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New South Wales Industrial Relations Commission
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MONTESSORI SCHOOLS AND/OR PRE-SCHOOLS PORTABILITY OF LONG SERVICE LEAVE AWARD
  
Date08/31/2001
Volume327
Part2
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C0401
CategoryAward
Award Code 655B  
Date Posted03/13/2002

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(655B)

SERIAL C0401

 

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

 1 June 2001

 

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.

Date of Publication

Date of Taking Effect

Industrial Gazette

Vol.             Page

Award Reprint

B6453

18 December 1998

18 December 1997

307

557

 

SCHEDULE B

 

Changes Made on Review

 

June 1 2001

 

Provisions Modified:

 

Award

Clause

Previous form of clause last Published at:

 

 

Vol.

Page

Montessori Schools and Pre Schools Portability of Long Service Leave Award

10 Area Incident and duration

307

557

Montessori Schools and Preschools Portability of Long Service Leave Award.

9 Anti Discrimination

 

 

Montessori Schools and Preschools Portability of Long Service Leave Award.

2 Application

307

557

 

Provisions Removed:

 

Award

Clause

Previous form of clause last Published at:

 

 

Vol.

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

Rescinded Obsolete Awards Related to this Award

 

Award

Clause

Previous form of clause last Published at:

 

 

Vol.

Page

 

 

 

 

 

 

 

 

 

 

 

 

T. M. KAVANAGH  J.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

 

 

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