Crown Employees (Health Care Complaints Commission,
Medical Advisers) Award 2019
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(Case No. 133632 of 2019)
Before Chief Commissioner Kite
|
24 July 2019
|
REVIEWED
AWARD
Clause No. Subject Matter
1. Title
2. Parties
3. Definitions
4. Salaries
and Progression
5. Salary
Packaging Arrangements, including Salary Sacrifice to Superannuation
6. Employment
Arrangements
7. Leave
Arrangements
8. Personal/Carer’s
Leave
9. Deduction
of Union Membership Fees
10. Grievance
and Dispute Resolution Procedures
11. Anti-Discrimination
12. No Further
Claims
13. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1 - Salaries
PART A
1. Title
This Award shall be known as the Crown Employees (Health
Care Complaints Commission, Medical Advisers) Award 2019.
2. Parties
This award is made between the Industrial Relations
Secretary, the Health Care Complaints Commission and the Australian Salaried
Medical Officers’ Federation (New South Wales).
3. Definitions
"Award" means the Crown Employees (Health Care
Complaints Commission, Medical Advisers) Award 2019.
"Department Head" means the Commissioner of the
Office of the Health Care Complaints Commission ("HCCC").
"Industrial
Relations Secretary" or "Secretary" means the employer
for industrial purposes under the Government
Sector Employment Act 2013.
"Federation" or "union" means the
Australian Salaried Medical Officers’ Federation (New South Wales).
"Medical Adviser" means and includes all persons
employed as a Medical Adviser by the HCCC whether employed on a full time or
part time basis.
"Agency" or "Department" means the
Office of the Health Care Complaints Commission ("HCCC").
4. Salaries and
Progression
4.1 Hourly rates of
pay for Medical Advisers employed by HCCC are as provided in Table 1 -
Salaries, of Part B, Monetary Rates and are effective from the first full pay
period on or after 4 February 2019
4.2 The hourly rate
is payable for all time worked in accordance with clause 6.
4.3 Payment of
Overtime - additional compensation for overtime and on-call or recall duty is
not payable under this Award.
4.4 Progression to a
higher level is subject to 12 months satisfactory conduct, performance and attendance
and the approval of the Commissioner.
5. Salary Packaging
Arrangements, Including Salary Sacrifice to Superannuation
5.1 The entitlement
to salary package in accordance with this clause is available to:
(a) ongoing
full-time and part-time employees;
(b) temporary
employees, subject to the Department or agency’s convenience; and
(c) casual
employees, subject to the Department or agency’s convenience, and limited to
salary sacrifice to superannuation in accordance with subclause 5.7
5.2 For the purposes
of this clause:
(a) "salary"
means the salary or rate of pay prescribed for the employee's classification by
clause 4, Salaries and Progression, and outlined in Part B of this Award, and
any other payment that can be salary packaged in accordance with Australian
taxation law.
(b) "post
compulsory deduction salary" means the amount of salary available to be
packaged after payroll deductions required by legislation or order have been taken into account. Such payroll deductions may include, but
are not limited to, taxes, compulsory superannuation payments, HECS payments,
child support payments, and judgement debtor/garnishee orders.
5.3 By mutual agreement with the Secretary, an employee may elect
to package a part or all of their post compulsory deduction salary in order to
obtain:
(a) a benefit or
benefits selected from those approved by the Secretary; and
(b) an amount equal
to the difference between the employee’s salary, and the amount specified by
the Secretary for the benefit provided to or in respect of the employee in
accordance with such agreement.
5.4 An election to
salary package must be made prior to the commencement of the period of service
to which the earnings relate.
5.5 The agreement
shall be known as a Salary Packaging Agreement.
5.6 Except in
accordance with subclause 5.7, a Salary Packaging Agreement shall be recorded
in writing and shall be for a period of time as
mutually agreed between the employee and the Agency at the time of signing the
Salary Packaging Agreement.
5.7 Where an
employee makes an election to sacrifice a part or all of
their post compulsory deduction salary as additional employer superannuation
contributions, the employee may elect to have the amount sacrificed:
(a) paid into the
superannuation fund established under the First State Superannuation Act 1992;
or
(b) where the
employer is making compulsory employer superannuation contributions to another
complying superannuation fund, paid into the same complying fund; or
(c) subject to the
Department or agency’s agreement, paid into another complying superannuation
fund.
5.8 Where the
employee makes an election to salary sacrifice, the employer shall pay the
amount of post compulsory deduction salary, the subject of election, to the
relevant superannuation fund.
5.9 Where the
employee makes an election to salary package and where the employee is a member
of a superannuation scheme established under the:
(a) Police Regulation (Superannuation) Act
1906;
(b) Superannuation Act 1916;
(c) State Authorities Superannuation Act
1987; or
(d) State Authorities Non-contributory
Superannuation Act 1987,
the employee’s Department or agency must ensure that
the employee’s superable salary for the purposes of the above Acts, as notified
to the SAS Trustee Corporation, is calculated as if the Salary Packaging
Agreement had not been entered into.
5.10 Where the
employee makes an election to salary package, and where the employee is a
member of a superannuation fund other than a fund established under legislation
listed in subclause 5.9 of this clause, the employee’s Department or agency
must continue to base contributions to that fund on the salary payable as if
the Salary Packaging Agreement had not been entered into. This clause applies even though the
superannuation contributions made by the Department or agency may be in excess of superannuation guarantee requirements after the
salary packaging is implemented.
5.11 Where the
employee makes an election to salary package:
(a) subject to
Australian taxation law, the amount of salary packaged will reduce the salary
subject to appropriate PAYG taxation deductions by the amount packaged; and
(b) any allowance,
penalty rate, payment for unused leave entitlements, weekly worker’s
compensation or other payment, other than any payments for leave taken in
service, to which an employee is entitled under this Award or any applicable
Award, Act or statute which is expressed to be determined by reference to the
employee’s rate of pay, shall be calculated by reference to the rate of pay
which would have applied to the employee under clause 4, Salaries and
Progression, or Part B of this Award if the Salary Packaging Agreement had not
been entered into.
5.12 The Secretary may
vary the range and type of benefits available from time to time following
discussion with the Federation. Such
variations shall apply to any existing or future Salary Packaging Agreement
from the date of such variation.
5.13 The Secretary
will determine from time to time the value of the benefits provided following
discussion with the Federation. Such
variations shall apply to any existing or future Salary Packaging Agreement
from the date of such variation. In this
circumstance, the employee may elect to terminate the Salary Packaging
Agreement.
6. Employment
Arrangements
6.1 A standard day
is 7 hours per day.
6.2 Generally
Medical Advisers may work their agreed hours between the hours of 7.00 am and
6.00 pm Monday to Friday. In exceptions, work may be performed outside these
hours, but will be remunerated at the hourly rate.
6.3 Medical
Advisers, in agreement with the Commissioner, may nominate the commencing and
concluding times of their agreed hours.
6.4 A lunch break of
at least 30 minutes must be taken after 5 hours continuous work.
6.5 Part-time Work -
The provision for part-time work as prescribed by the Agency’s Flexible Work
Practices Policy will apply to Medical Advisers employed under this award.
6.6 Private Practice
- Medical Advisers may engage in private practice outside their agreed working
hours. For Medical Advisers working full time hours, private practice is to be
considered as second or other employment and the employees are to obtain
permission from their employer pursuant to Clause 7 of Part 2, Division 1 of
the Government Sector Employment Regulation 2014.
6.7 In accordance
with the HCCC’s Code of Conduct, there shall be no conflict or incompatibility
between personal interests and the impartial fulfilment of public or
professional duty. Any private work with
or for any person or body with an interest in a proposed or current contract
with the HCCC must be disclosed to the Commissioner.
7. Leave Arrangements
The leave provisions of the Crown Employees (Public
Service Conditions of Employment) Reviewed Award 2009, as amended from time to
time, apply to Medical Advisers covered by this award.
7.1 Medical Advisers
will be paid for public holidays or leave taken on days specified as their
agreed day of work or a day when they are requested to work.
7.2 Part-time
Medical Advisers accrue recreation leave on a pro rata basis.
7.3 A loading of
1/12th of the hourly rate will apply to payment for additional hours worked in excess of the normal weekly agreed hours.
8. Personal/Carer’s
Leave
The provisions of the Crown Employees (Public Service
Conditions of Employment) Reviewed Award 2009, as amended from time to time,
shall apply.
9. Deduction of Union
Membership Fees
9.1 The union shall
provide the employer with a schedule setting out union fortnightly membership
fees payable by members of the union in accordance with the union's rules.
9.2 The union shall
advise the employer of any change to the amount of fortnightly membership fees
made under its rules. Any variation to
the schedule of union fortnightly membership fees payable shall be provided to
the employer at least one month in advance of the variation taking effect.
9.3 Subject to 9.1
and 9.2 above, the employer shall deduct union fortnightly membership fees from
the pay of any employee who is a member of the union in accordance with the
union's rules, provided that the employee has authorised the employer in
writing to make such deductions.
9.4 Monies so
deducted from the employee's pay shall be forwarded regularly to the union
together with all necessary information to enable the union to reconcile and
credit subscriptions to employees' union membership accounts.
9.5 Unless other
arrangements are agreed to by the employer and the union, all union membership
fees shall be deducted on a fortnightly basis.
9.6 Where an employee
has already authorised the deduction of union membership fees from his or her
pay prior to this clause taking effect, nothing in this clause shall be read as
requiring the employee to make a fresh authorisation in order
for such deductions to continue.
10. Grievance and
Dispute Resolution
10.1 All grievances
and disputes relating to the provisions of this award shall initially be dealt
with as close to the source as possible, with graduated steps for further
attempts at resolution at higher levels of authority within the appropriate
department, if required.
10.2 A staff member is
required to notify in writing their immediate manager, as to the substance of
the grievance, dispute or difficulty, request a meeting to discuss the matter,
and if possible, state the remedy sought.
10.3 Where the
grievance or dispute involves confidential or other sensitive material
(including issues of harassment or discrimination under the Anti-Discrimination Act 1977) that makes
it impractical for the Medical Adviser to advise their immediate manager the
notification may occur to the next appropriate level of management, including
where required, to the Department Head or delegate.
10.4 The immediate
manager shall convene a meeting in order to resolve
the grievance, dispute or difficulty within two (2) working days, or as soon as
practicable, of the matter being brought to their attention.
10.5 If the matter
remains unresolved with the immediate manager, the staff member may request to
meet the appropriate person at the next level of management in
order to resolve the matter. This
manager shall respond within two (2) working days, or as soon as
practicable. The staff member may pursue
the sequence of reference to successive levels of management until the matter
is referred to the Department Head.
10.6 The Department
Head may refer the matter to the Secretary for consideration.
10.7 If the matter
remains unresolved, the Department Head shall provide a written response to the
staff member and any other party involved in the grievance, dispute or
difficulty, concerning action to be taken, or the reason for not taking action, in relation to the matter.
10.8 A staff member,
at any stage, may request to be represented by their union.
10.9 Any of the
parties may refer the matter to the New South Wales Industrial Relations
Commission if the matter is unresolved following the use of these procedures.
10.10 The staff member,
union, department and Secretary shall agree to be bound by any order or
determination by the New South Wales Industrial Relations Commission in
relation to the dispute.
10.11 Whilst the
procedures outlined in clauses 10.1 to 10.10 of this clause are being followed,
normal work undertaken prior to notification of the dispute or difficulty shall
continue unless otherwise agreed between the parties, or, in the case involving
occupational health and safety, if practicable, normal work shall proceed in a
manner which avoids any risk to the health and safety of any staff member or
member of the public.
11. Anti-Discrimination
11.1 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,
age and responsibilities as a carer.
11.2 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 fulfilment 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.
11.3 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.
11.4 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.
11.5 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.
(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 the 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."
12. No Further Claims
12.1 During the term
of this award, there will be no extra wage claims, claims for improved
conditions of employment or demands made with respect to the employees covered
by the award and, further, that no proceedings, claims or demands concerning
wages or conditions of employment with respect to those employees will be
instituted before the Industrial Relations Commission or any other industrial
tribunal.
12.2 The terms of the
preceding paragraph do not prevent the parties from taking any proceedings with
respect to the interpretation, application or enforcement of existing award
provisions.
13. Area, Incidence
and Duration
13.1 This award shall
apply to all classifications contained herein.
13.2 The employees
covered by this award are employed in terms of the Government Sector Employment Act 2013, and to the extent that this
award is silent, will be covered by the provisions of that Act and associated
Regulations and the Crown Employees (Public Service Conditions of Employment)
Reviewed Award 2009 as varied.
13.3 This award is
made following a review under Section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Crown
Employees (Health Care Complaints Commission, Medical Advisers) Award 2016
published 21 October 2016 (380 I.G.1013), and all variations thereof.
13.4 The changes made
to the award pursuant to the Award Review and 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 24 July 2019.
13.5 The award remains
in force until varied or rescinded the period for which it was made having
already expired.
PART B
MONETARY RATES
Table 1 - Salaries
Medical Adviser
|
From ffppoa 04/02/2019
|
|
2.5%
|
|
Per hour
|
|
$
|
Level 1
|
128.06
|
Level 2
|
137.52
|
Level 3
|
147.01
|
P. M. KITE, Chief Commissioner
____________________
Printed by
the authority of the Industrial Registrar.