the private hospitals and aged and disability care services industry redundancy (state) award

 

award REPRINT

 

This reprint of the abovementioned award is published by the authority of the Industrial Registrar under section 390 of the Industrial Relations Act 1996, and under Rule 6.6 of the Industrial Relations Commission Rules 2009.

 

I certify that the form of this reprint, incorporating the variations set out in the schedule, is correct as at the latest date of effect therein mentioned.

 

 

 

 

G. M. GRIMSON  Industrial Registrar.

 

 

Schedule of Award and Variations Incorporated

 

Clause	Award/	Date of	Date of Taking Effect	Industrial Gazette
	Variation	Publication
	Serial No.
				Vol.	Page
Award	C0387	31/08/2001	First pay period on and from 18/05/2001	327	487
2, 4, 7, 12, 13	C2820	19/11/2004	On and from 08/06/2004	347	405
13	C6125	08/02/2008	On and from 23/07/2007	364	1041

 

 

1.  Arrangement

 

Clause No.       Subject Matter

 

1.        Arrangement

2.        Definitions

3.        Relationship to Parent Awards

4.        Introduction of Change

5.        Redundancy

6.        Termination of Employment

7.        Severance Pay

8.        Incapacity to Pay

9.        Alternative Employment

10.      Grievance and Dispute Resolution Procedures

11.      Savings Clause

12.      Exemptions

13.      Area, Incidence and Duration

 

2.  Definitions

 

(i)       "Union" means the Health Services Union.

 

(ii)       "Continuous service" shall be interpreted in the same manner as "service of a worker" is interpreted in the Long Service Leave Act 1955 as at 22 July 1996.  Periods of leave without pay, including parental leave without pay, do not break the continuity of service of an employee but are not to be taken into account in calculating length of service for the purposes of this award.

 

(iii)      "Parent awards" mean -

 

(a)      The Private Hospital Employees’ (State) Award published 25 January 2001 (321 IG 1008) as varied.

 

(b)      Aged Care General Services (State) Award published 11 November 2000 (320 I.G. 1), as varied.

 

3.  Relationship to Parent Awards

 

This award shall be read and interpreted wholly in conjunction with the parent awards as set out in subclause (iii) of clause 2, Definitions, and, in so far as the terms of this award vary from the parent awards, the terms of this award shall prevail.

 

4.  Introduction of Change

 

(i)       Employer's duty to notify -

 

(a)      Where the employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the Union.

 

(b)      "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

(ii)       Employer's duty to discuss change -

 

(a)      The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in subclause (i) of this clause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

(b)      The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause (i) of this clause.

 

(c)      For the purpose of such discussions, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.  Provided that the making of any positions redundant shall not be deemed to be confidential information for the purposes of this award.

 

5.  Redundancy

 

(i)       Discussions before terminations -

 

(a)      Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and that decision may lead to termination of the employee's employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(b)      The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph (a) of this subclause and, in any case, prior to the beginning of the period of notice required by clause 6, Termination of Employment.  These discussions shall cover, inter alia, any reasons for the proposed terminations, and measures to avoid or minimise the terminations, and measures to mitigate any adverse effects of any terminations on the employees concerned.

 

(c)      For the purposes of the discussion the employer shall, as soon as practicable and, in any case, prior to the beginning of the period of notice required by clause 6, provide to the employees concerned and the union to which they belong, all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.  Provided that the making of any positions redundant shall not be deemed to be confidential information for the purposes of this award.

 

6.  Termination of Employment

 

(i)       Notice for changes in production, program, organisation or structure -

 

This subclause sets out the notice provisions to be applied to terminations or proposed terminations of the employment of an employee by the employer in circumstances where the employer no longer wishes the job which the employee has been doing to be done by anyone, for any reason (other than technological change), and for reasons arising from production, program, organisation or structure in accordance with paragraph (a) of subclause (i) of clause 4, Introduction of Change.

 

(a)      An employer shall not terminate the employment of an employee unless the employer has given to the employee at least the following minimum periods of notice:

 

Period of Continuous Service	Period of Notice
Less than 1 year	1 week
1 year and less than 3 years	2 weeks
3 years and less than 5 years	3 weeks
5 years and over	4 weeks

 

(b)      In addition to the notice above, employees over 45 years of age at the time of the giving of the notice, with not less than two years' continuous service, shall be entitled to an additional week's notice.

 

(c)      Payment in lieu of the notice above shall be made if the said period of notice is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(ii)       Notice for technological change -

 

This subclause sets out the notice provisions to be applied to terminations or proposed terminations by the employer for reasons arising from technology in accordance with paragraph (a) of subclause (i) of the said clause 4.

 

(a)      An employer shall not terminate the employment of an employee unless the employer has given to the employee at least three months' notice of termination.

 

(b)      Payment in lieu of the period of the notice above shall be made if the appropriate period of notice is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu of thereof.

 

(c)      The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any act amending or replacing either of these Acts.

 

(iii)      Time off during the notice period -

 

(a)      During the period of notice of termination given by the employer, each affected employee shall be allowed up to one day's time off without loss of pay for each week of notice, up to a maximum of five days off, for the purposes of seeking other employment.

 

(b)      If an employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, if the employer so requests, the employee shall be required to produce proof of attendance at an interview.  If the employee is so required to produce such proof of attendance and fails to do so, the employee shall not be entitled to receive payment for such time.

 

(iv)      Employee leaving during the notice period -

 

If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments to which the employee would have been entitled had the employee remained with the employer until the expiry of such notice. 

 

(v)      Statement of employment -

 

The employer shall provide to each employee whose employment has been terminated, a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee.

 

(vi)      Notice to Centrelink

 

Where a decision has been made to terminate the employment of 15 or more employees, the employer shall notify Centrelink of this, as soon as possible, giving relevant information, including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(vii)     Centrelink Employment Separation Certificate -

 

The employer shall provide to an employee whose employment has been terminated an Employment Separation Certificate in the form required by Centrelink.

 

(viii)    Transfer to Lower Paid Duties -

 

Where an employee is transferred to lower paid duties for reasons set out in subclause (i) of clause 4, Introduction of Change, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee’s employment had been terminated, and the employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary-time rate of pay and the new ordinary- time rates for the number of weeks of notice still owing.

 

(ix)      Notice Required by Parent Award -

 

The period of notice prescribed by this award shall be in substitution for any notice required by the parent award.

 

7.  Severance Pay

 

Unless the Industrial Relations Commission of New South Wales subsequently orders otherwise pursuant to clause 8, Incapacity to Pay, where the employment of an employee is to be terminated, for reasons set out in clause 4, Introduction of Change, the employer shall pay, in addition to other payments due to that employee, the following severance pay in respect of the following continuous periods of service:

 

 

(i)       Where the employee is under 45 years of age, the employer shall pay the employee in accordance with the following scale:

 

Years of Service	Minimum Amount of Severance Pay
Less than 1 year	Nil
1 year and less than 2 years	4 weeks pay
2 years and less than 3 years	7 weeks pay
3 years and less than 4 years	10 weeks pay
4 years and less than 5 years	12 weeks pay
5 years and less than 6 years	14 weeks pay
6 years and over	16 weeks pay

 

(ii)       Where the employee is 45 years of age or over, the employer shall pay the employee in accordance with the following scale:

 

Years of Service	Minimum Amount of Severance Pay
Less than 1 year	Nil
1 year and less than 2 years	5weeks pay
2 years and less than 3 years	8.75 weeks pay
3 years and less than 4 years	12.5 weeks pay
4 years and less than 5 years	15 weeks pay
5 years and less than 6 years	17.5 weeks pay
6 years and over	20 weeks pay

 

(iii)      "Week's pay" means the ordinary time gross all-purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay and any over-award payments:

 

(a)      For employees covered by the Private Hospital Employees’ (State) Award:

 

(1)      shift allowances as prescribed in subclause (ii) of clause 11, Penalty Rates and Shift Allowances;

 

(2)      weekend penalties as prescribed in subclause (iii) of the said clause 11;

 

(3)      service allowances as prescribed in clause 24, Service Allowance;

 

(4)      apprentices TAFE certificate allowances as prescribed in subclause (viii) of clause 10, Apprentices;

 

(5)      Driving allowances as prescribed in subclause (i) of clause 12, Allowances for Special Working Conditions, excluding an allowance relating to driving a vehicle for more than ten hours in any week and excluding an allowance relating to driving a vehicle for more than four hours in any one day or shift;

 

(6)      post-mortem assistance allowances as prescribed in subclause (ii) of clause 12, Allowances for Special Working Conditions;

 

(7)      leading hand allowances as prescribed in subclause (vii) of clause 12, Allowances for Special Working Conditions;

 

(8)      stenographic allowance as prescribed in Table 1-Rates of Pay, of Part B, Monetary Rates;

 

(9)      Sterilising Certificate allowance as prescribed in the said Table 1;

 

(10)     boiler attendant allowances as prescribed in Table 1;

 

(11)     Chief Radiographer service to another hospital allowance as prescribed in Table 1;

 

(b)      For employees covered by the Aged Care General Services (State) Award:

 

(1)      shift allowances as prescribed in subclauses (i) and (ii) of clause 11, Penalty Rates and Shift Allowances;

 

(2)      weekend penalties as prescribed in subclause (iii) of the said clause 11;

 

(3)      service allowances as prescribed in subclause (i) of clause 21, Service Allowance;

 

(4)      broken shift allowances as prescribed in subclause (xi) of clause 4, Hours;

 

(5)      apprentices’ TAFE examination allowances as prescribed in subclause (vi) of clause 10, Apprentices;

 

(6)      driving allowances as prescribed in subclause (i) of clause 12, Allowances for Special Working Conditions, excluding the allowance relating to driving a vehicle for more than ten hours in any week and excluding the allowance relating to driving a vehicle for more than four hours in any one day or shift;

 

(7)      climatic and isolation allowances as prescribed in subclauses (i) and (ii) of clause 22 , Climatic and Isolation Allowances;

 

(8)      leading hand allowances as prescribed in subclause (ii) of clause 23, Leading Hands;

 

(9)      stenographic allowances as prescribed in Table 1-Monetary Rates, of Part B.

 

8.  Incapacity to Pay

 

Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales an employer may pay a lesser amount (or no amount) of severance pay than that contained in clause 7, Severance Pay, above.

 

The Industrial Relations Commission of New South Wales shall have regard to such financial and other resources of the employer concerned as the Industrial Relations Commission of New South Wales thinks relevant, and the probable effect paying the amount of severance pay in the said clause 7 above will have on the employer.

 

9.  Alternative Employment

 

Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in clause 7, Severance Pay, above if the employer obtains acceptable alternative employment for an employee.

 

10.  Grievance and Dispute Resolution Procedures

 

(i)       Procedures relating to grievances of individual employees -

 

(a)      The employee is required to notify the employer (in writing or otherwise) as to the substance of the grievance, request a meeting with the employer for bilateral discussions and state the remedy sought.

 

(b)      A grievance must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(c)      Reasonable time limits must be allowed for discussion at each level of authority.

 

(d)      At the conclusion of the discussion, the employer must provide a response to the employee's grievance and, if the matter has not been resolved, include reasons for not implementing any proposed remedy.

 

(e)      While a procedure is being followed, normal work must continue.

 

(f)       The employee may be represented by an industrial organisation of employees.

 

(ii)       Procedures relating to disputes, etc, between employers and their employees -

 

(a)      A question, dispute or difficulty must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

(b)      Reasonable time limits must be allowed for discussion at each level of authority.

 

(c)      Whilst a procedure is being followed, normal work must continue.

 

(d)      The employer may be represented by an industrial organisation of employers and the employee(s) may be represented by an industrial organisation of employees for the purposes of each procedure.

 

(iii)      In the case of employers who employ not more than 20 employees, or where the management structure is such that all employees are subject to the direct supervision and control of the employer, graduated steps for further discussion and resolution at higher levels do not apply.

 

(iv)      Whilst any of the above procedures are being followed, normal work must continue.

 

(v)      For any of the above procedure, the employer may be represented by an industrial organisation of employers and the employee(s) may be represented by an industrial organisation of employees.

 

11.  Savings Clause

 

Nothing in this award shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions which an employee may be entitled to under any existing redundancy arrangement, taken as a whole, between the Association and any employer bound by this award.

 

12.  Exemptions

 

This award shall not apply to:

 

(i)       Novices, aspirants or persons who have taken the vows of religious orders.

 

(ii)       Employees of the Spastic Centre of New South Wales to whom the terms of the Spastic Centre of New South Wales Enterprise (State) Award published 7 November 2003 (341 I.G. 945); and the Spastic Centre of New South Wales (Allied Professional Staff) (State) Award effective 1 November 2003 (unpublished) apply.

 

(iii)      Employees of the Pitt Wood Presbyterian Homes to whom the terms of the Pitt Wood Presbyterian Homes Redundancy (State) Award published 6 October 2000 (319 IG 166) apply;

 

(iv)      Employees of Stewart House of South Curl Curl, to whom the terms of the Registered Industrial Agreement No. 6299, and any variations thereto or replacements thereof, apply.

 

(v)      Employees of the Richmond Fellowship of New South Wales to whom the terms of the Richmond Fellowship of New South Wales (State) Award published 14 April 2000 (314 IG 1055) apply;

 

(vi)      Employees of The Northcott Society whilst ever they are applying to their employees the terms of the The Northcott Society (State) Award published 8 September 2000 (318 IG 490);

 

13.  Area, Incidence and Duration

 

(i)       This award was made following a review under s.19 of the Industrial Relations Act 1996.

 

(ii)       This award rescinds and replaces the Private Hospitals and Aged and Disability Care Services Industry Redundancy Award published 27 February 1998 (303 IG 665) and all variations thereof;

 

(iii)      The area and incidence of this award shall be the same as that prescribed by the area, incidence and duration clauses of the parent awards, that is,

 

(a)      clause 37, Area. Incidence and Duration and of the Private Hospital Employees’ (State) Award;  and

 

(b)      clause 37, Area, Incidence and Duration of the Aged Care General Services (State) Award;

 

(iv)      This award shall apply in respect to employers who employ 15 or more employees immediately prior to the termination of employment of the employees, in the terms of clause 6 of this award.

 

(v)      Notwithstanding anything contained elsewhere in this award, this award shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

(vi)      Notwithstanding anything contained elsewhere in his award, this award shall not apply where employment is terminated as a consequence of conduct that justifies instance dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees or employees engaged for a specific period of time or for specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

(vii)     This award does not apply in relation to the termination or proposed termination of employment of an employee unless at the time of termination of his/her employment he/she has been, or will have been, continuously employed by the employer for at least 12 months ending at that time.

 

(viii)    This award does not apply in relation to the termination of employment of a casual employee.

 

(ix)      This award shall take effect on and from 18 May 2001 and shall have a nominal term of two years.

 

(x)      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 23 July 2007.

 

(xi)      This award remains in force until varied or rescinded, the period for which it was made already having expired.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.