Inala Disability Services (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Health Services Union, Industrial Organisation of Employees.

 

(No. IRC 1175 of 2006)

 

 

VARIATION

 

1.          Insert in clause 1, Arrangement, of the award published 17 February 2006 (357 I.G. 177), the following new clause number and subject matter and renumber the existing clause 58, Area, Incidence and Duration, to read as Clause 59.

 

58.       Secure Employment

59.       Area, Incidence and Duration

 

2.          Insert after clause 57, Reasonable Hours, the following new clause:

 

58.  Secure Employment

 

(a)        Objective of this Clause

 

The objective of this clause is for the employer to take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce, in particular by ensuring that casual employees have an opportunity to elect to become full-time or part-time employees.

 

(b)        Casual Conversion

 

(i)         A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this Award during a calendar period of six months shall thereafter have the right to elect to have his or her ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by this subclause.

 

(ii)        Every employer of such a casual employee shall give the employee notice in writing of the provisions of this sub-clause within four weeks of the employee having attained such period of six months. However, the employee retains his or her right of election under this subclause if the employer fails to comply with this notice requirement.

 

(iii)       Any casual employee who has a right to elect under paragraph (b)(i), upon receiving notice under paragraph (b)(ii) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that he or she seeks to elect to convert his or her ongoing contract of employment to full-time or part-time employment, and within four weeks of receiving such notice from the employee, the employer shall consent to or refuse the election, but shall not unreasonably so refuse. Where an employer refuses an election to convert, the reasons for doing so shall be fully stated and discussed with the employee concerned, and a genuine attempt shall be made to reach agreement. Any dispute about a refusal of an election to convert an ongoing contract of employment shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

(iv)       Any casual employee who does not, within four weeks of receiving written notice from the employer, elect to convert his or her ongoing contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.

 

(v)        Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

 

(vi)       If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with paragraph (b)(iii), the employer and employee shall, in accordance with this paragraph, and subject to paragraph (b)(iii), discuss and agree upon:

 

(1)        whether the employee will convert to full-time or part-time employment; and

 

(2)        if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked either consistent with any other part-time employment provisions of this award or pursuant to a part time work agreement made under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW);

 

Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert his or her contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and the employee.

 

(vii)      Following an agreement being reached pursuant to paragraph (vi), the employee shall convert to full-time or part-time employment. If there is any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment, it shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

(viii)     An employee must not be engaged and re-engaged, dismissed or replaced in order to avoid any obligation under this subclause.

 

(c)        Occupational Health and Safety

 

(i)         For the purposes of this subclause, the following definitions shall apply:

 

(1)        A "labour hire business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which has as its business function, or one of its business functions, to supply staff employed or engaged by it to another employer for the purpose of such staff performing work or services for that other employer.

 

(2)        A "contract business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which is contracted by another employer to provide a specified service or services or to produce a specific outcome or result for that other employer which might otherwise have been carried out by that other employer’s own employees.

 

(ii)        Any employer which engages a labour hire business and/or a contract business to perform work wholly or partially on the employer’s premises shall do the following (either directly, or through the agency of the labour hire or contract business):

 

(1)        consult with employees of the labour hire business and/or contract business  regarding the workplace occupational health and safety consultative arrangements;

 

(2)        provide employees of the labour hire business and/or contract business with appropriate occupational health and safety induction training including the appropriate training required for such employees to perform their jobs safely;

 

(3)        provide employees of the labour hire business and/or contract business with appropriate personal protective equipment and/or clothing and all safe work method statements that they would otherwise supply to their own employees; and

 

(4)        ensure employees of the labour hire business and/or contract business are made aware of any risks identified in the workplace and the procedures to control those risks.

 

(iii)       Nothing in this subclause (c) is intended to affect or detract from any obligation or responsibility upon a labour hire business arising under the Occupational Health and Safety Act 2000 or the Workplace Injury Management and Workers Compensation Act 1998.

 

(d)        Disputes Regarding the Application of this Clause

 

Where a dispute arises as to the application or implementation of this clause, the matter shall be dealt with pursuant to the disputes settlement procedure of this award.

 

(e)        This clause has no application in respect of organisations which are properly registered as Group Training Organisations under the Apprenticeship and Traineeship Act 2001 (or equivalent interstate legislation) and are deemed by the relevant State Training Authority to comply with the national standards for Group Training Organisations established by the ANTA Ministerial Council.

 

3.          Delete clause 7, Casual Employee, and insert in lieu thereof the following:

 

7.  Casual Employee

 

7.1        A casual employee shall mean an employee employed to perform work of a short-term and/or irregular nature.

 

7.2        A casual employee shall be paid an hourly rate equal to one-thirty eighth of the appropriate weekly rate prescribed by Clause 20, Rates of Pay, plus an additional loading of fifteen (15 %) per cent.

 

7.3        Pursuant to the Annual Holidays Act 1944, casual employees are entitled to payment in lieu of annual leave at the end of each engagement in addition to entitlements under this clause, i.e. an amount equal to one-twelfth (8.33%) of the employee’s ordinary pay for such period of engagement.

 

7.4        Where a casual employee is engaged to undertake shift work, the prescribed shift penalty for the appropriate shift shall be paid in addition to the loading prescribed in 7.2 and 7.3 

 

7.5        A casual employee shall be paid a minimum of two hours at the appropriate rate for each engagement.

 

NOTE:  To calculate the appropriate rate of pay for a casual employee the formula is: appropriate hourly rate + 15% = sub total (1) [+appropriate shift penalty = subtotal (2)]+ 8.33% = total. 

 

7.6        Personal Carers Entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements in Clauses 41.1(b) and 41.1(d) 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 Clause 41.1(c)(ii) 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 employer 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)        An employer 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.

 

7.7        Bereavement entitlements for casual employees

 

(a)        Subject to the evidentiary and notice requirements in Clause 42 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 Clause 41.1(c)(ii).

 

(b)        The employer 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)        An employer 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 engage a casual employee are otherwise not affected.

 

4.          Delete clause 38 Parental Leave, and insert in lieu thereof the following:

 

38.  Parental Leave

 

38.1      All employees are entitled to parental leave in accordance with the provisions of the Industrial Relations Act, 1996.

 

38.2      Permanent employees are eligible for paid parental leave when they have completed at least 40 weeks' of continuous service prior to the expected date of birth or prior to the date of taking custody of the child.

 

38.3      Employees who are eligible for paid parental leave are entitled to such leave as follows:

 

(i)         Paid Leave

 

(a)        Paid Maternity Leave

 

An eligible employee is entitled to nine weeks paid maternity leave at ordinary rate of pay from the date the maternity leave commences.

 

Maternity leave may commence up to nine weeks prior to the expected date of birth.  It is not compulsory for an employee to take this period off work.  However, if an employee decides to work during this period, it is subject to the employee being able to satisfactorily perform the full range of normal duties.

 

(b)       Paid Paternity Leave - an eligible employee is entitled to one week paid paternity leave in any one year at ordinary pay which must commence within four weeks of the birth of the child. (Eligible employees will be as defined in the Industrial Relations Act 1996.)

 

(c)        Paid Adoption Leave - an eligible employee is entitled to paid adoption leave of three weeks from and including the date of taking custody of the child. 

 

(d)       Such leave may be paid:

 

1.          on a normal fortnightly basis;

 

2.          in advance in a lump sum;

 

3.          at the rate of half pay over a period of 18 weeks on a regular fortnightly basis for maternity leave and at the rate of half pay over a period of six weeks on a regular fortnightly basis for adoption leave.

 

Annual and/or long service leave credits can be combined with periods of maternity leave or adoption leave on half pay to enable an employee to remain on full pay for that period.

 

(ii)        Unpaid Leave

 

(a)        Unpaid Maternity Leave

 

An employee is entitled to a further period of unpaid maternity leave of not more than twelve months after the actual date of birth of the child.

 

(b)       Unpaid Paternity Leave

 

An employee is entitled to a further period of unpaid paternity leave of not more than three weeks, to be taken in conjunction with a period of paid paternity leave, unless otherwise agreed by the employer and employee.

 

(c)        Unpaid Adoption Leave

 

An employee is entitled to unpaid adoption leave as follows:

 

1.          where the child is under the age of 12 months - a period of not more than 12 months from the date of taking custody;

 

2.          where the child is over the age of 12 months - a period of up to 12 months, such period to be agreed upon by both the employee and the employer.

 

38.4      An employee who has once met the conditions for paid maternity leave and paid adoption leave will not be required to again work the 40 weeks' continuous service in order to qualify for a further period of maternity leave or adoption leave, unless:

 

(i)         there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement or after her services have been otherwise dispensed with;  or

 

(ii)        the employee has completed a period of leave without pay of more than 40 weeks.  In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987.

 

38.5      An employee who intends to proceed on maternity or paternity leave should formally notify her employer of such intention as early as possible, so that arrangements associated with her absence can be made.  Written notice of not less than eight weeks prior to the commencement of the leave should accordingly be given.  This notice must include a medical certificate stating the expected date of birth and should also indicate the period of leave desired.

 

38.6      In the case of notification of intention to take adoption leave, due to the fact that an employee may be given little notice of the date of taking custody of a child, employees who believe that, in the reasonably near future, they will take custody of a child, should formally notify their employer as early as practicable of the intention to take adoption leave.  This will allow arrangements associated with the adoption leave to be made.

 

38.7      After commencing maternity leave or adoption leave, an employee may vary the period of her maternity leave or adoption leave, once, without the consent of the employer and otherwise, with the consent of the employer.  A minimum of four weeks' notice must be given, although an employer may accept less notice if convenient.

 

38.8      Any person who occupies the position of an employee on parental leave must be informed that the employee has the right to return to her former position.  Additionally, since an employee also has the right to vary the period of her maternity leave or adoption leave, offers of temporary employment should be in writing, stating clearly the temporary nature of the contract of employment.  The duration of employment should also be set down clearly, to a fixed date or until the employee elects to return to duty, whichever occurs first.

 

38.9      When an employee has resumed duties, any period of full pay leave is counted in full for the accrual of annual and long service leave and any period of maternity leave or adoption leave on half pay is taken into account to the extent of one-half thereof when determining the accrual of annual and long service leave.

 

38.10    Except in the case of employees who have completed ten years service the period of parental leave without pay does not count as service for long service leave purposes.  Where the employee has completed ten years service the period of parental leave without pay shall count as service for long service leave purposes provided such leave does not exceed six months.

 

38.11    Parental leave without pay does not count as service for incremental purposes.  Periods of parental leave on full pay and at half pay are to be regarded as service for incremental progression on a pro-rata basis.

 

38.12    Where public holidays occur during a period of paid parental leave, payment is at the rate of parental leave received, that is the public holidays occurring in a period of full pay parental leave are paid at the full rate and those occurring during a period of half pay leave are paid at the half rate.

 

38.13    If because of an illness associated with her pregnancy an employee is unable to continue to work then she can elect to use any available paid leave (sick, annual and/or long service leave) or to take sick leave without pay.

 

38.14    Where an employee is entitled to paid maternity leave, but because of illness, is on sick, recreation, long service leave, or sick leave without pay prior to the birth, such leave ceases nine weeks prior to the expected date of the birth.  The employee then commences maternity leave with the normal provisions applying.

 

38.15    Where, because of an illness or risk associated with her pregnancy, an employee cannot carry out the duties of her position, an employer is obliged, as far as practicable, to provide employment in some other position that she is able to satisfactorily perform.  A position to which an employee is transferred under these circumstances must be as close as possible in status and salary to her substantive position.

 

38.16    In the event of a miscarriage any absence from work is to be covered by the current sick leave provisions.

 

38.17    In the case of stillbirth, an employee may elect to take sick leave, subject to the production of a medical certificate, or maternity leave.  She may resume duty at any time provided she produces a doctor's certificate as to her fitness.

 

38.18    An employee who gives birth prematurely, and prior to proceeding on maternity leave shall be treated as being on maternity leave from the date leave is commenced to have the child.  Should an employee return to duty during the period of paid maternity leave, such paid leave ceases from the date duties are resumed.

 

38.19    An employee returning from parental leave has the right to resume her former position.  Where this position no longer exists the employee is entitled to be placed in a position nearest in status and salary to that of her former position and for which the employee is capable or qualified.

 

38.20    Employees may make application to their employer to return to duty for less than the full-time hours they previously worked by taking weekly leave without pay.  Such return to work is to be according to the following principles:

 

(i)         the period is to be limited to twelve months after which the full-time duties must be resumed;

 

(ii)        the employee is to make an application for  leave without pay to reduce her full-time weekly hours of work.  This application should be made as early as possible to enable the employer to make suitable staffing arrangements.  At least four weeks' notice must be given;

 

(iii)       the quantum of leave without pay to be granted to individual employees is to be at the absolute discretion and convenience of the employer;

 

(iv)       salary and conditions of employment are to be adjusted on a basis proportionate to the employee's full-time hours of work, that is for long service leave the period of service is to be converted to the full-time equivalent and credited accordingly.

 

(v)        Full-time employees who return to work under this arrangement remain full-time employees.

 

38.21    Where an employee becomes pregnant whilst on maternity leave, a further period of maternity leave may be granted.  Should this second period of maternity leave commence during the currency of the existing period of maternity leave, then any residual maternity leave from the existing entitlement lapses.

 

38.22    An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Industrial Relations Act 1996 (NSW)) 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 an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.

 

38.23    Right to request

 

(a)        An employee entitled to parental leave may request the employer 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;

 

(3)        to return 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)       The employer 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 employer’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

 

(c)        Employee’s request and the employer’s decision to be in writing

 

The employee’s request and the employer’s decision made under sub-clauses 38.23 (a)(2) and 38.23 (a)(3) must be recorded in writing.

 

(d)       Request to return to work part-time

 

Where an employee wishes to make a request under Clause 38.23 (a)(3) 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.

 

38.24    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 employer 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 employer 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 or other contact details which might affect the employer’s capacity to comply with Clause 38.24 (a).

 

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

 

5.          Delete clause 41, Personal/Carer’s Leave, and insert in lieu thereof the following:

 

41.  Personal/Carer’s Leave

 

41.1      Use of Sick Leave

 

(a)        An employee with responsibilities in relation to a class of person set out in (c)(ii) who needs their care and support, shall be entitled to use, in accordance with this sub-clause any sick leave entitlement for absences to provide care and support for such persons when they are ill.

 

(b)        The employee shall, if required,

 

(1)        establish either by production of a medical certificate or statutory declaration, the illness of the person concerned or that the illness is such as to require care by another person, or

 

(2)        establish by production of documentation acceptable to the employer 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 sub-clause where another person has taken leave to care for the same person.

 

(c)        The entitlement to use sick leave in accordance with this sub-clause is subject to:

 

(i)         the employee being responsible for the care of the person concerned;  and

 

(ii)        the person concerned being:

 

(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, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or 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.

 

(d)        An employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and their relationship to the employee, the reasons for taking such leave and the estimated length of absence. 

 

Note: In the unlikely event that more than 10 days sick leave in any year is to be used for caring purposes the employer and employee shall discuss appropriate arrangements which, as far as practicable, take account of the employer’s and employee’s requirements.

 

Where the parties are unable to reach agreement the disputes procedure at Clause 33 should be followed.

 

41.2      Unpaid Leave for carer’s leave Purpose

 

An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a member of a class of person set out in sub-clause 41.1(c) (ii) above, who is ill or who require care due to an unexpected emergency.

 

41.3      Annual Leave

 

(a)        To give effect to this clause, but subject to the Annual Holidays Act 1944, an employee may elect with the consent of the employer, to take annual leave not exceeding ten days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.

 

(b)        Access to annual leave, as prescribed in 41.3 (a) above, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

(c)        An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

 

(d)        An employee may elect with the employers agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

41.4      Time Off in lieu of payment for overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer.

 

(b)        Overtime taken as time off during ordinary hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

 

(c)        An employer shall, if requested by an employee, provide payment, at the rate provided for the payment of overtime in the Award, for any overtime worked under subclause (a) above where such time has not been taken within four weeks of accrual. Notwithstanding anything contained elsewhere in this subclause, on notice from the employer, an employee must elect within six months of accrual, whether to take overtime worked under (a) above as an overtime payment or as time off work at the ordinary time rate of pay.

 

41.5      Make-up time

 

An employee may elect, with the consent of their employer, to work "make-up time", under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

6.          The variations relating to the Secure Employment provisions shall take effect on and from 10 March 2006; while those relating to Casual Employees, Personal/Carers’ Leave, and Parental Leave shall take effect from 19 December 2005.

 

 

 

R. P. BOLAND  J.

 

 

 

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Printed by the authority of the Industrial Registrar.