Nurses (Private Sector) Redundancy (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.

 

(Case No. 288399 of 2018)

 

 

REVIEWED AWARD

 

1.  Arrangement

 

Clause No.       Subject Matter

 

1.         Arrangement

2.         Title

3.         Application

4.         Introduction of Change

5.         Redundancy

6.         Termination of Employment

7.         Severance Pay

8.         Grievance and Dispute Resolution Procedures

9.         Savings Clause

10.      Area, Incidence and Duration

 

2.  Title

 

This award shall be known as the Nurses (Private Sector) Redundancy (State) Award.

 

3.  Application

 

(i)        In respect to employers who employ 15 or more employees immediately prior to the termination of employment of the employees, in the terms of clause 6, Termination of Employment.

 

(ii)      Notwithstanding anything contained elsewhere in this award, this award shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

(iii)     Notwithstanding anything contained elsewhere in this award, this award shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

4.  Introduction of Change

 

(i)        Employer's Duty to Notify

 

(a)       Where an employer has made a definite decision to introduce major changes in production, programme, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the union to which they belong.

 

(b)       "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

Provided that, where an award referred to in subclause (i) of clause 3, Application, makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

(ii)      Employer's Duty to Discuss Change

 

(a)       The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in subclause (i) of this clause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

(b)       The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in the said subclause (i).

 

(c)       For the purpose of such discussion, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

5.  Redundancy

 

Discussions before Termination

 

(a)       Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to paragraph (a) of subclause (i) of clause 4, Introduction of Change, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(b)       The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subclause (a) of this clause and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

 

(c)       For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and the union to which they belong all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

6.  Termination of Employment

 

(i)        Notice for Changes in Production, Programme, Organisation or Structure

 

This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, programme, organisation or structure in accordance with paragraph (a) of subclause (i) of clause 4, Introduction of Change.

 

(a)       In order to terminate the employment of an employee the employer shall give to the employee the following notice:

 

 

(b)       In addition to the notice above, employees over 45 years of age at the time of the giving of the notice, with not less than two years' continuous service, shall be entitled to an additional week's notice.

 

(c)       Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(ii)      Notice for Technological Change

 

This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from "technology" in accordance with paragraph (a) of subclause (i) of the said clause 4.

 

(a)       In order to terminate the employment of an employee, the employer shall give to the employee three months notice of termination.

 

(b)       Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(c)       The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts.

 

(iii)     Time Off during the Notice Period

 

(a)       During the period of notice of termination given by the employer, an employee shall be allowed up to one day's time off without loss of pay during each week of notice, to a maximum of five weeks, for the purpose of seeking other employment.

 

(b)       If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.

 

(iv)     Employee Leaving during the Notice Period

 

If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause had the employee remained with the employer until the expiry of such notice.  Provided that in such circumstance the employee shall not be entitled to payment in lieu of notice.

 

(v)       Statement of Employment

 

The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee.

 

(vi)     Notice to Centrelink

 

Where a decision has been made to terminate the employment of employees, the employer shall notify Centrelink thereof as soon as possible giving relevant information including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(vii)    Centrelink Employment Separation Certificate

 

The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an "Employment Separation Certificate" in the form required by Centrelink.

 

(viii)   Transfer to Lower Paid Duties

 

Where an employee is transferred to lower paid duties for reasons set out in subclause (i) of the said clause 4, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated, and the employer may at the employer's option make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary-time rate for the number of weeks notice still owing.

 

(ix)     Notice Required by an Award

 

The period of notice prescribed by this clause shall be in substitution for any notice required by an award listed in subclause (i) of clause 10, Area, Incidence and Duration.

 

7.  Severance Pay

 

(i)        Where the employment of an employee is to be terminated pursuant to clause 6, Termination of Employment, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the following severance pay in respect of a continuous period of service.

 

(a)       If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:

 

 

(b)       Where an employee is 45 years of age or over, the entitlement shall be in accordance with the following scale:

 

 

(c)       "Week's pay" means the all-purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over-award payments, shift penalties and allowances specified in paragraph (d) of this subclause paid in accordance with the award covering the wages and conditions of the employee.

 

(d)       For the purposes of this clause, the following allowances in paragraphs (a) and (b) of subclause (i) of Clause 9 Special Allowances, and subclauses (i) and (ii) of Clause 11, Climatic and Isolation Allowance. In the Nursing Homes, &c., Nurses (State) Award published 27 January 2012 (372 I.G. 621) along with the most recent wage and allowance variation of IRC Matter No. 2018/00280889.

 

(e)       A "week's pay" for a particular employee shall be determined according to the average week's pay received by the employee in the period immediately prior to their last date of employment equal to the number of weeks of severance pay to which the employee is entitled under paragraphs (a) and (b) of this subclause.

 

(iii)     Incapacity to Pay

 

Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause (i) of this clause.

 

The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in the said subclause (i) will have on the employer.

 

(iv)     Alternative Employment

 

Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause (i) of this clause if the employer obtains acceptable alternative employment for an employee.

 

8.  Grievance and Dispute Resolution Procedures

 

(i)        Procedures relating to Grievances of Individual Employees

 

(a)       The employee is required to notify the employer (in writing or otherwise) as to the substance of the grievance, request a meeting with the employer for bilateral discussions and state the remedy sought.

 

(b)       A grievance must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(c)       Reasonable time limits must be allowed for discussion at each level of authority.

 

(d)       At the conclusion of the discussion, the employer must provide a response to the employee's grievance, if the matter has not been resolved, including reasons for not implementing any proposed remedy.

 

(e)       While a procedure is being followed, normal work must continue.

 

(f)        The employee may be represented by an industrial organisation of employees.

 

(ii)      Procedures relating to Disputes, etc., between Employers and their Employees

 

(a)       A question, dispute or difficulty must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(b)       Reasonable time limits must be allowed for discussion at each level of authority.

 

(c)       While a procedure is being followed, normal work must continue.

 

(d)       The employer may be represented by an industrial organisation of employers and the employees may be represented by an industrial organisation of employees for the purposes of each procedure.

 

9.  Savings Clause

 

Nothing in this award shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions which an employee may be entitled to under any existing redundancy arrangement, taken as a whole, between the union and any employer bound by this award.

 

10.  Area, Incidence and Duration

 

(i)        This award shall apply to all full-time and part-time employees in classifications specified in the Nursing Homes, &c., Nurses (State) Award.

 

(ii)      This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Nurses (Private Sector) Redundancy (State) Award published 27 January 2012 (372 I.G. 621), as varied.

 

(iii)     The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 9 November 2018.

 

(iv)     This award remains in force until varied or rescinded, the period for which it was made having already expired.

 

 

 

P. M. KITE, Chief Commissioner

 

 

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Printed by the authority of the Industrial Registrar.