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New South Wales Industrial Relations Commission
(Industrial Gazette)

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Page No.
DescriptionAIRC - Award of Industrial Relations Commission
Publication No.C1092
Award Code 818  
Date Posted07/11/2002

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Application by SDN Children's Services for a new award.


(No. IRC 8434 of 2001)


Before The Honourable Justice Schmidt

21 February and 4 March 2002




1.  Arrangement


Clause No.          Subject Matter


1.         Arrangement

2.         Contract of Employment

3.         Hours

4.         Implementation of 19day month & RDO

5.         Crib Break

6.         Casual Employment

7.         Sick Leave

8.         Payment of Wages

9.         In-Service

10.       Salary Sacrifice

11.       Superannuation

12.       Dispute Resolution

13.       Anti-Discrimination

14.       Award to Apply

15.       Area, Incidence and Duration


2.  Contract of Employment


2.1        Notice during first four weeks: During the first four weeks of employment, the employment of a weekly employee may be terminated by a day’s notice given by either party or by the payment or forfeiture, as the case may be, of one day’s wages in lieu of such notice.


2.2        Notice after four weeks: Except for the first four weeks of employment, the employment of a weekly employee may be terminated by seven (7) working days notice given by either party or by the payment or forfeiture, as the case may be, of seven (7) days in lieu of such notice.


2.3        Misconduct: Nothing in this clause is to affect the right of the employer to dismiss any employee without notice for misconduct and in such cases wages will be paid up to the time of dismissal only.


2.4        Casual before two weeks: If employment is terminated other than for misconduct before the expiration of such two weeks the employment will be considered as casual and the employee paid the rates prescribed for a casual employee in Clause 6, Casual Employment, of this Award.


2.5        Payment during close-down periods: Annual leave is to be taken during the Christmas close-down period.  An employee will receive his or her ordinary rate of pay for their classification for 52 weeks each year, except for any period of annual leave where an employee’s annual leave credit is less than 4 weeks.


2.6        Notice for casuals The employment of a casual employee may be terminated by one hour’s notice.


3.  Hours


3.1        Ordinary hours: The ordinary working hours, inclusive of crib breaks, will not without payment of overtime, exceed an average of thirty eight per week.  Ordinary hours may be worked in one of the following ways:


(i)         19 days per month, or


(ii)        5 x 7.6 hour shifts per week, or


(iii)       4 x 9.5 hour shifts per week, or


(iv)       4 x 8 hour shifts and 1 x 6 hour shift per week.


Employees employed as at 1 December 2001 may continue the way they work their hours.


The first change to working hours for employees after the making of this award will be on a trial basis for an initial period of 12 months following consultation with the employees affected and evaluation at the end of the trial in consultation with the union.


3.2        Notification of hours: The employer will, by legible notice displayed at some place accessible to the employees, notify the ordinary hours of commencing and ceasing work between 6.30am and 6.30pm Monday to Friday inclusive and the ordinary times of crib breaks.  Such hours, once notified, are not be changed without the payment of overtime without seven days’ clear notice to the employee, except by mutual agreement between the employer and employee.


4.  Implementation of 19 Day Month & RDO


4.1        Rostered day off: The 19 day month, as provided in Clause 3, Hours, of this Award if worked will be implemented in accordance with this clause.  An employee is to accrue 0.4 of an hour (ie, 24 minutes) for each eight hour shift or day worked to give an entitlement to take an accrued rostered day off in each four week cycle as though worked.


(a)        Each day of paid leave taken (including annual leave but not including long service leave) and any public holiday occurring during any cycle of four weeks will be regarded as a day worked for accrual purposes.  Accrued days off will not be regarded as part of annual leave for any purpose.


(b)        Notwithstanding the provisions of paragraph (a) of this subclause, an employee will be entitled to no more than 12 paid accrued days off in any twelve months of consecutive employment.


(c)        An employee who has not worked a complete four week cycle in order to accrue a rostered day off, will be paid a pro-rata amount for credits accrued for each day worked in such cycle payable for the rostered day off or, in the case of termination of employment, on termination, (ie an amount of 24 minutes for each 8 hour day worked).


(d)        By mutual agreement between the employer and employee concerned, the employer may fix one work day in every fourth week as an accrued rostered day off.


4.2        Accumulation: The employee may accrue sufficient accrued days off to enable such days to be taken as rostered days off to a maximum block of five (5) days at any one time in any twelve (12) months of consecutive employment, but no two (2) blocks of rostered days off are to follow on consecutively.



4.3        Part-time Employees:


(a)        Working over 5 days: A part-time employee who is regularly rostered to work ordinary hours over five (5) days per week may accrue an entitlement to rostered days off in the same ratio of weeks worked to accrued days as that accrued by a weekly employee.  Such rostered days off will then be taken in accordance with this clause.  For every ordinary hour paid for, payment to the employee of one twentieth (5%) of the hourly rate will be withheld by the employer and then paid in the pay week in which the employee’s rostered day off is taken.


(i)         Before 28 August 2000: A part time-employee employed before 28 August 2000 may choose to be paid the appropriate higher hourly rate (that is a rate based on a 38 hour divisor) as set out in clause 7(ii)(b) of the Award referred to in clause 14 of this Award in lieu of accruing an entitlement to rostered days off subject to mutual agreement between employer and employee.  A notation of such agreement must be kept in the Time and Wages Records.


(ii)        On or after 28 August 2000: A part-time employees engaged on or after 28 August 2000, may be paid the higher rate instead of having rostered days off.


(b)        Working less than 5 days: A part-time employee who works less than five (5) days per week shall be paid for all hours worked (on the basis of a 38 hour divisor) subject to clause 9(ii), of the Award referred to in clause 14 instead of having rostered days off.


4.4        Casual Employees: A casual employee as defined in Clause 6 of this Award will be paid for all hours worked and does not accrued days off prescribed by this clause.


4.5        Notice: Except as provided by subclause 4.8, an employee will be advised by the employer at least four weeks in advance of the day or days they are to be rostered off duty.


4.6        Substitution: An individual employee with the agreement of the employer may substitute the day he or she is rostered off duty for another day.


4.7        Payment of Wage: Subject to clause 8, of this Award, where an employee is paid by cash or cheque and such employee is rostered off duty on a day which coincides with pay day, such employee will be paid no later than the working day immediately following pay day.


4.8        Accumulation: Rostered days off may accumulate in accordance with clauses 4.1(d) and 4.2 of this Award.


4.9        Rostered Day Off Falling on a Public Holiday: Where an employee’s rostered day off falls on a public holiday the employee and the employer are to agree to the substitution of an alternative day off. However, where agreement is not reached the substituted day may be determined by the employer.


4.10      Sick Leave and Rostered Days Off: An employee is not eligible for sick leave in respect of absences on rostered days off as such absences are outside the ordinary hours of duty.


4.11      Compassionate Leave and Rostered Days Off: An employee will not be entitled to payment for compassionate leave in respect of absences on rostered days off as such absences are outside the ordinary hours of duty.


4.12      Work on Rostered Day Off: Except as provided in subclause 4.6 of this clause, any employee required to work on a rostered day off shall be paid in accordance with the provisions of Clause 12, Overtime, of the Miscellaneous Workers Kindergartens and Child Care Centres (State) Award.






5.  Crib Break


Thirty minutes will be allowed to employees for a midday child-free crib break if such employee’s shift exceeds five hours from commencement of work.  Such crib break will be counted as time worked.  An employee will not be required to care for or supervise children during such break.


See Children Care and Protection Act 1996 for provisions relating to supervision of children.


6.  Casual Employment


6.1        Engagement: Casual employee means an employee engaged and paid as such for a period of not more than ten (10) consecutive working days for each engagement (but will not include employees who are required to work a constant number of ordinary hours per week).


6.2        Loading: Casual employees, for each hour worked during the ordinary time will be paid the hourly equivalent of the minimum weekly wage prescribed by this Award for the class of work performed by them, plus 15% of such hourly equivalent.


6.3        Minimum start: Casual employees will be paid a minimum of four hours for each start.


6.4        Positions Available: Casual employees will be regularly advised of permanent positions available.


7.  Sick Leave


7.1        Absence from work: If an employee is absent from work, except on account of personal illness or incapacity not due to the employee’s serious and wilful misconduct, a proportionate deduction will be made from their wages for the time lost by them.


7.2        Evidence of illness: The employee is to furnish to the employer such evidence as the employer may desire that the employee was unable by reason of such illness or injury to attend for duty on the day or days for which sick leave is claimed. A Statutory Declaration will be accepted in respect of any single day absences, but not more than two such declarations will be accepted in any one year.


7.3        Amount of sick leave: Subject to subclause 7.5 of this clause, the employer will not be liable to pay an employee for absence due to sickness for more than ten (10) days in each year of employment.


7.4        Accumulation of untaken sick leave: An employee who has been continuously employed by the SDN Children’s Services may accumulate any unclaimed sick pay each year for an unlimited period which may be drawn upon at such time as absence on account of sickness warrants.


7.5        Sick leave in first year: During the first year employment only an employee will be entitled to sick leave on the following basis:


During the first month of service

1 day

At 1 months’ completed service

2 days

At 2 months’ completed service

3 days

At 3 months’ completed service

4 days

At 4 months’ completed service

5 days

At 5 months’ completed service

6 days

At 6 months’ completed service

7 days

At 7 months’ completed service

8 days

At 8 months’ completed service

9 days

At 9 months’ completed service

10 days


7.6        Inform employer: The employee must, as soon as reasonably practicable and in any case within twenty four hours of the commencement of such absence, inform the employer of their inability to attend for duty and, as far as possible, state the nature of the injury or illness and the estimated duration of the absence.


7.7        Workers Compensation: The employer will not be liable for sick pay to any employee whose illness is due to an accident covered by Workcover.


7.8        Attendance at hospital, etc: Notwithstanding anything contained in subclause 7.1, of this clause, a weekly employee suffering injury through an accident arising out of and in the course of their employment (not being an injury in respect of which he/she is entitled to workers’ compensation) necessitating their attendance during working hours on a doctor, chemist or trained nurse, or at a hospital, will not suffer any deduction from his pay for that time (not exceeding four hours) so occupied on the day of the accident and will be reimbursed by the employer for all expenses reasonably incurred in connection with such attendance and expenses will include fares.


8.  Payment of Wages


8.1        Time of Payment: Wages will be paid weekly or fortnightly in ordinary working time. An employee kept waiting after the normal ceasing time for the payment of wages will be paid at overtime rates from the normal ceasing time until payment is made.  Casual employees will be paid within five (5) days of the termination of employment.


8.2        Method of payment: The employee may be paid their wages by cheque or direct transfer into the employee’s bank (or other recognised financial institution) account.


9.  In-Service


9.1        In-service: Employees may attend in-service courses outside the employee’s normal hours.


9.2        Notice: Adequate notice is to be given to an employee of approved in-service courses.


9.3        Courses: Such courses will be for a total maximum of eleven (11) hours and a total maximum of sixteen (16) hours for each employee in each consecutive year of employment.


9.4        Saturdays: Attendance at an in-service course on a Saturday for 4 hours or more will be deemed to amount to 10 hours of in-service training.  Attendance for less than 4 hours on a Saturday will be deemed to amount to 5 hours of in-service training.


9.5        Leave: Employees attending such courses for 10-16 hours or the deemed equivalent as provided in subclause 9.4 of this clause, will receive 2 days leave at ordinary time rates for their particular classification.


9.6        "In-Service": will include staff meetings, parent meetings and committee meetings.


10.  Salary Sacrifice


An employee may choose a salary sacrifice arrangement as approved by the SDN Children’s Services Board.


11.  Superannuation


An employee may choose AMP or HESTA or Asset Super for their 3% award superannuation.


12.  Dispute Resolution


12.1      Discussion on the job: Any grievance or dispute which arises must, where possible, be settled by discussion on the job between the employee and the employee’s Centre Director.


12.2      Discussion at next level: If the matter is not resolved on the job, the matter will be further discussed between the affected employee, and the Early Childhood Services Consultant. The affected employee will be entitled if they request to have in attendance at such discussions the Union Delegate or contact.


12.3      Discussion with union: If no agreement is reached the Union organiser and Union delegate or contact and affected employee will discuss the matter with the Early Childhood Services Consultant or other nominated representative of the employer.


12.4      Work normally: Whilst the foregoing procedure is being following work must continue normally.  No party will be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

12.5      Commission: Should the matter still not be resolved it may be referred by the parties to the Industrial Commission of New South Wales for settlement.


13.  Anti-Discrimination


13.1      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 responsibility as a carer.


13.2      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.


13.3      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.


13.4      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.


13.5      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.




(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."





14.  Award to Apply


Except as varied by this Award, the provisions of the Miscellaneous Workers’ Kindergartens and Child Care Centres (State) Award and any variations thereto or any award made resulting or replacing that award is to apply to and govern the conditions of the appropriate classes of employees covered by this Award.


15.  Area, Incidence and Duration


This Award rescinds and replaces the Miscellaneous Worker’s - Kindergartens and Child Care Centres (SDN Children’s Services) (Conditions of Employment) (State) Award published 10 November 1995 and award review published 31 August 2001 (327 I.G. 473).


This Award applies to all persons employed by SDN Children’s Services Inc in long day care centres within the jurisdiction of the Kindergartens (State) Conciliation Committee.

This award will take effect from the beginning of the first pay period to commence on or after 1 December 2001 and remain in force thereafter for a period of twelve months.














Printed by the authority of the Industrial Registrar.

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