FEDERAL VEHICLE INDUSTRY REPAIR, SERVICES AND RETAIL (LONG SERVICE LEAVE) AWARD 1977
This award is arranged as follows: 1 - ARRANGEMENT OF AWARD Subject matter Clause No. Page No. Arrangement 1 1 Title 2 1 Parties bound and incidence of award 3 1 Right to leave 4 2 Long service: Service entitling to leave 5 to 5(d) 2 Transmission of business 5(e) 3 Service with related companies 5(f) 4 Amount of leave 6 4 Payment for period of leave 7 6 Taking leave: Time of taking 8 7 Notice to take 8 7 Broken leave 8 7 Holidays and annual leave 8 7 Restriction on employee while on leave8 7 Payment on termination 8 7 Granting leave in advance 9 8 Benefits to be brought into account 10 8 Records to be kept 11 8 Exemptions under State law 12 9 Application of award 13 9 Notification of membership 14 9 Period of award 15 10 Leave reserved 16 10 2 - TITLE This award shall be known as the Vehicle Industry - Repair, Services and Retail - (Long Service Leave) Award 1977. 3 - PARTIES BOUND AND INCIDENCE OF AWARD This award shall as to all employees whether members of an organisation or not operate in the States of New South Wales, Queensland, Victoria, South Australia and Tasmania in the industries set out in subclause 3 of the Vehicle Industry - Repair, Services and Retail - Award 1976 as varied from time to time and subject to clause 13 of this award to the same extent as the 1
said award but subject to the same exceptions, exemptions and reservations as are provided by that award. This award shall be binding upon the following organisations: Australasian Society of Engineers Electrical Trades Union of Australia The Metals and Engineering Workers' Union The Federated Ironworkers' Association of Australia The Federated Miscellaneous Workers Union of Australia Transport Workers' Union of Australia The Vehicle Builders Employees Federation of Australia National Union of Storeworkers, Packers, Rubber and Allied Workers Metal Industries Association, South Australia Metal Industries Association, Tasmania Metal Trades Industry Association of Australia The Victorian Chamber of Manufactures Motor Traders' Association of New South Wales South Australian Automobile Chamber of Commerce Incorporated Victorian Automobile Chamber of Commerce The Victorian Employers' Federation. 4 - RIGHT TO LEAVE An employee shall be entitled to long service leave with pay in respect of service with an employer as in this award provided. 5- LONG SERVICE Service entitling to leave For the purposes of this award the service of an employee with an employer means the period during which the employee has served his employer under an unbroken contract of employment; provided that a contract of employment shall be deemed not to have been broken by reason only of any interruption or determination thereof, if the interruption or determination: (iii) has been made by the employer with the intention of avoiding any obligation imposed on him by this award or by State law dealing with long service leave; or has arisen directly or indirectly from a dispute concerning industrial matters, if the employee returns to duty with the same employer in accordance with the terms of settlement of the said dispute; or has been made by the employer by reason of slackness of trade, if the employee is re-employed by the same employer within six months of such interruption or determination; or 2
(iv) has been made by the employer for any reason other than those referred to in paragraphs, and (iii) hereof, if the employee is reemployed by the same employer within two months of such interruption or determination. Provided further that the period during which the employment has been so interrupted or determined shall not, except when due to the reasons referred to in paragraph hereof, be taken into account in calculating the period of service. (c) (d) Where an employee has entered or enters into a contract of employment with an employer within a period of twelve months after the completion of an apprenticeship with the employer the period of the apprenticeship shall be taken into account for the purpose of calculating the period of his service with that employer under that contract of employment. Any period of service as a member of the naval, military or air forces (other than as a member of the permanent forces) of the Commonwealth of Australia, or as a member of the Civil Construction Corps established under the National Security Act 1939-1946 shall be deemed to be service with the employer by whom the employee concerned was last employed before he commenced to serve as such member. Service with the employer before the commencement of this award, subject to the provisions of subclause 6(d) hereof, as well as service with the employer after such commencement shall be taken into account for the purposes of this award. Transmission of business (e) Where a business is, whether before or after 26 October 1965, transmitted from an employer (in this subclause called "the transmittor") to another employer (in this subclause 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: (1) the continuity of the service of the employee shall be deemed not to have been broken by reason of such transmission; (2) the period of service which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee. In this subclause "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. Service with related companies 3
(f) Where, over a continuous period, an employee has been employed by two or more companies each of which is a related company within the meaning of Section 6 of the Victorian Companies Act 1961 (as set out in the Appendix hereto) the employee is entitled to long service leave as if he had, during the whole of the period of service, been employed by the company by which he is employed at the date at which his long service leave entitlement accrues. Provided that an employee shall not be entitled to leave or payment in lieu thereof more than once in respect of any period of service. Provided that this subclause shall not apply to companies participating in assisted dealerships plans, conducted by Ford Motor Company of Australia Limited, General-Motors Holden's Limited, Chrysler Australia Limited and Australian Motor Industries Limited, as to employees previously employed by the aforementioned motor manufacturing companies. 6 - AMOUNT OF LEAVE The long service leave to which an employee is entitled shall be that prescribed by this clause. Subject to subclause (d) hereof, the amount of long service leave to which an employee shall be entitled shall be: in the case of an employee who has completed at least fifteen years' service with an employer: (1) in respect of fifteen years' service so completed, thirteen weeks; and (2) in respect of each ten years' service with the employer completed since he last became entitled to an amount of long service leave, 8 2/3 rd weeks; and (3) on the termination of the employee's employment or his death, in respect of the number of years' service with the employer completed since he last became entitled to long service leave, a proportionate amount on the basis of thirteen weeks for fifteen years' service; in the case of an employee who has completed at least ten but less than fifteen years' service with an employer and whose employment is terminated: (1) by the employer for any cause other than serious and wilful misconduct; or 4
(2) by the employee on account of illness incapacity or domestic or any other pressing necessity where such illness incapacity or necessity is of such nature as to justify such termination; or (3) by the death of an employee a proportionate amount on the basis of thirteen weeks for fifteen years' service. (iii) Subject to subclause (e), hereof in the case of an employee who has completed at least ten but less than fifteen years' service with an employer and whose employment is terminated by the employee, other than as provided in subparagraphs (2) and (3) hereof, a proportionate amount on the basis of thirteen weeks for fifteen years' service. (c) Such leave shall be granted and taken and, except as by this award permitted payment in lieu thereof shall not be made or accepted. (d) In the case of an employee whose service with an employer began before 1 January 1965, and whose service would entitle him to long service leave under this award, the amount of long service leave to which such employee shall be entitled shall be the sum of the following amounts: an amount calculated on the basis of thirteen weeks for twenty years service in respect of: (1) the period of his service in New South Wales before 1 April 1963; (2) such period of his service in Queensland before 11 May 1964, as was under the law applicable to such employee taken into account for the calculation of his entitlement to long service leave thereunder; (3) such period of his service in Tasmania before 17 December 1964 as was under the law applicable to such employee taken into account for the calculation of his entitlement to long service leave thereunder; (4) such period of his service elsewhere before 1 January 1965, as was, under the law applicable to such employee or, in South Australia, under the industrial agreement applicable to him, taken into account for the calculation of his entitlement to long service leave thereunder; and an amount calculated on the basis of thirteen weeks for fifteen years' service in respect of the period of his service: (1) in New South Wales on and from 1 April 1963; (2) in Queensland on or from 11 May 1964, (3) in Tasmania on and from 17 December 1964; (4) elsewhere on and from 1 January 1965 5
(e) The provisions of paragraph (iii) hereof shall operate from the first pay period on or after 15 April 1977, and the entitlement thereunder shall be adjusted as follows: Where employment is terminated from the first pay period to commence on or after 15 April 1977-70% of entitlement. Where employment is terminated on or after 15 April 1978-85% of entitlement. Where employment is terminated on or after 15 April 1979-100% of entitlement. 7 - PAYMENT FOR PERIOD OF LEAVE Subject to the provisions of subclause (c) hereof, the rate of payment to which an employee on leave shall be entitled shall be in the case of a full-time weekly time worker his actual rate of pay. The actual rate of pay is the total amount an employee would receive if he were performing the ordinary hours of work and shall not include overtime, penalty rates, disability allowance, shift allowance, special rates, fares and travelling time allowance and any other extraneous payment of a like nature. In cases where the actual rate of pay varies from week to week as a result of a system of payment by results or other piecework or bonus systems the rate of pay shall be calculated by averaging the actual rates of pay, as defined above for each week over the previous three monthly period. Payment shall be made in one of the following ways: (iii) in advance for the whole of the period when the employee commences the period of leave, at the rate calculated in accordance with subclause hereof; or at the same times as payment would have been made if the employee had remained on duty, in which case payment shall, if the employee in writing so requires, be made by cheque posted to an address specified by him; or in any other way agreed between the employer and the employee. (c) If during the period of leave any award variation occurs which had the employee been at work would have resulted in a change in his actual rate of pay (as defined in subclause hereof) the rate of payment to which an employee on leave shall be entitled shall be, as from the date upon which such change would have been operative such changed rate and if payment has been made in advance to any employee in respect of long service leave the employer shall, upon the employee's return to duty, adjust such advance payment to accord with such changed rate of pay to the extent to which the changed rate is applicable. 6
8 - TAKING LEAVE Time of taking leave When an employee becomes entitled pursuant to this award to long service leave such leave shall be granted by the employer as soon as practicable having regard to the needs of his establishment or subject to paragraph (iii) hereof, at such time or times as may be agreed between the employer and the employee. Subject to the provisions of paragraphs 6 and (iii) of this award an employer shall not be required to grant an employee leave to which he has become entitled pursuant to this award until the amount of leave to which he has become entitled equals thirteen weeks in respect of his first period of entitlement and eight and two-thirds weeks in respect of any subsequent period of entitlement. Notice to take leave (iii) Except where an employee agrees otherwise the employer shall give an employee at least twenty-eight days' notice of the date from which his leave is to be taken. Broken leave (iv) Leave shall be granted and taken in one continuous period; or if the employer and the employee so agree, in not more than three separate periods in respect of the first thirteen weeks' entitlement, and in not more than two separate periods in respect of any subsequent period of entitlement. Holidays and annual leave (v) The long service leave prescribed by the award is exclusive of annual leave but is inclusive of all other holidays occurring during the taking of any period of long service leave. Restriction upon employment while on leave (vi) No employee shall during any period when he is on leave pursuant to this award engage in any employment for hire or reward with an employer known by him to be bound by this award. No employer bound by this award shall employ any such employee for hire or reward during any period when such employee is known by him to be on leave pursuant to this award. Payment on termination for leave not taken Where the employment of an employee is terminated otherwise than by his death and any long service leave: 7
(1) to which the employee was entitled has not been taken; or (2) accrues to the employee upon such termination the employer shall forthwith pay to the employee in full the amount in respect of such leave calculated as at the date of the termination in the manner set out in subclause 7 hereof less any amount already paid to the employee in respect of that leave. Where an employee dies and any long service leave: (1) to which the employee was entitled has not been taken; or (2) accrues upon termination of the employment by reason of his death the employer shall upon request by the employee's personal representative pay to the employee's personal representative in full the amount in respect of such leave calculated as at the date of the death of the employee in the manner set out in subclause 7 hereof less any amount already paid to the employee in respect of that leave. 9 - GRANTING LEAVE IN ADVANCE An employer may by agreement with an employee allow long service leave to such employee before the right thereto has accrued due, but where leave is so taken the employee shall not become entitled to any further leave under this award or to payment in lieu thereof for the period in respect of which such leave was taken before it accrued due. Where leave has been granted to an employee pursuant to the preceding subclause before the right thereto has accrued due and the employment is subsequently terminated the employer may deduct from whatever remuneration is payable upon the termination of the employment such amount as represents payment for any period for which the employee has been granted leave to which he was not entitled at the date of termination of his employment. 10 - BENEFITS TO BE BROUGHT INTO ACCOUNT Any long service leave allowed or payment in lieu thereof made before the first pay period on or after 15 April 1977, shall be taken into account and shall be deemed to have been leave granted and taken in satisfaction of leave due under this award; in the case of leave with pay to the extent of the period of such leave, and in the case of payment in lieu thereof to the extent of a period of leave equivalent to the amount of the payment at the date thereof, and to be satisfaction to the extent thereof of the entitlement of the employee under this award. 11 - RECORDS TO BE KEPT 8
An employer shall during the employment and for a period of twelve months thereafter, or in the case of termination by the death of an employee until settlement with an employee's personal representative has been made, or the expiration of three years from the date of death, whichever first occurs, keep a record from which can be readily ascertained the name of each of his employees, his occupation, the award classification in which he is classified, the date of commencement of his employment his entitlement to long service leave, and any long service leave which has been granted to him or in respect of which payment has been made whether under this award or otherwise. Such record shall be open for inspection by a duly accredited official of a organisation of employees bound by this award during the usual office hours at the employer's office or other convenient place designated by the employer. The inspecting official shall be entitled to make and carry away a copy of any entry in such record. 12 - EXEMPTIONS UNDER STATE LAW If on 26 October 1965, an employer bound by this award held an exemption extending to employees who would otherwise be covered by this award from the provisions of a State Act of any State other than South Australia relating to long service leave, such employer shall be exempt from the provisions of this award in relation to those employees while such exemption remains in force, or until this Commission otherwise orders. 13 - APPLICATION OF AWARD The application of this award shall be determined according to membership of employers in their respective organisations at the appointed date for such determination, which shall be: in the case of continuing employment, when the employee becomes entitled to long service leave pursuant to this award; and in case of termination of employment by death or notice of termination, at the date of death or of the giving of such notice. If at the appointed date the employer concerned is a member of an organisation named in paragraph 3 of this award, this award shall apply irrespective of non-membership of such employer at an earlier or later point of time. 14 - NOTIFICATION OF MEMBERSHIP An organisation of employers named in clause 3 hereof shall, upon the written request of an organisation of employees named therein and within 21 days of receiving such request, state in writing whether a named employer was a member thereof at the date specified in the request. 9
15 - PERIOD OF AWARD This award shall come into force from the first pay period to commence on or after 15 April 1977, and shall continue in force for a period of one year. 16 - LEAVE RESERVED Leave is reserved to any party to apply for inclusion of provisions regarding - (iii) (iv) Piece-workers; Part-time workers; Casual workers; Boards of Reference. (c) Leave is reserved to any employer bound by this award to apply for exemption from it on the ground that he is according to employees long service leave rights more beneficial to them than the provisions of this award. Leave is reserved to any party to apply generally as it may be advised. 10