Crown
Employees (Tipstaves to Justices) Award 2007
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Department
of Justice and Attorney General NSW.
(No. IRC 1836 of 2009)
|
Before The Honourable Justice
Walton, Vice-President
|
30 November 2009
|
VARIATION
1. Delete the
Arrangement of the award published 14 March 2008 (365 IG 127) and insert in
lieu thereof the following:
Arrangement
PART A
Clause No. Subject Matter
1. Title
2. Definitions
3. Salaries
4. Recreation
Leave
5. Purchased
Leave
6. Extended
Leave
7. Sick Leave
8. Public
Holidays
9. Leave for
Special Purposes
10. Military
Leave
11. Study Time
12. Parental
Leave
13. Absence
Whilst on Compensation to Count as Service for Leave Purposes
14. Absences
caused by Adverse Weather Conditions
15. Continuity
of Service
16. Uniforms
17. Grievance
and Dispute Settling Procedures
18. Anti-Discrimination
19. Secure
Employment
20. Leave
Reserved
21. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1
Appendix A
Appendix B
2. Delete
subclause 2.3 of clause 2, Definitions, and insert in lieu thereof the
following:
2.3 "Department"
means the Department of Justice and Attorney General. In this Award, the term "employer" is used in lieu of
"Department" or "Department Head".
3. In clause 4,
Recreation Leave, renumber the two paragraphs under subclause 4.2 Taking of
Leave as (a) and (b) respectively.
4. In the said
clause 4, delete subclause 4.3, Conservation of Leave, and insert in lieu thereof
the following:
4.3 Conservation
of Leave -
(a) Conservation of
leave up to a maximum of 40 working days may be permitted by the employer in
exceptional circumstances and on the understanding that the leave will be
reduced to an acceptable level as soon as possible.
(b) An employee must
take their recreation leave to reduce all balance below 8 weeks, or its hourly
equivalent, and the employer must cooperate in this process. The employer may direct an employee with
more than 8 weeks to take their recreation leave so that it is reduced to below
8 weeks by school term one 2010.
5. After the said
clause 4, insert new clause 5, Purchased Leave as follows, and renumber the
following clauses 5 to 20 as clauses 6 to 21.
5. Purchased Leave
5.1 An employee may
apply to enter into an agreement with the employer to purchase either 10 days
(2 weeks) or 20 days (4 weeks) additional leave in a 12 month period.
(a) Each application
will be considered subject to operational requirements and personal needs and
will take into account the employer’s business needs and work demands.
(b) The leave must
be taken in the 12 month period specified in the Purchased Leave Agreement and
will not attract any leave loading.
(c) The leave will
count as service for all purposes.
5.2 The purchased
leave will be funded through the reduction in the employee’s ordinary rate of
pay.
(a) Purchased leave
rate of pay means the rate of pay an employee receives when their ordinary salary
rate has been reduced to cover the cost of purchased leave.
(b) To calculate the
purchased leave rate of pay, the employee’s ordinary salary rate will be reduced by the number of weeks of
purchased leave and then annualised at a pro rata rate over the 12 month period.
5.3 Purchased leave
is subject to the following provisions:
(a) The purchased
leave cannot be accrued and will be refunded where it has not been taken in the
12 month period.
(b) Other leave
taken during the 12 month purchased leave agreement period i.e. sick leave,
recreation leave, extended leave or leave in lieu will be paid at the purchased
leave rate of pay.
(c) Sick leave
cannot be taken during a period of purchased leave.
(d) The purchased
leave rate of pay will be the salary for all purposes including superannuation
and shift loadings.
(e) Overtime and
salary related allowances not paid during periods of recreation leave will be
calculated using the employee’s hourly rate based on the ordinary rate of pay.
(f) Higher Duties
Allowance will not be paid when a period of purchased leave is taken.
5.4 Specific
conditions governing purchased leave may be amended from time to time by the
Director of Public Employee in consultation with the Association. The employer may make adjustments relating
to their salary administration arrangements.
6. Delete clause
6, Long Service Leave and insert in lieu thereof the following:
6. Extended Leave
6.1 Employees are
entitled to extended leave in accordance with Schedule 3, Extended Leave
Entitlements for officers and temporary employees in the Public Service, of the
Public Sector Employment and Management Act 2002.
6.2 Employees who
are required to take leave without pay as a result of the law vacation shall
have such periods counted as service for the purposes of extended leave.
7. Delete clause
12, Parental Leave, and insert in lieu thereof the following:
12. Parental Leave
Parental leave includes maternity, adoption and "other
parent" leave.
12.1 Maternity leave shall
apply to an employee who is pregnant and, subject to this clause the employee
shall be entitled to be granted maternity leave as follows:
(a) For a period up
to 9 weeks prior to the expected date of birth; and
(b) For a further
period of up to 12 months after the actual date of birth.
(c) An employee who
has been granted maternity leave and whose child is stillborn may elect to take
available sick leave instead of maternity leave.
12.2 Adoption leave
shall apply to an employee adopting a child and who will be the primary care
giver, the employee shall be granted adoption leave as follows:
(a) For a period of
up to 12 months if the child has not commenced school at the date of the taking
of custody; or
(b) For such period,
not exceeding 12 months on a full-time basis, as the employer may determine, if
the child has commenced school at the date of the taking of custody.
(c) Special Adoption
Leave - An employee shall be entitled to special adoption leave (without pay)
for up to 2 days to attend interviews or examinations for the purposes of
adoption. Special adoption leave may be
taken as a charge against recreation leave, extended leave, flexitime or family
and community service leave.
12.3 Where maternity
or adoption leave does not apply, "other parent" leave is available
to male and female employees who apply for leave to look after his/her child or
children. Other parent leave applies as
follows:
(a) Short other
parent leave - an unbroken period of up to 8 weeks at the time of the birth of
the child or other termination of the spouse's or partner's pregnancy or, in
the case of adoption, from the date of taking custody of the child or children;
(b) Extended other
parent leave - for a period not exceeding 12 months, less any short other
parental leave already taken by the employee as provided for in paragraph (a)
of this subclause. Extended other
parental leave may commence at any time up to 2 years from the date of birth of
the child or the taking of custody of the child.
12.4 An employee taking
maternity or adoption leave is entitled to payment at the ordinary rate of pay
for a period of up to 14 weeks, an employee entitled to short other parent
leave is entitled to payment at the ordinary rate of pay for a period of up to
1 week, provided the employee:
(a) Applied for
parental leave within the time and in the manner determined set out in
subclause 12.1 of this clause; and
(b) Prior to the
commencement of parental leave, completed not less than 40 weeks' continuous
service.
(1) Continuous
service is defined as full or part-time but not casual service, within the NSW
Public Service or within a State or governmental organisation proclaimed as
such under the Public Sector Employment and Management Act 2002.
(c) Payment for the
maternity, adoption or short other parent leave may be made as follows:
(1) in advance as a
lump sum; or
(2) fortnightly as
normal; or
(3) fortnightly at
half pay; or
(4) a combination of
full-pay and half pay.
12.5 Payment for
parental leave is at the rate applicable when the leave is taken. An employee holding a full time position who
is on part time leave without pay when they start parental leave is paid:
(a) at the full time
rate if they began part time leave 40 weeks or less before starting parental
leave;
(b) at the part time
rate if they began part time leave more than 40 weeks before starting parental
leave and have not changed their part time work arrangements for the 40 weeks;
(c) at the rate
based on the average number of weekly hours worked during the 40 week period if
they have been on part time leave for more than 40 weeks but have changed their
part time work arrangements during that period.
12.6 An employee who
commences a subsequent period of maternity or adoption leave for another child
within 24 months of commencing an initial period of maternity or adoption leave
will be paid:
(a) at the rate
(full time or part time) they were paid before commencing the initial leave if
they have not returned to work; or
(b) at a rate based on
the hours worked before the initial leave was taken, where the employee has
returned to work and reduced their hours during the 24 month period; or
(c) at a rate based
on the hours worked prior to the subsequent period of leave where the employee
has not reduced their hours.
12.7 Calculation of
increments and leave credits:
(a) Increments - any
period of paid parental leave (at full or half-pay) shall count as full service
for the purposes of determining incremental progression. However, unpaid parental leave shall not
count as service for determining incremental progression.
(b) Leave credits -
(1) Parental leave
at full pay shall count as full service for the purposes of determining all
forms of leave.
(2) Parental leave
at half pay is paid leave that is being taken at a reduced rate of pay and
shall accrue all other leave at half the rate.
(3) Unpaid parental
leave shall not count as service for determining any form of leave entitlement
except for extended leave in cases where at least 10 years of service has been
completed and the unpaid parental leave does not exceed 6 months.
12.8 Except as
provided in subclauses 12.4, 12.5 and 12.6 of this clause, parental leave shall
be granted without pay.
12.9 Right to request
(a) An employee who
has been granted parental leave in accordance with subclause 12.1, 12.2 or 12.3
may make a request to the employer to:
(1) extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(2) return from a
period of full time parental leave on a part time basis until the child reaches
school age (Note: returning to work from parental leave on a part time basis
includes the option of returning to work on part time leave without pay);
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee’s circumstances and,
provided the request is genuinely based on the employee’s parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer’s business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
12.10 Notification
Requirements
(a) When the
employer is made aware that an employee or their spouse is pregnant or is
adopting a child, the employer must inform the employee of their entitlements
and their obligations under the Award.
(b) An employee who
wishes to take parental leave must notify the employer in writing at least 8
weeks (or as soon as practicable) before the expected commencement of parental
leave:
(1) that she/he
intends to take parental leave, and
(2) the expected
date of birth or the expected date of placement, and
(3) if she/he is
likely to make a request under subclause 12.9.
(c) At least 4 weeks
before an employee's expected date of commencing parental leave they must
advise:
(1) the date on
which the parental leave is intended to start, and
(2) the period of
leave to be taken.
(d) Employee’s
request and the employer’s decision to be in writing
The employee’s request under 12.9(a)(1) and the
employer’s decision made under 12.9(a)(2) must be recorded in writing.
(e) An employee
intending to request to return from parental leave on a part time basis or seek
an additional period of leave of up to 12 months must notify the employer in
writing as soon as practicable and preferably before beginning parental leave.
If the notification is not given before commencing such leave, it may be given
at any time up to 4 weeks before the proposed return on a part time basis, or
later if the employer agrees.
(f) An employee on
maternity leave is to notify her employer of the date on which she gave birth as
soon as she can conveniently do so.
(g) An employee must
notify the employer as soon as practicable of any change in her intentions as a
result of premature delivery or miscarriage.
(h) An employee on
maternity or adoption leave may change the period of leave or arrangement, once
without the consent of the employer and any number of times with the consent of
the employer. In each case she/he must give the employer at least 14 days
notice of the change unless the employer decides otherwise.
12.11 An employee has
the right to her/his former position if she/he has taken approved leave or part
time work in accordance with subclause 12.8, and she/he resumes duty
immediately after the approved leave or work on a part time basis.
12.12 If the position
occupied by the employee immediately prior to the taking of parental leave has
ceased to exist, but there are other positions available that the employee is
qualified for and is capable of performing, the employee shall be appointed to
a position of the same grade and classification as the employee’s former
position.
12.13 If the position
occupied by the employee immediately prior to the taking of parental leave has
been moved as part of a formal relocation of an organisational unit (for
example, the relocation of all or part of an agency from the Central Business
District, or the regionalisation of agency’s functions) the employee has the
right to return to the former position in the new location. If the employee so requests, the employer
should consider the practicability of transferring the employee to a position
at the same classification and grade in the former, or more suitable location.
12.14 An employee does
not have a right to her/his former position during a period of return to work
on a part time basis. If the employer approves a return to work on a part time
basis then the position occupied is to be at the same classification and grade
as the former position.
12.15 An employee who
has returned to full time duty without exhausting their entitlement to 12
months unpaid parental leave is entitled to revert back to such leave. This may
be done once only, and a minimum of 4 weeks notice (or less if acceptable to
the employer) must be given.
12.16 An employee who
is sick during her pregnancy may take available paid sick leave or accrued
recreation or extended leave or sick leave without pay. An employee may apply
for accrued recreation leave, extended leave or leave without pay before taking
maternity leave. Any leave taken before maternity leave ceases at the end of
the working day immediately preceding the day she starts her nominated period
of maternity leave or on the working day immediately preceding the date of
birth of the child, whichever is sooner.
12.17 An employee may
elect to take available recreation leave or extended leave within the period of
parental leave provided this does not extend the total period of such leave.
12.18 An employee may
elect to take available recreation leave at half pay in conjunction with
parental leave provided that:
(a) accrued
recreation leave at the date leave commences is exhausted within the period of
parental leave;
(b) the total period
of parental leave, is not extended by the taking of recreation leave at half
pay;
(c) when calculating
other leave accruing during the period of recreation leave at half pay, the
recreation leave at half pay shall be converted to the full time equivalent and
treated as full pay leave for accrual of further recreation, extended and other
leave at the full time rate.
12.19 If, for any
reason, a pregnant employee is having difficulty in performing her normal
duties or there is a risk to her health or to that of her unborn child, the
employer should, in consultation with the employee, take all reasonable
measures to arrange for safer alternative duties. This may include, but is not
limited to greater flexibility in when and where duties are carried out, a
temporary change in duties, retraining, multi-skilling, teleworking and job
redesign.
12.20 If such
adjustments cannot reasonably be made, the employer must grant the employee
maternity leave, or any available sick leave, for as long as it is necessary to
avoid exposure to that risk as certified by a medical practitioner, or until
the child is born whichever is the earlier.
12.21 Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(1) make information
available in relation to any significant effect the change will have on the
status or responsibility level of the position the employee held before
commencing parental leave; and
(2) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee’s decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return to work on a part time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer’s capacity to comply with paragraph (a) of this
subclause.
12.22 Employees
entitled to parental leave shall also have an additional entitlement as set out
in Appendix B.
8. Under the
heading of Part B, Monetary Rates, delete the wording about effective date and
Table 1 and insert in lieu thereof the following:
Table 1
The salaries are set in accordance with the Crown Employees
(Public Sector - Salaries 2008) Award or any variation or replacement Award,
and are effective from the first pay period to commence on or after the date in
the column heading:
|
Tipstaff
|
Salary Per Annum
|
Salary Per Annum
|
|
|
1.7.09
|
1.7.10
|
|
|
+4%
|
+4%
|
|
|
$
|
$
|
|
1st Year of service
|
47,485
|
49,384
|
|
2nd Year of service
|
48,396
|
50,332
|
|
3rd Year of service
|
49,239
|
51,209
|
|
Tipstaff to the Chief Justice
|
50,100
|
52,104
|
9. This
variation shall take effect on and from 30 November 2009.
M.
J. WALTON J , Vice-President
____________________
Printed by
the authority of the Industrial Registrar.