Local Government (State) Award 2004

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Local Government Association of New South Wales, Industrial Organisation of Employers.

 

(No. IRC 265 of 2006)

 

 

VARIATION

 

1.          Delete paragraph (i) (ii) and (iii) of subclause (B) Carer's Leave of Clause 19, Leave Provisions of the award published 22 April 2005 (350 I.G. 471) and insert in lieu thereof the following:

 

(i)         Use of Sick Leave: An employee, other than a casual employee, with responsibilities in relation to a class of person set out in subclause (iv)(b) below who needs the employee’s care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, provided for at Clause 19, Part A, Sick Leave of this award, for absences to provide care and support for such persons when they are ill, or who require care due to an unexpected emergency. Such leave may be taken for part of a single day.

 

(ii)

 

(a)        Carer’s leave is not intended to be used for long term, ongoing care In such cases, the employee is obligated to investigate appropriate care arrangements where these are reasonable available.

 

(b)       Where more than ten days sick leave in any year is to be used for caring purposes the council and employee shall discuss appropriate arrangements which, as far as practicable, take account of the council’s and employee’s requirements.

 

(c)        Where the parties are unable to reach agreement the grievance and disputes procedure at Clause 30 of this award should be followed.

 

(iii)       The employee shall, if required,

 

(a)        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

 

(b)       establish by production of documentation acceptable to the council or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

 

In normal circumstances, an employee must not take carer's leave under this subclause where another person has taken leave to care for the same person.

 

2.          Insert a new paragraph (v) in subclause (B) Carer’s Leave of clause 19, and renumber existing clauses accordingly:

 

(v)        An employee may elect, with the consent of the council, to take unpaid leave for the purpose of providing care and support to a class of person set out in subclause (iv)(b) above who is ill or who requires care due to an unexpected emergency.

 

 

 

 

3.          Insert a new paragraph (vii) in subclause (B) of clause 19, and renumber existing clauses accordingly:

 

(vii)      Carer’s Entitlement for Casual Employees

 

(a)        Subject to the evidentiary and notice requirements in subclauses (iii)and (vi) 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 (iv)(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 council and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(c)        The council must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause.  The rights of an employer to engage or not to engage a casual employee are otherwise not affected.

 

4.          Insert after subclause (D) Long Service Leave a new Part E - Parental Leave in clause 19 and reletter the existing subclauses accordingly:

 

E.         Parental Leave

 

(i)         These provisions shall apply in addition to Part 4, Parental Leave, of the Industrial Relations Act 1996 (NSW).

 

(ii)        Right to request

 

(a)        An employee, other than a casual, entitled to parental leave may request the council to allow the employee to return to work from a period of parental leave on a part-time basis, until the child reaches school age, to assist the employee in reconciling work and parental responsibilities.

 

(b)       An employee entitled to parental leave may request the council   to allow the employee:

 

(1)        to extend the period of simultaneous unpaid parental leave use up to a maximum of eight weeks;

 

(2)        to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months;

 

to assist the employee in reconciling work and parental responsibilities.

 

(c)        Council 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 council’s business. Such grounds may include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

 

(d)       Employee’s request and the council’s decision to be in writing: The employee’s request and the council’s decision made under subclause (ii)(a) and (ii)(b)(2) above must be recorded in writing.

 

(e)        Request to return to work part-time: Where an employee wishes to make a request under subclause (ii)(a) above, such a request must be made as soon as possible, but no less than seven weeks prior, to the date upon which the employee is due to return to work from parental leave.

 

(iii)       Communication during parental leave

 

(a)        Where an employee is on parental leave and a definite decision has been made to introduce significant change at the workplace, the council shall take reasonable steps to:

 

(1)        make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave; and

 

(2)        provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave.

 

(b)       The employee shall take reasonable steps to inform the council about any significant matter that will affect the employee’s decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to request to return to work on a part-time basis.

 

(c)        The employee shall also notify the council of changes of address or other contact details which might affect the council’s capacity to comply with subclause (iii)(a).

 

(iv)       Council must not fail to re-engage a regular casual employee as defined in section 53(2) of the Industrial Relations Act 1996 because:

 

(a)        the employee or employee's spouse is pregnant; or

 

(b)       the employee is or has been immediately absent on parental leave.

 

The rights of the council in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.

 

5.          Delete subclause (ii) G, Other Paid Leave, and renumber existing subclause accordingly:

 

6.          Insert the following new subclause I, Bereavement Leave in clause 19:

 

I.          Bereavement Leave

 

(i)         Where an employee is absent from duty because of the death of a person in accordance with paragraphs (a)-(e) below and provides satisfactory evidence to council of such, the employee shall be granted two days leave with pay upon application.  Persons in respect of whom bereavement leave may be claimed shall include:

 

(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, foster child or an ex nuptial child), parent (including a foster parent, step parent and legal guardian), parents of spouse, grandparent, grandchild or sibling (including half, foster and step 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 purposes of this paragraph:

 

(1)        'relative' means a person related by blood, marriage or affinity;

 

(2)        'affinity' means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

(3)        'household' means a family group living in the same domestic dwelling.

 

(ii)        Bereavement Entitlements for Casual Employees

 

(a)        Subject to providing satisfactory evidence to the council, casual employees are entitled to not be available to attend work, or to leave work upon the death in Australia of a person prescribed in      subclause (ii) paragraphs (a)-(e) of Clause 19, Part I, Bereavement Leave.

 

(b)       Council and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the     absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(c)        Council must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause.  The rights of the council to engage or not engage a casual employee are otherwise not affected.

 

7.          Insert after subclause (viii) of clause 22, Casual Employment the following new subclauses:

 

(ix)       Carer’s entitlements shall be available for casual employees as set out in subclause (vii) of Clause 19, Part I of this award.

 

(x)        Bereavement entitlements shall be available for casual employees as set out in subclause (ii) of Clause 19, Part I of this award.

 

(xi)       Parental leave entitlements shall be available for casual employees in accordance with Part 4, Parental Leave, of the Industrial Relations Act 1996 (NSW).

 

8.          This variation shall take effect on and from 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

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Printed by the authority of the Industrial Registrar.