Public Hospital (Career Medical
Officers) (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Australian
Salaried Medical Officers' Federation (New South Wales), Industrial Organisation
of Employees.
(No. IRC 1020 of 2008)
Before The Honourable
Justice Walton, Vice-President
|
7 November 2008
|
AWARD
PART A
1. Arrangement
PART A
Clause No. Subject Matter
12. Annual
Leave
24. Anti-Discrimination
32 Area, Incidence
and Duration
1. Arrangement
17. Continuing
Medical Education
2. Definitions
15. Family and
Community Services Leave and Personal/Carer’s Leave
29. Higher
Duties Allowance
7. Hours of
Work
6. In-Charge
Allowance
23. Labour
Flexibility
20. Long Service
Leave
21. Maternity,
Adoption and Parental Leave
31. No Further
Claims
11. On-Call and
Call-Back
10 Overtime
8. Penalty
Rates
13. Public
Holidays
28. Reasonable
Hours
25. Redundancy
- Managing Displaced Employees
3. Salaries
5. Salary
increases and work value
26. Salary
Sacrifice to Superannuation
27. Salary
Packaging
4. Senior
Career Medical Officer
18. Settlement
of Disputes
14. Sick Leave
9. Time
Worked
22. Trade Union
Leave
19. Travelling
Allowances
30. Underpayment
and Overpayment of Salaries
16. Uniform and
Laundry Allowance
PART B
Table 1 - Allowances
2. Definitions
"Association" means the Australian Salaried
Medical Officers' Federation (New South Wales) or the Health Services Union.
"Career Medical Officer" means a medical
practitioner who is registered with the Medical Board of New South Wales and is
not employed under the classifications set out in the Public Hospital (Medical
Officers) Award.
"Department" means the NSW Department of Health.
"Director of Public Employment" means the position
of that name established under Chapter 6 of the Public Sector Employment and
Management Act 2002.
"Director-General" means the Director-General of
the Department.
"Employer" means the Director-General exercising
employer functions on behalf of the Government of NSW (and includes a delegate
of the Director-General).
"Hospital" means a public hospital as defined
under section 15 of the Health Services Act 1997.
"Public Health Organisation" means an organisation
defined in section 7 of the Health Services Act 1997 as follows:
(a) an area health
service; or
(b) a statutory
health organisation; or
(c) an affiliated
health organisation in respect of its recognised establishments and recognised
services.
3. Salaries
Part A -
Salaries for Career Medical Officers shall be as set out in
the Health Professional and Medical Salaries (State) Award.
Career Medical Officers with less than five years
postgraduate experience shall be appointed to Grade 1.
Career Medical Officers with five years postgraduate
experience or more shall be appointed to Grade 2.
Progression within Grades 1 and 2 shall occur on the
anniversary of appointment. Provided that nothing in this clause precludes the
employer, at the employer’s sole discretion, from:
(i) initially
appointing a Career Medical Officer to a higher step within the relevant grade;
or
(ii) accelerating a
Career Medical Officer through the steps within the relevant grade irrespective
of length of service.
Provided that an employee employed on the Transitional Grade
as at the commencement date of this Award shall remain on that scale. Progression within the Transitional Grade
shall be in accordance with the provisions of this Award.
Individual Career Medical Officers employed as at 26 May
2005 in receipt of a salary higher than that of Senior Registrar as set out in
the Health Professional and Medical Salaries (State) Award may reach written
agreement with the employer that overtime payment will be calculated on the
salary ascribed to Senior Registrar, as varied from time to time. Any such
agreement will require further written agreement on an annual basis.
Part B -
(a) For the purpose
of calculation of payments to employees pursuant to the provisions of this
Award, one hour's pay shall be calculated in accordance with the following
formula:
Annual Salary
|
x
|
1
|
52.17857
|
|
38
|
and one day's pay shall be calculated by multiplying
"one hour's pay" (as calculated in accordance with the above formula)
by 7.6.
(b) Employees shall
be eligible to progress to the next higher step in the scale on the anniversary
of the date on which they were appointed.
Part C - Permanent Part-Time Career Medical Officers
(i) A permanent
part-time employee is one who is permanently appointed to work a specified
number of hours which are less than those prescribed for a full-time employee.
(ii) Employees
engaged under Part C of this clause shall be paid an hourly rate calculated on
the basis of one thirty-eighth of the appropriate rate prescribed by Part A,
with a minimum payment of two hours for each start and one thirty-eighth of the
appropriate allowances prescribed by Clause 15, Uniform and Laundry Allowances,
if applicable but shall not be entitled to an additional day off or part
thereof as prescribed by Clause 6, Hours of Work.
(iii) Employees
engaged under Part C of this clause shall be entitled to all other benefits of
this award not otherwise expressly provided for herein in the same proportion
as their ordinary hours of work bear to full-time hours.
(iv) Employees
engaged under Part C of this clause are entitled to contribute to the
appropriate superannuation scheme subject to the requirements of relevant
legislation.
(v) A permanent part-time
employee will progress to the next incremental step every 12 months from the
date of commencement of employment, provided the work performed by the employee
outside the scope of the part-time agreement is commensurate with the
experience of a full-time employee and is acceptable to the employer. This
subclause does not preclude accelerated progression.
4. Senior Career
Medical Officer
(i) A grading
committee consisting of two nominees of the Department and two representatives
of the Association(s) shall be constituted to consider and make recommendations
to the employer in relation to appointment to the Senior Career Medical Officer
grade. The committee shall meet to
consider an application for progression to this grade by a Career Medical Officer
within 28 days of an application being submitted to the employer.
(ii) The grading
committee shall not recommend appointment to the Senior Career Medical Officer
grade unless the individual:
(a) has at least
seven years postgraduate clinical experience; and
(b) has a
demonstrated capacity to perform clinical duties and responsibilities at a
senior level with minimal clinical supervision in one or more areas of medical
speciality; and
(c) is required by
the employer to perform clinical duties and responsibilities at a senior level
with minimal clinical supervision in one or more areas of medical speciality as
required by the employer.
(iii) If a grading
committee does not recommend progression by a Career Medical Officer to Senior
Career Medical Officer then the committee must provide written reasons to why
progression was not recommended, which should provide guidance in respect of
any future applications. Such written
reasons must be provided to the Career Medical Officer within 21 days of the
date of the meeting held to consider the application for regrading.
(iv) A Career
Medical Officer shall not make more than one application for progression to
Senior Career Medical Officer in any 12 month period.
(v) Subject to
subclause (vi) of this clause, a Senior Career Medical Officer will progress to
the second step of the Senior Career Medical Officer grade on the anniversary
of his or her commencement on that grade.
(vi) A Career
Medical Officer appointed to the Transitional Grade shall be entitled to apply
to be appointed to the Senior Career Medical Officer grade in accordance with
the provisions of this clause. Provided
that a Career Medical Officer who has been employed on the top step of the
Transitional Grade for at least 12 months and who is appointed as a Senior
Career Medical Officer shall be entitled to progress to the second step of the
Senior Career Medical Officer grade after six months.
5. Work Value
The employer and the Associations agree that the salary
rates provided under this Award recognise and cover all work value change and
productivity gains for the period up to 1 July 2007 and extinguish all work
value, special case or other claims prior to that date for Career Medial
Officers.
6. in-Charge
Allowance
An allowance as set out in Item 1 of Table 1 - Allowances
shall be paid to employees for each twelve hours of duty or part thereof of
continuous in-charge duty for responsibility for after hours medical
services. This allowance shall be
varied in accordance with increases in salary rates under this Award.
7. Hours of Work
(i) The ordinary
hours of work shall not exceed an average of 38 hours per week. This shall be achieved by rostering
employees for duty over either forty hours in any period of seven consecutive
days or eighty hours in any period of fourteen consecutive days and, in
addition, then granting employees roster leave additional to that prescribed in
subclause (ii) of this clause to the extent of one additional day per calendar
month. Such additional roster leave may
accumulate to a maximum of three days and shall be granted in multiples of one
day. Upon termination of employment an
employee shall be paid the monetary value of any untaken additional roster
leave, calculated at the employee’s ordinary time rate of pay as prescribed by
Clause 3, Salaries.
(ii) Employees
shall be free from ordinary hours of duty for not less than two days in each
week or where this is not practicable, four days in each fortnight. Where practicable, days off shall be
consecutive and where possible additional rostered days off shall be combined
with other rostered time off.
(iii) No shift shall
be less than eight hours in length on a weekday or less than four hours in
length on a Saturday, Sunday or public holiday.
(iv) No broken or
split shifts shall be worked.
(v) All time worked
in excess of ten hours in any one shift shall be paid as overtime.
(vi) Where in any
pay period, an employee is not employed for the whole of the pay period, the
ordinary hours of work for the purpose of calculating salary for that pay
period (i.e., 38 or 76 hours) will be adjusted by the following factor, rounded
to the nearest whole number -
Number of
calendar days employed
Number of
calendar days in pay period
(vii) Employees shall
be given at least two weeks' notice of rosters to be worked in relation to
ordinary hours of work and also where practicable, in relation to additional
(overtime) rostered hours of work, provided that the employer may change the
rosters without notice to meet any emergent situation. This subclause shall not apply in respect of
the granting by the employer of additional roster leave pursuant to this
clause.
(viii) In the
interests of patient care and the health and welfare of medical staff,
employees shall have a break from duty for the purpose of taking a meal. There
shall be a uniform meal break of 30 minutes except where locally agreed
arrangements for a longer period are made (which shall not exceed one hour).
(ix) If employees
are required to work during their meal breaks they shall be paid for the time
worked. Unless the employee is permitted to finish duty early on the same shift
then overtime becomes payable once the total ordinary work time of the shift
has elapsed.
(x) Medical administrators
are to establish simple and effective procedures in consultation with employees
to record when staff are required to work through their meal breaks and to
ensure that payment is made.
8. Penalty Rates
Any ordinary hours worked between the following hours shall
be paid at ordinary time plus the appropriate penalty rate:
(i) Hours worked
between 6.00 pm and midnight, Monday to Friday - 12.5%.
(ii) Midnight and
8.00 am, midnight Sunday to midnight Friday - 25%.
(iii) Midnight
Friday and midnight Saturday - 50%.
(iv) Midnight
Saturday and midnight Sunday - 75%.
9. Time Worked
Time worked means the time during which an employee is
required by the employer to be in attendance at a hospital for the purpose of
carrying out such functions as the employer may call on him/her to perform, and
it shall include times when the employee, in waiting to carry out some active
functions, is studying or resting or sleeping or engaged in any other activity.
Provided that time worked does not include uninterrupted
breaks allowed and actually taken for meals.
Provided further that where an employee attends of his/her
own volition outside of hours rostered on duty, or where an employee remains in
attendance when formally released from the obligation to perform professional
duties, the employer shall not be liable to make any payment for such
attendance.
10. Overtime
(i) All time worked
by employees in excess of the ordinary hours specified in clause 7, Hours of
Work, shall be paid at the rate of time and one half for the first two hours,
and double time for the remaining hours worked, provided that all overtime
performed on a Sunday shall be at double time.
(ii) All time
worked by employees employed pursuant to Part C, Permanent Part-Time Career
Medical Officers, of clause 3, Salaries, in excess of the rostered daily
ordinary hours of work prescribed for the majority of full-time employees
employed on that shift shall be paid at the appropriate overtime rate
prescribed herein. Time worked up to
the rostered daily ordinary hours of work prescribed for a majority of the
full-time employees employed on the shift concerned shall not be regarded as
overtime but an extension of the contract hours for that day and shall be paid
at the ordinary rate of pay.
(iii) An employee
who works authorised overtime and was not notified on or prior to his/her
previous shift of the requirement to work such overtime shall be paid in
addition to payment for such overtime the meal allowance as determined by the
Director of Public Employment from time to time:
(a) for breakfast
when commencing such overtime work at or before 6.00 am;
(b) for an evening
meal when such overtime is worked for at least one hour immediately following
his/her normal ceasing time, exclusive of any meal break and extends beyond or
is worked wholly after 7.00 pm;
(c) for luncheon
when such overtime extends beyond 2.00 pm on Saturdays, Sundays or holidays;
or shall be provided with adequate meals in lieu of such
payments.
(iv) Provided
however that an employee employed in a community health facility shall be
granted time in lieu of overtime payments.
Such time in lieu shall be taken within three months of accrual and at
ordinary time. If such accrued time in
lieu is unable to be taken within the three month period, it is to be paid out
at the end of the three month period in accordance with subclause (i) above at
the current rates of pay then applying.
11. On-Call and
Call-Back
(i) An
"on-call period" is a period during which an employee is required by
the employer to be on-call. No employee shall be required to remain on call
while on leave.
(ii) For the
purposes of calculation of payment of on-call allowances and for call-back
duty, an on-call period shall not exceed 24 hours.
(iii) An employee shall
be paid for each on-call period which coincides with a day rostered on duty an
allowance as set out in Item 2 of Table 1 - Allowances and for each on-call
period coinciding with a rostered day off an allowance as set in the said Item
2 with a maximum payment as set out in the said Item 2 per week. These
allowances shall be varied in accordance with increases in salary rates under
this Award.
(iv) Subject to
subclause (v) below, an employee who is called back for duty shall be paid for
all time worked at the appropriate overtime rate, with a minimum of four hours
at such rates. If an employee is called back on more than one occasion during
the call back period for which he or she is paid, the employee will not be
entitled to further payment until the expiration of the four hour payment
period.
(v) Employees
required to work overtime after leaving the employer’s premises to provide a
technology support resolution or clinical appraisal remotely without onsite
presence, shall be paid for such work at the appropriate overtime rate, with a
minimum of one hour at such rates.
(vi) The amounts
specified in subclause (iii) shall be taken to include expenses incurred in
taking telephone calls at one's own residence and other expenses incurred being
available for emergency duty.
12. Annual Leave
(i) All employees
shall be allowed four calendar weeks leave of absence on full pay in respect of
each twelve months service as defined in this Award plus one day on full pay in
respect of each public holiday occurring within the period of such leave.
(ii) Employees who
are required to work on Sundays and/or public holidays during a qualifying
period of employment for annual leave purposes shall be entitled to receive
additional annual leave in respect of each complete period of eight hours so
worked as follows:
(a) if 35 or more
such periods on such days have been worked - one week;
(b) if less than 35
such periods on such days have been worked - leave proportionately calculated
on the basis of 38 hours leave for 35 such periods worked;
(c) work performed
by reason of call-backs pursuant to clause 10, Overtime, shall be disregarded
when assessing an employee’s entitlement under this subclause.
(d) The calculations
referred to in paragraphs (a) and (b) of this sub-clause shall be made to the
nearest one-fifth of the ordinary hours worked, half or more than half of
one-fifth being regarded as one-fifth and less than half being disregarded.
(iii) Annual leave
shall be given and shall be taken within a period of six months after the date
when the right to annual leave accrued; provided that the giving and taking of
the whole or any separate period of such annual leave may, by mutual agreement
between the employer and the employee, be postponed for a further period not
exceeding six months.
(iv) If the employee
and the employer so agree, the annual leave or any such separate periods may be
taken wholly or partly in advance before the employee has become entitled to
that leave, but where leave is taken in such circumstances a further period of
annual leave shall not commence to accrue until the expiration of the twelve
months in respect of which the annual leave or part thereof has been so taken.
(v) Except as
provided by this clause, payment shall not be made to an employee in lieu of
any annual leave or part thereof nor shall any such payment be accepted by the
employee.
(vi) The employee
shall be given at least two months notice of the date from which his/her annual
leave is to be taken.
(vii) Each employee
shall be paid before entering upon annual leave his/her ordinary rate of salary
for the period of leave.
(viii) Where the
employment of an employee is terminated, the employee shall be entitled to
receive proportionate payment for each completed month of service, together
with such additional annual leave entitlements due under sub clause (ii). All payments are to be made at the rate of
salary to which such employee is entitled under this Award.
(ix) Where the
annual leave under this clause or any part thereof has been taken in advance by
an employee pursuant to sub clause (iv), of this clause; and
(a) the employment
of the employee is terminated before he/she has completed the year of
employment in respect of which such annual leave or part thereof was taken; and
(b) the sum paid to
the employee as ordinary pay for the annual leave or part so taken in advance
exceeds the sum which the employer is required to pay to the employee under sub
clause (viii) of this clause, the employer shall not be liable to make any
payment to the employee under the said sub clause (viii); and
shall be entitled to deduct the amount of such excess
from any remuneration payable to the employee upon the termination of the
employment.
(x) Any annual leave
which had accrued to an employee employed immediately prior to the operative
date of this Award under the provisions then in force and who continues in
employment under this Award shall remain to his/her credit and such leave may
be allowed as provided in this clause in addition to any other leave which has
accrued to an employee under the provisions of this clause.
(NOTATION: The conditions under which the annual leave
loading shall be paid to employees are the same as generally applied through
policy directives issued by the Department).
13. Public Holidays
(i) Public Holidays
shall be allowed to employees on full pay.
(ii) Where an
employee is required to and does work on any of the public holidays, as set out
in this clause, the employee shall have one day added to the period of his/her
annual leave for each public holiday so worked unless time off in respect of
time worked on any such public holiday has already been granted to the
employee. The provisions of this sub
clause shall also apply to employees where a public holiday falls on a rostered
day off.
(iii) For the
purpose of this clause, the following shall be deemed to be public
holidays: New Year's Day, Australia
Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday,
Labour Day, Christmas Day, Boxing Day, or in lieu of any such day any holiday
proclaimed in lieu thereof, together with any other day duly proclaimed as a
special day and observed as a public holiday within the area in which the
hospital in which the employee is employed is situated.
(iv) All hours
worked on public holidays shall be paid at the rate of time and one half.
14. Sick Leave
(i) An employee
shall be allowed sick leave on full pay calculated by allowing 76 rostered
ordinary hours of work for each year of continuous service less any sick leave
on full pay already taken subject to the following conditions:
(a) The employer may
require the sickness to be certified to by the medical superintendent or by a
legally qualified medical practitioner, approved by the employer, or may
require other satisfactory evidence thereof. This requirement shall be
dispensed with where the absence does not exceed two consecutive days.
(b) An employee
shall not be entitled to sick leave until the expiration of three months'
continuous service.
(c) Each employee
shall take all reasonably practicable steps to inform the employer of his or
her inability to attend for duty and as far as possible state the estimated
duration of the absence. Where practicable
such notice shall be given within twenty-four hours of the commencement of such
absence.
(d) An employee
shall not be entitled to sick leave on full pay for any period in respect of
which such employee is entitled to workers' compensation; provided, however, an
employer shall pay to an employee who has sick leave entitlements under this
clause, the difference between the amount received as workers' compensation and
full pay, if the employee elects such payment.
The employee’s sick leave entitlements under this clause shall, for each
week during which such difference is paid, be reduced by that proportion of
hours which the difference paid bears to full pay. On the expiration of available sick leave, weekly compensation
payments only shall be payable.
(e) An employee not
eligible for sick leave during periods when he/she would have normally been
rostered on overtime shifts.
(ii) Continuous
service for the purpose of this clause shall be calculated in the same manner as
provided for in paragraph (a) of subclause (ii) of Clause 20, Long Service
Leave.
(iii) Full pay for
the purpose of this clause shall include the uniform allowance where payable
under clause 16, Uniform and Laundry Allowance.
(iv) Sick leave as
defined shall accrue and be transferable between hospitals, at the rate of 76
rostered ordinary hours of work per year of continuous service, minus leave
taken.
(v) Any sick leave
which had accrued to an employee employed immediately prior to the operative
date of this Award, under the provisions then in force and who continues in
employment under this Award shall remain to his/her credit and such leave may
be allowed as provided in this clause in addition to any other leave which has
accrued to an employee under the provisions of this clause.
(vi) Subject to the
provision of a satisfactory medical certificate and sick leave being due,
annual or long service leave shall be re-credited where an illness of at least
a week’s duration occurs during the period of annual or long service leave,
provided that the period of leave does not occur prior to retirement,
resignation or termination of service.
15.
Family and Community Services Leave and Personal/Carer’s Leave
(i) Family and Community Services (FACS)
Leave and Personal/Carer’s Leave are separate, stand alone entitlements.
(ii) The provisions outlined in Parts A and B
of this clause are available to all employees covered by this Award, other than
casual employees as defined in subclause (iii) below.
(iii) Casual employees as defined in the Health
Industry Status of Employment (State) Award are entitled to the provisions
outlined in Part C of this clause.
A. FACS Leave
(i) FACS Leave - General
(a) For the purpose of this clause relating to
FACS leave:
"relative"
means a person related by blood, marriage or affinity;
"affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
"household"
means a family group living in the same domestic dwelling.
(b) The employer may grant FACS leave to an
employee:
(1) to provide care and/or support for sick
members of the employee’s relatives or household; or
(2) for reasons related to the family
responsibilities of the employee (e.g. to arrange and or attend a funeral of a
relative; to accompany a relative to a medical appointment where there is an
element of emergency; parent/teacher meetings; education week activities; to
meet elder-care requirements of a relative); or
(3) for reasons related to the performance of
community service by the employee (e.g. in matters relating to citizenship; to
office holders in local government, other than as a mayor, for attendance at
meetings, conferences or other associated duties; representing Australia or the
State in major amateur sport other than in Olympic/Commonwealth Games); or
(4) in a case of pressing necessity (e.g.
where an employee is unable to attend work because of adverse weather
conditions which either prevent attendance or threaten life or property; the
illness of a relative; where a child carer is unable to look after their
charge).
(ii) FACS leave replaces compassionate leave.
(iii) An employee is not to be granted FACS
leave for attendance at court to answer a criminal charge, unless the employer
approves the grant of leave in the particular case.
Applications
for FACS leave to attend court, for reasons other than criminal charges, will
be assessed on an individual basis.
(iv) FACS Leave - entitlement
(a) The maximum amount of FACS leave on full
pay that may be granted to an employee is:
(1) 3 working days during the first year of
service, commencing on and from 1 January 1995, and thereafter 6 working days
in any period of 2 years; or
(2) 1 working day, on a cumulative basis effective
from 1 January 1995, for each year of service after 2 years’ continuous
service, minus any period of FACS leave already taken by the employee since 1
January 1995,
whichever
method provides the greater entitlement.
(b) For the purposes of calculating
entitlements under (vi)(a)(1) and (2) above, a working day for employees
working 38 hours per week shall be deemed to consist of 8 hours, and a working
day for employees working 35 hours per week shall be deemed to consist of 7
hours. The rate at which FACS leave is
paid out and utilised shall be on actual hours absent from a rostered
shift.
Example
A: An employee working 38 hours per
week will have an entitlement, in their first year of employment, to 24 hours
of FACS leave. If the employee take
FACS leave for a full 10 hour shift, the employee would be debited 10 hours of
FACS leave.
Example
B: An employee working 35 hours per
week will have an entitlement, in their first year of employment, to 21 hours
of FACS leave. If the employee takes
FACS leave for a full 7 hour shift, the employee would be debited 7 hours of
FACS leave.
Example
C: An employee, employed prior to 1
January 1995, applies for FACS leave on 20 February 1997. The employee is entitled to 6 days in any
period of two years. Therefore, to
calculate the employee’s available FACS leave as at 20 February 1997, add all
FACS leave taken from 21 February 1995 to 20 February 1997 and deduct that
amount from the 6 days entitlement.
(c) FACS leave is available to part-time
employees on a pro rata basis, based on the average number of hours worked per
week. A working day shall consist of
one-fifth of the employee’s average weekly hours during the preceding 12 months
or during the employee’s period of employment, whichever is the lesser
period.
Example: An employee working an average of 30 hours
per week will have an entitlement, in his/her first year of employment, of 18
hours of FACS leave. If the employee
takes FACS leave for a full rostered shift eg of 4 hours, the employee would be
debited 4 hours of FACS leave. Likewise, if the employee was rostered for 8
hours and was absent for the full 8 hours on FACS leave, he/she would be
debited 8 hours of FACS leave.
(v) Additional FACS leave for bereavement
purposes
Where FACS leave
has been exhausted, additional FACS leave of up to 2 days for bereavement may
be granted on a discrete, "per occasion" basis to an employee on the
death of a relative or member of a household as defined in subclause (i) (a) of
Part A of this clause.
(vi) Use of other leave entitlements
The employer
may grant an employee other leave entitlements for reasons related to family
responsibilities or community service, by the employee.
An employee
may elect, with the consent of the employer, to take annual leave; long service
leave; or leave without pay.
B. Personal/Carer’s Leave
(i) Use of sick leave to care for the person
concerned - definitions
A person who
needs the employee’s care and support is referred to as the "person
concerned" and is:
(a) a spouse of the employee; or
(b) a de facto spouse, who, in relation to a
person, is a person of the opposite sex to the first mentioned person who lives
with the first mentioned person as the husband or wife of that person on a bona
fide domestic basis although not legally married to that person; or
(c) a child or an adult child (including an
adopted child, a step child, a foster child or an ex nuptial child), parent
(including a foster parent and legal guardian), grandparent, grandchild or
sibling of the employee or spouse or de facto spouse of the employee; or
(d) a same sex partner who lives with the
employee as the de facto partner of that employee on a bona fide domestic
basis; or
(e) a relative of the employee who is a member
of the same household, where for the purpose of this clause relating to
Personal/Carer’s Leave:
"relative"
means a person related by blood, marriage or affinity;
"affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
"household"
means a family group living in the same domestic dwelling.
(ii) Use of sick leave to care for the person
concerned - entitlement
(a) The entitlement to use sick leave in
accordance with this subclause is subject to:
(1) the employee being responsible for the
care and support of the person concerned; and
(2) the person concerned being as defined in
subclause (i) of Part B of this clause.
(b) Other than a casual or any other employee who
receives a loading in lieu of sick leave, an employee with responsibilities in
relation to a person who needs their care and support shall be entitled to use
the untaken sick leave, from that year’s annual sick leave entitlement, to
provide care and support for such persons when they are ill.
(c) Sick leave accumulates from year to
year. In addition to the current year’s
grant of sick leave available under (b) above, sick leave untaken from the
previous 3 years may also be accessed by an employee with responsibilities in
relation to a person who needs their care and support.
(d) The employer may, in special
circumstances, make a grant of additional sick leave. This grant can only be taken from sick leave untaken prior to the
period referred to in subclause (c) above.
(e) The employee shall, if required, establish
either by production of a medical certificate or statutory declaration, that
the illness of the person concerned is such as to require care by another
person.
(f) The employee has the right to choose the
method by which the ground for leave is established, that is, by production of
either a medical certificate or statutory declaration.
(g) The employee is not required to state the
exact nature of the relevant illness on either a medical certificate or
statutory declaration.
(h) The employee shall, wherever practicable,
give the employer notice prior to the absence of the intention to take leave,
the name of the person requiring care and that person’s relationship to the
employee, the reasons for taking such leave and the estimated length of
absence. If it is not practicable for
the employee to give prior notice of absence, the employee shall notify the
employer by telephone of such absence at the first opportunity on the day of
absence.
(i) In normal circumstances, the employee
must not take leave under this part where another person has taken leave to
care for the same person.
(iii) Use of other leave entitlements
An employee
may elect, with the consent of the employer, to take:
(a) annual leave, including annual leave not
exceeding 10 days in single day periods or part thereof, in any calendar year
at a time or times agreed by the parties.
An employee and employer may agree to defer payment of the annual leave
loading in respect of single day absences, until at least 5 consecutive annual
leave days are taken. An employee may
elect with the employer’s agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
(b) long service leave; or
(c) leave without pay for the purpose of
providing care and support to the person concerned as defined in subclause (i)
of Part B of this clause.
(iv) Time off in lieu of payment of overtime
(a) An employee may elect, with the consent of
the employer, to take time off in lieu of payment of overtime at a time or
times agreed with the employer within 12 months of the said election
(b) Overtime taken as time off during ordinary
time shall be taken at the ordinary time rate, that is, one hour off for each
hour of overtime worked.
(c) If, having elected to take time as leave
in accordance with (iv)(a) above and the leave is not taken for whatever
reason, payment for time accrued at overtime rates shall be made at the expiry
of the twelve 12 month period from the date the overtime was worked, or earlier
by agreement, or on termination.
(d) Where no election is made in accordance
with paragraph (iv)(a) above, the employee shall be paid overtime rates in
accordance with the provisions of clause 9, Overtime.
(v) Use of make-up time
(a) An employee may elect, with the consent of
the employer, to work "make-up time". "Make-up time" is
worked when the employee takes time off during ordinary hours for family or
community service responsibilities, and works those hours at another time,
during the spread of ordinary hours provided for in clause 6 of this Award, at
the ordinary rate of pay.
(b) An employee on shift work may elect, with
the consent of the employer, to work "make-up time" (under which the
employee takes time off during ordinary hours and works those hours at another
time) at the applicable shift work rate which would have been applicable to the
hours taken off.
C Entitlements for Casual Employees
(i) Bereavement entitlements for casual
employees
(a) Casual employees are entitled to not be
available to attend work or to leave work upon the death in Australia of a
relative or member of a household as prescribed in subclause (i)(a) of Part A
of this clause.
(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 (ie 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 part. The rights of an employer to
engage or not engage a casual employee are otherwise not affected.
(ii) Personal carers entitlement for casual
employees
(a) Subject to the evidentiary and notice
requirements in subclauses (ii)(e) - (h) of Part B of this clause 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 (i) of Part B 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.
(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 (ie 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 part. The rights of an employer to
engage or not to engage a casual employee are otherwise not affected.
16. Uniform and
Laundry Allowances
(i) Sufficient
suitable and serviceable uniforms shall be provided for each employee required
to wear a uniform and such uniforms shall be laundered at the expense of the
employer.
(ii) Where an
employer requires a uniform to be worn but does not provide such uniform, the
following allowances shall be paid:
(a) where a full
uniform, including special shoes, is required, an amount per week as set in
Item 3 of Table 1 - Allowances;
(b) in other cases,
an amount as also set in Item 3 of Table 1.
17. Continuing
Medical Education
(i) After 12 months
employment, an employee shall be entitled to 7 days of paid leave per annum for
the purposes of Continuing Medical Education and professional development. This
entitlement can accrue to a maximum of 21 days. The value of such leave is not
payable on termination.
(ii) The approval
of the employer is required for such leave, which must not interfere with the
maintenance of essential services and patient care. Approval shall not be
unreasonably withheld.
(iii) The Continuing
Medical Education or professional development activities undertaken during such
paid leave must be relevant to the position occupied by the employee.
(iv) Expenses
associated with such leave are to be reimbursed by the employer, provided that
no expenses or allowances shall be payable in respect of travel or
accommodation outside Australia, except in respect of courses run under the
auspices of a recognised Australasian Specialist College in New Zealand. The
provisions of the NSW Health Policy Directive PD2005_619, Travel - Official, as
amended from time to time, shall apply to any travel under this clause.
(v) Expenses shall
be reimbursed where the approved Continuing Medical Education or professional
development activity falls on days that would not otherwise be working
days.
18. Settlement of
Disputes
(i) Where a dispute
arises in a particular section which cannot be resolved between the employees
or their representative and the supervising staff, it shall be referred to the
Chief Executive Officer of the Public Health Organisation or his/her nominee,
who will arrange for the matter to be discussed with the employees concerned
and a local representative or representatives of the Association.
(ii) Failing
settlement of the issue at this level, the matter shall be referred to the
Director-General and the Head Office of the Association(s). The dispute will then be dealt with pursuant
to subclause (v) of this clause.
(iii) While these
procedures are continuing, no stoppage of work or any form of ban or limitation
of work shall be applied. Unless agreed otherwise by the parties the status quo
before the emergence of the issue must continue while these procedures are
being followed. For this purpose "status quo" means the work
procedures and practice in place:
(a) immediately
before the issue arose; or,
(b) immediately
before any change to those procedures or practices, which caused the issue to
arise, was made.
(iv) The
Association(s) reserve(s) the right to vary this procedure where it is
considered a safety factor is involved.
(v) With a view to
an amicable and speedy settlement, all disputes that firstly cannot be settled
in accordance with subclauses (i) and (ii) of this clause may be submitted to a
committee consisting of not more than six members with equal representatives of
the Director-General and the Association(s).
Such committee shall have the power to investigate all matters in
dispute and to report to the Chief Executive Officer and the Association(s)
respectively with such recommendation as it may think right and in the event of
no mutual decision being arrived at by such committee, the matter in dispute
may be referred to the industrial committee.
(vi) This clause
shall not interfere with the rights of either party to institute proceedings
for the determination of any matter in accordance with the Industrial Relations
Act 1996.
19. Travelling
Allowances
(i) An employee
seconded to another hospital may be granted a daily travel allowance at the
rate of the difference between the cost of travel by public transport to
his/her normal place of employment and travel by public transport to the
seconding hospital. Provided that where
an employee drives his/her own vehicle, he/she shall, in lieu, be eligible for
an allowance equivalent to the transport allowance rate payable to members of
the New South Wales Public Service as determined by the the Director of Public
Employment from time to time, for the difference between the distance to
his/her normal place of employment and the distance to the seconding hospital.
(ii) An employee
who, with the approval of the chief executive officer, uses on official
business, a motor vehicle maintained primarily for other than official
business, shall be paid the abovementioned allowance from time to time
effective. However, where it is estimated
that an employee will, with the approval of the chief executive officer, be
required to use his/her private vehicle on official business on at least 50
days during any period of 12 months and during that period aggregate at least
805 kilometres of official running, he/she shall be paid at the official
business rate payable to members of the New South Wales Public Service as
determined by the Director of Public Employment from time to time.
(iii) For the
purpose of sub-clause (ii) travel on official business:
(a) occurs when an
employee is required by the employer as part of his/her duty to use his/her
motor vehicle to attend away from his/her normal place of employment or
seconding hospital to another clinic, annexe or hospital. Where an employee travels on official
business direct from his/her place of residence to a clinic, annexe or
hospital, other than his/her normal place of employment he/she shall be paid
for the difference between the distance to his/her normal place of employment
or seconding hospital and that other annexe, clinic or hospital;
(b) does not include
"call backs";
(iv) Nothing in this
clause shall make the employer liable for the cost of the employee’s daily
travel to his/her usual and normal place of employment.
NOTATION: -
(i) For conditions relating
to secondments see relevant Departmental policy directives.
(ii) Travelling
compensation applies to staff required to work at centres other than their
headquarters.
20. Long Service
Leave
(i)
(a) Each employee
shall be entitled to two months long service leave on full pay after ten years
of service; thereafter additional long service shall accrue on the basis of
five months long service leave on full pay for each ten years service.
Employees with at least seven years service and less
than 10 years service are entitled, proportionate to his or her length of
service, to proceed on a proportionate period of long service leave on the
basis of two months' long service leave for ten years' service on full pay.
(b) Where the
services of an employee with at least five years service and less than seven
years service are terminated by the employer for any reason other than the
employee's serious and wilful misconduct, or by the employee, on account of
illness, incapacity or domestic or other pressing necessity, he/she shall be
entitled to be paid a proportionate amount for long service leave on the basis
of two months' long service leave for ten years' service.
Where the services of an employee with at least seven
years are terminated by the employer or by the employee, he/she shall be
entitled to be paid a proportionate amount for long service leave on the basis
of two months' long service leave for ten years' service. Where the services of an employee with at
least 10 years service are terminated by the employer or by the employee,
he/she shall be entitled to be paid on the basis of two months' long service
leave for ten years' service and thereafter on the basis of five months long
service leave for each ten years service.
(ii) For the
purposes of subclause (i) of this clause:
(a) service shall
mean continuous service with the employer.
For the purpose of this paragraph, continuous service will be determined
in accordance with the provisions of NSW Health Policy Directive PD2006_096
Staff Mobility, as amended from time to time.
(b) Broken periods
of service with the employer in one or more hospitals shall count as service
subject to the condition that where an employee, after ceasing employment with
the employer is re-employed subsequent to the 1st July 1974, any service of
that employee before he/she was so re-employed shall not be counted for the
purpose of determining any long service leave due to that employee in respect
of his/her service after he/she was so re-employed unless he/she has completed
at leave five years' continuous service from the date of his/her being so
re-employed.
(c) Service shall
not include -
(1) any period of
leave without pay except in the case of employees who have completed at least ten
years service (any period of absence without pay being excluded there from) in
which case service shall include any period of leave without pay not exceeding
six months taken after 1 July, 1974;
(2) any period of
part-time service, except permanent part-time service.
(iii) An employee
with an entitlement to long service leave may elect to access such entitlement:
(a) on full pay;
(b) on half pay; or
(c) on double pay.
(iv) When an
employee takes long service leave, the leave entitlement will be deducted on
the following basis:
(a) a period of
leave on full pay - the number of days so taken;
(b) a period of
leave on half pay - half the number of days so taken; or
(c) a period of
leave on double pay - twice the number of days so taken.
(v) When taking long
service leave and an employee would otherwise have had a rostered shift fall on
a public holiday during that period, the amount of long service leave to be
deducted is to be reduced by one day for the public holiday.
(vi) Long service
leave shall be taken at a time mutually arranged between the employer and the
employee.
(vii)
(a) On the
termination of employment of an employee, otherwise than by his/her death, an
employer shall pay to the employee the monetary value of all long service leave
accrued and not taken at the date of such termination and such monetary value
shall be determined according to the salary payable to the employee at the date
of such termination unless the employee transfers his or her leave entitlement
in accordance with NSW Health Policy Directive PD2006_096 Staff Mobility, as
amended from time to time. .
(b) Where an
employee who has acquired a right to long service leave, or after having had five
years service and less than ten years service dies, the widow or the widower of
such employee, or if there is no such widow or widower, the children of such
employee, or if there is no such widow, widower, or children, such person who,
in the opinion of the employer, was at the time of the death of such employee,
a dependent relative of such employee, shall be entitled to receive the
monetary value of the leave not taken or which would have accrued to such
employee, had his/her services terminated as referred to in paragraph (b) of
subclause (i) of this clause and such monetary value shall be determined
according to the salary payable to the employee at the time of his/her death.
Where there is a guardian of any children entitled
under this paragraph the payment, to which such children are entitled, may be
made to such guardian for their maintenance, education and advancement.
Where there is no person entitled under this paragraph
to receive the monetary value of any leave payable under the foregoing provisions
payment in respect thereof shall be made to the legal personal representative
of such employee.
(viii) Rights to long
service leave under this clause shall be in replacement of rights to long
service leave, if any, which at the 1st July 1974, may have accrued or may be
accruing to an employee and shall apply only to persons in the employ of the
employer on or after the 1st July 1974.
Where an employee has been granted long service leave or has been paid its
monetary value prior to the 1st July 1974, the employer shall be entitled to
debit such leave against any leave to which the employee may be entitled
pursuant to this clause.
21. Maternity,
Adoption and Parental Leave
A Maternity Leave
(i) Eligibility for
Paid Maternity Leave
To be eligible for paid maternity leave a full time or
permanent part-time employee must have completed at least 40 weeks continuous
service prior to the expected date of birth.
An employee who has once met the conditions for paid
maternity leave will not be required to again work the 40 weeks continuous
service in order to qualify for a further period of paid maternity leave,
unless-
(a) there has been a
break in service where the employee has been re-employed or re-appointed after
a resignation, medical retirement, or after her services have been otherwise
dispensed with: or
(b) the employee has
completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not
include sick leave without pay, maternity leave without pay, or leave without
pay associated with an illness or injury compensable under the Workers'
Compensation Act.
(ii) Portability of
Service for Paid Maternity Leave
Portability of service for paid maternity leave
involves the recognition of service in public sector organisations for the
purpose of determining an employee's eligibility to receive paid maternity
leave. For example, where an employee
moves between a Public Sector Department and a public hospital, previous continuous
service will be counted towards the service prerequisite for paid maternity
leave.
When determining an employee's eligibility for paid
maternity leave, continuous service with an organisation that is part of the
public sector service as defined in the Public Sector Employment and Management
Act 2002 will be recognised, provided that:
(a) service was on a
full-time or permanent part-time basis:
(b) cessation of
service with the former employer was not by reason of dismissal on any ground,
except retrenchment or reduction of work;
(c) the employee
immediately commences duty with the new employer. There may be a break in service of up to two months before
commencing duty with the new employer.
However, such a break in service will not be counted as service for the
purpose of calculating any prior service prerequisite for paid maternity leave.
(iii) Entitlement to
Paid Maternity Leave
An eligible employee is entitled to fourteen weeks at
the ordinary rate of pay from the date maternity leave commences. This leave may commence up to fourteen weeks
prior to the expected date of birth.
It is not compulsory for an employee to take this
period off work. However, if an employee decides to work during the nine weeks
prior to the date of birth it is subject to the employee being able to satisfactorily
perform the full range of normal duties.
Paid maternity leave may be paid:
on a normal fortnightly basis; or
in advance in a lump sum; or
at the rate of half pay over a period of twenty-eight
weeks on a regular fortnightly basis.
Annual and/or long service leave credits can be
combined with periods of maternity leave on half pay to enable an employee to
remain on full pay for that period.
(iv) Unpaid Maternity
Leave
(a) Full time and
permanent part time employees who are entitled to paid maternity leave are
entitled to a further period of unpaid maternity leave of not more than 12
months after the actual date of birth.
(b) Full time and
permanent part time employees who are not eligible for paid maternity leave are
entitled to unpaid maternity leave of not more than 12 months.
(v) Applications
An employee who intends to proceed on maternity leave
should formally notify her employer of such intention as early as possible, so
that arrangements associated with her absence can be made.
Written notice of not less than eight weeks prior to
the commencement of the leave should accordingly be given. This notice must include a medical
certificate stating the expected date of birth and should also indicate the
period of leave desired.
(vi) Variation after
Commencement of Leave
After commencing maternity leave, an employee may vary
the period of her maternity leave once only without the consent of her employer
by giving the employer notice in writing of the extended period at least
fourteen days’ before the start of the extended period. An employer may accept
less notice if convenient.
An employee may extend the period of maternity leave at
any time with the agreement of the employer.
The conditions relating to variation of maternity leave
are derived from Section 64 of the Industrial Relations Act 1996.
(vii) Staffing
Provisions
In accordance with obligations established by the
Industrial Relations Act 1996 (Section 69) any person who occupies the position
of an employee on maternity leave must be informed that the employee has the
right to return to her former position. Additionally, since an employee has the
right to vary the period of her maternity leave, offers of temporary employment
should be in writing, stating clearly the temporary nature of the contract of
employment. The duration of employment
should be also set down clearly; to a fixed date or until the employee elects
to return to duty, whichever occurs first.
(viii) Effect of
Maternity Leave on Accrual of Leave, Increments etc.
When the employee has resumed duties, any period of
full pay leave is counted in full for the accrual of annual leave, sick leave
and long service leave and any period of maternity leave on half pay is taken
into account to the extent of one half thereof when determining the accrual of
annual leave, sick leave and long service leave.
Except in the case of employees who have completed ten
years' service the period of maternity leave without pay does not count as
service for long service leave purposes. Where the employee has completed ten years' service the period of
maternity leave without pay shall count as service provided such leave does not
exceed six months.
Maternity leave without pay does not count as service
for incremental purposes. Periods of
maternity leave at full pay and at half pay are to be regarded as service for
incremental progression on a pro-rata basis.
Where public holidays occur during the period of paid
maternity leave, payment is at the rate of maternity leave received i.e., public
holidays occurring in a period of full pay maternity leave are paid at full
rate and those occurring during a period of half pay leave are paid at half
rate.
(ix) Illness
Associated with Pregnancy
If, because of an illness associated with her pregnancy
an employee is unable to continue to work then she can elect to use any
available paid leave (sick, annual and/or long service leave) or to take sick
leave without pay.
Where an employee is entitled to paid maternity leave,
but because of illness, is on sick, annual, long service leave, or sick leave
without pay prior to the birth, such leave ceases nine weeks prior to the
expected date of birth. The employee then
commences maternity leave with the normal provisions applying.
(x) Transfer to a
More Suitable Position
Where, because of an illness or risk associated with
her pregnancy, an employee cannot carry out the duties of her position, an
employer is obliged, as far as practicable, to provide employment in some other
position that she is able to satisfactorily perform. This obligation arises from Section 70 of the Industrial
Relations Act 1996. A position to which an employee is transferred under these
circumstances must be as close as possible in status and salary to her
substantive position.
(xi) Miscarriages
In the event of a miscarriage any absence from work is
to be covered by the current sick leave provisions
(xii) Stillbirth
In the case of a stillbirth, (as classified by the
Registry of Births, Deaths and Marriages) an employee may elect to take sick
leave, subject to production of a medical certificate, or maternity leave. She may resume duty at any time provided she
produces a doctor's certificate as to her fitness.
(xiii) Effect of Premature
Birth on Payment of Maternity Leave
An employee who gives birth prematurely and prior to
proceeding on maternity leave shall be treated as being on maternity leave from
the date leave is commenced to have the child.
Should an employee return to duty during the period of paid maternity
leave, such paid leave ceases from the date duties are resumed.
(xiv) Right to Return
to Previous Position
In accordance with the obligations set out in Section
66 of the Industrial Relations Act 1996, an employee returning from maternity
leave has the right to resume her former position.
Where this position no longer exists the employee is
entitled to be placed in a position nearest in status and salary to that of her
former position and to which the employee is capable or qualified.
(xv) Further Pregnancy
While on Maternity Leave
Where an employee becomes pregnant whilst on maternity
leave a further period of maternity leave shall be granted. If an employee enters
on the second period of maternity leave during the currency of the initial
period of maternity leave, then any residual maternity leave from the initial
entitlement ceases
An employee who commences a subsequent period of
maternity leave while on unpaid maternity leave under subclause (iv)(a) of Part
A of this clause or subclause (i)(b) of Part D of this clause is entitled to be
paid at their normal rate (ie the rate at which they were paid before
proceeding on maternity leave).
An employee who commences a subsequent period of
maternity leave during the first 12 months of a return to duty on a part time
basis as provided under subclause (i)(c) of Part D of this clause is entitled
to be paid at their substantive full time rate for the subsequent period of
maternity leave..
An employee who commences a subsequent period of
maternity leave more than 12 months after returning to duty on a part time
basis under subclause (i)(c) of Part D of this clause, will be entitled to paid
maternity leave for the subsequent period of maternity leave at their part time
rate.
B Adoption Leave
(i) Eligibility
All full time and permanent part time employees who are
adopting a child and are to be the primary care giver of the child are eligible
for unpaid adoption leave.
To be eligible for paid adoption leave a full time or
permanent part-time employee must also have completed at least 40 weeks
continuous service prior to the date of taking custody of the child.
An employee who has once met the conditions of paid adoption
leave, will not be required to again work the 40 weeks continuous service in
order to qualify for further periods of paid adoption leave, unless
(a) there has been a
break in service where the employee has been re-employed or re-appointed after
a resignation, medical retirement, or after their services have been otherwise
dispensed with; or
(b) the employee has
completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not
include sick leave without pay, maternity leave without pay, or leave without
pay associated with an illness or injury compensable under the Worker's
Compensation Act.
(ii) Portability of
Service for Paid Adoption Leave
As per maternity leave conditions.
(iii) Entitlement
(a) Paid Adoption
Leave
Eligible employees are entitled to paid adoption leave
of fourteen weeks at the ordinary rate of pay from and including the date of
taking custody of the child.
Paid adoption leave may be paid:-
on a normal fortnightly basis; or
in advance in a lump sum; or
at the rate of half pay over a period of twenty-eight
weeks on a regular fortnightly basis.
Annual and/or long service leave credits can be
combined with periods of adoption leave at half pay to enable an employee to
remain on full pay for that period.
(b) Unpaid Adoption
Leave
Eligible employees are entitled to unpaid adoption
leave as follows: -
where the child is under the age of 12 months - a
period of not more than 12 months from the date of taking custody;
where the child is over the age of 12 months and under
18 years old - a period of up to 12 months, such period to be agreed upon by
both the employee and the employer.
(iv) Applications
Due to the fact that an employee may be given little
notice of the date of taking custody of a child, employees who believe that, in
the reasonably near future, they will take custody of a child, should formally
notify the employer as early as practicable of the intention to take adoption
leave. This will allow arrangements
associated with the adoption leave to be made.
(v) Variation after
Commencement of Leave
After commencing adoption leave, an employee may vary
the period of leave, once without the consent of the employer and otherwise with
the consent of the employer. A minimum of fourteen days’ notice must be given,
although an employer may accept less notice if convenient.
(vi) Staffing
Provisions
As per maternity leave conditions.
(vii) Effect of
Adoption Leave on Accrual of Leave, Increments, etc
As per maternity leave conditions.
(viii) Right to return
to Previous Position
As per maternity leave conditions.
C Parental Leave
(i) Eligibility
To be eligible for parental leave a full time or
permanent part-time employee must have completed at least 40 weeks continuous
service prior to the expected date of birth or to the date of taking custody of
the child.
An employee who has once met the conditions for paid
parental leave will not be required to again work the 40 weeks continuous
service in order to qualify for a further period of paid parental leave,
unless-
(a) there has been a
break in service where the employee has been re-employed or re-appointed after
a resignation, medical retirement, or after their services have been otherwise
dispensed with: or
(b) the employee has
completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not
include sick leave without pay, maternity leave without pay, or leave without
pay associated with an illness or injury compensable under the Workers'
Compensation Act 1987.
(ii) Portability of
Service for Paid Parental Leave
As per maternity leave conditions.
(iii) Entitlements
Eligible employees whose spouse or partner (including a
same sex partner) is pregnant or is taking custody of a child, are entitled to
a period of leave not exceeding 52 weeks, which includes one week of paid
leave, and may be taken as follows:
(a) an unbroken
period of up to one week at the time of the birth of the child, taking custody
of the child or other termination of the pregnancy (short parental leave), and
(b) a further
unbroken period in order to be the primary caregiver of the child (extended
parental leave).
(c) The entitlement
of one week’s paid leave may be taken at anytime within the 52 week period and
shall be paid:
at the employees ordinary rate of pay for a period not
exceeding one week on full pay, or
two weeks at half pay or the period of parental leave
taken, whichever is the lesser period.
(d) Extended
parental leave cannot be taken at the same time as the employee’s spouse or
partner is on maternity or adoption leave except as provided for in subclause
(i)(a) of Part D Right to Request of this clause.
Annual and/or long service leave credits can be
combined with periods of parental leave on half pay to enable an employee to
remain on full pay for that period.
(iv) Applications
An employee who intends to proceed on parental leave
should formally notify their employer of such intention as early as possible,
so that arrangements associated with their absence can be made.
(a) In the case of
extended parental leave, the employee should give written notice of the
intention to take the leave.
(b) The employee must,
at least four weeks before proceeding on leave, give written notice of the
dates on which they propose to start and end the period of leave, although it
is recognised in situations of taking custody of a child, little or no notice
may be provided to the employee. In such an instance, the employee should
notify the employer as early as practicable.
(c) The employee
must, before the start of leave, provide a certificate from a medical
practitioner confirming that their spouse or partner is pregnant and the
expected date of birth, or in the case of an adoption, an official form or
notification on taking custody of the child.
(d) In the case of
extended parental leave, the employee must, before the start of leave, provide
a statutory declaration by the employee stating:
(1) if applicable,
the period of any maternity leave sought or taken by his spouse, and
(2) that they are
seeking the period of extended parental leave to become the primary care giver
of the child.
(v) Variation after Commencement of Leave -
After commencing parental leave, an employee may vary
the period of her/his parental leave, once without the consent of the employer
and otherwise with the consent of the employer. A minimum of fourteen days’ notice must be given, although an employer
may accept less notice if convenient.
(vi) Effect of
Parental Leave on Accrual of Leave, Increments etc.
As per maternity leave conditions.
(vii) Right to Return
to Previous Position
As per maternity leave conditions.
D Right to Request
(i) An employee
entitled to maternity, adoption or parental leave may request the employer to
allow the employee:
(a) to extend the
period of simultaneous maternity, adoption or parental leave use up to a
maximum of eight weeks;
(b) to extend the period
of unpaid maternity, adoption or extended parental leave for a further
continuous period of leave not exceeding 12 months;
(c) to return from a
period of maternity, adoption or parental leave on a part time basis until the
child reaches school age;
to assist the employee in reconciling work and parental
responsibilities.
(ii) 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.
(iii) The employee’s
request and the employer’s decision made under subclauses (i)(b) and (c) must
be recorded in writing.
(iv) Where an
employee wishes to make a request under subclause (i)(c):
(a) the employee is
to make an application for leave without pay to reduce their full time weekly
hours of work
(b) such application
must be made as early as possible to enable the employer to make suitable
staffing arrangements. At least four
weeks notice must be given;
(c) salary and other
conditions of employment are to be adjusted on a basis proportionate to the
employee’s full time hours of work ie for long service leave the period of
service is to be converted to the full time equivalent and credited
accordingly.
(d) employees who
return from leave under this arrangement remain full time employees. Therefore the payment of any part time
allowance to such employees does not arise.
E Communication
During Leave
(i) Where an
employee is on maternity, adoption or parental leave and a definite decision
has been made to introduce significant change at the workplace, the employer
shall take reasonable steps to:
(a) 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 the leave; and
(b) 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 the leave.
(ii) 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 the 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.
(iii) 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 subclause (i).
NOTE:
(a) The entitlement
to Maternity, Adoption and Parental leave for part-time employees who receive
an adjusted hourly rate along with casual employees, are in accordance with the
provisions of Part 4, Parental Leave of the Industrial Relations Act 1996
and/or Determination made under the Health Services Act 1997.
(b) Where a casual
employee is entitled to parental leave under the Industrial Relations Act 1996,
the following provisions shall also apply in addition to those set out in the
Act.
An employer must not fail to re-engage a casual
employee because:
the employee or employee’s spouse is pregnant; or
the employee is or has been immediately absent on
parental leave.
The rights of the employer in relation to engagement
and re-engagement of casual employees are not affected, other than in
accordance with this clause.
(c) Part time
employees who receive an adjusted hourly rate are also entitled to the
provisions of Part D Right to Request and Part E Communication During Leave of
this clause.
(d) Liability for
Superannuation Contributions
During a period of unpaid maternity, adoption or
parental leave, the employee will not be required to meet the employer's
superannuation liability.
22. Trade Union Leave
(i) Eligibility
Applies to members of the Association(s) accredited by
the Association(s) as delegates.
(ii) Paid Special
Leave
Paid special leave is available for attendance at:
(a) annual or
bi-annual conferences of the delegate’s union; and
(b) meetings of the
union’s executive/committee of management;
(c) authorised union
delegate meetings;
(d) annual
conference of Unions NSW;
(e) bi-annual
conference of the Australian Council of Trade Unions.
(iii) Limits
There is no limit on the special leave that could be
applied for or granted.
(iii) Responsibilities
of the Union Delegate
Responsibilities of the union delegate are:
(a) to establish
accreditation as a delegate with the union;
(b) to provide
sufficient notice of absence to the employer; and,
(c) to lodge a
formal application for special leave.
(v) Responsibilities
of the relevant Association
Responsibilities of the relevant Association are:
(a) to provide
documentary evidence to the employer about an accredited delegate in sufficient
time to enable the employer to make arrangements for performance of duties;
(b) to meet all
travelling, accommodation and any other costs incurred by the accredited
delegate; and,
(c) to provide the
employer with confirmation of attendance of attendance of the accredited
delegate.
(vi) Responsibilities
of the employer
Responsibilities of the employer are:
(a) to release the
accredited delegate for the duration of the conference or meeting;
(b) to grant special
leave (with pay); and,
(c) to ensure that
the duties of the absent delegate are performed in his/her absence, if
appropriate.
(vii) Period of
Notice
Generally, dates of conferences or meetings are known
well in advance and it is expected that employers would be notified as soon as
accreditation has been given to a delegate or at least two weeks before the
date of attendance.
Where extraordinary meetings are called at short
notice, a shorter period of notice would be acceptable, provided such notice is
given to the employer as soon as advice of the meeting is received by the
accredited delegate.
(viii) Travel Time
Where a delegate has to travel to Sydney, inter or
intra state, to attend a conference or meeting, special leave will also apply
to reasonable travelling time to and from the venue of the conference or
meeting.
No compensation, such as time off in lieu, is to be
provided if travel can be and is taken on an accredited delegate’s non-working
day or before or after their normal hours of work.
(ix) Payment of
Allowances
No allowances will be claimable in cases of special
leave granted for attendance at union conferences or executive meetings covered
by this Clause - see also subclause (v) above.
23. Labour
Flexibility
(i) An employer may
direct an employee to carry out such duties as are reasonable, and within the
limits of the employee's skill, competence and training consistent with
employee's classification, grouping and/or career stream provided that such
duties are not designed to promote deskilling.
(ii) An employer
may direct an employee to carry out such duties and use such tools and equipment
as may be required provided that the employee has been properly trained or has
otherwise acquired the necessary skills in the use of such tools and equipment.
(iii) Any direction
issued by an employer pursuant to sub-clause (i) and (ii) shall be consistent
with the employer's responsibilities to provide a safe and healthy work
environment.
(iv) Existing
provisions with respect to the payment of mixed functions/higher duties
allowances shall apply in such circumstances. In no circumstances shall an
employee’s salary be reduced by the application of this clause.
24.
Anti-Discrimination
(i) It is the
intention of the parties bound by this award to seek to achieve the object in
section 3 (f) of the Industrial Relations Act 1996 to prevent and eliminate
discrimination in the workplace. This
includes discrimination on the grounds of race, sex, marital status,
disability, homosexuality, transgender identity and age and responsibilities as
a carer.
(ii) It follows
that in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent with the fulfillment
of these obligations for the parties to make application to vary any provision
of the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
(iii) Under the
Anti-Discrimination Act 1977, it is unlawful to victimise an employee because
the employee has made or may make or has been involved in a complaint of
unlawful discrimination or harassment.
(iv) Nothing in this
clause is to be taken to affect:
(a) any conduct or act
which is specifically exempted from anti-discrimination legislation;
(b) offering or
providing junior rates of pay to persons under 21 years of age;
(c) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to this
award from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
(v) This clause does
not create legal rights or obligations in addition to those imposed upon the parties
by the legislation referred to in this clause.
NOTES -
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation
(b) Section 56(d) of
the Anti-Discrimination Act 1977 provides:
"Nothing in this Act affects ... any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion:
25. Redundancy -
Managing Displaced Employees
Employees shall be entitled to the provisions of Health
Department Policy Directive PD2007_085 ‘Managing Displaced Staff of the NSW
Health Service’ as amended from time to time.
26. Salary Sacrifice
to Superannuation
(i) Notwithstanding
the salaries prescribed in Clause 3 Salaries as varied from time to time, an
employee may elect, subject to the agreement of the employee’s employer, to
sacrifice a part or all of the salary payable under the salaries clause to
additional employer superannuation contributions. Such election must be made
prior to the commencement of the period of service to which the earnings
relate. The amount sacrificed together with any salary packaging arrangements
under Clause 27. Salary Packaging, of this award may be made up to one hundred
(100) per cent of the salary payable under the salaries clause, or up to one
hundred (100) per cent of the currently applicable superannuable salary,
whichever is the lesser.
In this clause, ‘superannuable salary’ means the employee’s
salary as notified from time to time to the New South Wales public sector
superannuation trustee corporations.
(ii) Any pre-tax
and post-tax payroll deductions must be taken into account prior to determining
the amount of available salary to be packaged. Such payroll deductions may
include but are not limited to superannuation payments, HECS payments, child
support payments, judgement debtor/garnishee orders, union fees and private
health fund membership fees.
(iii) Where the
employee has elected to sacrifice a part or all of the available payable salary
to additional employer superannuation contributions:
(a) The employee
shall be provided with a copy of the signed agreement. The salary sacrifice
agreement shall be terminated at any time at the employee’s election and shall
cease upon termination of the employee’s services with the employer.
(b) Subject to
Australian taxation law, the amount of salary sacrificed will reduce the salary
subject to appropriate PAYE taxation deductions by the amount sacrificed; and
(c) Any allowance,
penalty rate, overtime, payment for unused leave entitlements, weekly workers’
compensation, or other payment, other than any payment for leave taken in
service, to which an employee is entitled under the relevant award or any
applicable award, act, or statute which is expressed to be determined by
reference to an employee’s salary, shall be calculated by reference to the
salary which would have applied to the employee under the salaries clause in
the absence of any salary sacrifice to superannuation made under this award.
(iv) The employee
may elect to have the specified amount of payable salary which is sacrificed to
additional employer superannuation contributions:
(a) paid into the
superannuation scheme established under the First State Superannuation Act 1992
as optional employer contributions; or
(b) subject to the
employer’s agreement, paid into a private sector complying superannuation
scheme as employer superannuation contributions.
(v) Where an employee
elects to salary sacrifice in terms of subclause (iv) above, the employer will
pay the sacrificed amount into the relevant superannuation fund.
(vi) Where the
employee is a member of a superannuation scheme established under:
(a) the Police
Regulation (Superannuation) Act, 1906;
(b) the
Superannuation Act, 1916;
(c) the State
Authorities Superannuation Act, 1987;
(d) the State
Authorities Non-contributory Superannuation Act, 1987; or
(e) the First State
Superannuation Act, 1992.
The employee’s employer must ensure that the amount of
any additional employer superannuation contributions specified in subclause (i)
above is included in the employee’s superannuable salary which is notified to
the New South Wales public sector superannuation trustee corporations.
(vii) Where, prior to
electing to sacrifice a part or all of their salary to superannuation, an
employee had entered into an agreement with their employer to have
superannuation contributions made to a superannuation fund other than a fund
established under legislation listed in subclause (v) above, the employer will
continue to base contributions to that fund on the salary payable under Clause
3. Salaries of the award to the same extent as applied before the employee
sacrificed that amount of salary to superannuation. This clause applies even
though the superannuation contributions made by the employer may be in excess
of the superannuation guarantee requirements after the salary sacrifice is
implemented.
27. Salary Packaging
(i) By agreement
with their employer, employees may elect to package part or all of their salary
in accordance with this clause, to obtain a range of benefits as set out in the
NSW Health Services Salary Packaging Policy and Procedure Manual, as amended from
time to time. Such election must be made prior to the commencement of the
period of service to which the earnings relate. Where an employee also elects
to salary sacrifice to superannuation under this award, the combined amount of
salary packaging/sacrificing may be up to 100 per cent of salary.
Any salary packaging above the fringe benefit exemption
cap will attract fringe benefits tax as described in paragraph (iv) below.
(ii) Where an
employee elects to package an amount of salary:
(a) Subject to
Australian taxation law, the packaged amount of salary will reduce the salary
subject to PAYE taxation deductions by that packaged amount.
(b) Any allowance,
penalty rate, overtime payment, payment for unused leave entitlements, weekly
workers’ compensation, or other payment other than any payment for leave taken
in service, to which an employee is entitled under this award or statute which
is expressed to be determined by reference to an employee’s salary, shall be
calculated by reference to the salary which would have applied to the employee
under this award in the absence of any salary packaging or salary sacrificing
made under this award.
(c) ‘Salary’ for the
purpose of this clause, for superannuation purposes, and for the calculation of
award entitlements, shall mean the award salary as specified in Clause 3.
Salaries, and which shall include ‘approved employment benefits’ which refer to
fringe benefit savings, administration costs, and the value of packaged
benefits.
(iii) Any pre-tax
and post-tax payroll deductions must be taken into account prior to determining
the amount of available salary to be packaged. Such payroll deductions may
include but are not limited to superannuation payments, HECS payments, child
support payments, judgement debtor/garnishee orders, union fees, and private
health fund membership fees.
(iv) The salary
packaging scheme utilises a fringe benefit taxation exemption status conferred
on public hospitals and area health services, which provides for a fringe benefit
tax exemption cap of $17,000 per annum. The maximum amount of fringe
benefits-free tax savings that can be achieved under the scheme is where the
value of benefits when grossed-up, equal the fringe benefits exemption cap of
$17,000. Where the grossed-up value exceeds the cap, the employer is liable to
pay fringe benefits tax on the amount in excess of $17,000, but will pass this
cost on to the employee. The employer’s share of savings, the combined
administration cost, and the value of the package benefits, are deducted from
pre-tax dollars.
(v) The parties
agree that the application of the fringe benefits tax exemption status
conferred on public hospitals and area health services is subject to prevailing
Australian taxation laws.
(vi) If an employee
wishes to withdraw from the salary packaging scheme, the employee may only do
so in accordance with the required period of notice as set out in the Salary
Packaging Policy and Procedure Manual.
(vii) Where an
employee ceases to salary package, arrangements will be made to convert the
agreed package amount to salary. Any costs associated with the conversion will
be borne by the employee, and the employer shall not be liable to make up any
salary lost as a consequence of the employee’s decision to convert to salary.
(viii) Employees
accepting the offer to salary package do so voluntarily. Employees are advised
to seek independent financial advice and counselling to apprise them of the
implications of salary packaging on their individual personal financial
situations.
(ix) The employer
and the employee shall comply with the procedures set out in the NSW Health
Services Salary Packaging Policy and Procedure Manual as amended from time to
time.
28. Reasonable Hours
(i) Subject to
sub-clause (ii) an employer may require an employee to work reasonable overtime
at overtime rates unless or as otherwise provided for under the award.
(ii) 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.
(iii) For the
purposes of sub-clause (ii) what is unreasonable or otherwise will be
determined having regard to:
(a) any risk to
employee health and safety;
(b) the employee’s
personal circumstances including any family and carer responsibilities;
(c) the needs of the
workplace or enterprise;
(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
(e) any other
relevant matter.
29. Higher Duties
Allowance
An employee who is called upon to relieve an employee in a
higher classification continuously for five working days or more and who
satisfactorily performs the whole of the duties and assumes the whole of the
responsibilities of the higher classification ,shall be entitled to receive,
for the period of relief, the minimum pay of such higher classification.
30. Underpayment and
Overpayment of Salaries
The following process will apply once the issue of
underpayment or overpayment is substantiated.
(i) Underpayment
(a) If the amount
underpaid is equal to or greater than one day’s gross base pay the underpayment
will be rectified within three working days.
(b) If the amount
underpaid is less than one day’s gross base pay it will be rectified by no
later than the next normal pay.
However, if the employee can demonstrate that rectification in this
manner would result in undue hardship, every effort will be made by the
employer to rectify the underpayment within three working days.
(ii) Overpayment
(a) In all cases
where overpayments have occurred, the employer shall as soon as possible advise
the employee concerned of both the circumstances surrounding the overpayment
and the amount involved. The employer
will also advise the employee of the pay period from which the recovery of the
overpayment is to commence.
(b) One off
overpayments will be recovered in the next normal pay, except that where the
employee can demonstrate that undue hardship would result, the recovery rate
shall be at 10% of an employee’s gross fortnightly base pay.
(c) Unless the
employee agrees otherwise, the maximum rate at which cumulative overpayments
can be recovered is an amount, calculated on a per fortnight basis, equivalent
to 10% of the employee’s gross fortnightly base pay.
(d) The recovery
rate of 10% of an employee’s gross fortnightly base pay referred to in
subclause (ii)(c) above may be reduced by agreement, where the employee can
demonstrate that undue hardship would result.
(e) Where an
employee’s remaining period of service does not permit the full recovery of any
overpayment to be achieved on the fortnightly basis prescribed in subclause
(ii)(c) above, the Employer shall have the right to deduct any balance of such
overpayment from monies owing to the employee on the employee’s date of
termination, resignation or retirement, as the case may be.
31. No Further Claims
There shall be no further salary or conditions claims made
during the term of this Award.
32. Area, Incidence
and Duration
(i) This Award
rescinds and replaces the Public Hospital Career Medical Officers (State) Award
published 10 March 2006 (357 IG 986) and all variations thereof.
(ii) This Award
shall apply to persons employed in classifications contained herein employed in
the NSW Health Service under section 115(1) of the Health Services Act 1997, or
their successors, assignees or transmittees.
(iii) This Award
takes effect from 7 November 2008, and shall remain in force until 30 June
2011.
PART B
Table 1 -
Allowances
Item
|
Clause
|
Description
|
Rate From
|
Rate From
|
Rate From
|
No.
|
No.
|
|
1.7.2008
|
1.7.2009
|
1.7.2010
|
|
|
|
$
|
$
|
$
|
1
|
6
|
In Charge Allowance
|
26.90
|
27.90
|
29.00
|
2
|
11(iii)
|
On-call Allowance per on-call period which coincides with
a day rostered on duty
|
29.25
|
30.40
|
31.60
|
On-call allowance per on-call period which coincides with
a rostered day off
|
58.50
|
60.80
|
63.20
|
per week
|
204.75
|
212.80
|
221.20
|
3
|
16(ii)(a)
|
Uniform and Laundry Allowance
|
|
|
|
- Full uniform including special shoes if required
(p/week)
|
2.30
|
2.30
|
2.30
|
- Other cases
(p/week)
|
1.70
|
1.70
|
1.70
|
M.
J. WALTON J
, Vice-President
____________________
Printed by
the authority of the Industrial Registrar.