MONTESSORI SCHOOLS AND/OR PRE-SCHOOLS PORTABILITY OF LONG SERVICE LEAVE
AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.
(No. IRC 1139 of 2001)
Before The Honourable
Justice Kavanagh
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1 June
2001
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REVIEWED AWARD
1. Arrangement
Clause No. Subject Matter
1. Arrangement
2. Application
3. Definitions
4. Entitlements and Conditions
5. Administrative Arrangements
6. Award Legally Binding and Enforceable
7. Other Montessori Schools and/or Pre Schools
8. Disputes Avoidance and Grievance Procedures
9. Anti Discrimination
10. Area, Incidence and Duration
Annexure A
Annexure B
Schedule A
Schedule B
2. Application
This award is made between the employing authorities for the
Montessori Schools and/or Pre-Schools (as specified in Annexure A, hereinafter
referred to as "the employers") and the New South Wales Independent
Education Union on behalf of each and every employee of the employers employed,
now or in the future, under the Teachers (Non-Government Pre-Schools) (State)
Award, the Teachers (Non-Government Early Childhood centres Other than
Pre-Schools) (State) Award and the Teachers (Independent Schools) (State) Award
(hereinafter referred to as "the awards"). This award applies to the
employers and each and every employee of the employers employed, now or in the
future, under the awards and all variations thereof.
3. Definitions
"Awards" means the Teachers (Non-Government
Pre-Schools) (State) Award, the Teachers (Non-Government Early Childhood
Centres other than Pre-Schools) (State) Award and the Teachers (Independent
Schools) (State) Award.
"Continuous service" has the same meaning as in
the Awards and the Long Service Leave Act
1955.
"Employee" means an employee of the employers
employed under one of the Awards.
"Employers" means the employing authority for the
Montessori Schools and/or Pre Schools (as specified in Annexure A).
"Former employer" means the last employer with
whom an employee was employed immediately prior to being re-employed with a new
employer.
"New employer" means an employer who has employed
an employee subsequent to the termination of the employee’s employment with a
former employer.
"Ordinary pay" has the same meaning as in the
Awards and the Long Service Leave Act 1955.
"Proportionate value of the employee’s long service
leave" means a proportionate monetary amount based on length of service of
the employee.
"Service" has the same meaning as in the Awards
and the Long Service Leave Act 1955.
"Union" means the New South Wales Independent
Education Union.
4. Entitlements
and Conditions
Except insofar as expressly varied by the provisions of this
clause, the provisions of the Long
Service Leave Act 1955 as amended shall apply to employees.
(a) The amount of
long service leave an employee under the Teachers (Non-Government Pre-Schools)
(State) Award, and the Teachers (Non-Government Early Childhood Centres other
than Pre-Schools) (State) Award is entitled to shall be calculated on the basis
of 0.86 weeks for each year of service or part thereof for all service before 1
January 1998 and 1.05 weeks for each year of service or part thereof from, or
for teachers employed under the Teachers (Independent Schools) (State) Award
refer clause 12.2 of clause 12, Long Service Leave of that award.
(b) An employee
who has completed at least 12 months service and whose services are terminated
by the employer for any reason other than misconduct or cease for any other
reason (including resignation) and who is employed by a new employer within 90
days shall be entitled to a proportionate amount of long service leave on the
basis of subclause (a) of this clause and:
(i) The employee
may direct the former employer to forward the proportionate value of employee’s
long service leave on the employee’s behalf of/or any of the employee’s unused
entitlements to long service leave to the new employer.
(ii) In
circumstances where the former employer, but for this award, would not have any
liability to pay any amount to the employee for long service leave, the
employee may direct the former employer, to pay a proportionate amount based on
length of service (hereinafter referred to as the proportionate value of the
employee’s long service leave) to the new employer, for employees employed
under the awards, as set out in subclause (a) of this clause, calculated as set
out in the said subclause (a).
(iii) For the
purposes of calculating entitlements to long service leave, the continuous
service of the employee with any former employers shall be treated as part of
the continuous service of the employee with the new employer, except for that
part of the service for which the employee has received payment from a former
employer for long service leave.
(iv) If an employee
of the new employer is terminated from employment before being eligible for
long service leave entitlements under this award, the new employer shall refund
to the former employers the proportionate value of the employee’s long service
leave that the former employers had been directed to pay to the new employers
by the employee.
(v) These
provisions apply irrespective of whether the former employer or the new
employer is required to give long service leave entitlements in the absence of
this award.
(c) An employee
who has completed at least 5 years’ service and whose services with an employer
are terminated or cease for any reason (other than misconduct), shall be
entitled to a proportionate amount of long service leave on the basis of
subclause (a) of this clause, provided that:
(i) for the
purpose of calculating entitlements to long service leave, the continuous
service of the employee with any former employers shall be treated as part of
the continuous service of the employee with the new employer, except for that
part of the service for which the employee has received payment from a former
employer for long service leave.
(ii) the employee
does not seek to have their long service leave entitlements transferred under
subclause (b) of this clause.
5. Administrative
Arrangements
An employee who decides to make a direction in accordance
with this award that the former employer either pay the employee’s unused
entitlements to long service leave or the proportionate value of the employee’s
long service leave to the new employer, shall submit the direction as specified
in Annexure B to the former employer within 90 days of commencing employment
with the new employer.
On receipt of a direction made by the employee to the former
employer, the former employer shall within three months pay the employee’s
unused entitlements to long service leave or the proportionate value of the
employee’s long service leave to the new employer and inform the new employer
of the following details:
(a) the period of
service with the former employer;
(b) details of
periods of service with other former employers;
(c) the date of
termination of employment with the former employer;
(d) details of
long service leave taken by the employee while employed by the former employer.
6. Award
Legally Binding and Enforceable
The parties to this award intend that the award be legally
binding and enforceable by any of the parties to the award and/or those to whom
the award applies.
Any employer who, after 1 January 1998, employs an employee
shall become liable to give to any employee the entitlements to which the
employee is due under this award for long service leave and to make payment to
any other employer the amounts which an employee may direct be paid pursuant to
the provisions of this award.
7. Other
Montessori Schools and/or Pre-Schools
The employing authority for any Montessori School and/or
Pre-School not specified in Annexure A may become an employer party to this
award by applying for a variation to the award. Montessori Schools and/or Pre
Schools listed in Annexure A will not withhold their consent.
8. Disputes
Avoidance and Grievance Procedures
(a) The objective
of these procedures is the avoidance and resolution of industrial disputation
arising under this award by measures based on consultation, co-operation and
negotiation.
(b)
(i) In the event
of any matter arising under this award which is of concern or interest, the
employee shall discuss this matter with their employer.
(ii) If the matter
is not resolved in accordance with paragraph (i) of this subclause, the
employee may refer this matter to the New South Wales Independent Education
union, who will discuss the matter with the employer or their nominee.
(iii) If this
matter cannot be resolved in accordance with paragraph (ii) of this subclause,
it may be referred to the Industrial Relations Commission of New South Wales or
its successor.
(c) Nothing
contained in this procedure shall prevent the General Secretary of the New
South Wales Independent Education Union or their nominee or the employer or
their nominee from entering into negotiations at any level, either at the
request of a member or on their own initiative, in respect of matters in
dispute should such action be considered conducive to achieving resolution of
the dispute.
9. Anti
Discrimination
(a) It is the
intention of the parties bound by this award to seek to achieve the objective
of 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
and age.
(b) It follows
that in fulfilling their obligations under the dispute resolution procedure
prescribed by this award that parties have obligations to take all reasonable
steps to ensure that he operations 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.
(c) 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.
(d) Nothing in
this clause is to be taken to affect:
(i) Any conduct
or act which is specifically exempt for anti discrimination legislation:
(ii) offering or
providing junior rates of pay to persons under 21 years of age;
(iii) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination
Act 1977;
(iv) a party to
this award from pursuing matters of unlawful discrimination on any State or
federal jurisdiction.
(e) 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.
10. Area,
Incidence and Duration
(a) This award shall
apply to all employees as defined in clause 3, Definitions, employed by
employing authorities for the Montessori Schools and/or Pre Schools as
specified in Annexure A.
(b) This award is
made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the
Montessori Schools and/or Pre Schools Portability of Long Service Leave Award
1997 published 18 December 1998 (307 IG 557) and all variations thereof.
(c) The award
published 18 December 1998 took effect from the beginning of the first pay
period to commence on 18 December 1997 and the variations thereof incorporated
herein on the dates set out in the attached Schedule A.
(d) 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 18 December 1998 (308 IG 307) are
set out in the attached Schedule B and take effect on 1 June 2001.
(e) Liability to
give entitlements under this award arises only in relation to terminations of
employment with a former employer and subsequent employment by a new employer
occurring after the date of agreement.
(f) This award
remains in force until varied or rescinded, the period for which it was made
having already expired.
Annexure A
The following employing authorities for the Montessori
Schools and/or Pre Schools are parties to the Montessori Schools and/or Pre
Schools Portability of Long Service Leave Award.
1. Northside
Montessori School - 42 Bobbin Head Road, Pymble NSW 2074 (PO Box 274,
Turramurra NSW 2074)
2. Eastern
Suburbs Montessori Association - PO Box 3135, Tamarama NSW 2026
3. Hills
Montessori School - 10-14 Taylor Street, West Pennant Hills NSW 2125
4. Sydney
Montessori Society - "The Children’s House", PO Box 123, Lindfield
NSW 2070 or 9 Moore Avenue, Lindfield 2070.
5. Bankstown
Montessori Association, Inc. - PO Box 224 Georges Hall NSW 2198 or 1796
Birdwood Road, Georges Hall NSW 2198.
6. Manly
Warringah Montessori Society - "The Farmhouse Montessori School" 2A
Campbell Parade, Manly Vale NSW 2093
7. Barrenjoey
Montessori School - 5 Tasman Road, Avalon Beach NSW 2107
8. Forestville
Montessori School - 1 Angel Place, Forestville NSW 2087
Annexure B
Direction To Transfer Long Service Leave Entitlements Or
Proportionate Value Of Long Service Leave In Accordance With The Montessori
Schools And/Or Pre Schools Portability Long Service Leave Award
(Within three months of commencing employment with the new
employer, the employee must complete Part One of this form and forward/give
this form to the new employer. The new employer then completes Part Two,
retains a copy, and forwards the form to the former employer).
Part One (to be complete by the employee)
1. 1,
(employee’s name) was until (date) employed by (former employer)
2. As from
(date), I have been/will be employed by (new employer).
3. I hereby make
a direction under the Montessori Schools and/or Pre-Schools Portability Long
Service Leave Award that (former employer) pay my unused entitlements to long
service leave or the proportionate value of my long service leave to (new
employer).
4. I hereby
agree and declare that all amounts of leave which may be due to me pursuant to
the provisions of the award applicable to my employment (the award) and the New
South Wales Long Service Leave Act 1955 or both shall be paid on my behalf to
(new employer) and I authorise and direct my former employer to remit such
amounts to my new employer.
Dated this ___________________ day of_________________
Signed
Part Two (to be completed by the new employer)
I, (name of responsible officer of new employer) for and on
behalf of (new employer) with full authority to act on behalf of (new employer)
in this regard, in consideration of (name of employee) agreeing to employment
by (new employer) and in consideration of the payment to (new employer) of the
unused entitlements to long service leave or the proportionate value of long
service leave in respect of the new employee, do hereby agree and undertake
(i) to give to
(name of employee) any long service leave entitlements to which (name of
employee) is entitled under any awards, including the Montessori Schools and/or
Pre Schools Portability of Long Service Leave Award 1997 or the Act,
notwithstanding that (new employer) may no longer be party to the Award and at
the same time such leave or payment becomes due and,
(ii) if (name of
employee) is terminated from employment before being eligible for long service
leave entitlements, to refund to former employers of (employee) the
proportionate value of employee’s long service leave that the former employers
had been directed to pay to new employers by the employee.
Dated this ___________________ day of_________________
Signed____________________________________________
For and on behalf of (new employer)
SCHEDULE A
Award and Variations Incorporated
Clause
|
Award/Variation Serial No.
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Date of Publication
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Date of Taking Effect
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Industrial Gazette
Vol.
Page
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Award Reprint
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B6453
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18 December 1998
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18 December 1997
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307
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557
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SCHEDULE B
Changes Made on Review
June 1 2001
Provisions Modified:
Award
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Clause
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Previous form of clause last Published
at:
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Vol.
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Page
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Montessori Schools and Pre Schools Portability of Long
Service Leave Award
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10 Area Incident and duration
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307
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557
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Montessori Schools and Preschools Portability of Long
Service Leave Award.
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9 Anti Discrimination
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Montessori Schools and Preschools Portability of Long
Service Leave Award.
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2 Application
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307
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557
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Provisions Removed:
Award
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Clause
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Previous form of clause last Published
at:
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Vol.
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Page
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Rescinded Obsolete
Awards Related to this Award
Award
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Clause
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Previous form of clause last Published
at:
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Vol.
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Page
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T. M. KAVANAGH J.
____________________
Printed by the authority of the Industrial Registrar.