Health
Industry Status of Employment (State) Award
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH
WALES
Application by Health Services Union, Industrial
Organisation of Employees.
(No. IRC 2095 of 2008)
Before Commissioner McLeay
|
12 November 2008
|
AWARD
Arrangement
Clause No. Subject
Matter
1. Definitions
2. Principles
3. Loadings
4. Arrangements for Existing Part-time
Workers
5. Process for Resolving Inconsistencies
6. Dispute Resolution
7. Anti-Discrimination
8. Area, Incidence and Duration
1. Definitions
1.1 Employer means the Director-General
exercising employer functions on behalf of the Government of NSW (and includes
a delegate of the Director-General).
1.2 Employee means a person who is engaged on
either a full time, part time, temporary, exempt or casual basis under a
contract of employment in the NSW Health Service under s115(1) of the Health
Services Act 1997.
1.3 Casual employee means a person who may be
engaged on an hourly basis, for a period which does not extend beyond one week,
to provide services related to the unexpected absence of temporary, permanent
or exempt employees. This provision may also encompass short-term employment
associated with unanticipated peak demands.
1.4 Temporary employee means a person who is
engaged as an employee for a period not exceeding 13 weeks, provided that fixed
term contracts of employment, whether for periods greater or lesser than 13
weeks, must not be offered in preference to ongoing contracts.
1.5 Permanent employee means a person
appointed as such or a person who has worked in the same position, including a
permanent relief position, for a continuous period of 13 weeks other than as an
exempt employee. Permanency is subject
to the outcome of any appeal process.
1.6 Exempt employee means a person who is
engaged for a continuous period and whose employment involves:
relief for periods
in excess of 13 weeks during the absence of existing employees or;
specific projects
which are time limited or;
functions which
involve funding for a specific period and which is not of a recurrent nature
or;
forthcoming
service reductions which have a predetermined date.
Exempt employees as
defined do not attract casual or temporary loadings.
1.7 Continuous period of employment means an
uninterrupted period of 13 weeks employment involving at least one shift per
week in that period, but does not refer to exempt employees as defined.
1.8 Health Service means an Area Health
Service constituted under section 8 of the Health Services Act 1997, a
Statutory Health Corporation constituted under section 11 of that Act, an
Affiliated Health Organisation constituted under section 13 of that Act and the
Public Health System Support Division of the NSW Health Service.
1.9 Director-General means the
Director-General of the NSW Department of Health.
2. Principles
2.1 Employees who are engaged in meaningful
work on a continuing basis are entitled to an expectation of permanency of
employment subject to the provisions of this award.
2.2 It is the responsibility of the employer
to ensure that all employees, upon engagement and at all appropriate times, are
correctly classified as exempt, casual, temporary, or permanent according to
the above definitions.
2.3 Where a person changes from casual to either
temporary or permanent, the employment status of the person is deemed to have
changed automatically.
2.4 During the period of continuing employment
the status of an employee cannot be changed from permanent to temporary or
casual or from temporary to casual, without the prior written consent of the
employee.
2.5 All permanent employees are required as
part of their contract of employment, to use their best endeavours to provide
four weeks notice of their intention to terminate their employment contract.
2.6 Any position which would involve the
employment of an exempt, temporary or permanent employee, upon falling vacant,
will, where such a position continues to be required in its current form by the
Health Service, be advertised within the Health Service and/or external to the
Health Service. Positions should be
filled under the merit principle of selection.
2.7 A person who, by definition, is a
temporary employee for a period of less than 13 weeks may be re-engaged by the
same Health Service under more than one employment contract provided the
aggregate period of the contracts, where consecutive, does not exceed 13 weeks.
2.8 Where the employee is retained beyond a
continuous period of 13 weeks in the same position the employee is deemed to be
permanent, subject to the outcome of any appeal. The application of this sub
clause shall not be applied in a manner which is inconsistent with legislation
or Government recruitment and employment policy, as varied from time to time.
This subclause does not apply to an exempt employee as defined.
3. Loadings
3.1 Casual Employees - A casual employee will
be paid for the number of hours worked each week at an hourly rate, calculated
at the same hourly rate as prescribed for a full time employee in the same classification
and grade plus 10 per cent loading. A
minimum payment of 2 hours at ordinary pay on each occasion the employee
commences a shift will apply.
3.2 Temporary Employees - A temporary employee
shall be paid for the number of hours worked each week on an hourly rate
calculated at the same hourly rate as prescribed for a full time employee in
the same classification plus 10 per cent loading. The loading shall cease to
apply if:
(a) the period of employment extends beyond 13
weeks
(b) the employer and the employee agree,
during the period of 13 weeks, that the employee will be employed on a
permanent basis.
4. Arrangements for Existing Part-Time Workers
4.1 Payment of 15% Allowance - Persons engaged
as at 1 January 2000 and who were paid the 15% loading at that date will
continue to receive that loading but only for the remainder of the existing
part time employment contract. Receipt of the allowance will cease if the
contract is completed or where an employee requests a transfer or is promoted to
another position.
4.2 Conditions - Persons covered by clause 5.1
of this clause will, for the duration of any existing part-time employment
contract and while remaining in their current position, retain existing
part-time provisions. They will not be
entitled to pro rata entitlements as outlined elsewhere within applicable
awards.
5. Process for Resolving Inconsistencies
5.1 The Awards contained in the attached
schedule "A" as varied from time to time, shall also apply, where
appropriate, to persons covered by this award.
5.2 To the extent that any inconsistency
exists between the conditions provided by this award and that provided by an
award contained in the attached schedule "A" this award will prevail.
6. Dispute Resolution
6.1 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 Designated Manager of
the hospital or service unit or his/her nominee who will arrange for the matter
to be discussed with the employee concerned and if requested a local
representative or representatives of the Union.
6.2 If the matter is not resolved within a
reasonable time it must be referred by the Designated Manager to the Chief
Executive Officer of the Health Service (or his or her nominee) and may be
referred by the employee to the Union's Head Office. Discussions at this level must take place within a reasonable
time with a view to resolving the issue in dispute. Failing settlement of the
issue at this level, the matter shall be dealt with in accordance with
subclause 6.3 of this clause.
6.3 With a view to amicable and speedy
settlement of all disputes that firstly cannot be settled by a local management
and the Union or its representatives, disputes may be submitted to a committee
consisting of not more than six members with equal representation of the
Director-General and the Union. Such committee shall have the power to
investigate all matters in dispute and to report to the Chief Executive Officer
of the Health Service and the Union respectively, with such recommendations as
it may think right and in the event of no mutual decision being arrived at by
such a committee and if a dispute still exists the matter in dispute may be
referred to the Industrial Relations Commission in accordance with the
provisions of the Industrial Relations Act 1996 by one of the disputing
parties.
6.4 Whilst these procedures are continuing, no
stoppage of work or any form of ban or limitation of work shall be applied.
6.5 Unless agreed otherwise by the parties the
status quo before the emergence of the issue must continue whilst these
procedures are being followed. For this
purpose "status quo" means the work procedures and practices 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
6.6 The Employer must ensure that all
practices applied during the operation of these procedures are in accordance
with safe working practices.
7. Anti-Discrimination
7.1 It 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
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.
8. Area, Incidence and Duration
8.1 This Award rescinds and replaces the
Health Industry Status of Employment (State) Award published 24 February 2006
(357 I.G. 340) and all variations thereof.
8.2 This Award shall apply to persons employed
in classifications as contained in the awards identified in Schedule
"A", employed in the New South Wales Health Service under s115(1) of
the Health Services Act 1997, or their successors, assignees or
transmittees, excluding the County of Yancowinna.
8.3 This Award takes effect from 12 November
2008, and shall remain in force until 30 June 2011.
SCHEDULE "A"
1. Public Hospital Professional Engineers’ (Biomedical
Engineers) (State) Award
2. Public Hospital (Career Medical Officers) (State) Award
3. Health Employees Oral Health Therapists (State) Award
4. Public Hospital Dental Assistants (State) Award
5. Health Employees Dental Officers (State) Award
6. Public Hospitals Library Staff (State) Award
7. Public Hospitals (Medical Superintendents) Award
8. Public Hospital (Medical Officers) Award
9. Public Hospital Medical Record Librarians Award
10. Public Hospitals (Professional and
Associated Staff) Conditions of Employment (State) Award
11. Hospital Scientists (State) Award
12. Health Employees Conditions of Employment
(State) Award
13. Royal Rehabilitation Service - Weemala
Unit Residential Care Staff (State) Award
14. Public Hospital Residential Services
Assistant (State) Award
15. Health Employees Administrative Staff
(State) Award
16. Health Managers (State) Award
17. Health Employees Pharmacists (State) Award
18. Health Employees (State) Award
19. Health Employees General Administrative
Staff (State) Award
20. Health Employees (Engineers) (State) Award
21. Health Employees Computer Staff (State)
Award
22. Health Employees Technical (State) Award
23. Health Employees Medical Radiation
Scientists (State) Award
24. Health Employees Interpreters (State)
Award
25. NSW Health Service Health Professionals
(State) Award
26. Health Employees Dental Prosthetists and
Dental Technicians (State) Award
J.
McLEAY, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.