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.