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MISCELLANEOUS WORKERS KINDERGARTENS AND CHILD CARE CENTRES FAMILY LEAVE (CATHOLIC KINDERGARTENS, CHILD CARE CENTRES AND OTHERS AND INDEPENDENT SCHOOLS) (STATE) AWARD
  
Date05/21/2004
Volume344
Part6
Page No.
DescriptionRIRC - Award Review by Industrial Relations Commission
Publication No.C2437
CategoryAward
Award Code 4198  
Date Posted05/21/2004

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(4198)

SERIAL C2437

 

MISCELLANEOUS WORKERS KINDERGARTENS AND CHILD CARE CENTRES FAMILY LEAVE (CATHOLIC KINDERGARTENS, CHILD CARE CENTRES AND OTHERS AND INDEPENDENT SCHOOLS) (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.

 

(No. IRC 5657 of 2003)

 

Before The Honourable Mr Deputy President Harrison

28 November 2003

 

REVIEWED AWARD

 

1.  Arrangement

 

Clause No.          Subject Matter

 

1.         Arrangement

2.         Definitions

3.         Catholic Personal/Carer’s Leave

3A.      Carer’s Leave

3B.       Bereavement Leave

4.         Sick Leave

5.         Grievance and Disputes Settling Procedures

5A.      Anti-Discrimination

6.         Area, Incidence and Duration

 

2.  Definitions

 

"Parent Award" means the Miscellaneous Workers - Kindergarten and Child Care Centres, &c. (State) Award.

 

3.  Catholic Personal/Carer’s Leave

 

This clause only applies to employees who are employed under the Miscellaneous Workers Kindergartens and Child Care Centres Family Leave (Catholic Kindergartens, Child Care Centres and Others and Independent Schools) (State) Award by a body which has been established by the Catholic Church to propagate religion, excepting employees employed by Chevalier College, Bowral; Kincopal, Rose Bay and Loretto, Kirribilli. Where this clause applies, clause 3A shall not apply.

 

3.1        Use of Sick Leave to Provide Care and Support for a Family Member

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a family member set out in subparagraph (ii) of paragraph (c) who needs the employee’s care and support, shall be entitled to use, in any year in accordance with this subclause, any current or accrued sick leave entitlement provided for at clause 4 of the award, for absences to provide care and support, for such persons when they are ill.  Such leave may be taken for part of a single day.

 

(b)        If required, the employee shall establish the illness of the person concerned either by production of a medical certificate, statutory declaration, written statement or other evidence and that the illness is such as to require care and support by the employee.  An employee is not entitled to family leave under this subclause where another person has taken leave to care for the same person.

 

(c)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

(i)         the employee being responsible for the care of the person concerned; and

 

(ii)        the family member being a parent, step-parent, spouse, grandchild, sibling, grandparent, child, step-child, foster child, adopted child and foster parent of the employee or spouse.

 

3.2        Use of Sick Leave for a Pressing Domestic Necessity

 

(a)        Subject to paragraph (c), for the purposes of this clause pressing domestic necessity means any reason at the discretion of the employer, provided that such discretion is not unreasonably withheld and is exercised so as not to contravene any applicable provisions of the Anti-Discrimination Act.

 

(b)        An employee, other than a casual employee, with sick leave credits may apply to utilise such credits up to 5 of any current or accrued sick leave entitlement days in any one year of the employee’s service, for any pressing domestic necessity other than to care for or support a person defined in subparagraph 3.1 (c)(ii).

 

(c)        Where an employee, other than a casual employee, is not entitled to utilise sick leave credits pursuant to paragraph 3.1(a) he or she may access any current or accrued sick leave for any pressing domestic necessity, where the employee is responsible for the care or support of a person not referred to in subparagraph 3.1(c)(ii).

 

(d)        The yearly entitlement for the purpose of pressing domestic necessity in paragraph 3.2(b) is non-cumulative.

 

(e)        If required, an employee shall provide a written statement or other evidence supporting the application for personal/carer’s leave for the purpose of pressing domestic necessity.

 

3.3        Notification of Intention to Take Leave

 

In relation to subclauses 3.1 and 3.2, wherever practicable, an employee shall give the employer notice prior to the absences of the intention to take leave.  The employee shall also provide the name of the person requiring care, that person’s relationship to the employee, the nature of any pressing domestic necessity, the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

 

3.4        Unpaid Leave for Family Purpose

 

With the consent of the employer, an employee may elect to take unpaid leave for the purpose of providing care and support to a person referred to in subparagraph 3.1(c) (ii) or paragraph 3.2 (c) who is ill.

 

3.5        Annual Leave

 

(a)        An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.

 

(b)        Access to annual leave, as prescribed in paragraph (a) of this subclause shall be exclusive of any shutdown period provided for elsewhere under this award.

 

(c)        An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

 

3.6        Time off in Lieu of Payment for Overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within twelve months of the said election.

 

(b)        Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate that is an hour for each hour worked.

 

(c)        If, having elected to take time as leave in accordance with paragraph (a) of this subclause, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve month period or on termination.

 

(d)        Where no election is made in accordance with paragraph (a) of this subclause, the employee shall be paid overtime rates in accordance with the award.

 

3.6A    Reasonable Overtime

 

(a)        Subject to sub-clause (b), an employer may require an employee to work reasonable overtime at overtime rates or as otherwise provided for in this award.

 

(b)        An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

 

(c)        For the purposes of sub-clause (b), what is unreasonable or otherwise will be determined having regard to:

 

(1)        any risk to employee health and safety;

 

(2)        the employee’s personal circumstances including any family and carer responsibilities;

 

(3)        the needs of the workplace or enterprise;

 

(4)        the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

 

(5)        any other relevant matter.

 

3.7        Make-Up Time

 

(a)        An employee may elect, with the consent of the employer, to work make-up time under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

(b)        An employee on shift work may elect, with the consent of the employer, to work make-up-time (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate which would have been applicable to the hours taken off.

 

3.8        Bereavement Leave

 

(a)        An employee other than a casual employee shall be entitled to up to up to two days Bereavement Leave without deduction of pay on each occasion of the death of a person prescribed in 3.8 (c) below.

 

(b)        The employee must notify the employer as soon as practicable of the intention to take  Bereavement Leave and will, if required by the employer, provide to the satisfaction of the employer proof of death.

 

(c)        Bereavement Leave shall be available to the employee in respect to the death of a person in relation to whom the employee could have utilised Personal/Carer’s Leave or equivalent in subclauses 3.1 or 3.2, provided that for the purpose of Bereavement Leave, the employee need not have been responsible for the care of the person concerned.

 

(d)        An employee shall not be entitled to Bereavement Leave under this clause during any period in respect of which the employee has been granted other leave.

 

(e)        Bereavement Leave may be taken in conjunction with other leave available under clause 3.  Where such other available leave is to be taken in conjunction with Bereavement Leave, consideration will be given to the circumstances of the employee and the reasonable operational requirements of the employer.

 

3A.  Carer’s Leave

 

3A.1    Use of Sick Leave

 

(a)        A full-time or part-time employee with responsibilities in relation to a class of person set out in subparagraph (ii) of paragraph (c) of this subclause who needs the employee’s care and support shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement provided for at clause 4 of the award, for absences to provide care and support for such persons when they are ill.  Such leave maybe taken for part of a single day.

 

(b)        The employee shall, if required by the employer, establish either by production of a medical certificate, statutory declaration, written statement or other evidence that the person concerned is ill and requires care.  In normal circumstances, an employee shall not take carer’s leave under this clause where another person has taken leave to care for a person referred to in subparagraph (ii) of paragraph (c) of this subclause.

 

(c)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

(i)         the employee being responsible for the care and support of the person concerned; and

 

(ii)        the person concerned being:

 

(a)        a member of the employee’s immediate family ; or

 

(b)        a member of the employee’s household.

 

The term immediate family includes:

 

(1)        A spouse (including former spouse, a de facto spouse and a former de facto spouse) of the employee.  A de facto spouse, in relation to a person, means a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to the person; and

 

(2)        A child or adult child (including an adopted child, a stepchild, a foster child or an ex-nuptial child), a parent (including a foster parent or legal guardian), grandparent, grandchild or sibling of the employee or spouse of the employee.

 

(d)        The employee shall not be entitled to paid carer’s leave unless he or she notifies the Principal of the school (or a person deputised by the Principal) of the need for carer’s leave and the estimated period of absence at the first available opportunity and where possible, before the first organised activity at the school on the day of absence.  The employee will have sick leave credits available to the extent of the leave to be taken.

 

(e)        Notwithstanding paragraph (a) of this subclause, a part-time employee is only entitled to an amount of carer’s leave in the same proportion the hours of a part-time employee bears to the hours of a full-time employee.

 

(f)         Any carer’s leave taken in accordance with this clause shall be deducted from the sick leave entitlement of the employee.

 

3A.2    Unpaid Leave

 

An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in subparagraph (ii) of paragraph (c) of subclause 3A.1 of this clause who is ill.

 

3A.3    Annual Leave

 

(a)        To give effect to this clause, but subject to the Annual Holidays Act 1944, an employee may elect, with the consent of the employer, to take annual leave not exceeding five days in any calendar year at a time or times agreed by the parties.

 

(b)        Access to annual leave, as prescribed in paragraph (a) of this subclause shall be exclusive of any shutdown period provided for elsewhere under this award.

 

(c)        An employee and employer may agree to defer payment of annual leave loading in respect of single day absences, until at least five annual leave days are taken.

 

3A.4    Time Off in Lieu of Payment for Overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within twelve months of the said election.

 

(b)        Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

 

(c)        If, having elected to take time as leave in accordance with paragraph (a) above, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve months period or on termination.

 

(d)        Where no election is made in accordance with paragraph (a), the employee shall be paid overtime rates in accordance with the award.

 

3A.4A             Reasonable Overtime

 

(a)        Subject to sub-clause (b), an employer may require an employee to work reasonable overtime at overtime rates or as otherwise provided for in this award.

 

(b)       An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

 

(c)        For the purposes of sub-clause (b), what is unreasonable or otherwise will be determined having regard to:

 

(1)        any risk to employee health and safety;

 

(2)        the employee’s personal circumstances including any family and carer responsibilities;

 

(3)        the needs of the workplace or enterprise;

 

(4)        the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

 

(5)        any other relevant matter.

 

3A.5    Make-up Time

 

An employee may elect, with the consent of their employer, to work make up time, under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

3A.6    Rostered Days Off

 

(a)        An employee may elect, with the consent of the employer, to take a rostered day off at any time.

 

(b)        An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

 

(c)        An employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be dawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.

 

(d)        This subclause is subject to the employer informing any affected parties of an intention to introduce a system of RDO flexibility, and providing a reasonable opportunity for these parties to participate in negotiations.

 

3B.  Bereavement Leave

 

3B.1     An employee other than a casual employee shall be entitled to up to two days bereavement leave without deduction of pay on each occasion of the death of a member of the employee’s immediate family or household, as defined in clause 3A of this award.

 

3B.2     The employee must notify the employer as soon as practicable of the intention to take bereavement leave and will, if required by the employer, provide to the satisfaction of the employer proof of death.

 

3B.3     Bereavement leave shall be available to the employee in respect of the death of a member of the employee’s immediate family or household, as defined in clause 3A of this award.

 

3B.4     An employee shall not be entitled to bereavement leave under this clause during any period in respect of which the employee h/as been granted other leave.

 

3B.5     Bereavement Leave may be taken in conjunction with other leave available under subclauses 3A.2, 3A.3, 3A.4, 3A.5 and 3A.6 of clause 3A, Carer’s Leave.  In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

4.  Sick Leave

 

4.1        The employer shall not be liable to pay an employee for absence due to sickness for more than seven days in the first year of service and ten days in the second and subsequent years.  Provided that an employee who has been continuously employed by the same employer 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.

 

4.2        Employees employed at 16 August 1995 with more than one year's service will be granted an additional two days to their accumulated sick leave.

 

4.3        Except for subclauses 4.1 and 4.2 of this clause, parties to this award will apply clause 21, Sick Leave of the parent award.

 

5.  Grievance and Disputes Setting Procedures

 

The procedure for the resolution of grievances and industrial disputation concerning matters arising under this award shall be in accordance with the following procedural steps.

 

5.1        Procedures relating to grievances of individual employees:

 

(a)        The employee is required to notify (in writing or otherwise) the employer 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, if the matter has not been resolved, including 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 a nominated representative for the purpose of each procedure.

 

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

 

(d)        The employer may be represented by an employer representative and the employees may be represented by a nominated representative for the purpose of each procedure.

 

5A.  Anti-Discrimination

 

5A.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 responsibilities as a carer.

 

5A.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 vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

5A.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.

 

5A.4    Nothing in this clause is to be taken to affect:

 

(i)         any conduct or act which is specifically exempted from anti-discrimination legislation;

 

(ii)        offering or providing junior rates to person 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 in any State or Federal jurisdiction.

 

5A.5    This clause does not create legal rights or obligations in addition to those imposed upon the parties by legislation referred to in this clause.

 

6.  Area, Incidence and Duration

 

6.1        This award shall apply to the following:

 

(a)        Licensed child care centres, child minding centres, day nurseries and pre-school kindergartens attached to or operated by a Non-Government School; or

 

(b)        Licensed child care centres, child minding centres, day nurseries and pre-school kindergartens operated by a body which has been established by the Catholic Church to propagate religion.

 

6.2        This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Miscellaneous Workers Kindergartens and Child Care Centres Family Leave (Catholic Kindergartens, Child Care Centres and Others and Independent schools) (State) Award published 20 October 2000 (319 I.G. 497) and all variations thereof.

 

6.3        The award published 20 October 2000 took effect on or about 16 June 2000 and variations thereof incorporated herein on the dates set out in the attached Schedule A.

 

6.4        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 made by the Industrial Relations Commission of New South Wales on 18 December 1998 (310 I.G. 359) are set out in the attached Schedule B and take effect on 28 November 2003.

 

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

 

SCHEDULE A

 

Award and Variations Incorporated

 

Clause

Award/Variation

Date of Publication

Date of taking

Industrial

 

Serial No.

 

Effect

Gazette

 

 

 

 

Vol

Page

 

 

 

 

 

 

Award

C1016

8 March 2002

On and from 31

331

1077

 

 

 

May 2001

 

 

 

 

 

 

 

 

 

SCHEDULE B

 

Changes made on Review

 

Date of Effect: 28 November 2003

 

(1)        Provisions Modified

 

Award

Clause

Previous form of clause last

 

 

published at:

 

 

Vol.

Page

Miscellaneous Workers

3.6A, Reasonable Overtime under

-

-

Kindergartens and Child Care

Catholic Personal/Carer’s Leave

 

 

Centres Family Leave (Catholic

 

 

 

Kindergartens, Child Care Centres

 

 

 

and Others and Independent

 

 

 

Schools) (State) Award

 

 

 

Miscellaneous Workers

3A.4A, Reasonable Overtime

 -

 -

Kindergartens and Child Care

under Carer’s Leave

 

 

Centres Family Leave (Catholic

 

 

 

Kindergartens, Child Care Centres

 

 

 

and Others and Independent

 

 

 

Schools) (State) Award

 

 

 

 

 

 

R. W. HARRISON  D.P.

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

 

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