Crown Employees (School
Administrative and Support Staff) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by NSW
Department of Education and Training.
(No. IRC 329 of 2006)
|
Before The Honourable
Justice Wright, President
|
3 February 2006
|
VARIATION
1. Insert in
clause 1, Arrangement of the award published 27 May 2005 (351 I.G. 374), the
following new clause number and subject matter and renumber the existing clause
22, Area, Incidence and Duration, to read as clause 23.
22. Short Term
Temporary Employees Entitlements
23. Area,
Incidence and Duration
2. Delete clause
16, Leave, and insert in lieu thereof the following:
16. Leave
16.1 Adoption, Maternity
and Parental Leave
16.1.1 Maternity
leave shall apply to an employee who is pregnant and, subject to this clause
the employee shall be entitled to be granted maternity leave as follows:
(i) For a period
up to 9 weeks prior to the expected date of birth; and
(ii) For a further
period of up to 12 months after the actual date of birth.
(iii) An employee
who has been granted maternity leave and whose child is stillborn may elect to
take available sick leave instead of maternity leave.
16.1.2 Adoption
leave shall apply to an employee adopting a child and who will be the primary
care giver, the employee shall be granted adoption leave as follows:
(i) For a period
of up to 12 months if the child has not commenced school at the date of the
taking of custody; or
(ii) For such
period, not exceeding 12 months on a full-time basis, as the Director-General
may determine, if the child has commenced school at the date of the taking of
custody.
(iii) An employee
shall be entitled to special adoption leave (without pay) for up to 2 days to
attend interviews or examinations for the purposes of adoption. Special
adoption leave may be taken as a charge against recreation leave, extended
leave or family and community service leave, or organised through hours averaging
provisions if applicable.
16.1.3 Parental
leave shall apply to male and female staff to look after his/her child or
children where maternity or adoption leave does not apply. Parental leave
applies for a period not exceeding 12 months. Parental leave may commence at
the time of the birth of the child or other termination of the of the spouse’s
or partner’s pregnancy or, in the case of adoption, from the date of taking
custody of the child or children or at any time up to 2 years from that date.
16.1.4 An
employee taking maternity or adoption leave is entitled to payment at the
ordinary rate of pay for a period of 14 weeks, an employee entitled to parental
leave is entitled to payment at the ordinary rate of pay for a period of up to
1 week, provided the employee:
(i) Applied for
maternity, adoption or parental leave within the time and in the manner
determined set out in paragraph 16.1.9 of this clause; and
(ii) Prior to the commencement
of maternity, adoption or parental leave, completed not less than 40 weeks'
continuous service.
(iii) Payment for
the maternity, adoption or parental leave may be made as follows:
(a) in advance as
a lump sum; or
(b) fortnightly as
normal; or
(c) fortnightly at
half pay; or
(d) a combination
of full‑pay and half pay.
16.1.5 Payment
for maternity, adoption or parental leave is at the rate applicable when the
leave is taken. An employee holding a full time position who is on part time
leave without pay when they start leave is paid:
(i) at the full
time rate if they began part time leave 40 weeks or less before starting
maternity, adoption or parental leave;
(ii) at the part
time rate if they began part time leave more than 40 weeks before starting
maternity, adoption or parental leave and have not changed their part time work
arrangements for the 40 weeks;
(iii) at the rate
based on the average number of weekly hours worked during the 40 week period if
they have been on part time leave for more than 40 weeks but have changed their
part time work arrangements during that period.
16.1.6 An
employee who has taken no more than 12 months full time maternity, adoption or
parental leave or its part time equivalent is entitled to be paid at their
normal rate (i.e. the rate at which they were paid before proceeding on
maternity, adoption or parental leave) for another period of such leave
regardless of whether they resume their normal hours of work before proceeding
on leave for another pregnancy or adoption.
16.1.7 Except
as provided in paragraphs 16.1.4, 16.1.5 and 16.1.6 of this clause, maternity,
adoption or parental leave shall be granted without pay.
16.1.8 Right
to request
(i) An employee who
has been granted maternity, adoption or parental leave in accordance with
paragraphs 16.1.1, 16.1.2 or 16.1.3 may make a request to the Director-General
to:
(a) extend the
period of simultaneous unpaid leave use up to a maximum of eight weeks in cases
where partners wish to take maternity/adoption leave and parental leave;
(b) extend the
period of unpaid maternity, adoption or parental leave for a further continuous
period of leave not exceeding 12 months;
(c) return from a
period of full time maternity, adoption or parental leave on a part time basis
until the child reaches school age (note: returning to work from maternity,
adoption or parental leave on a part time basis includes the option of
returning to work on part time leave without pay);
to assist the employee in reconciling work and parental
responsibilities.
(ii) The
Director-General 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 Director-General’s business. Such
grounds might include cost, lack of adequate replacement staff, loss of
efficiency and the impact on customer service.
16.1.9 Notification
Requirements
(i) When the
Director-General is made aware that an employee or their spouse is pregnant, or
an employee's spouse is pregnant or is adopting a child, the Director-General
must inform the staff member of their entitlements and their obligations under
the Award.
(ii) An employee
who wishes to take maternity, adoption or parental leave must notify the
Director-General in writing at least 8 weeks (or as soon as practicable) before
the expected commencement of the leave:
(a) that she/he
intends to take maternity, adoption or parental leave, and
(b) the expected
date of birth or the expected date of placement, and
(c) if she/he is
likely to make a request under paragraph 16.1.8
(iii) At least 4
weeks before an employee's expected date of commencing maternity, adoption or
parental leave they must advise:
(a) the date on
which the maternity, adoption or parental leave is intended to start, and
(b) the period of
leave to be taken.
(iv) Employee’s request
and the Director-General’s decision to be in writing
The employee’s request and the Director-General’s
decision made under 16.1.9(i) and 16.1.9(ii) must be recorded in writing.
(v) An employee
intending to request to return from maternity, adoption or parental leave on a
part-time basis or seek an additional period of leave of up to 12 months must
notify the Director-General in writing as soon as practicable and preferably
before beginning maternity, adoption or parental leave. If the notification is
not given before commencing such leave, it may be given at any time up to 4
weeks before the proposed return on a part time basis, or later if the
Director-General agrees.
(vi) An employee on
maternity leave is to notify the Director-General of the date on which she gave
birth as soon as she can conveniently do so.
(vii) An employee
must notify the Director-General as soon as practicable of any change in her
intentions as a result of premature delivery or miscarriage.
(viii) An employee on
maternity or adoption leave may change the period of leave or arrangement, once
without the consent of the Director-General and any number of times with the
consent of the Director-General. In each case she/he must give the
Director-General at least 14 days notice of the change unless the
Director-General decides otherwise.
16.1.10 An
employee has the right to his/her former position if she/he has taken approved
leave or part-time work in accordance with paragraph 16.1.8, and she/he resumes
duty immediately after the approved leave or work on a part-time basis.
16.1.11 If
the position occupied by the employee immediately prior to the taking of
maternity, adoption or parental leave has ceased to exist, but there are other
positions available that the employee is qualified for and is capable of
performing, the employee shall be appointed to a position of the same grade and
classification as the employee's former position.
16.1.12 An
employee who has returned to full time duty without exhausting their
entitlement to 12 months unpaid maternity, adoption or parental leave is
entitled to revert back to such leave. This may be done once only, and a
minimum of 4 weeks notice (or less if acceptable to the Director-General) must
be given.
16.1.13 An
employee who is sick during her pregnancy may take available paid sick leave or
accrued recreation or extended leave or sick leave without pay. An employee may
apply for accrued recreation leave, extended leave or leave without pay before
taking maternity leave. Any leave taken before maternity leave ceases at the
end of the working day immediately preceding the day she starts her nominated
period of maternity leave or on the working day immediately preceding the date
of birth of the child, whichever is sooner.
16.1.14 An
employee may elect to take available recreation leave or extended leave within
the period of maternity, adoption or parental leave provided this does not
extend the total period of such leave.
16.1.15 An
employee may elect to take available recreation leave at half pay in
conjunction with maternity, adoption or parental leave subject to:
(i) accrued
recreation leave at the date adoption leave commences is exhausted within the
period of maternity, adoption or parental
leave;
(ii) the total period
of maternity, adoption or parental
leave, is not extended by the taking of recreation leave at half pay;
(iii) When
calculating other leave accruing during the period of recreation leave at half
pay, the recreation leave at half pay shall be converted to the full time
equivalent and treated as full pay leave for accrual of further recreation,
extended and other leave at the full time rate.
16.1.16 If,
for any reason, a pregnant employee is having difficulty in performing her
normal duties or there is a risk to her health or to that of her unborn child
the Director-General, should, in consultation with the employee, take all
reasonable measures to arrange for safer alternative duties. This may include,
but is not limited to greater flexibility in when and where duties are carried
out, a temporary change in duties, retraining, multi-skilling, teleworking and
job redesign.
16.1.17 If
such adjustments cannot reasonably be made, the Director-General must grant the
employee maternity leave, or any available sick leave, for as long as it is
necessary to avoid exposure to that risk as certified by a medical
practitioner, or until the child is born which ever is the earlier.
16.1.18 Communication
during maternity, adoption or parental leave
(i) Where a employee
is on maternity, adoption or parental leave and a definite decision has been
made to introduce significant change at the workplace, the Director-General
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 maternity, adoption or parental 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 maternity, adoption or parental leave.
(ii) The employee
shall take reasonable steps to inform the Director-General about any
significant matter that will affect their decision regarding the duration of
maternity, adoption or parental leave to be taken, whether the employee intends
to return to work and whether the employee intends to request to return to work
on a part-time basis.
(iii) The employee
shall also notify the Director-General of changes of address or other contact
details which might affect the Director-General’s capacity to comply with
subparagraph 16.1.18(i).
16.2 Annual Leave
Loading
16.2.1 A
permanent or long-term temporary employee is entitled to payment of an annual
leave loading of 17½ per cent on the monetary value of up to four weeks'
recreation leave accrued in a leave year, subject to the provisions set out in
paragraphs 16.2.2 to 16.2.4 of this subclause.
16.2.2 Where
additional leave is accrued by a permanent or long-term temporary employee
stationed in an area of the State of New South Wales which attracts a higher
rate of annual leave accrual, the annual leave loading shall continue to be
paid on a maximum of four weeks' leave.
16.2.3 For
the calculation of the annual leave loading, the leave year shall commence at
the beginning of term one each year and shall end at the end of term four.
16.2.4 Payment
of the annual leave loading shall be made on the recreation leave accrued during
the previous leave year. Except in
cases of voluntary redundancy, proportionate leave loading is not payable on
cessation of employment.
16.3 Extended Leave
16.3.1 A
permanent or long-term employee shall be entitled to extended leave of 44
working days on full pay after completing 10 years of service and a further 11
working days for each completed year of service after 10 years.
16.3.2 Payment
for extended leave for permanent employees is calculated using the hourly rates
designated in Schedule 1 multiplied by a factor of 1.058.
16.3.3 Part-time
permanent and long-term temporary employees shall receive a pro rata proportion
of the full-time entitlement.
16.3.4 Permanent
and long term temporary employees with 7 years or more service are entitled to
take (or be paid out on resignation) extended leave. The amount of leave
available is that which would have applied if pro rata leave was granted.
16.3.5 Public
holidays that fall whilst a permanent or long term temporary employee is on a
period of extended leave are paid and not debited from an employee’s leave
entitlement.
16.3.6 Permanent
and long term temporary employees with an entitlement to extended leave may
elect to take leave at double pay.
16.4 Family and
Community Service Leave
16.4.1 The
Director-General shall, in the case of emergencies or in personal or domestic
circumstances, grant to a permanent or long-term temporary employee some or all
of the available family and community service leave on full pay.
16.4.2 Such
cases may include but not be limited to the following:
(i) compassionate
grounds - such as the death or illness of a close member of the family or a
member of the employee's household;
(ii) accommodation
matters up to one day - such as attendance at court as defendant in an eviction
action, arranging accommodation, or when required to remove furniture and
effects;
(iii) emergency or
weather conditions - such as when flood, fire or snow, etc., threaten property
and/or prevent an employee from reporting for duty;
(iv) other personal
circumstances - such as citizenship ceremonies, parent/teacher interviews or
attending child's school for other reasons.
16.4.3 Attendance
at court by a permanent or long-term temporary employee to answer a charge for a
criminal offence, if the Director-General considers the granting of family and
community service leave to be appropriate in a particular case.
16.4.4 A
permanent or long-term temporary employee who is selected to represent
Australia or the State as a competitor in major amateur sport (other than
Olympic or Commonwealth Games).
16.4.5 A
permanent or long-term temporary employee who holds office in Local Government
other than as a Mayor of a Municipal Council, President of a Shire Council or
Chairperson of a County Council, to attend meetings, conferences or other
duties associated with that office where those duties necessitate absence
during normal working hours.
16.4.6 The
maximum amount of family and community service leave on full pay which may,
subject to this award, be granted to a permanent or long-term temporary
employee shall be the greater of the leave provided in subparagraphs (i) or
(ii) of this paragraph.
(i) 2½ days in
the first year of service and, on completion of the first year’s service, five
days in any period of two years; or
(ii) After the
completion of two years’ continuous service, the available family and community
service leave is determined by allowing one day's leave for each completed year
of service less the total amount of short leave or family and community service
leave previously granted to the employee.
16.4.7 If
available family and community service leave is exhausted as a result of
natural disasters, the Director-General shall consider applications for
additional family and community service leave, if some other emergency
arises. On the death of a person
defined in paragraph 16.7.3 of this clause, additional paid family and
community service leave of up to two days may be granted on a discrete, per
occasion basis to a permanent or long-term temporary employee.
16.4.8 In
cases of illness of a family member for whose care and support the employee is
responsible, paid sick leave in accordance with subclause 16.7 of this clause
shall be granted when paid family and community service leave has been
exhausted.
16.5 Leave Without
Pay
16.5.1 The
Director-General may grant leave without pay to a permanent or long-term
temporary employee if good and sufficient reason is shown.
16.5.2 Leave
without pay may be granted on a full-time or a part-time basis.
16.5.3 For
leave up to and including a period of 12 months, a permanent employee has a
right of return to the same school at their same classification. For periods in excess of 12 months and up to
and including three years, a permanent employee has a right of return to the
nearest suitable vacancy to their previous school.
16.5.4 Leave
without pay may be granted to long-term temporary employees, provided it does
not extend beyond the end of the school year in which it is taken.
16.5.5 Where
a permanent or long-term temporary employee is granted leave without pay for a
period not exceeding 10 consecutive working days, the employee shall be paid
for any proclaimed public holidays falling during such leave without pay.
16.5.6 Where
a permanent or long-term temporary employee is granted leave without pay which,
when aggregated, does not exceed five working days in a period of 12 months,
such leave shall count as service for incremental progression and accrual of
recreation leave.
16.5.7 A
permanent or long-term temporary employee who has been granted leave without
pay shall not engage in private employment of any kind during the period of
leave without pay, unless prior approval has been obtained from the
Director-General.
16.5.8 A
permanent or long-term temporary employee shall not be required to exhaust
accrued paid leave before proceeding on leave without pay but, if the employee
elects to combine all or part of accrued paid leave with leave without pay, the
paid leave shall be taken before leave without pay.
16.6 Military Leave
16.6.1 During
the period of 12 months commencing on 1 July each year, the Director-General
may grant to a permanent or long-term temporary employee who is a volunteer
part-time member of the Defence Forces, military leave on full pay to undertake
compulsory annual training and to attend schools, classes or courses of
instruction conducted by the employee’s unit.
16.6.2 Up
to 24 working days' military leave per year may be granted by the Director-General
to members of the Naval and Military Reserves and up to 28 working days per
year to members of the Air Force Reserve for the activities specified in
paragraph 16.6.1 of this subclause.
16.6.3 At
the expiration of military leave, the employee shall furnish to the principal a
certificate of attendance signed by the commanding officer or other responsible
officer.
16.7 Personal Carers
Leave
Use of Sick Leave to Care for a Family Member
When family and community service leave provided for in
subclause 16.4 of this clause is exhausted, a permanent or long-term temporary
employee with responsibilities in relation to a category of person set out in
paragraph 16.7.3 of this subclause who needs the employee's care and support,
may elect to use available paid sick leave, subject to the conditions specified
in this subclause, to provide such care and support when a family member is
ill.
16.7.1 The
sick leave shall initially be taken from the current leave year’s entitlement
followed, if necessary, by the sick leave accumulated over the previous three
years. In special circumstances, the
Director-General may grant additional sick leave from the sick leave
accumulated during the employee’s eligible service.
16.7.2 If
required by the Director-General, the permanent or long-term temporary employee
must establish by production of a medical certificate or statutory declaration,
the illness of the person concerned.
16.7.3 The
entitlement to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care and support of the person concerned; and
(ii) the person
concerned being:
(a) a spouse of
the employee; or
(b) a de facto
spouse, being a person of the opposite sex to the employee who lives with the
employee as her husband or his wife on a bona fide domestic basis although not
legally married to that employee; or
(c) a child or an
adult child (including an adopted child, a stepchild, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or of the spouse or of the
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 purposes of
this definition:
"relative" means a person related by blood,
marriage, affinity or Aboriginal kinship structures;
"affinity" means a relationship that one spouse or
partner has to the relatives of the other; and
"household" means a family group living in the same
domestic dwelling.
Use of recreation leave to care for a family member
16.7.4 A
permanent or long term temporary employee may elect, with the consent of the
Director-General, to take recreation 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.
16.7.5 A
permanent or long term temporary employee may elect, with the consent of the
Director-General, to take recreation leave at any time within a period of 24
months from the date at which it falls due.
16.8 Recreation
Leave
16.8.1 Full-time
permanent and long-term temporary employees accrue 20 days' recreation leave per
year. Full-time permanent and long-term
temporary employees in the central and western divisions of New South Wales
accrue 25 days' recreation leave per year.
16.8.2 Part-time
permanent and long-term temporary employees receive a pro rata proportion of
the full-time entitlement.
16.8.3 Recreation
leave for permanent or long-term temporary employees is paid during the initial
four weeks (five weeks central and western divisions) of the summer school
holidays (excluding public holidays).
16.9 Sick Leave
16.9.1 If
the Director-General is satisfied that a permanent or long-term temporary
employee is unable to perform duty because of the employee’s illness or the
illness of a member of their family, the Director-General:
(i) shall grant
to the employee sick leave on full pay; and
(ii) may grant to
the employee sick leave without pay if the absence exceeds the entitlement of
the employee under this award to sick leave on full pay.
16.9.2 Entitlements
(i) Sick leave on
full pay accrues to a permanent or long-term temporary employee at the rate of
15 days each school year. Any leave
which is not taken accumulates.
(ii) Sick leave on
full pay accrues at the beginning of the school year. If an employee is appointed after the beginning of the school
year, sick leave on full pay accrues on a proportionate basis for the year in
which employment commences.
(iii) All
continuous service as a permanent or long-term temporary employee shall be
taken into account for the purpose of calculating sick leave due. Where the service is not continuous,
previous periods of service shall be taken into account for the purpose of
calculating sick leave due if the previous sick leave records are available.
(iv) Sick leave
without pay shall count as service for the accrual of recreation leave and paid
sick leave.
(v) When
determining the amount of sick leave accrued, sick leave granted on less than
full pay shall be converted to its full pay equivalent.
16.9.3 Paid
sick leave which may be granted to a permanent and long-term temporary employee
in the first three months of service shall be limited to five days' paid sick
leave, unless the Director-General approves otherwise. Paid sick leave in excess of five days
granted in the first three months of service shall be supported by a
satisfactory medical certificate.
16.9.4 No
paid sick leave shall be granted to short-term temporary employees.
16.10 Sick Leave -
Requirements for Medical Certificate
16.10.1 A permanent
or long-term temporary employee absent from duty for more than three
consecutive working days because of illness must furnish a medical certificate
to the Director-General in respect of the absence.
16.10.2 A
permanent or long-term temporary employee shall be put on notice in advance if
required by the Director-General to furnish a medical certificate in respect of
an absence from duty for three consecutive working days or less because of
illness.
16.10.3 If
there is any concern about the reason shown on the medical certificate, the
Director-General, after discussion with the employee, may refer the medical
certificate and the employee’s application for leave to the Government Medical
Officer for advice.
16.10.4 The
nature of the leave to be granted to a permanent or long-term temporary
employee shall be determined by the Director-General on the advice of the
Government Medical Officer.
16.10.5 If
sick leave applied for is not granted, the Director-General must, as far as
practicable, take into account the wishes of the employee when determining the
nature of the leave to be granted.
16.10.6 A
permanent or long-term temporary employee may elect to have an application for
sick leave dealt with confidentially by the Government Medical Officer in accordance
with the general public service policy on confidentiality, as applies from time
to time.
16.10.7 If a
permanent or long-term temporary employee who is absent on recreation or
extended leave furnishes to the Director-General a satisfactory medical
certificate in respect of an illness which occurred during the leave, the
Director-General may grant sick leave to the employee if the period set out in
the medical certificate is five working days or more.
16.10.8 Paragraph
16.10.7 of this subclause applies to all permanent or long-term temporary
employees other than those on leave prior to resignation or termination of
services, unless the resignation or termination of services amounts to a
retirement.
16.10.9 The
reference in this subclause to a medical certificate shall apply, as
appropriate, to the certificates of up to one week provided by a registered
dentist, optometrist, chiropractor, osteopath, physiotherapist, oral and
maxillo facial surgeon or, at the Director-General's discretion, another registered
health services provider. Where the
absence exceeds one week and, unless the health provider listed above is also a
registered medical practitioner, applications for any further sick leave must
be supported by a medical certificate from a registered medical practitioner.
16.11 Sick Leave -
Workers’ Compensation
16.11.1 Pending
the determination of an employee’s worker's compensation claim and on
production of an acceptable medical certificate, the Director-General shall
grant sick leave on full pay for which the employee is eligible, followed, if
necessary, by sick leave without pay or, at the employee’s election, by accrued
recreation leave or extended leave.
16.11.2 If
liability for the worker's compensation claim is accepted, then an equivalent
period of any sick leave taken by the employee pending acceptance of the claim
shall be restored to the credit of the employee.
16.11.3 A
permanent or long-term temporary employee who continues to receive compensation
after the completion of the period of 26 weeks referred to in section 36 of the
Workers Compensation Act 1987 may use any accrued and untaken sick leave
to make up the difference between the amount of compensation payable under that
Act and the employee's ordinary rate of pay.
Sick leave utilised in this way shall be debited against the employee.
16.11.4 If an
employee notifies the Director-General that he or she does not intend to make a
claim for any such compensation, the Director-General shall consider the reasons
for the employee's decision and shall determine whether, in the circumstances,
it is appropriate to grant sick leave in respect of any such absence.
16.11.5 A
permanent or long-term temporary employee may be required to submit to a
medical examination under the Workers Compensation Act 1987 in relation
to a claim for compensation under that Act.
If an employee refuses to submit to a medical examination without an
acceptable reason, the employee shall not be granted available sick leave on
full pay until the examination has occurred and a medical certificate is issued
indicating that the employee is not fit to resume employment.
16.11.6 If
the Director-General provides the permanent or long-term temporary employee
with employment which meets the terms and conditions specified in the medical
certificate issued under the Workers Compensation Act 1987 and, without
good reason, the employee fails, to resume or perform such duties, the employee
shall be ineligible for all payments in accordance with this clause from the
date of the refusal or failure.
16.11.7 No
further sick leave shall be granted on full pay if there is a commutation of
weekly payments of compensation by the payment of a lump sum pursuant to
section 51 of the Workers Compensation Act 1987.
16.12 Sick Leave -
other than Workers' Compensation
16.12.1 If
the circumstances of any injury to or illness of a permanent or long-term
temporary employee give rise to a claim for damages or to compensation, other
than compensation under the Workers Compensation Act 1987, sick leave on
full pay may, subject to and in accordance with this clause, be granted to the
employee on completion of an acceptable undertaking that:
(i) any such
claim, if made, will include a claim for the value of any period of paid sick
leave granted by the Department to the employee; and
(ii) in the event
that the employee receives or recovers damages or compensation pursuant to that
claim for loss of salary or wages during any such period of sick leave, the
employee will repay to the Department the monetary value of any such period of
sick leave.
16.12.2 Sick
leave on full pay shall not be granted to a permanent or long-term temporary
employee who refuses or fails to complete an undertaking, except in cases where
the Director-General is satisfied that the refusal or failure is unavoidable.
16.12.3 On
repayment to the Department of the monetary value of sick leave granted to the
employee, sick leave equivalent to that repayment and calculated at the
employee’s ordinary rate of pay shall be restored to the credit of the
employee.
16.13 Study Assistance
16.13.1 Study
assistance of up to three hours per week may be granted on full pay to
permanent or long-term temporary employees who are studying on a part-time
basis.
16.13.2 Approval
of study assistance will be at Departmental convenience. Study assistance may be used for:
(i) attending
compulsory lectures or tutorials, where these are held during working hours;
and/or
(ii) necessary travel
outside working hours to attend lectures, tutorials, etc., held during or
outside working hours; and/or
(iii) private study
for an approved course.
16.13.3 Subject
to the convenience of the school or centre, permanent or long-term temporary
employees may choose to accumulate part or all of their hours of study
assistance to attend compulsory field days or residential schools.
16.14 Special Leave
16.14.1 Jury
Service
(i) A permanent
or long-term temporary employee shall, as soon as possible, notify the
Director-General of the details of any jury summons served on the employee.
(ii) A permanent
or long-term temporary employee who, during any period when required to be on
duty, attends a court in answer to a jury summons shall, upon return to duty
after discharge from jury service, furnish to the Director-General a
certificate of attendance issued by the Sheriff or by the Registrar of the
court giving particulars of attendances by the employee during any such period
and the details of any payment or payments made to the employee under section
72 of the Jury Act 1977 in respect of any such period.
(iii) When a
certificate of attendance on jury service is received in respect of any period
during which a permanent or long-term temporary employee was required to be on
duty, the Director-General shall grant, in respect of any such period for which
the employee has been paid out-of-pocket expenses only, special leave on full
pay. In any other case, the Director-General
shall grant, at the sole election of the employee, available recreation leave
on full pay or leave without pay.
16.14.2 Witness
at Court - Official Capacity
When a permanent or long-term temporary employee is
subpoenaed or called as a witness in an official capacity, the employee shall be
regarded as being on duty.
Salary and any expenses properly and reasonably
incurred by the employee in connection with the employee’s appearance at Court
as a witness in an official capacity shall be paid by the Department.
16.14.3 Witness
at Court - Other than in Official Capacity - Crown Witness
A permanent or long-term temporary employee who is
subpoenaed or called as a witness by the Crown (whether in right of the
Commonwealth or in right of any State or Territory of the Commonwealth) shall:
(i) be granted,
for the whole of the period necessary to attend as such a witness, special
leave on full pay; and
(ii) pay into the
Treasury of the State of New South Wales all money paid to the employee under
or in respect of any such subpoena or call other than any such money so paid in
respect of reimbursement of necessary expenses properly incurred in answer to
that subpoena or call.
16.14.4 Called
as a Witness in a Private Capacity
A permanent or long-term temporary employee who is
subpoenaed or called as a witness in a private capacity shall, for the whole of
the period necessary to attend as such a witness, be granted at the employee's
election, leave without pay.
16.14.5 Examinations
Special leave on full pay up to a maximum of five days
in any one year shall be granted to permanent or long-term temporary employees
for the purpose of attending at any examination approved by the
Director-General.
Special leave granted to attend examinations shall
include leave for any necessary travel to or from the place at which the
examination is held.
16.14.6 Association
Activities
Special leave on full pay may be granted to permanent
or long-term temporary employees who are accredited trade union delegates to
undertake approved trade union activities as specified below:
(i) annual or
biennial conferences of the Association;
(ii) meetings of
the Association’s Executive, Committee of Management or Council;
(iii) annual
conference of the Labor Council of NSW and the biennial Congress of the
Australian Council of Trade Unions;
(iv) attendance at
meetings called by the Labor Council of NSW involving a public sector trade union which requires attendance of a
delegate;
(v) attendance at
meetings called by the Department as and when required;
(vi) giving evidence
before an industrial tribunal as a witness for the Association;
(vii) reasonable
travelling time to and from conferences or meetings to which the provisions of
this subclause apply.
16.14.7 Training
Courses
The following training courses will attract the grant
of special leave as specified below:
(i) Accredited
Occupational Health and Safety (OH&S) courses and any other accredited
OH&S training for OH&S Committee members.
(ii) Courses
organised and conducted by the Trade Union Education Foundation or by the
Association or a training provider nominated by the Association. A maximum of 12 working days in any period
of two years applies to this training and is subject to:
(a) the operating
requirements of the workplace permitting the grant of leave and the absence not
requiring employment of relief staff;
(b) payment being
at the base rate, i.e. excluding extraneous payments such as shift
allowances/penalty rates, overtime, etc;
(c) all travelling
and associated expenses being met by the employee or the association;
(d) attendance
being confirmed in writing by the Association or a nominated training provider.
16.14.8 Return
Home when Temporarily Living Away from Home
Sufficient special leave shall be granted to a
permanent or long-term temporary employee who is temporarily living away from
home as a result of work requirements to return home once each month to enable
such employees to spend two days and two nights with their family. If the employee wishes to return home more
often, they may be granted extended leave or leave without pay, if the
operational requirements allow.
16.14.9 Return
Home when Transferred to New Location
Special leave shall be granted to a permanent or
long-term temporary employee who has moved to the new location ahead of dependants,
to visit such dependants, subject to the conditions specified in the Crown
Employees (Transferred Employees Compensation) Award or successor instrument.
16.14.10 A
permanent or long-term temporary employee who identifies as an Aborigine or a
Torres Strait Islander may be granted up to one day’s special leave per year to
enable the employee to participate in the National Day celebrations.
3. Insert after
clause 21, No Further Claims and No Industrial Action, the following new clause
and renumber the existing clause 22, Area, Incidence and Duration, to read as
clause 23.
22. Short Term
Temporary Employees Entitlements
22.1 Other than as
described under subclauses 22.3, 22.4, 22.5 and 22.6 of this clause, short term
temporary employees are not entitled to any other paid or unpaid leave.
22.2 As set out in
subclause 5.8, the short term temporary rates of pay incorporate a payment in
lieu of a recreation leave entitlement.
22.3 Short term
temporary employees will be entitled to Long Service Leave in accordance with
the provisions of the Long Service Leave Act 1955.
22.4 Short term
temporary employees will be entitled to unpaid parental leave under Chapter 2,
Part 4, Division 1, Section 54 Entitlement to Unpaid Parental leave, Industrial
Relations Act 1996, if they meet the definition of a regular casual
employee (see section 53(2) of the Industrial Relations Act 1996). The
following provisions shall also apply in addition to those set out in the
Industrial Relations Act 1996 (NSW).
22.4.1 The
Director-General must not fail to re-engage a short term temporary employee who
meets the definition of a regular casual employee because:
(i) the employee
or employee's spouse is pregnant; or
(ii) the employee
is or has been immediately absent on parental leave.
The rights of the Director-General in relation to
engagement and re-engagement of short term temporary employees are not
affected, other than in accordance with this clause.
22.5 Personal Carers
entitlement for short term temporary employees
22.5.1 Short
term temporary employees are entitled to not be available to attend work, or to
leave work if they need to care for a family member described in subclause
16.7.3 of the Award who is sick and requires care and support, or who requires
care due to an unexpected emergency, or the birth of a child. This entitlement
is subject to the evidentiary requirements set out below in 22.5.4, and the
notice requirements set out in 22.5.5.
22.5.2 The
Director-General and the short term temporary employee shall agree on the
period for which the employee will be entitled to not be available to attend
work. In the absence of agreement, the employee is entitled to not be available
to attend work for up to 48 hours (i.e. two days) per occasion. The short term
temporary employee is not entitled to any payment for the period of
non-attendance.
22.5.3 The
Director-General must not fail to re-engage a short term temporary employee
because the employee accessed the entitlements provided for in this clause. The
rights of the Director-General to engage or not to engage a short term
temporary employee are otherwise not affected.
22.5.4 The
short term temporary employee shall, if required,
(i) establish either
by production of a medical certificate or statutory declaration, the illness of
the person concerned and that the illness is such as to require care by another
person, or
(ii) establish by
production of documentation acceptable to the Director-General or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, a short term temporary
employee must not take carer's leave under this subclause where another person
had taken leave to care for the same person.
22.5.5 The
short term temporary employee must, as soon as reasonably practicable and
during the ordinary hours of the first day or shift of such absence, inform the
Director-General of their inability to attend for duty. If it is not reasonably
practicable to inform the Director-General during the ordinary hours of the
first day or shift of such absence, the employee will inform the
Director-General within 24 hours of the absence.
22.6 Bereavement
entitlements for short term temporary employees
22.6.1 Short
term temporary employees are entitled to not be available to attend work, or to
leave work upon the death in Australia of a family member on production of
satisfactory evidence (if required by the Director-General).
22.6.2 The
Director-General and the short term temporary employee shall agree on the
period for which the employee will be entitled to not be available to attend
work. In the absence of agreement, the employee is entitled to not be available
to attend work for up to 48 hours (i.e. two days) per occasion. The short term
temporary employee is not entitled to any payment for the period of
non-attendance.
22.6.3 The
Director-General must not fail to re-engage a short term temporary employee
because the employee accessed the entitlements provided for in this clause. The
rights of the Director-General to engage or not engage a short term temporary
employee are otherwise not affected.
22.6.4 The
short term temporary employee must, as soon as reasonably practicable and
during the ordinary hours of the first day or shift of such absence, inform the
Director-General of their inability to attend for duty. If it is not reasonably
practicable to inform the Director-General during the ordinary hours of the
first day or shift of such absence, the employee will inform the
Director-General within 24 hours of the absence.
4. This
variation shall take effect from 19 December 2005.
F.
L. WRIGHT J
, President
____________________
Printed by
the authority of the Industrial Registrar.