Crown
Employees (Office of the Legal Aid Commission - Indemnification of Employed
Solicitors) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 700 of 2008)
|
Before Commissioner
McLeay
|
5 August 2008
|
REVIEWED
AWARD
Arrangement
PART A
Clause No. Subject Matter
1. Title
2. Definitions
3. Indemnity
4. Anti-Discrimination
5. Disputes
Settling Procedure
6. Application
PART A
1. Title
This award shall be known as the Crown Employees (Office of
the Legal Aid Commission - Indemnification of Employed Solicitors) Award.
2. Definitions
2.1 "Association"
shall mean the Public Service Association and Professional Officers’
Association Amalgamated Union of New South Wales.
2.2 "Department
Head" shall mean the Chief Executive Officer of the Office of the Legal
Aid Commission.
2.3 "Office of
the Legal Aid Commission" shall mean the Office of the Legal Aid
Commission of New South Wales specified in Part 1 of Schedule 1 of the Public
Sector Employment and Management Act 2002.
2.4 "Director
of Public Employment" or "DPE" shall mean the employer for the
purposes of the Public Sector Employment and Management Act 2002.
2.5 "Solicitor"
shall have the same meaning as in the Legal Profession Act 2004.
3. Indemnity
3.1 A solicitor
employed by the Office of the Legal Aid Commission shall be indemnified by the
Office of the Legal Aid Commission with respect to the whole of any order made
against the solicitor pursuant to section 348 of the Legal Profession Act
2004 in any matter, except where the conduct of the solicitor giving rise to
the making of an order:
3.1.1 constitutes
"serious and wilful misconduct" as that phrase is construed under s5
of the Employees Liability Act 1991; or
3.1.2 did not occur in
the course of, and did not arise out of, the solicitor's employment.
4.
Anti-Discrimination
4.1 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.
4.2 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.
4.3 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.
4.4 Nothing in this
clause is to be taken to affect:
4.4.1 any conduct or
act which is specifically exempted from anti-discrimination legislation;
4.4.2 offering or
providing junior rates of pay to persons under 21 years of age;
4.4.3 any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
4.4.4 a party to this
award from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
4.5 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.
4.5.1 Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
4.5.2 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."
5. Dispute Settling
Procedure
5.1 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.
5.2 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.
5.3 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 staff member 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.
5.4 The immediate
manager, or other appropriate officer, 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 attention.
5.5 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.
5.6 The Department
Head may refer the matter to the DPE for consideration.
5.7 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.
5.8 A staff member,
at any stage, may request to be represented by the Association.
5.9 The staff member
or the Association on their behalf, or the Department Head may refer the matter
to the New South Wales Industrial Relations Commission if the matter is
unresolved following the use of these procedures.
5.10 The staff member,
Association, department and DPE shall agree to be bound by any order or
determination by the New South Wales Industrial Relations Commission in
relation to the dispute.
5.11 Whilst the
procedures outlined in subclauses 5.1 to 5.10 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.
6. Application
6.1 This award shall
apply to all solicitors employed by the Office of the Legal Aid Commission of
New South Wales other than a solicitor who is a chief executive officer or
senior executive officer for the purposes of Part 3.1 of the Public Sector
Employment and Management Act 2002.
6.2 This award is
made following a review under section 19 of the Industrial Relations Act 1996
and rescinds and replaces the Legal Aid Commission (Indemnification of Employed
Solicitors) Award published 22 April 2005 (350 I.G. 409).
6.3 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
5 August 2008.
6.4 The award
remains in force until varied or rescinded, the period for which it was made
having already expired.
J.
McLEAY, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.