Funeral
Industries (State) Award 2005
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FAMILY PROVISIONS CASE - 19
DECEMBER 2005.
(No. IRC 4201 of 2005)
VARIATION
1. Insert into clause
28, Compassionate Leave, of the award published 22 July 2005 (352 I.G. 657),
the following new item 28(vi):
(vi) Bereavement
entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in 28(ii) casual employees are entitled to
not be available to attend work, or to leave work upon the death in Australia
of a person prescribed in subclause 24(1)(c)(ii) of clause 24, Personal/Carer’s
Leave.
(b) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the
employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
(c) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not engage a casual employee are otherwise not affected.
2. Delete
24(1)(a) of clause 24, Personal/Carer’s Leave, and insert in lieu thereof the
following:
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in 24(1)(c)(ii) who needs the employee’s care and support, shall
be entitled to use, in accordance with this subclause, any current or accrued
sick leave entitlement, provided for at clause 22, Sick Leave of the award, for
absences to provide care and support for such persons when they are ill, or who
require care due to an unexpected emergency. Such leave may be taken for part
of a single day.
3. Delete
24(1)(b) of clause 24, Personal/Carer’s Leave, and insert in lieu thereof the
following:
(b) The employee
shall, if required,
(1) establish either
by production of a medical certificate or statutory declaration, the illness of
the person concerned and that the illness is such as to require care by another
person, or
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
4. Insert the
following notation at the end of 24(1)(d) of clause 24, Personal/Carer’s Leave:
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at clause 40, Dispute Avoidance and Grievance Procedure,
should be followed.
5. Delete
24(2)(a) of clause 24, Personal/Carer’s Leave, and insert in lieu thereof the
following:
(a) An employee
may elect, with the consent of the employer, to take unpaid leave for the
purpose of providing care and support to a class of person set out in
24(1)(c)(ii) above who is ill or who requires care due to an unexpected
emergency.
6. Delete
24(3)(a) of clause 24, Personal/Carer’s Leave, and insert in lieu thereof the
following:
(a) An employee may
elect, with the consent of the employer to take annual leave not exceeding ten
days in single-day periods, or part thereof, in any calendar year at a time or
times agreed by the parties.
7. Insert the
following new item 24(3)(d) into clause 24, Personal/Carer’s Leave, as follows:
(d) An employee
may elect with the employers agreement to take annual leave at any time within
a period of 24 months from the date at which it falls due.
8. Insert the
following new item 24(6) into clause 24, Personal/Carer’s Leave, as follows:
(6) Personal Carers Entitlement for casual employees -
(1) Subject to the
evidentiary and notice requirements in 24(1)(b) and 24(1)(d) casual employees
are entitled to not be available to attend work, or to leave work if they need
to care for a person prescribed in subclause 24(1)(c)(ii) of this clause who
are sick and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(2) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the
employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any payment
for the period of non-attendance.
(3) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
9. Delete clause
32, Parental Leave, and insert in lieu thereof the following:
32. Parental Leave
(1) Refer to the Industrial
Relations Act 1996 (NSW). The
following provisions shall also apply in addition to those set out in the Industrial
Relations Act 1996 (NSW).
(2) An employer
must not fail to re-engage a regular casual employee (see section 53(2) of the
Act) because:
(a) the employee
or employee's spouse is pregnant; or
(b) the employee
is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to
request
(a) An employee entitled
to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) to return
from a period of parental leave on a part-time basis until the child reaches
school age;
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.
(c) Employee's
request and the employer's decision to be in writing
The employee's request and the employer's decision made
under 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) 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:
(i) 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
(ii) 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).
10. This order
shall take effect on and from 19 December 2005.
NOTE: This variation
is made pursuant to section 50 of the Industrial Relations Act 1996, to
give effect to the orders made by the Industrial Relations Commission of New
South Wales (Full Commission: Wright J,
President, Sams DP, Staff J and Ritchie C) on 19 December 2005, published 27 January 2006 (353 I.G. 731).
G. M. GRIMSON Industrial Registrar.
____________________
Printed by the authority of the Industrial Registrar.