TELECOMMUNICATIONS SERVICES INDUSTRY AWARD 2002
23.1 Except as provided for in 23.2 hereof, where practicable, an employee shall not be required to work for more than five hours without a break for a meal which for day workers, afternoon shift workers and night shift workers shall be unpaid and for a period of not less than 30 minutes and not more than 60 minutes.
23.2 Flexibility in relation to meal breaks
23.2.1 The following forms of flexibility may be implemented in respect of all employees in a workplace or section/s thereof, subject to agreement between the employer and the majority of the employees concerned in the workplace or relevant section/s. Agreement in this respect may also be reached between the employer and an individual employee:
23.2.1(a) Employees may work in excess of five hours but not more than six hours without a meal break.
23.2.1(b) Meal breaks may be for a period of less than 30 minutes, but not less than twenty minutes.
23.2.2 Where an agreement is reached by the majority of employees it shall apply to all the employees in the workplace or section/s to which the agreement applies. This does not in any way restrict the application of an individual agreement.
23.3 An employee directed by the employer to work in excess of five hours without a meal (or such period as extended in accordance with 23.2 hereof) shall be paid at the rate of time and one half for the meal period and the employee shall be permitted to have the employee's usual meal period without deduction from the employee's wage as soon as possible after the prescribed meal period.
23.4 This clause shall not operate outside an employee's ordinary working hours. Rest breaks during overtime are prescribed in clause 24 - Overtime, of this award.
24.1 Overtime rates
24.1.1 Except as provided for in 12.4 and 12.5, for all work done in excess of ordinary hours an employee shall be paid at the rate of time and one half for the first three hours and double time thereafter.
24.1.2 In computing overtime, each days' work shall stand alone.
24.1.3 Provided that employees who are late starting or are absent for part of their ordinary hours on unpaid leave shall complete their ordinary hours for that day prior to the entitlement to overtime.
24.2 Reasonable overtime
24.2.1 Subject to 24.2.2, an employer may require an employee to work reasonable overtime at overtime rates.
24.2.2 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:
24.2.2(a) any risk to employee health and safety;
24.2.2(b) the employee's personal circumstances including any family responsibilities;
24.2.2(c) the needs of the workplace or enterprise;
24.2.2(d) the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and
24.2.2(e) any other relevant matter.
24.3 Minimum payment
24.3.1 An employee required to work overtime on a Saturday or Sunday shall be paid for a minimum of three hours at the appropriate rate except where such overtime is worked prior to or at the conclusion of ordinary hours of work.
24.3.2 In such circumstances, the employee shall receive payment at the rate prescribed in 24.1 hereof for the actual time worked.
24.4 Rest break during overtime
An employee working overtime shall be allowed a rest break of twenty minutes without deduction of pay after each four hours of overtime if the employee continues to work after such rest break.
24.5 Rest period after overtime
24.5.1 When overtime work is necessary it shall wherever reasonably practicable, be so arranged that employees have at least ten consecutive hours off duty between the work of successive days.
24.5.2 An employee (other than a casual or part-time employee), who works so much overtime between the termination of the ordinary work on one day and the commencement of the ordinary work on the next day that the employee not had at least ten consecutive hours off duty between those times shall, subject to this subclause, be released after completion of such overtime until the employee had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
24.5.3 If on the instructions of the employer an employee resumes or continues work without having had such ten consecutive hours off duty, the employee shall be paid at the rate of time and one half for the first three hours and double time thereafter until released from duty for such period and then is entitled to be absent until the employee has had ten consecutive hours off duty without loss of pay.
24.5.4 The provisions of 24.5 shall not apply to call backs or in circumstances where an employee provides service or support over the telephone or via remote access arrangements where the time worked is less than three hours during the call back or each call back. Provided that where the total number of hours worked on more than one call back is four hours or more then the provisions of 24.5.2 and 24.5.3 shall apply.
24.6 Time off in lieu of payment for overtime
24.6.1 An employee may choose with the consent of the employer to take time off instead of payment for overtime at a time or times agreed by the employer. This agreement must be in writing. The employee must take the time off within four weeks of working the overtime.
24.6.2 If the employee takes time off instead of payment for overtime then the amount of time off during ordinary hours will be taken at the ordinary time rate, that is an hour for each hour worked.
24.6.3 If requested by an employee, an employer must within one week of receiving a request pay the employee for any overtime worked. The employee must be paid at overtime rates.
24.7 Call back
24.7.1 An employee recalled to work overtime after leaving work shall be paid a minimum of three hours at the appropriate overtime rate for each time recalled, except where the overtime is continuous (subject to a meal break) with the commencement or completion of ordinary hours.
24.7.2 Provided that, the employee shall not be required to work the full three hours if the job(s) recalled to perform are completed within a shorter period.
24.7.3 Notwithstanding the above, where an employee has completed the call back and left work and is recalled within the three hour minimum period for that call back, the balance of the three hours' minimum period for that call back shall be cancelled and the employee shall only be paid up to the commencement of the next call back. The employee will then be entitled to be paid for a minimum of three hours for the next call back.
24.7.4 The provisions of this subclause shall not apply in circumstances where an employee provides service or support over the telephone or via remote access arrangements.
24.7.5 Overtime worked in circumstances specified in this subclause shall not be regarded as overtime for the purposes of 24.5 hereof where the time worked is less than three hours during the call back or each call back. Provided that where the total number of hours worked on more than one call back is four hours or more then the provisions of 24.5.2 and 24.5.3 shall apply.
24.8 Remote service/support
24.8.1 An employee required to work overtime providing service or support over the telephone or via remote access arrangements shall be paid for each occasion that such work is carried out:
for a minimum of half an hour at the appropriate overtime rate where such work commences between 5.00 a.m. and up to 10.00 p.m.; or
for a minimum of one hour at the appropriate overtime rate where such work commences after 10.00 pm and up to midnight; or
for a minimum of one and one half hours at the appropriate overtime rate where such work commences after midnight and before 5.00 a.m.;
except where the overtime is continuous (subject to a meal break) with the commencement or completion of ordinary hours.
24.8.2 Provided that, the employee shall not be required to work the full half an hour or one hour or one and one half hours as the case may be if the work which the employer requires to be performed is completed within a shorter period.
24.8.3 Notwithstanding the above, where an employee has completed the job and finished work and is required to perform further work within the half hour, one hour or one and a half hour minimum period for that job, the balance of the minimum period for that job shall be cancelled and the employee shall only be paid up to the commencement of the next work period. The employee will then be entitled to be paid for a minimum of half hour, one hour or one and a half hours as the case may be for the next work period.
24.8.4 Overtime worked in circumstances specified in this subclause shall not be regarded as overtime for the purposes of 24.5 hereof where the time worked is less than three hours during the work period or each work period. Provided that where the total number of hours worked on more than work period is four hours or more then the provisions of 24.5.2 and 24.5.3 shall apply.
24.8.5 Overtime worked in circumstances specified in this subclause shall not be regarded as overtime for the purposes of 24.7 hereof.
24.8.6 The provisions of 24.8 shall only apply to classifications in 18.4 - Technical Stream. However, such provisions are not applicable to those classifications set out in 8.2.
24.9 Stand-by
24.9.1 An employee who is required to remain in readiness for a return to work outside their normal working hours shall be paid an allowance of 20 per cent of the hourly rate for their classification for each hour they are required to stand-by.
24.9.2 While receiving the appropriate overtime rate, the stand-by allowance shall not be paid.
24.10 Rates not cumulative
The rates prescribed in this clause are in substitution for and not cumulative upon the loadings prescribed in clause 22 and clause 29 of this award.
PART 7 TYPES OF LEAVE AND PUBLIC HOLIDAYS
25.1 Period of leave
25.1.1 Full-time employees are entitled to 28 consecutive days' annual leave including non-working days (that is, four weeks) for each year of continuous employment. Part- employees are entitled to a pro rata entitlement.
25.1.2 In addition to the leave in 25.1.1, afternoon and night shift workers who are rostered to regularly work ordinary hours of work on Sundays and Public Holidays are eligible for an additional seven consecutive days annual 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 25.1.1 increased by half a day for each month he or she is continuously engaged as a seven day shift worker.
25.2 Conversion of period of leave to hourly entitlement
An employer may convert the entitlements in 25.1 hereof to an hourly entitlement for administrative ease (e.g. 152 hours rather than four weeks for an employee working a 38 hour week).
25.3 No payment in lieu
No payment shall be made by an employer or accepted by an employee, in lieu of the annual leave entitlement provided in 25.1 or 25.2 hereof, except on termination.
25.4 Taking of annual leave
25.4.1 Annual leave shall be taken in a manner that is agreed to between the employer and the employee. Leave can be broken up into any number of periods.
25.4.2 Where agreement cannot be reached pursuant to 25.4.1 hereof, the employer shall advise the employee of the date and amount of annual leave to be taken by giving the employee not less than four weeks notice of such requirement.
25.4.3 The annual leave entitlement in 25.1 and 25.2 hereof shall be taken within twelve months of becoming due. This period may be extended by agreement between the employer and employee.
25.5 Public holidays falling in a period of leave
25.5.1 If any public holiday prescribed by clause 29 - Public Holidays 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.
25.5.2 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 employee's 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.
25.6 Calculation of service
25.6.1 Employees shall not be eligible to accrue annual leave during any period of approved unpaid leave of absence exceeding one week except where such leave is in respect of unpaid sick leave.
25.6.2 In a twelve month period, up to 76 hours of unpaid sick leave shall be counted as time worked for the purposes of annual leave accruals.
25.6.3 Where a business is transmitted from one employer to another, as set out in 17.7 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.
25.7 Leave before due date
25.7.1 By agreement between the employer and the employee, annual leave may be taken in advance of the due date.
25.7.2 Where an employee granted annual leave in advance leaves or is discharged by the employer, the employer shall have the right to recover from any monies due to the employee, a sum equal to the annual leave granted in advance less any amounts subsequently accrued.
25.8 Payment for period of leave
25.8.1 Each employee prior to commencing a period of annual leave or close down shall be paid a sum equal to the salary/wages the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on leave.
25.8.2 In addition to the payments specified in 25.8.1 hereof, employees shall be paid an annual leave loading of 17.5%.
Provided that where an employee would have received loadings, in accordance with clause 22 - Hours of work of this award, had the employee not been on leave during the relevant period and such loadings would have entitled the employee to a greater amount than the loading of 17.5%, then the employee shall be paid such greater amount in lieu of the 17.5% loading.
25.8.3 The annual leave loading is only payable on annual leave due. It is not payable on pro rata annual leave on termination.
25.9 Termination
25.9.1 Where a full-time or part-time employee with one or more weeks continuous service leaves the service of their employer for any reason other than serious and wilful misconduct, the employee shall be entitled to payment for pro rata annual leave at the rate of 2.923 ordinary hours pay for each 38 ordinary hours worked.
25.9.2 The calculation in 25.7.2 hereof shall be made in accordance with the following:
25.9.2(a) For a full-time or part-time employee with less than twelve months continuous service: from the date of commencement as a full-time or part-time employee to the date of termination.
25.9.2(b) For a full-time or part-time employee with more than twelve months continuous service: from the date that annual leave last became due to the date of termination.
25.9.3 The terms of 25.7 hereof shall apply in circumstances where an employee has been granted annual leave in advance of the due date.
25.10 Close down
Where an employer closes down an establishment or section or sections, for the purpose of allowing annual leave to all or the majority of the employees concerned, the following shall apply:
25.10.1 The employer shall give at least one month's notice to the affected employees. The notice shall advise employees of the commencement date and duration of the close down.
25.10.2 An employer may close down for one or two periods.
25.10.3 An employer and the majority of employees concerned may agree to close down for more than two periods.
25.10.4 Employees with less than twelve months continuous service at the time of close down shall receive payment at the rate of 2.923 ordinary hours pay for each 38 ordinary hours worked. The remainder of the close down shall be taken as leave without pay.
25.10.5 Employees with more than twelve months continuous service shall receive accrued annual leave.
25.10.6 Where an employee has insufficient accrued leave, a sum equal to the employee's accrued annual leave entitlement shall be paid, calculated at the rate of 2.923 ordinary hours pay for each 38 ordinary hours worked.
26.1 Amount of paid personal leave
26.1.1 Paid personal leave is available to an employee, other than a casual employee, when they are absent:
26.1.1(a) due to personal illness or injury (sick leave);
26.1.1(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); and
26.1.1(c) for bereavement on the death of an immediate family or household member (bereavement leave).
26.1.2 A full-time employee is entitled to 76 hours personal leave for each year of employment.
26.2 Accumulation of personal leave
For full-time employees, unused personal leave accrues by the lesser of:
26.2(a) 60.8 hours less the amount of sick leave and carer's leave taken; or
26.2(b) the balance of the year's unused personal leave.
26.3 Definitions
26.3.1 The term "immediate family" includes
26.3.1(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
26.3.1(b) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.
26.3.2 Accumulated personal leave is personal leave accumulated under 26.2(a) and (b).
26.4 Sick leave
26.4.1 Entitlement
The amount of personal leave a full-time employee may take as sick leave depends on how long they have worked for the employer and accrues as set out in the following table.
Accumulated personal leave may be used for sick leave if the current sick leave entitlement is exhausted.
Length of time worked for Rate of accrual of paid sick the employer leave (Hours) Less than 1 month 0 1 month to less than 2 months 7.6 2 months to less than 3 months 15.2 3 months to less than 4 months 22.8 4 months to less than 5 months 30.4 5 months to less than 6 months 38 6 months to less than 7 months 45.6 7 months to less than 8 months 53.2 8 months to less than 12 months 60.8 Each year thereafter 60.8After the first eight months of service, an employee must be paid for any sick leave to which they were not entitled, due to insufficient service, up to a maximum of 38 hours.
26.4.2 The effect of workers' compensation
If an employee is receiving workers' compensation payments, they are not entitled to sick leave.
26.4.3 Employee must give notice
The employee must, as soon as reasonably practicable and prior to the ordinary hours of the first day of such absence, inform the employer or their inability to attend for duty and as far as practicable state the nature of the injury or illness and the estimated duration of the absence.
26.4.4 Evidence supporting claim
The employee must, if required by the employer, establish by production of a medical certificate or statutory declaration, that the employer was unable to work because of injury or personal illness.
26.4.5 Single day absences
An employee who has already had two paid sick leave absences in the year, the duration of each absence being of one day only, is not entitled to further paid sick leave in that year of a duration of one day only, without production to the employer of a certificate of a qualified medical practitioner which states that the employee was unable to attend for duty on account of personal illness or injury.
An employer may agree to accept a Statutory Declaration in lieu of the required medical certificate.
Nothing in this subparagraph limits the employer's right under 26.4.4 of this clause.
26.4.6 Broken services
If an employee is terminated by their employer and is re-engaged by the same employer within a period of six months then the employee's unclaimed balance of sick leave shall continue from the date of re-engagement.
26.5 Bereavement leave
26.5.1 Paid leave entitlement
26.5.1(a) Death in Australia
A full-time employee is entitled to use up to 16 hours personal leave as bereavement leave on each occasion and on production of satisfactory evidence (if required by the employer) of the death in Australia of either a member of the employee's immediate family or household.
26.5.1(b) Death outside Australia
A full-time employee is entitled to use up to 16 hours personal leave as bereavement leave on each occasion, and on production of satisfactory evidence (if required by the employer) of the death outside Australia of either a member of the employee's immediate family or household, where the employee travels outside Australia to attend the funeral.
26.5.2 Part-time employees
A part-time employee is entitled to take two days bereavement leave without loss of pay, up to a maximum of 16 hours on the same basis as prescribed for full-time employees in subclause 26.5(a) except that leave is only available where a part-time employee would normally work on either or both of the two working days following the death.
26.5.3 Unpaid bereavement leave
Where an employee has exhausted all personal leave entitlements, including accumulated leave entitlements, they are entitled to take unpaid bereavement leave. The employer and employee should agree on the length of the unpaid leave. In the absence of agreement, a full-time employee is entitled to take up to 16 hours unpaid leave, provided the requirements of clause 26.5.1 are met, and a part-time employee is entitled to take up to two days unpaid leave, to a maximum of 16 hours, provided the requirements of clause 26.5.2 are met.
26.6 Carer's leave
26.6.1 Paid leave entitlement
A full-time employee is entitled to use up to 40 hours personal leave each year to care for members of their immediate family or household who are sick and require care and support. This entitlement is subject to the employee being responsible for the care and support of the person concerned. In normal circumstances an employee is not entitled to take carer's leave where another person has taken leave to care for the same person.
26.6.2 Notice required
26.6.2(a) When taking carer's leave, the employee must, as soon as reasonably practicable and prior to the ordinary hours of the first day of such absence, inform the employer or their inability to attend for duty and as far as practicable state the nature of the injury or illness and the estimated duration of the absence.
26.6.2(b) The notice must include:
the name of the person requiring care and support and their relationship to the employee;
the reasons for taking such leave; and
the estimated length of absence.
26.6.2(c) The employee must, if required, establish by production of a medical certificate or statutory declaration, the illness of the person concerned and that such illness requires care by another.
26.6.3 Unpaid carer's leave
An employee may take unpaid carer's leave by agreement with the employer.
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