparable in status and pay to that of their former position. 19.10 Replacement employees 19.10.1 A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave. 19.10.2 Before the Employer engages a replacement employee the Employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced. 20. JURY SERVICE Subject to the production of satisfactory evidence, an employee required to be absent from work due to jury service will be reimbursed by the Employer for any loss of the employee's ordinary time rate of pay to the extent of the difference between the amount the employee received for attendance on jury service and the employee's ordinary time rate of pay during such absence. 21. TERMINATION OF EMPLOYMENT 21.1 Notice of Termination by the employer 21.1.1 In order to terminate the employment of a full time or regular part-time employee the Employer shall give to the employee the period of notice specified in the table below: Period of continuous service Period of notice 1 year or less 1 week Over 1 year and up to the completion of 3 years 2 weeks Over 3 years and up to the completion of 5 years 3 weeks Over 5 years 4 weeks 21.1.2 In addition to this notice, employees over 45 years of age at the time of the giving of the notice and with not less than two years continuous service, are entitled to an additional week's notice. 21.1.3 Payment in lieu of notice will be made if the appropriate notice is not required to be worked. Employment may be terminated by the employee working part of the required period of notice and by the Employer making payment for the remainder of the period of notice. 21.1.4 In calculating any payment in lieu of notice, the wages an employee would have received in respect of the ordinary time they would have worked during the period of notice had their employment not been terminated will be used. 21.1.5 The period of notice in this clause, shall not apply in the case of dismissal for conduct that justifies instant dismissal including inefficiency within the first fourteen days, neglect of duty or misconduct and in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specific task or tasks. 21.1.6 Continuous service includes a period of casual employment which is immediately followed by appointment to fulltime or regular part-time employment and all authorised absences from work. Authorised leave without pay will not break a period of continuous service but will not be counted for the purpose of accrual of leave rights under this award. 21.2 Notice of termination by an employee 21.2.1 The notice of termination required to be given by an employee is the same as that required of the Employer, save and except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. 21.2.2 If an employee fails to give notice the Employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice. 21.3 Time off during notice period Where the Employer has given notice of termination to an employee, an employee shall be allowed up to one day's time off without loss of pay for the purpose of seeking other employment. The time off shall be taken at times that are convenient to the employee after consultation with the employer 22. REDUNDANCY 22.1 Definition Redundancy occurs when the Employer decides that the Employer no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour. 22.2 Transfer to lower paid duties Where an employee is transferred to lower paid duties by reason of redundancy the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the Employer may at the Employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary rate of pay and the new ordinary time rate for the number of weeks of notice still owing. 22.3 Severance pay 22.3.1 In addition to the period of notice prescribed for ordinary termination in clause 21- Termination of employment, an employee whose employment is terminated by reason of redundancy must be paid, subject to further order of the Commission, the following amount of severance pay in respect of a continuous period of service: Period of continuous service Severance pay 1 year or less nil 1 year and up to the completion of 2 years 4 weeks' pay 2 years and up to the completion of 3 years 6 weeks' pay 3 years and up to the completion of 4 years 7 weeks' pay 4 years and over 8 weeks' pay 22.3.2 Week's pay means the ordinary time rate of pay for the employees concerned. 22.3.3 Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the Employer had proceeded to the employee's normal retirement date. 22.4 Employee leaving during notice period An employee whose employment is terminated by reason of redundancy may terminate his/her employment during the period of notice and, if so, will be entitled to the same benefits and payments under this clause had they remained with the employer until the expiry of such notice. However, in this circumstance the employee will not be entitled to payment in lieu of notice. 22.5 Alternative employment The Employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the Employer obtains acceptable alternative employment for an employee. 22.6 Time off during notice period 22.6.1 During the period of notice of termination given by the Employer an employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment. 22.6.2 If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the Employer, be required to produce proof of attendance at an interview or he or she shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient. 22.7 Superannuation benefits 22.7.1 Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, he or she shall only receive under clause 22.3 hereof the difference between the severance pay specified in that clause and the amount of the superannuation benefit he or she receives which is attributable to Company contributions only. 22.7.2 If this superannuation benefit is greater than the amount due under clause 22.3 hereof then he or she shall receive no payment under that clause. 22.8 Transmission of business 22.8.1 Where a business is before or after the date of this award, transmitted from an employer (in this clause called the transmittor ) to another employer (in this 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: 22.8.1(a) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and 22.8.1(b) the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee. 22.8.2 In this clause business includes trade, process, business or occupation and includes part of any such business and transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transmitted has a corresponding meaning. 22.9 Employees exempted This clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal including inefficiency within the first fourteen days, neglect of duty or misconduct, and in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specific task or tasks. B. This award shall take effect from the beginning of the first pay period to commence on or after DAY MONTH YEAR and shall remain in force for a period of twelve (12) months. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT