Public
Service Association of New South Wales Industrial and Associated Employees
Leave Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 611 of 2007)
|
Before The Honourable
Mr Deputy President Harrison
|
31 July 2007
|
REVIEWED
AWARD
Clause No. Subject Matter
1. Definitions
2. Sick
leave
3. Sick
Leave to Care for a Family Member
4. Family
and Community Service Leave
5. Parental
Leave
6. Casual
Employees - Parental, Personal Carers and Bereavement Leave
7. Deduction
of Union Membership Fees
8. Anti-Discrimination
9. Dispute
Settlement
10. Secure
Employment
11. Area,
Incidence and Duration
1. Definitions
(1) "Employee"
shall mean a person employed by the Public Service Association and Professional
Officers’ Association Amalgamated Union of New South Wales as Principal
Industrial Officer, Senior Industrial Officer, Industrial Officer, Organiser,
Women’s Industrial Officer, Training Officer, Regional Organiser, Senior
Communications Officer, Information Officer and Welfare Officer.
(2) "Association"
shall mean the Public Service Association and Professional Officers’
Association Amalgamated Union of New South Wales.
(3) "Union"
shall mean the Industrial Staff Union.
2. Sick Leave
(1) All employees
employed on a full-time basis are entitled to fifteen working days paid sick
leave per calendar year.
(2) Sick leave on
full pay accrues at the beginning of the calendar year, but if an employee is
appointed during a calendar year, sick leave on full pay accrues on the date
the employee commences duty at the rate of 1-1/4 days for each complete month
before the next 1 January.
(3) Sick leave
without pay shall not be counted as service for the accrual of sick leave.
(4) For the
purposes of determining the amount of sick leave accrued where sick leave is
granted on less than full pay, the amount of sick leave granted shall be
converted to its full pay equivalent.
(5) If an employee
who is on recreation leave or extended leave furnishes to the Association a
satisfactory medical certificate in respect of illness occurring during that
leave, the Association may, subject to the provisions of this clause relating
to sick leave, grant sick leave to the employee for the following period:
(a) in the case of
an employee on recreation leave - the period set out in the medical
certificate;
(b) in the case of
an employee on extended leave - the period set out in the medical certificate,
except if that period is less than seven calendar days.
(6) Subclause (5)
of this clause applies to all employees other than those on leave prior to
resignation or termination of services, unless the resignation or termination
of services amounts to a retirement.
3. Sick Leave to Care
for a Family Member
When family and community service leave provided for in
clause 4 is exhausted, an employee with responsibilities in relation to a
category of person set out in subclause (3) of this clause who needs the
employee's care and support, may elect to use available paid sick leave,
subject to the conditions specified in this clause, to provide such care and
support when a family member is ill.
(1) The sick leave
shall initially be taken from the current leave year’s entitlement followed, if
necessary, by the sick leave accumulated over the previous 3 years. In special
circumstances, the Association may grant additional sick leave from the sick
leave accumulated during the employee’s eligible service.
(2) If required by
the Association, the employee must establish by production of a medical
certificate or statutory declaration, the illness of the person concerned.
(3) The
entitlement to use sick leave in accordance with this clause is subject to:-
(a) The employee
being responsible for the care and support of the person concerned; and
(b) The person
concerned being:-
(i) a spouse of
the employee; or
(ii) a de facto
spouse being a person of the opposite sex to the employee who lives with the
employee as her husband or his wife on a bona fide domestic basis although not
legally married to that employee; or
(iii) 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 or legal guardian), grandparent,
grandchild or sibling of the employee or of the spouse or de facto spouse of
the employee; or
(iv) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or a relative of the employee who is a member of
the same household, where for the purposes of this definition:
"relative" means a person related by blood,
marriage, affinity or Aboriginal kinship structures;
"affinity" means a relationship that one
spouse or partner has to the relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
4. Family and
Community Service Leave
(1) The
Association shall grant to an employee some, or all of their accrued family and
community service leave on full pay, for reasons relating to family
responsibilities, performance of community service or emergencies. Where
possible, non-emergency appointments or duties should be scheduled or performed
outside of normal working hours.
(2) Such cases may
include but not be limited to the following:-
(a) Compassionate
grounds - such as the death or illness of a close member of the family or a
member of the employee's household;
(b) Emergency
accommodation matters up to one day, such as attendance at court as defendant
in an eviction action, arranging accommodation, or when required to remove
furniture and effects;
(c) Emergency or
weather conditions; such as when flood, fire, snow or disruption to utility
services etc, threatens an employee’s property and/or prevents an employee from
reporting for duty;
(d) Attending to
family responsibilities such as - citizenship ceremonies, parent/teacher
interviews or attending child's school for other reasons;
(e) Attendance at
court by an employee to answer a charge for a criminal offence, only if the
Association considers the granting of family and community service leave to be
appropriate in a particular case;
(f) Attendance as
a competitor in major amateur sport (other than Olympic or Commonwealth Games)
for employees who are selected to represent Australia or the State; and
(g) Absence during
normal working hours to attend meetings, conferences or to perform other duties,
for employees holding office in Local Government, and whose duties necessitate
absence during normal working hours for these purposes, provided that the
employee does not hold a position of Mayor of a Municipal Council, President of
a Shire Council or Chairperson of a County Council.
(3) The definition
of "family" or "relative" in this clause is the same as
that provided in paragraph 3(3) (b) of this award.
(4) The maximum
amount of family and community service leave on full pay which may, subject to
this award, be granted to an employee shall be in accordance with paragraph (a)
or in accordance with paragraph (b) whichever is the greater:
(a) 2½ of the
employee’s working days in the first year of service and, on completion of the
first year’s service, 5 of the employee’s working days in any period of 2
years.; or
(b) After the
completion of 2 years continuous service, the available family and community
service leave is determined by allowing 1 days leave for each completed year of
service less the total amount of short leave or family and community service
leave previously granted to the employee.
(5) If available
family and community service leave is exhausted as a result of natural
disasters, the Association shall consider applications for additional family
and community service leave, if some other emergency arises.
(6) If available
family and community service leave is exhausted, on the death of a family
member or relative, additional paid family and community service leave of up to
2 days may be granted on a discrete, per occasion basis to an employee.
(7) In cases of
illness of a family member for whose care and support the employee is
responsible, paid sick leave in accordance with clause 3, Sick Leave to Care
for a Sick Family Member, shall be granted when paid family and community
service leave has been exhausted.
(8) The
Association may also grant employees other forms of leave such as accrued
recreation leave, time off in lieu, flex leave and so on for family and
community service leave purposes.
5. Parental Leave
Parental leave includes maternity, adoption leave and
"other parent" leave.
(1) Maternity
leave shall apply to an employee who is pregnant and, subject to this clause
the employee shall be entitled to be granted maternity leave as follows:
(a) For a period
up to 9 weeks prior to the expected date of birth; and
(b) For a further
period of up to 12 months after the actual date of birth.
(c) An employee who
has been granted maternity leave and whose child is stillborn may elect to take
available sick leave instead of maternity leave.
(2) Adoption leave
shall apply to an employee adopting a child and who will be the primary care
giver, the employee shall be granted adoption leave as follows:
(a) For a period
of up to 12 months if the child has not commenced school at the date of the
taking of custody; or
(b) For such
period, not exceeding 12 months on a full-time basis, as the Association may
determine, if the child has commenced school at the date of the taking of
custody.
(c) Special
Adoption Leave - An employee shall be entitled to special adoption leave
(without pay) for up to 2 days to attend interviews or examinations for the
purposes of adoption. Special adoption leave may be taken as a charge against
recreation leave, extended leave, flexitime or family and community service
leave.
(3) Where
maternity or adoption leave does not apply, "other parent" leave is
available to male and female staff who apply for leave to look after his/her
child or children. Other parent leave
applies as follows:
(a) Short other
parent leave - an unbroken period of up to 8 weeks at the time of the birth of
the child or other termination of the spouse's or partner's pregnancy or, in
the case of adoption, from the date of taking custody of the child or children;
(b) Extended other
parent leave - for a period not exceeding 12 months, less any short other
parental leave already taken by the employee as provided for in paragraph (a)
of this subclause. Extended other parental leave may commence at any time up to
2 years from the date of birth of the child or the taking of custody of the
child.
(4) An employee
taking maternity or adoption leave is entitled to payment at the ordinary rate
of pay for a period of 14 weeks, an employee entitled to short other parent
leave is entitled to payment at the ordinary rate of pay for a period of up to
1 week, provided the employee:
(a) Applied for
parental leave within the time and in the manner determined set out in
subclause (9) of this clause; and
(b) Prior to the
commencement of parental leave, completed not less than 40 weeks' continuous
service.
(c) Payment for
the maternity, adoption or short other parent leave may be made as follows:
(i) in advance as
a lump sum; or
(ii) fortnightly
as normal; or
(iii) fortnightly
at half pay; or
(iv) a combination
of full‑pay and half pay.
(5) Payment for
maternity, adoption or other parent leave is at the rate applicable when the leave
is taken. A member of staff holding a
full time position who is on part time leave without pay when they start
parental leave is paid:
(a) at the full
time rate if they began part time leave 40 weeks or less before starting
maternity, adoption or other parent leave;
(b) at the part
time rate if they began part time leave more than 40 weeks before starting
maternity, adoption or other parent leave and have not changed their part time
work arrangements for the 40 weeks;
(c) at the rate
based on the average number of weekly hours worked during the 40 week period if
they have been on part time leave for more than 40 weeks but have changed their
part time work arrangements during that period.
(6) An employee
who has taken no more than 12 months full time maternity, adoption or other
parent leave or its part time equivalent is entitled to be paid at their normal
rate (ie the rate at which they were paid before proceeding on parental leave)
for another period of such leave regardless of whether they resume their normal
hours of work before proceeding on leave for another pregnancy or adoption.
(7) Except as
provided in subclauses (4), (5) and (6) of this clause, maternity, adoption or
other parent leave shall be granted without pay.
(8) Right to
request
(a) An employee
who has been granted maternity, adoption or other parent leave in accordance
with subclause (1), (2) or (3) may make a request to the Association to:
(i) extend the
period of unpaid maternity, adoption or other parent leave for a further
continuous period of leave not exceeding 12 months;
(ii) return from a
period of full time maternity, adoption or other parent leave on a part time
basis until the child reaches school age (Note: returning to work from parental
leave on a part time basis includes the option of returning to work on part
time leave without pay);
to assist the employee in reconciling work and parental
responsibilities.
(b) The
Association 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 Association’s business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
(9) Notification
Requirements
(a) When the
Association is made aware that an employee or their spouse is pregnant, or an employee’s
spouse is pregnant or is adopting a child, the Association must inform the
employee of their entitlements and their obligations under the Award.
(b) An employee
who wishes to take parental leave must notify the Association in writing at
least 8 weeks (or as soon as practicable) before the expected commencement of
parental leave:
(i) that she/he
intends to take maternity, adoption or other parent leave, and
(ii) the expected
date of birth or the expected date of placement, and
(iii) if she/he is
likely to make a request under subclause (8).
(c) At least 4
weeks before an employee's expected date of commencing maternity, adoption or
other parent leave they must advise:
(i) the date on
which the maternity, adoption or other parent leave is intended to start, and
(ii) the period of
leave to be taken.
(d) Employee’s
request and the Association’s decision to be in writing
The employee’s request under paragraph (8)(a) and the
Association’s decision made under paragraph (8)(b) must be recorded in writing.
(e) An employee
intending to request to return from maternity, adoption or other parent leave
on a part time basis or seek an additional period of leave of up to 12 months
must notify the Association in writing as soon as practicable and preferably
before beginning maternity, adoption or other parent leave. If the notification
is not given before commencing such leave, it may be given at any time up to 4
weeks before the proposed return on a part time basis, or later if the
Association agrees.
(f) An employee
on maternity leave is to notify her Association of the date on which she gave
birth as soon as she can conveniently do so.
(g) An employee
must notify the Association as soon as practicable of any change in her
intentions as a result of premature delivery or miscarriage.
(h) An employee on
maternity or adoption leave may change the period of leave or arrangement, once
without the consent of the Association and any number of times with the consent
of the Association. In each case she/he must give the Association at least 14
days notice of the change unless the Association decides otherwise.
(10) An employee has
the right to his/her former position if she/he has taken approved leave or part
time work in accordance with subclause (8), and she/he resumes duty immediately
after the approved leave or work on a part time basis.
(11) If the position
occupied by the employee immediately prior to the taking of maternity, adoption
or other parent leave has ceased to exist, but there are other positions
available that the employee is qualified for and is capable of performing, the
employee shall be appointed to a position of the same grade and classification
as the employee’s former position.
(12) An employee
does not have a right to her/his former position during a period of return to
work on a part time basis. If the Association approves a return to work on a
part time basis then the position occupied is to be at the same classification
and grade as the former position.
(13) An employee who
has returned to full time duty without exhausting their entitlement to 12
months unpaid maternity, adoption or other parent leave is entitled to revert
back to such leave. This may be done once only, and a minimum of 4 weeks notice
(or less if acceptable to the Association) must be given.
(14) An employee who
is sick during her pregnancy may take available paid sick leave or accrued
recreation or extended leave or sick leave without pay. An employee may apply
for accrued recreation leave, extended leave or leave without pay before taking
maternity leave. Any leave taken before maternity leave ceases at the end of
the working day immediately preceding the day she starts her nominated period
of maternity leave or on the working day immediately preceding the date of
birth of the child, whichever is sooner.
(15) An employee may
elect to take available recreation leave or extended leave within the period of
maternity, adoption or other parent leave provided this does not extend the
total period of such leave.
(16) An employee may
elect to take available recreation leave at half pay in conjunction with
maternity, adoption or other parent leave subject to:
(a) accrued
recreation leave at the date leave commences is exhausted within the period of
maternity, adoption or other parent leave
(b) the total
period of maternity, adoption or other parent
leave, is not extended by the taking of recreation leave at half pay
(c) When
calculating other leave accruing during the period of recreation leave at half
pay, the recreation leave at half pay shall be converted to the full time
equivalent and treated as full pay leave for accrual of further recreation,
extended and other leave at the full time rate
(17) If, for any
reason, a pregnant employee is having difficulty in performing her normal
duties or there is a risk to her health or to that of her unborn child the
Association, should, in consultation with the member of staff, take all
reasonable measures to arrange for safer alternative duties. This may include,
but is not limited to greater flexibility in when and where duties are carried
out, a temporary change in duties, retraining, multi-skilling, teleworking and
job redesign.
(18) If such
adjustments cannot reasonably be made, the Association must grant the employee
maternity leave, or any available sick leave, for as long as it is necessary to
avoid exposure to that risk as certified by a medical practitioner, or until
the child is born which ever is the earlier.
(19) Communication
during maternity, adoption or other parent leave
(a) Where an
employee is on maternity, adoption or other parent leave and a definite
decision has been made to introduce significant change at the workplace, the
Association shall take reasonable steps to:
(i) 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 maternity, adoption or other parent leave; and
(ii) 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 maternity, adoption or other parent leave.
(b) The employee
shall take reasonable steps to inform the Association about any significant
matter that will affect the employee’s decision regarding the duration of
maternity, adoption or other parent 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 Association of changes of address or other contact
details which might affect the Association’s capacity to comply with paragraph
(a).
6. Casual Employees - Parental, Personal Carers and
Bereavement Leave
(1) Parental Leave
entitlement for casual employees
Casual employees are entitled to
unpaid parental leave under Chapter 2, Part 4, Division 1, section 54,
Entitlement to Unpaid Parental Leave, in accordance with the Industrial
Relations Act 1996. The following
provisions shall also apply in addition to those set out in the Industrial
Relations Act 1996 (NSW).
(a) The
Association must not fail to re-engage a regular casual employee (see section
53(2) of the Act) because:
(i) the employee
or employee's spouse is pregnant; or
(ii) 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.
(2) Personal
Carers entitlement for casual employees
(a) Casual
employees are entitled to not be available to attend work, or to leave work if
they need to care for a family member described in paragraph 3(3)(b) of the
award who is sick and requires care and support, or who requires care due to an
unexpected emergency, or the birth of a child. This entitlement is subject to
the evidentiary requirements set out below in (d), and the notice requirements
set out in (e).
(b) The
Association and the casual 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
Association 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.
(d) The casual
employee shall, if required,
(i) 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
(ii) 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, a casual employee must not
take carer's leave under this subclause where another person had taken leave to
care for the same person.
(e) The casual
employee must, as soon as reasonably practicable and during the ordinary hours
of the first day or shift of such absence, inform the employer of their
inability to attend for duty. If it is
not reasonably practicable to inform the employer during the ordinary hours of
the first day or shift of such absence, the employee will inform the employer
within 24 hours of the absence.
(3) Bereavement
entitlements for casual employees
(a) Casual
employees are entitled to not be available to attend work, or to leave work
upon the death in Australia of a family member on production of satisfactory
evidence (if required by the employer).
(b) The
Association and the casual 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
Association 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.
(d) The casual employee
must, as soon as reasonably practicable and during the ordinary hours of the
first day or shift of such absence, inform the employer of their inability to
attend for duty. If it is not reasonably practicable to inform the employer
during the ordinary hours of the first day or shift of such absence, the
employee will inform the employer within 24 hours of the absence.
7. Deduction of Union
Membership Fees
(1) The union
shall provide the Association with a schedule setting out union weekly membership
fees payable by members of the union in accordance with the union’s rules.
(2) The union
shall advise the Association of any change to the amount of weekly membership
fees made under its rules. Any variation to the schedule of union weekly
membership fees payable shall be provided to the Association at least one month
in advance of the variation taking effect.
(3) Subject to
subclauses (1) and (2) of this clause, the Association shall deduct union weekly
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 Association to make such deductions.
(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.
(5) Unless other
arrangements are agreed to by the Association and the Union, all union
membership fees shall be deducted on a weekly basis.
(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
deduction to continue.
8.
Anti-Discrimination
(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.
(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.
(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) 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.
(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 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."
9. Dispute Settlement
There shall be effective means of consultation both informal
and formal between the Association and the Union at various levels on all
matters of mutual interest and concern, irrespective of whether or not these
matters are likely to give rise to a dispute.
Failure to observe this fundamental principle of
consultation would be contrary to the intention of these procedures.
(1) Where a
dispute arises in a particular job location which cannot be resolved between
the employee or their representative and the supervising staff, it shall be
referred to the Association’s General Secretary or his/her nominee, who will
then arrange for the matter to be discussed with the Union.
(2) If the matter
remains unresolved, it should be referred to the NSW Industrial Relations
Commission pursuant to the relevant section of the Industrial Relations Act
1996.
(3) Whilst these
procedures are continuing, no stoppage of work or any other form of limitation
of work shall be applied.
(4) The Union
reserves the right to vary this procedure where a safety factor is involved.
10. Secure Employment
(1) 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.
(2) Casual
Conversion
(a) 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.
(b) 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.
(c) Any casual
employee who has a right to elect under paragraph (2)(a), upon receiving notice
under paragraph (2)(b) 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.
(d) 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.
(e) 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.
(f) 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:
(i) whether the
employee will convert to full-time or part-time employment; and
(ii) 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 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.
(g) Following an
agreement being reached pursuant to paragraph (f), 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.
(h) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
(3) Occupational
Health and Safety
(a) For the purposes of this subclause, the following definitions
shall apply:
(i) 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.
(ii) 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.
(b) 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):
(i) consult with
employees of the labour hire business and/or contract business regarding the workplace occupational health
and safety consultative arrangements;
(ii) 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;
(iii) 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
(iv) 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.
(c) Nothing in
this subclause (3) 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.
(4) 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.
(5) 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.
11. Area, Incidence
and Duration
(1) This award shall
apply to all employees as defined in clause 1, Definitions.
(2) This award is
made following a review under section 19 of the Industrial Relations Act
1996 and rescinds and replaces the Public Service Association of New South Wales
Industrial and Associated Officers (State) Sick Leave Award published 11 March
2005 (349 I.G. 97) and all variations thereof.
(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 31 July 2007 .
(4) The award
remains in force until varied or rescinded, the period for which it was made
having already expired.
R. W. HARRISON D.P.
____________________
Printed by
the authority of the Industrial Registrar.