AP789529CRV - Metal, Engineering and Associated Industries Award 1998
PART 7 - TYPES OF LEAVE AND PUBLIC HOLIDAYS
7.1 ANNUAL LEAVE
Summary
This clause describes an employee's entitlement to annual leave. Essentially, that entitlement is 4 weeks or in the case of seven day shift workers, 5 weeks.
A loading of 17 1/2% (higher percentage in the case of certain shift workers) is payable in addition to the payment for the leave. Payment for the period of leave for both full time and part-time employees is based on the principle that the employee will be paid what he or she would normally have received if he or she had not been on leave, with certain exceptions which include overtime.
Casual employees do not have an entitlement to annual leave.
7.1.1(a) (i) A full time or part time employee under this award is entitled to a period of 28 consecutive days leave, including non-working days, (i.e 4 weeks) after each 12 months service (less the period of annual leave) with an employer.
(ii) An employer may reach agreement with the majority of employees concerned to convert the entitlements in 7.1.1(a)(i) or 7.1.2 to an hourly entitlement (ie. 152 hours or 190 hours respectively for a full time employee) for administrative ease.
7.1.1(b) The annual leave for full time and part time employees accrues at a rate of 2.923 hours for each 38 ordinary hours worked.
7.1.1(c) Casual employees are not entitled to annual leave.
7.1.2 Additional Leave for Seven Day Shift Workers
In addition to leave provided for in 7.1.1, seven day shift workers, that is shift workers who are rostered to work regularly on Sundays and holidays, shall be allowed seven consecutive days leave including non-working days.
Where an employee with 12 months continuous service is engaged for part of the 12 monthly period as a seven day shift worker, that employee is entitled to have the period of leave prescribed in subclause 7.1.1 increased by half a day for each month he or she is continuously engaged as a seven day shift worker.
7.1.3 Payment for Period of Annual Leave
Subject to subclause 7.1.12 employees, before going on leave, are to be paid the wages they would have received in respect of the ordinary time they would have worked had they not been on leave during the relevant period. This amount shall be calculated as follows:
7.1.3(a) Time Workers
The wages to be paid must be worked out on the basis of what the employee would have been paid under this award for working ordinary hours during the period of leave, including allowances, loadings and penalties paid for all purposes of the award, first aid allowance and any other wages payable under the employee's contract of employment including any overaward payment.
The employee is not entitled to payments in respect of overtime, special rates or any other payment which might have been payable to the employee as a reimbursement for expenses incurred.
7.1.3(b) Piece Workers
In the case of an employee employed on piece or bonus work or any other system of payment by results, the rate which is the weekly average of payments made to the employee under such a system for the period actually worked during ordinary hours during the last three monthly period in respect of which such payments have been calculated prior to the time of going on leave or termination of employment as the case may be.
During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed by subclause 7.1.3.
The loading shall be as follows:
[Pt I:Pt 7:7.1.4(a) corrected by Q2704 from 01Jul98]
7.1.4(a) Day Workers - employees who would have worked on day work only had they not been on leave - a loading of 17 1/2 per cent or the relevant weekend penalty rates, whichever is greater but not both.
[Pt I:Pt 7:7.1.4(b) corrected by Q2704 from 01Jul98]
7.1.4(b) Shift Workers - employees who would have worked on shift work had they not been on leave - a loading of 17 1/2 per cent or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both.
The loading prescribed by this subclause does not apply to proportionate leave on termination.
7.1.5 How to Calculate the Leave Entitlement
7.1.5(a) Except for the following, any absences from work are not to be taken into account and will not count as time worked in calculating the leave entitlement:
7.1.5(b) Absences from work which do not count as time worked in calculating the leave entitlement but do not break continuity of service for the purposes of this award include:
7.1.5(c) Where a business is transmitted from one employer to another, as set out in 4.4.2 of this award, the period of continuous service that the employee had with the transmittor or any prior transmittor shall be deemed to be service with the transmittee and taken into account when calculating annual leave. However an employee shall not be entitled to leave or payment in lieu for any period in respect of which leave has been taken or paid for.
7.1.6 Public Holidays Falling in a Period of Leave
7.1.6(a) If any public holiday prescribed by clause 7.5 of this award falls within an employee's period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day, there must be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if the day had not been a holiday.
7.1.6(b) Where a holiday or holidays falls in a period of annual leave and the employee, fails, without reasonable cause, to attend for work at the employees ordinary starting time on the working day immediately following the last day of the period of annual leave, the employee shall not be entitled to be paid for the holiday or holidays.
7.1.7 Annual Leave in one or more Separate Periods
7.1.7(a) Annual leave is to be given by the employer and taken by the employee in up to four separate periods.
7.1.7(b) If the employer and an employee so agree the annual leave entitlement may be given and taken in more than four separate periods including up to a maximum of 10 single days.
However, one period of annual leave must be of at least seven consecutive days, including non-working days.
The annual leave provided by this clause must be taken as leave and except as provided by subclause 7.1.11 and 7.1.12, payment will not be made or accepted in lieu of annual leave.
7.1.9(a) Annual leave shall be given at a time fixed by the employer within a period not exceeding six months from the date when the right to leave accrued.
7.1.9(b) An employer can require an employee to take annual leave by giving not less than four weeks' notice of the time when such leave is to be taken.
[Pt I:Pt 7:7.1.9(c) corrected by Q2704 from 01Jul98]
7.1.9(c) By agreement between an employer and an employee, annual leave may be taken at any time provided it is done within two years from the date when the right to leave accrued.
7.1.10 Leave Allowed Before Due Date
7.1.10(a) An employer may allow an employee to take annual leave either wholly or partly in advance before the leave becomes due. In such case, a further period of annual leave will not commence to accrue until after the expiration of the 12 months in respect of which the annual leave or part of it had been taken before it accrued.
7.1.10(b) Where annual leave or part of it has been granted before the leave is due, and the employee subsequently leaves or is discharged from the service of the employer before completing the required 12 months continuous service and the amount paid by the employer to the employee for the annual leave or part so taken in advance exceeds the amount which the employer is required to pay to the employee under subclause 7.1.11 the employer will not be liable to make any payment to the employee under subclause 7.1.11 and is entitled to deduct the amount of excess from any remuneration payable to the employee upon the termination of employment.
7.1.11 Proportionate Leave on Termination
An employee other than a casual who:
7.1.11(a) After one week's continuous service in the first qualifying 12 monthly period with an employer, lawfully leaves the employment of the employer, or is terminated by the employer through no fault of the employee; or
7.1.11(b) After 12 months continuous service with an employer, leaves the employment of the employer or is terminated by the employer for any reason;
shall be paid 2.923 hours for each 38 ordinary hours worked and in respect of which leave had not been granted under this clause at the appropriate rate of wage calculated in accordance with subclause 7.1.3.
Where an employer closes down the enterprise or part of it for the purpose of allowing annual leave to all or the majority of the employees in the enterprise or part concerned, the following special provisions shall apply:
7.1.12(a) The employer may, by giving not less than four weeks notice of intention so to do, stand off for the duration of the close down all employees in the enterprise or part of the enterprise concerned and allow to those who are not then qualified for a full entitlement to annual leave for 12 months continuous service, paid leave on a proportionate basis at the appropriate rate of wage as prescribed in subclauses 7.1.3 and 7.1.4 for 2.923 hours for each 38 ordinary hours worked.
[Pt I:Pt 7:7.1.12(b) corrected by Q2704 from 01Jul98]
7.1.12(b) An employee who has then qualified for a full entitlement to annual leave for 12 months continuous service and has also completed a further week or more of continuous service, shall be allowed leave, and shall, also be paid at the appropriate rate of wage as prescribed by subclauses 7.1.3 and 7.1.4 hereof for 2.923 hours for each 38 ordinary hours worked since the close of the employee's last 12 monthly qualifying period.
7.1.12(c) The next 12 monthly qualifying period for each employee affected by such close down shall commence from the day on which the enterprise or part of the enterprise concerned, is re-opened for work. Provided that all time during which an employee is stood off without pay for the purposes of this subclause is deemed to be time of service in the next 12 monthly qualifying period.
7.1.12(d) (i) The employer may close down the enterprise or part of the enterprise for one or two separate periods for the purpose of granting annual leave.
(ii) If the employer closes down the enterprise or part of the enterprise in two separate periods one of these periods shall be for a period of at least 14 consecutive days including non-working days.
[Pt I:Pt 7:7.1.12(d)(iii) corrected by Q2704 from 01Jul98]
(iii) The employer and the majority of employees concerned may agree to the annual leave being taken in three close downs provided that one of these periods will be a period of at least 14 days including non-working days.
7.1.12(e) The employer may close down the enterprise or part of it for a period of at least 14 days including non-working days and allow the balance of any annual leave to be taken in one continuous period in accordance with a roster.
