in the tasmanian industrial commission · t.1158 of 1988 in the matter of an application by the...

This document is translated from the original order and is not in itself a legal document. No responsibility is taken for any discrepancy that may arise between this document and the order that was printed and published by the Printing Authority of Tasmania.

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984 T.1158 of 1988 IN THE MATTER OF AN APPLICATION

BY THE FEDERATED MISCELLANEOUS WORKERS UNION OF AUSTRALIA, TASMANIAN BRANCH TO VARY THE MISCELLANEOUS WORKERS AWARD

RE: 4% SECOND TIER INCREASE ORDER -

No. 3 of 1988 (Consolidated)

AMEND THE MISCELLANEOUS WORKERS AWARD BY DELETING ALL CLAUSES CONTAINED THEREIN AND INSERTING IN LIEU THEREOF THE FOLLOWING:

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1. TITLE This award shall be known as the 'Miscellaneous Workers Award'. 2. SCOPE (a) Subject to the exceptions and modifications prescribed elsewhere this award shall

apply to the work performed by private employees classified as follows:

1. Caretaker 2. Janitor 3. General Attendant 4. Lift Attendant 5. Tea Attendant 6. Cleaner 7. Groundsman or Yardman 8. Library Attendant 9. Vehicle Cleaner

10. Domestic (b) This award shall not apply to a private employee who is engaged within an industry

where an award or registered Industrial Agreement applies containing a classification of employee embracing the same or similar work as envisaged by the scope and definitions set out in this award.

(c) This award shall not have any application to employees of employers in the industry

of mining. For the purposes of this exclusion "mine" or "mining" shall have the same meaning as similar expressions contained in the Mines Inspection Act 1968.

3. ARRANGEMENT SUBJECT MATTER CLAUSE NO. Title 1 Scope 2 Arrangement 3 Date of Operation 4 Exemptions and Modifications 5 Parties and Persons Bound 6 Definitions 7 Wage Rates 8 Allowances 9 Annual Leave 10 Caretakers and Janitors 11 Casual and Part-time Employees 12 Compassionate Leave 13

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Contract of Employment 14 Holidays with Pay 15 Hours of Work 16 Implementation of 38-Hour Week 17 Maternity Leave 18 Mixed Functions 19 Overtime 20 Payment of wages 21 Protective Clothing 22 Reference of Disputes 23 Right of Entry 24 Saturday, Sunday and Holiday Work 25 Savings 26 Shop Stewards 27 Sick Leave 28 Technological Change 29 4. DATE OF OPERATION This award shall come into operation as from the first full pay period commencing on or after 11 November 1988. PROVIDED that it is a term of this award arising from the decision of the Tasmanian Industrial Commission State Wage Case of 5 September 1988 the terms of which are set out therein that the unions undertake, until 1 July 1989, not to pursue any extra claims, award or overaward, except where consistent with the State Wage Case Principles. 5. SUPERSESSION AND SAVINGS This award incorporates and supersedes No. 2 of 1988 (Consolidated). PROVIDED further that no right, obligation or liability incurred or accrued under any of the abovementioned provisions shall be affected by the replacement and supersession. 6. PARTIES AND PERSONS BOUND Unless otherwise specified, this award shall have application to and be binding upon: (a) all private employers (whether members of a Registered Organisation or not) who

employ persons in the occupations specified in Clause 2 – Scope; (b) all private employees (whether members of a Registered Organisation or not) for

whom classifications appear in this award and who are engaged in the occupations specified in Clause 2 – Scope;

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(c) the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch and the officers of that organisation and their members employed in the occupations specified in Clause 2 - Scope;

(d) the Tasmanian Confederation of Industries; and (e) the Tasmanian Trades and Labor Council. 7. DEFINITIONS (a) A 'part time employee' is one engaged to regularly work for less hours per day or

week than those prescribed for full time employees. (b) A 'casual employee' means any person who is employed on a casual basis and

includes any person who is employed for a period not exceeding five days at any one time, and shall not include an employee as defined in subclause (a) hereof.

(c) 'Union' means the Federated Miscellaneous Workers Union of Australia, Tasmanian

Branch. (d) ‘Caretaker or Janitor' means a person whose presence is required on premises

for the protection, good order or convenient use thereof and who may also have other duties in respect of the cleanliness or upkeep thereof.

(e) 'General Attendant' means a person whose presence is required on premises to

both ensure its security and assist the public in their use of the building and its facilities. He may also have other duties in respect of the cleanliness or upkeep of the premises.

(f) 'Groundsman' means a person responsible for the maintenance and overall

appearance of the premises, grounds and/or general surroundings. (g) 'Utility Officer' means a person whose work includes a substantial part of time on

general maintenance and handyman duties. Other duties may include messages and maintaining the cleanliness and appearance of the building and grounds.

(h) 'Steam Cleaning'

(i) Buildings: Means an employee required to clean stone, brick, marble or any other such like material with a mechanical machine emitting steam under pressure;

(ii) Carpets: Means an employee required to clean carpets, upholstery,

furnishings and similar articles, by means of hot water extraction machine or shampooing machine. But shall not include the periodic routine cleaning of such articles by cleaning or pile lifting.

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(i) Nothing in the above classification definitions shall be taken to imply that an employee cannot be engaged to carry out work covered by more than one classification.

(j) 'Library Attendant' means a person employed in or in connection with a library of

any kind who may be required to control access to material kept in the library and supervise access of persons to material kept in the library. For the purpose of this definition a library shall be any place, public or private, where books, magazines, newspapers, films, tapes, sound recordings, video recordings and/or other published material is kept available for public or private use.

(k) 'Vehicle Cleaner' means an employee employed as such and responsible for the

general cleaning of motor vehicles (including vehicles used for hire) and who may also have other related duties in respect of the employer's use of the vehicle.

(l) 'Domestic' means ane employee who shall perform normal household duties which

(without limiting such duties) may include cleaning, laundering, ironing, cooking and child minding.

(m) 'Show Day' means not more than one local show day observed on an employee's

ordinary working day, other than a Saturday or a Sunday, in the city, town or district in which the employee is employed; or such other day which, in the absence of such a local show day, is agreed on by the employee and the employer, therefore making a total of 11 paid public holidays per year.

8. WAGE RATES (a) Subject to subclause (b) hereof, the minimum weekly rate of pay for an employee

classified hereunder shall be the amount assigned to that classification.

Classification Amount per week $

1. Caretaker or Janitor (resident) 297.30 2. Caretaker or Janitor (non-resident) 305.80 3. General Attendant or Utility Officer 300.20 4. Lift Attendant 294.30 5. Tea Attendant 294.30 6. Cleaner 294.30 7. Groundsman or Yardman 294.30 8. Library Attendant 300.20 9. Vehicle Cleaner 294.30

10. Domestic 294.30

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(b) Junior Rates An employee who is classified as a Library Attendant, Vehicle Cleaner or Domestic

shall in lieu of the rate of pay provided in subclause (a) be paid the following percentage of the rate prescribed for the relevant adult classification until he or she attains the age of 21: (i) Library Attendant At 16 years of age (55% x 300.20) 165.10 At 17 years of age (65% x 300.20) 195.10 At 18 years of age (75% x 300.20) 225.20 At 19 years of age (85% x 300.20) 255.20 At 20 years of age (95% x 300.20) 285.20 At 21 years of age (1001 x 300.20) 300.20 (ii) Vehicle Cleaner/Domestic At 16 years of age (55% x 294.30) 161.90 At 17 years of age (65% x 294.30) 191.30 At 18 years of age (75% x 294.30) 220.70 At 19 years of age (85% x 294.30) 250.20 At 20 years of age (95% x 294.30) 279.60 At 21 years of age (100% x 294.30) 294.30 PROVIDED that where more than one employee of this class is employed, no more than 50 per cent of those employees shall be engaged and paid as juniors.

9. ALLOWANCES (a) Leading Hand Rates Caretakers or employees directly in charge of other employees shall be paid the

following rates in addition to the rates as prescribed in Clause 8 thereof. (i) If in charge of not more than five employees $10.80 per week extra. (ii) If in charge of six to ten employees $13.90 per week extra. (iii) If in charge of over ten employees $18.30 per week extra.

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(b) High Window Cleaning Allowance If an employee is required to clean outside windows at a height of more than six

metres from the ground he shall be paid 14 cents extra for each window so cleaned with a maximum payment of $4.25 per day.

(c) Steam Cleaning Employees engaged in steam cleaning buildings (as defined) or in steam cleaning

carpets (as defined) shall be paid an allowance of 25 cents for each hour or part of an hour engaged.

(d) Toilet Cleaning Allowance Employees engaged for 33 1/3 per cent or more of their time cleaning toilets shall

be paid an additional 68 cents per day. (e) Excess Fares Allowance Employees engaged on any day or shift which is worked in two periods shall be paid

an excess fares allowance of $1.36 per day. (f) First Aid Allowance Where an employee is a qualified first aid attendant and is authorised to carry out

the duties of a qualified first aid attendant, he shall be paid an additional amount of $5.40 per week.

(g) Meal Allowance An employee who is entitled to a meal allowance pursuant to Clause 20 (Overtime)

subclause (d), shall be paid an amount of $4.80 for each occasion when the allowance is payable.

10. ANNUAL LEAVE (a) Period of Leave A period of 28 consecutive days leave, exclusive of days prescribed as holidays in

Clause 15 (Holidays with Pay) of this award, shall be allowed annually to an employee other than a casual after 12 months continuous service (less the period of annual leave).

(b) Calculation of Continuous Service (i) 12 months continuous service, for the purposes of this award shall mean 12

months from the commencement of employment. Such 12 months shall not be affected by the number of hours worked each week.

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(ii) Continuous service shall not be deemed to have been broken because of:- (aa) absences of up to 91 days resulting from accidents, or illnesses which

are covered by medical certificates, in accordance with Clause 28 (Sick Leave) hereof;

(bb) absences of up to one month for any cause for which leave has been

granted by the employer. (c) Time of Taking Leave Annual leave shall be taken at a time mutually agreed upon by the employer and

the employee and the absence of agreement at a time fixed by the employer after at least one month's notice to the employee and within three months of the date when the annual leave became due.

Annual leave shall be taken within 12 months from the date when the right to

annual leave accrued. (d) Broken Leave Annual leave shall be taken in a continuous period provided that where the

employee and the employer agree, leave may be taken in 2 or more periods; one of which shall be of at least 14 successive days and may include holidays as prescribed in Clause 15 (Holidays with Pay) of this award, but shall not include Rostered Days Off as provided in Clause 17 (Implementation of 38-Hour Week).

(e) Payment for Period of Leave (i) Subject to the provisions of paragraph (ii) of this subclause, an employee

before going on leave shall be paid the amount of wages he would have received in respect of the ordinary time which he would have worked had he not been on leave during the relevant period.

(ii) In the event of an employee's weekly hours of work having varied in the

period during which the annual leave has accrued the number of hours per week on which leave payments are calculated shall be the average number of hours per week worked during the said period of accrual.

(f) Annual Leave Loading (i) In addition to the amount payable in accordance with subclause (e) hereof, an

employee shall be entitled to be paid a leave loading equivalent to 17.5 per cent of his ordinary annual leave payment.

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(ii) An employee who terminates his services or is dismissed in accordance with the provisions of subclause (e) of Clause 14 (Contract of Employment) shall not be entitled to any payment for leave loading on pro rata leave payable on termination.

(iii) An employee with twelve months continuous service whose employment is

terminated by the employer through no fault of the employee, shall, subject to (i) hereof be entitled to be paid pro rata leave loading.

(iv) An employee with less than 12 months service whose employment is

terminated by the employer for reasons other than those set out in subclause (e) of Clause 14 (Contract of Employment) shall be entitled to be paid pro rata leave loading.

(g) Leave Allowed Before Due Date An employer may allow annual leave to an employee before the right thereto has

accrued due, but where it is taken in such a case a further period of annual leave shall not commence to accrue until after expiration of 12 months in respect of which annual leave has been taken before it accrued.

Where leave has been granted to an employee pursuant to this subclause before

the right thereto has accrued due and the employee subsequently leaves or is discharged from the service of the employer before completing the 12 months continuous service in respect of which the leave was granted, the employer may, for each completed month of the qualifying period of 12 months not served by the employee, deduct from whatever remuneration is payable upon the termination of the employment 1/12 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 by Clause 15 (Holidays With Pay) hereof.

(h) Payment In Lieu Prohibited Payment in lieu of annual leave shall not be made by an employer nor accepted by

an employee except in accordance with all the requirements of this clause. (i) An employee shall not work for any other employer covered by this award during

the period he or she is on paid annual leave. (j) Annual Leave Record Every employer shall keep or cause to be kept an annual leave record showing the

date of commencement of employment, the date on which the last leave became due, and the date on which the last leave was taken.

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(k) Proportionate Leave on termination of Service Where an employee terminates his employment, or his employment is terminated

by the employer before the expiration of any 12 monthly qualifying period, payment shall be made on the basis of:-

4/52 of a week's wages for each completed week of continuous service. 11. CARETAKER OR JANITOR (a) Caretakers and/or Janitors may be called upon to perform lift and boiler attendant

duties as part of their duties. (b) In addition to the weekly rate prescribed in Clause 8 (Wage Rates), resident

employees classified in accordance with this award shall receive free living quarters, light, power and fuel.

12. CASUAL AND PART-TIME EMPLOYEES (a) A part-time employee shall be paid per hour one thirty-eighth of the weekly rates

prescribed for the work which he or she performs, plus 15 per cent. (b) A casual employee shall be paid per hour one thirty-eighth of the weekly rates

prescribed for the work which he or she performs, plus 33 1/3 per cent. (c) A casual employee shall be excluded from Clauses 10 (Annual Leave) and 28 (Sick

Leave) of this award. (d) Hourly rates for casual and part-time employees shall be calculated to the nearest

whole cent, fractions of less than 0.5 cents being disregarded. (e) The minium start for casual and part time employees shall be two hours, providing

that in exceptional circumstances the employer, with the agreement in writing from the Federated Miscellaneous Workers' Union of Australia, may engage employees for a lesser number of hours than two as prescribed.

(f) Part-time employees may agree with their employer that their weekly hours be

reduced in proportion to the reduction in ordinary hours occurring for full time employee. Where such agreement is made the provisions of Clause 17 (Implementation of 38-Hour Week) shall apply.

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13. COMPASSIONATE LEAVE An employee shall on the death of a wife, husband, father, mother, child, stepchild, brother, sister, mother-in-law, father-in-law, stepmother, stepfather, grandfather, grandmother, be entitled upon application being made to and approved by the employer, to leave up to and including the day of the funeral of such relative and such leave will be without deduction of pay not exceeding the number of ordinary hours worked by the employee in 3 ordinary days, provided that no payment shall be made in respect of an employee's rostered days off. Proof of such death, in the form of a death notice or other written evidence, shall be furnished by the employee to the satisfaction of the employer, provided furthermore that this clause shall have no operation while the period of entitlement to leave under it coincides with any other period of entitlement to leave. For the purposes of this clause the words 'wife' and 'husband' shall not include a wife or husband from whom the employee is separated, but shall include a person who lives with the employee as a de facto wife or husband. 14. CONTRACT OF EMPLOYMENT (a) Except in the case of casuals, employment under this award shall be by the week. (b) Casual employees shall be engaged by the hour. (c) Except in the case of casuals, employment may be terminated only by the giving of

one week's notice by either party or by the payment or forfeiture of one week's wages as the case may be. Provided that during the first two weeks of employment the employment may be terminated by the giving of one hours notice by either party or by the payment or forfeiture of one hours pay as the case may be. Where an employee who is paid as a junior is terminated during the first two weeks of employment, that employee shall be deemed to have been engaged as a casual and shall be entitled to be paid as such for the whole of the period of the employment.

(d) Casual employment may be terminated by one hour's notice. (e) Nothing in this clause shall limit the right of the employer to instantly dismiss an

employee for malingering, misconduct or neglect of duty, provided that such malingering, misconduct or neglect of duty warrants instant dismissal, in which case wages shall be paid up to the time of dismissal only.

15. HOLIDAYS WITH PAY (a) All employees (other than casuals) shall be allowed the following days as paid

holidays:

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New Year's Day, Australia Day, Hobart Regatta Day (south of Oatlands), Labour Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Show Day (as defined in Clause 7 – Definitions), the first Friday in November (where Hobart Regatta Day is not observed), Christmas Day and Boxing Day.

PROVIDED that employees classified in accordance with this award shall observe the same Public Holidays as are observed by the majority of employees in the establishment in which they are employed. PROVIDED FURTHER that where a Public Holiday falls on a Saturday, Sunday or Rostered Day Off and is observed on a Saturday, Sunday or Rostered Day Off, the next week day not being a paid holiday shall be observed in lieu.

(b) Payment for the holidays mentioned in subclause (a) which are taken and not worked, shall be at the normal rate of pay which would have applied to the employee concerned when, if it were not for such holiday, he had been at work.

(c) Payment to an employee for work performed on holidays mentioned in subclause

(a) shall be at the rates prescribed elsewhere in this award. 16. HOURS OF WORK (a) Subject to Clause 17 (Implementation of 38-Hour Week), and subject to the

exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases:

(i) 38 hours within a work cycle not exceeding seven consecutive days; or (ii) 76 hours within a work cycle not exceeding fourteen consecutive days; or (iii) 114 hours within a work cycle not exceeding twenty-one consecutive days; or (iv) 152 hours within a work cycle not exceeding twenty-eight consecutive days. The ordinary hours of work may be worked in not more than 8 hours on any day

but may be worked in one or two periods. In the case of Resident Caretakers, Resident Janitors or Domestics such ordinary hours may be worked within six days.

(b) For the purposes of subclause (a) of this clause, the ordinary hours of work for day

workers shall extend from 6.30am to 6.00pm. (c) Subject to the provisions of subclause (a) hereof shifts may be worked at such

hours as may be agreed upon by the employer and employees concerned and be worked on any day of the week including Saturdays and Sundays, in such a manner that ensures the employee engaged on shift work shall have at least two consecutive days off duty in one week subject to Clause 20 - Overtime. These days shall be in addition to any time off arising out of the method of working the 38-hour week.

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(d) For shifts worked on any day Monday to Friday the following premium shall be paid

in addition to the classification rates prescribed in Clause 8 - Wage Rates:

(i) Payment of a premium of 15 per cent shall be made for a shift that commences before 6.30am.

(ii) Payment of a premium of 15 per cent shall be made for a shift that

commences or finishes after 6.00pm. (iii) Payment of a premium of 20 per cent shall be made for a shift that

commences or finishes after 10.00pm.

(e) The premiums prescribed by subclause (d) hereof shall not apply where a shift worker works ordinary hours on a Saturday, Sunday or Public Holiday in such case the following shall apply:

(i) Saturday work: For ordinary hours performed .between midnight on Friday and midnight on

Saturday payment shall be at time and a half rates for such work. (ii) Sunday and Public Holidays: A shift the greater portion of which is worked on a Sunday or Public Holiday

shall be paid double time. (f) Where in a day, a shift is worked in two periods, a premium of 20 per cent shall be

paid, plus an amount for excess fares as prescribed in Clause 9. Provided that the period of a meal break shall be deemed a continuation of the shift.

Where in a day, a shift is worked in two periods and the employee is required to

take a meal break during either period, such meal break shall be a paid meal break at the appropriate rate.

PROVIDED that if one of those periods extends beyond 4 hours, a paid crib break

of 20 minutes shall be given in lieu of the meal interval entitlement of subclause (h) of this clause.

(g) It shall be prohibited for a shift worked in 2 periods to exceed a spread of 14 hours,

or to commence before 6.OOam, or finish after 10.00pm. PROVIDED that the employer may, with agreement of the Union, vary this

subclause. (h) Employees shall be allowed a meal period of not less than 30 minutes or more than

one hour after the completion of each 4 hours worked.

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(i) In no circumstances shall an employee be required to work a shift in more than 2 periods.

17. IMPLEMENTATION OF 38-HOUR WEEK (a) Ordinary hours of work shall be an average of 38 per week as provided in Clause 16

(Hours of Work). (b) Except as provided in subclause (e), (f) and (g) hereof the method of

implementation of the 38-hour week may be agreed to be any one of the following:-

(i) by employees working less than 8 ordinary hours each day; or (ii) by employees working less than 8 ordinary hours on one or more days each

week; or (iii) by fixing one week day on which all employees will be off during a particular

work cycle; or (iv) by rostering employees off on various days of the week during a particular

work cycle so that each employee has one week day off during that cycle. (c) On each site, an assessment should be made as to which method of implementation

best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation.

(d) The employer and the majority of employees in the plant business section or

sections concerned, may agree that the ordinary working hours are to exceed 8 on any day, thus enabling a week day off to be taken more frequently than would otherwise apply.

(e) Circumstances may arise where different methods of implementation of a 38-hour

week apply to various groups or sections of employees in the plant of establishment concerned.

(f) Agreements reached on the method of implementation of the 38-hour working

week shall be recorded in writing and shall be signed by the employer and the employees concerned. The agreement document shall be kept as part of employment records and available for inspection in accordance with the provisions of the Industrial Relations Act 1984.

(g) In the absence of agreement on the implementation of the 38-hour week the

Reference of Disputes procedure in Clause 23 hereof shall apply.

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18. MATERNITY LEAVE (a) Eligibility for Maternity Leave An employee who become pregnant, shall upon production to her employer of a

certificate from a duly qualified medical practitioner stating the presumed date of her confinement, be entitled to maternity leave provided that she has had not less than 12 months' continuous service with that employer immediately preceding the date upon which she proceeds upon such leave.

For the purpose of this clause: (i) An employee shall include a part-time employee but shall not include an

employee engaged upon casual or seasonal work. (ii) Maternity leave shall mean unpaid maternity leave. (b) Period of leave and commencement of leave (i) Subject to subclauses (c) and (f) hereof, the period of maternity leave shall

be for an unbroken period of from 6 to 52 weeks and shall include a period of 6 weeks compulsory leave to be taken immediately following confinement.

(ii) An employee shall, not less than 10 weeks prior to the presumed date of

confinement, give notice in writing to her employer stating the presumed date of confinement.

(iii) An employee shall give not less than 4 weeks' notice in writing to her

employer of the date upon which she proposes to commence maternity leave stating the period of leave to be taken.

(iv) An employer by not less than 14 days' notice in writing to the employee may

require her to commence maternity leave at any time within 6 weeks immediately prior to her presumed date of confinement.

(v) An employee shall not be in breach of this clause as a consequence of failure

to give the stipulated period of notice in accordance with paragraph (iii) hereof, of such failure is occasioned by the confinement occurring earlier than the presumed date.

(c) Transfer to a safe job Where in the opinion of a duly qualified 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 shall, 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.

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If the transfer to a safe job is not practicable, the employee may, or the employer may require the employee to, take leave for such period as is certified necessary by a duly qualified medical practitioner. Such leave shall be treaded as maternity leave for the purposes of subclauses (g), (h), (i) and (j) hereof.

(d) Variation of period of maternity leave (i) Provided the addition does not extend the maternity leave beyond 52 weeks,

the period may be lengthened once only, save with the agreement of the employer, by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be lengthened.

(ii) The period of leave may, with the consent of the employer, be shortened by

the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

(e) Cancellation of maternity leave (i) Maternity leave, applied for but not commenced, shall be cancelled when the

pregnancy of an employee terminates other than by the birth of a living child. (ii) Where the pregnancy of an employee then on maternity leave terminates

other than by the birth of a living child, it shall be the right of the employee to resume work at a time nominated by the employer which should not exceed 4 weeks from the date of notice in writing by the employee to the employer that she desires to resume work.

(f) Special maternity leave and sick leave (i) 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 (a) she shall be entitled to such period of unpaid leave (to be known as

special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work, or

(b) for illness other than the normal consequences of confinement she shall

be entitled, either in lieu of or in addition to special maternity leave, to such paid sick leave as to which she is then entitled and which a duly qualified medical practitioner certifies as necessary before her return to work.

(ii) Where an employee not then on maternity leave suffers illness related to her

pregnancy, she may take such paid sick leave as to which she is then entitled and such further unpaid leave (to be known as special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work, provided that the aggregate of paid sick leave, special maternity leave and maternity leave shall not exceed 52 weeks.

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(iii) For the purposes of subclauses (g), (h) and (i) hereof, maternity leave shall include special maternity leave.

(iv) An employee returning to work after the completion of a period of leave taken

pursuant to this subclause shall be entitled to the position which she held immediately before proceeding on leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (c), to the position she held immediately before such transfer.

Where such position no longer exists but there are other positions available,

for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former position.

(g) Maternity leave and other leave entitlements Provided the aggregate of leave including leave taken pursuant to subclauses (c)

and (f) hereof does not exceed 52 weeks; (i) An employee may, in lieu of or in conjunction with maternity leave, take any

annual leave or any part thereof to which she is then entitled. (ii) Paid sick leave or other paid authorised award absences (excluding annual

leave), shall not be available to an employee during her absence on maternity leave.

(h) Effect of maternity leave on employment Notwithstanding any award or other provision to the contrary, absence on

maternity leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of an award.

(i) Termination of employment (i) An employee on maternity leave may terminate her employment at any time

during the period of leave by notice given in accordance with this award. (ii) An employer shall not terminate the employment of an employee on the

ground of her pregnancy or of her absence on maternity leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(j) Return to work after maternity leave (i) An employee shall confirm her intention of returning to her work by notice in

writing to the employer given not less than 4 weeks prior to the expiration of her period of maternity leave.

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(ii) An employee, upon expiration of the notice required by paragraph (i) hereof, shall be entitled to the position which she held immediately before proceeding on maternity leave, or in the case of an employee who was transferred to a safe job pursuant to subclause (c) to the position which she held immediately before such transfer. Where such position no longer exists but there are other positions available for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former position.

(k) Replacement employees (i) A replacement employee is an employee specifically engaged as a result of an

employee proceeding on maternity leave (ii) Before an employer engages a replacement employee under this subclause,

the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.

(iii) Before an employer engages a person to replace an employee temporarily

promoted or transferred in order to replace an employee exercising her rights under this clause, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(iv) Provided that nothing in this subclause shall be construed as requiring an

employer to engage a replacement employee. (v) A replacement employee shall not be entitled to any of the rights conferred by

this clause except where her employment continues beyond the 12 months' qualifying period.

19. MIXED FUNCTIONS An employee engaged for more than 3 hours in any one day on duties carrying a higher rate than his or her ordinary classification shall be paid the higher rate for the whole of such day. PROVIDED that where 3 hours or less are worked in the higher classification the employee shall be paid at the higher rate for the time so worked. 20. OVERTIME (a) For all time of duty outside of ordinary hours the rates of pay shall be time and one

half for the first two hours and double time thereafter. For the purpose of computation of overtime each day's work shall stand alone.

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(b) In the case of employees other than resident caretakers or janitors, if the hours worked in any day exceed eight, overtime at the appropriate rate shall be paid for all time worked in excess of 7 ½ hours.

(c) All overtime on a Saturday shall be paid at the rate of double time. (d) An employee required to work overtime for more than one hour after the usual time

of ceasing work shall be paid a meal allowance for each such meal. (e) For the purpose of computing overtime for the twelve months commencing 12 April

1986, the ordinary rate of pay shall be determined by dividing the weekly rate by 40.

21. PAYMENT OF WAGES The employer shall specify a time and place at which wages and other moneys are to be paid to the employees other than employees engaged for less than one week. The time so specified shall not be more than 48 hours from the time when such wages become due and shall not be later than Thursday in the week. Any employee who is not paid at the time so specified shall be deemed to be working during the time he is kept waiting. Casual employees shall be paid within one hour of the termination of employment. Payment may be made weekly or fortnightly as agreed between the employer and the employee. Such payment shall be in cash, or by cheque or by direct bank deposit into an account nominated by the employee. The employer may determine the method of payment. Where payment is to be made by cheque or direct bank deposit and such cheque is not met on presentation or such bank deposit is not made at the time specified, otherwise than in circumstances beyond the control of the employer waiting time shall be paid. 22. PROTECTIVE CLOTHING (a) Clean overalls, or coveralls shall be supplied where required within the normal

course of duty to full time and part-time employees on the completion of one month's service. The initial issue shall be two pairs of overalls, or coveralls to be replaced when necessary.

PROVIDED that this subclause shall not apply to employees engaged as Library

Attendants or Domestics. (b) Where employees are required to clean toilets, use detergents or injurious

substances they shall be supplied with suitable protective gloves and suitable protective footwear.

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(c) Where an employer requires employees to wear a uniform, the employer shall provide, maintain and launder such uniform at his own expense.

23. REFERENCE OF DISPUTES Any dispute concerning this award shall be settled in the following manner: (a) negotiation between the employer and the Union Shop Steward; (b) where there is no Shop Steward available or where the dispute is not settled within

the provisions of subclause (a) above, by negotiation between the union and the employer representative;

(c) failing agreement being reached with the provisions of subclause (b) above, the

union or the employer may refer the matter to the Tasmanian Industrial Commission for decision;

(d) while this disputes procedure is being followed the status quo prevailing before the

dispute arose shall be maintained. 24. RIGHT OF ENTRY (a) For the purposes of interviewing employees on legitimate union business or on

matters arising out of this award a duly accredited representative shall have the right to enter the employer's premises on the following conditions:-

(i) That he produce his authority to such person as may be appointed by the

employer. (ii) That he interviews employees only at such times and places as will not

interfere with their work. (iii) That, without the consent of the employer, the representatives shall not visit

the premises more than once in each week. (iv) That if the employer alleges that a representative is unduly interfering with

his work or is offensive in his methods, or is creating dissatisfaction amongst his employees, or is committing a breach of the previous conditions, the employer may refuse right of entry, but the representative shall have the right to bring such refusal before the Secretary for Labour.

(b) An officer shall be a duly accredited representative of an organisation if he be the

holder for the time being of a certificate which has not been cancelled or revoked, signed by the secretary and bearing the seal of the organisation and bearing the signature of the holder. The certificate shall be in the following form or in a form not materially different therefrom:

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(Name of Organisation)

This is to certify that …………………………………………………………whose signature appears hereunder, is a duly accredited representative of the abovementioned organisation for the purpose of this award.

……………………………………………….. Secretary

(Seal)

……………………………………………….. Signature of Holder of Certificate

(This Certificate is strictly not transferable)

25. SATURDAY, SUNDAY AND HOLIDAY WORK (a) Payment shall be at the rate of time and one half for all ordinary hours worked on a

Saturday. (b) Payment shall be at the rate of double time for all work performed on a Sunday. (c) Payment shall be at the rate of double time and one half for work performed on a

holiday as prescribed in Clause 15 (Holidays With Pay) of this award. (d) Employees required to work on a Saturday, Sunday or a holiday as prescribed in

Clause 15 (Holidays with Pay) of this award shall receive a minimum of 3 hours pay at the appropriate rate.

PROVIDED that in exceptional circumstances the employer, with the agreement in

writing from the Federated Miscellaneous Workers Union of Australia may engage employees for a lesser number of hours than three hours as prescribed.

26. SAVINGS (a) Any employee in receipt of a rate of wage in excess of that herein prescribed shall

not have his or her wages reduced as a result of this award. (b) An employer who at 12 April 1986 was not a member of a registered organisation

bound by this award shall be exempt from the payment of overtime or other extraneous payments that might otherwise be payable as a consequence of the introduction of a 38-hour week from 12 April. This exemption shall have effect from the date that this award is gazetted.

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27. SHOP STEWARDS An employee appointed steward or delegate in the shop, office or department in which he is employed, shall, upon notification thereof to his employer, be recognised as the accredited representative of the union and he shall be allowed the necessary time during working hours to interview the employer or his representative on matters affecting employees whom he represents, provided that if the steward requests it, he may be accompanied at such interview by his Union Official. 28. SICK LEAVE (a) An employee, other than one engaged as a casual, who is absent from work on

account of personal illness or on account of injury by accident shall be entitled to leave of absence without deduction of pay, subject to the following conditions and limitations:

(i) he shall not be entitled to such leave of absence for any period in respect of

which he is entitled to workers' compensation; (ii) the employee shall, prior to the commencement of such absence, inform the

employer of his inability to attend for work, and as far as may be practicable, state the nature of the illness or injury and the estimated duration of the absence. Where such notification is not given, the employer shall be entitled to require as proof, in accordance with subclause (iii) of this clause, a certificate of a medical practitioner;

PROVIDED that where the employee is genuinely unable to give notification

prior to the commencement of the shift the requirements of subclause (iii) of this clause shall apply.

(iii) he shall prove to the satisfaction of the employer (or in the event of a dispute,

the Secretary for Labour) that he was unable on account of such illness or injury to attend for work on the day or days for which the sick leave is claimed;

PROVIDED that two single day absences in each six monthly period shall be

allowed without production of such proof. (iv) he shall not be entitled in any year (whether in the employment of one

employer or of more) to sick leave credit in excess of two weeks of ordinary working time;

(v) for the purpose of administering paragraph (iv) of this subclause, an employer

may within one month of this award coming into operation or within two weeks of the employee entering his employment require an employee to make a sworn declaration or other written statement as to what paid leave of absence he has had from any employer during the then current year, and upon such statement the employer shall be entitled to rely and act.

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(b) Sick leave shall accumulate from year to year so that any balance of the period

specified in subclause (a)(iv) of this clause which has in any year not been allowed to an employee by an employer as paid sick leave shall be credited to the employee and, subject to the conditions hereinbefore prescribed, shall be allowed by that employer in a subsequent year without diminution of the sick leave prescribed in respect of that year.

(c) An employer shall not be required to make any payment in respect of accumulated

sick leave credits to an employee who is discharged or leaves his employment. (d) An employee shall not have his sick leave reduced in any day regarded as a

rostered day off for which banked time is debited. 29. TECHNOLOGICAL CHANGE Notwithstanding the provisions of Clause 14 (Contract of Employment) hereof where an account of the introduction or proposed introduction by an employer or mechanisation or technological changes, the employer terminates the employment of an employee who has been employed by him for the preceding 12 months, he shall give the employee 3 months' notice of termination of his employment. R.K. Gozzi COMMISSIONER 14 November 1988

in the tasmanian industrial commission · t.1158 of 1988 in the matter of an application by the...

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