LANDSCAPE GARDENING INDUSTRY AWARD

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The Australian Workers' Union, West Australian Branch, Industrial Union of Workers

APPLICANT

-v-

AAA Gardeners and Others

RESPONDENT

CORAM Commissioner J L Harrison

DATE Tuesday, 27 October 2009

FILE NO/S APPL 447 OF 2003

CITATION NO. 2009 WAIRC 01140

Result Award varied

Representation

Applicant Mr M Zoetbrood

Respondents Mr D Jones on behalf of the Chamber of Commerce and Industry Western Australia

Order

WHEREAS this is an application to vary Clause 16. – Public Holidays and Annual leave of the Landscape Gardening Industry Award (No R 18 of 1978) (“the Award”); and

WHEREAS a hearing was held with respect to this application on 23 October 2009; and

WHEREAS on 23 October 2009 the Commission issued a Minute of Proposed Order with respect to this application; and

WHEREAS on 27 October 2009 the Commission conducted a Speaking to the Minute of Proposed Order; and

WHEREAS at this hearing and after having discussions with Mr D Jones of the Chamber of Commerce and Industry Western Australia the applicant proposed an amendment to the Minute of Proposed Order to clarify the intention of the variation it was seeking with respect to paragraph (b) of subclause (2) of Clause 16. – Public Holidays and Annual leave of the Award; and

WHEREAS Mr D Jones on behalf of the Chamber of Commerce and Industry Western Australia agreed with the applicant’s proposed amendment to the Minute of Proposed Order; and

WHEREAS after hearing from the parties and having considered their submissions the Commission advised the parties that paragraph (b) of subclause (2) of Clause 16. – Public Holidays and Annual leave would be amended in the terms being sought by the applicant as the amendment clarified the applicant’s intentions with respect to the award variation being sought by the applicant;

NOW having heard Mr M Zoetbrood on behalf of the Australian Workers' Union, West Australian Branch, Industrial Union of Workers and Mr D Jones on behalf of the Chamber of Commerce and Industry Western Australia, the Commission, pursuant to the powers conferred under the Industrial Relations Act, 1979, hereby orders:

THAT the Landscape Gardening Industry Award (No R 18 of 1978) be varied in accordance with the following Schedule and that such variation shall have effect on and from 23 October 2009.

Commissioner J L Harrison

SCHEDULE

1. Clause 16 – Public Holidays and Annual Leave:

A Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) (a) On any public holiday not prescribed as a holiday under this award the employer's establishment or place of business may be closed, in which case an employee need not present himself or herself for duty and payment may be deducted, but if work be done ordinary rates of pay shall apply.

(b) Any employee, other than a casual employee, who in any area of the State is not required to work on a day solely because that day is a public holiday in that area, is entitled to be paid the ordinary wages that would have been paid if he or she had worked that day.

B Immediately following subclause (9) of this clause insert a new subclause (10) as per the following and renumber the existing subclause (10) as (11):

(10) (a) Where an employer and an employee have not agreed when the employee is to take his or her annual leave, subject to paragraph (b) of this subclause, the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annual leave the entitlement to which accrued more than 12 months before that time.

(b) The employee is to give the employer at least two weeks’ notice of the period during which the employee intends to take his or her leave.