Health Industry Status of Employment (State) Award
2019
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by NSW Ministry of Health.
(Case No. 204433 of 2019)
Before Chief Commissioner Kite
|
4 July 2019
|
AWARD
Arrangement
Clause No. Subject
Matter
1. Definitions
2. Principles
3. Loadings
4. Arrangements
for Existing Part-time Workers
5. Process
for Resolving Inconsistencies
6. Dispute
Resolution
7. Anti-Discrimination
8. No Extra
Claims
9. Area,
Incidence and Duration
1. Definitions
1.1 Employer means
the Secretary of the Ministry of Health exercising employer functions on behalf
of the Government of New South Wales.
1.2 Employee means a
person who is engaged on either a full time, part time, temporary, exempt or
casual basis under a contract of employment in the NSW Health Service under
s115(1) of the Health Services Act
1997.
1.3 Casual employee
means a person who may be engaged on an hourly basis, for a period which does
not extend beyond one week, to provide services related to the unexpected
absence of temporary, permanent or exempt employees. This provision may also
encompass short-term employment associated with unanticipated peak demands.
1.4 Temporary
employee means a person who is engaged as an employee for a period not
exceeding 13 weeks, provided that fixed term contracts of employment, whether
for periods greater or lesser than 13 weeks, must not be offered in preference
to ongoing contracts.
1.5 Permanent
employee means a person appointed as such or a person who has worked in the
same position, including a permanent relief position, for a continuous period
of 13 weeks other than as an exempt employee.
Permanency is subject to the outcome of any appeal process.
1.6 Exempt employee
means a person who is engaged for a continuous period and whose employment
involves:
• relief for periods in excess of 13 weeks during the absence
of existing employees or;
• specific projects which are time limited or;
• functions
which involve funding for a specific period and which is not of a recurrent
nature or;
• forthcoming service reductions which have a predetermined
date.
Exempt employees as defined do not attract casual or
temporary loadings.
1.7 Continuous
period of employment means an uninterrupted period of 13 weeks employment
involving at least one shift per week in that period, but does not refer to
exempt employees as defined.
1.8 Health Service
means a Local Health District constituted under section 8 of the Health Services Act 1997, a Statutory
Health Corporation constituted under section 11 of that Act, an Affiliated
Health Organisation constituted under section 13 of that Act and the Public
Health System Support Division of the NSW Health Service.
1.9 Secretary means
the Secretary of the Ministry of Health.
1.10 Union means the
Health Services Union NSW
2. Principles
2.1 Employees who
are engaged in meaningful work on a continuing basis are entitled to an
expectation of permanency of employment subject to the provisions of this
award.
2.2 It is the
responsibility of the employer to ensure that all employees, upon engagement
and at all appropriate times, are correctly classified as exempt, casual,
temporary, or permanent according to the above definitions.
2.3 Where a person
changes from casual to either temporary or permanent, the employment status of
the person is deemed to have changed automatically.
2.4 During the
period of continuing employment the status of an employee cannot be changed
from permanent to temporary or casual or from temporary to casual, without the
prior written consent of the employee.
2.5 All permanent
employees are required as part of their contract of employment, to use their
best endeavours to provide four weeks’ notice of their intention to terminate
their employment contract.
2.6 Any position
which would involve the employment of an exempt, temporary or permanent
employee, upon falling vacant, will, where such a position continues to be
required in its current form by the Health Service, be advertised within the Health
Service and/or external to the Health Service.
Positions should be filled under the merit principle of selection.
2.7 A person who, by
definition, is a temporary employee for a period of less than 13 weeks may be
re-engaged by the same Health Service under more than one employment contract
provided the aggregate period of the contracts, where consecutive, does not
exceed 13 weeks.
2.8 Where the
employee is retained beyond a continuous period of 13 weeks in the same
position the employee is deemed to be permanent, subject to the outcome of any
appeal. The application of this sub clause shall not be applied in a manner
which is inconsistent with legislation or Government recruitment and employment
policy, as varied from time to time. This subclause does not apply to an exempt
employee as defined.
3. Loadings
3.1 Casual Employees
- A casual employee will be paid for the number of hours worked each week at an
hourly rate, calculated at the same hourly rate as prescribed for a full time
employee in the same classification and grade plus 10 per cent loading. A
minimum payment of 2 hours at ordinary pay on each occasion the employee
commences a shift will apply.
3.2 Temporary
Employees - A temporary employee shall be paid for the number of hours worked
each week on an hourly rate calculated at the same hourly rate as prescribed
for a full time employee in the same classification plus 10 per cent loading.
The loading shall cease to apply if:
(a) the period of employment extends beyond 13 weeks
(b) the employer and the employee agree, during the period of 13
weeks, that the employee will be employed on a permanent basis.
4. Arrangements for
Existing Part-Time Workers
4.1 Payment of 15%
Allowance - Persons engaged as at 1 January 2000 and who were paid the 15%
loading at that date will continue to receive that loading but only for the
remainder of the existing part time employment contract. Receipt of the
allowance will cease if the contract is completed or where an employee requests
a transfer or is promoted to another position.
4.2 Conditions -
Persons covered by clause 4.1 of this clause will, for the duration of any
existing part-time employment contract and while remaining in their current
position, retain existing part-time provisions.
They will not be entitled to pro rata entitlements as outlined elsewhere
within applicable awards.
5. Process for
Resolving Inconsistencies
5.1 The Awards
contained in the attached schedule "A", as varied or replaced from
time to time, shall also apply, where appropriate, to persons covered by this
award.
5.2 To the extent
that any inconsistency exists between the conditions provided by this award and
that provided by an award contained in the attached schedule "A" this
award will prevail.
6. Dispute Resolution
6.1 Where a dispute
arises in a particular section which cannot be resolved between the employees
or their representative and the supervising staff, it shall be referred to the
Designated Manager of the hospital or service unit or his/her nominee who will
arrange for the matter to be discussed with the employee concerned and if
requested a local representative or representatives of the Union.
6.2 If the matter is
not resolved within a reasonable time it must be referred by the Designated
Manager to the Chief Executive Officer of the Health Service (or his or her
nominee) and may be referred by the employee to the Union's Head Office. Discussions at this level must take place
within a reasonable time with a view to resolving the issue in dispute. Failing
settlement of the issue at this level, the matter shall be dealt with in
accordance with sub-clause 6.3 of this clause.
6.3 With a view to
amicable and speedy settlement of all disputes that firstly cannot be settled
by local management and the Union or its representatives, disputes may be
submitted to a committee consisting of not more than six members with equal
representation of the Secretary and the Union. Such committee shall have the
power to investigate all matters in dispute and to report to the Chief
Executive of the Health Service and the Union respectively, with such
recommendations as it may think right and in the event of no mutual decision
being arrived at by such a committee and if a dispute still exists the matter
in dispute may be referred to the Industrial Relations Commission in accordance
with the provisions of the Industrial
Relations Act 1996 by one of the disputing parties.
6.4 Whilst these
procedures are continuing, no stoppage of work or any form of ban or limitation
of work shall be applied.
6.5 Unless agreed
otherwise by the parties the status quo before the emergence of the issue must
continue whilst these procedures are being followed. For this purpose "status quo" means
the work procedures and practices in place:
(a) immediately before the issue arose: or
(b) immediately before any change to those procedures or
practices, which caused the issue to arise, was made
6.6 The Employer
must ensure that all practices applied during the operation of these procedures
are in accordance with safe working practices.
7. Anti-Discrimination
7.1 It the intention
of the parties bound by this award to seek to achieve the object in section 3
(f) of the Industrial Relations Act
1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds
of race, sex, marital status, disability, homosexuality, transgender identity,
age and responsibilities as a carer.
7.2 It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
7.3 Under the Anti-Discrimination Act 1977, it is
unlawful to victimise an employee because the employee has made or may make or
has been involved in a complaint of unlawful discrimination or harassment.
7.4 Nothing in this
clause is to be taken to affect:
(a) any conduct or act which is specifically exempted from
anti-discrimination legislation;
(b) offering or providing junior rates of pay to persons under
21 years of age;
(c) any act or practice of a body established to propagate
religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to this award from pursuing matters of unlawful
discrimination in any State or federal jurisdiction.
7.5 This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by the legislation referred to in this clause.
NOTES -
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d)
of the Anti-Discrimination Act 1977
provides:
"Nothing in this Act affects ... any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.
8. No Extra Claims
Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public
Sector Conditions of Employment) Regulation 2014, there shall be no further
claims/demands or proceedings instituted before the Industrial Relations
Commission of New South Wales for extra or reduced wages, salaries, rates of pay,
allowances or conditions of employment with respect to the employees covered by
the Award that take effect prior to 30 June 2020 by a party to this Award.
9. Area, Incidence and
Duration
9.1 This Award
rescinds and replaces the Health Industry Status of Employment (State) Award
2018 published 5 July 2019 (384 I.G. 630) and all variations thereof, and take
effect from 1 July2019.
9.2 This Award shall
apply to persons employed in classifications as contained in the awards
identified in Schedule "A", as varied or replaced from time to time,
employed in the New South Wales Health Service under s115(1) of the Health Services Act 1997, or their
successors, assignees or transmittees, excluding the
County of Yancowinna.
9.3 This award
incorporates changes under s 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 NSW on 4 December 2018.
P. KITE , Chief Commissioner
____________________
Printed by the authority of the Industrial Registrar.