CHARITABLE INSTITUTIONS (PROFESSIONAL STAFF SOCIAL WORKERS) (STATE) AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 1743 of 2004)

 

 

REVIEWED AWARD

 

1.          Delete clause 1, Arrangement, of the award published 26 November 1999 (312 I.G. 341) and insert in lieu thereof the following:

 

1.  Arrangement

 

PART A

 

Clause No.          Subject Matter

 

1.         Arrangement

2.         Definitions

3.         Salaries

4.         Payment of Wages & Conditions of Employment

5.         Hours of Work

6.         Meals

7.         Part-time Employees

8.         Casual Employees

9.         Overtime

10.       Weekend Work

11.       Provision of, or Payment for, Meals

12.       Annual Leave

13.       Annual Leave Loading

14.       Public Holidays

15.       Sick Leave

16.       State Personal/Carer’s Leave

17        Bereavement Leave

18.       Long Service Leave

19.       Travelling Allowance

20.       Uniforms and Laundry Allowances

21.       Amenities

22.       Labour Flexibility

23.       Grievance and Dispute Settling Procedures

24.       Anti-Discrimination

25.       Termination of Employment

26.       Redundancy

27.       Exemption

28.       Parental Leave

29.       Remuneration Packaging

30.       Reasonable Hours

31.       Area, Incidence and Duration

 

 

PART B

 

MONETARY RATES

 

Table 1 - Salaries

Table 2 - Other Rates and Allowances

 

2.          Renumber the existing clauses, as per the new clause 1, Arrangement, and renumber existing subclauses within the clauses accordingly.

 

3.          Delete clause 2, Basic Wage/State decisions.

 

4.          Delete the definition of "Association" in clause 3, Definitions, and insert in lieu thereof the following:

 

"Union" means the Health Services Union.

 

5.          Delete the words "subclause 6.1" of subclause 6.2, of clause 6, Hours of Work, and insert in lieu thereof the following:

 

"subclause 5.1"

 

6.          Delete the words "clause 4 Salaries" of subclause 8.2 of clause 8, Part-time Employees, and insert in lieu thereof the following:

 

"clause 3, Salaries"

 

7.          Delete the words "subclauses 8.1 to 8.3" of subclause 8.4, of clause 8, and insert in lieu thereof the following:

 

"subclauses 7.1 to 7.3"

 

8.          Delete subclause 9.4 of clause 9, Casual Employees, and insert in lieu thereof the following:

 

9.4        Casual employees shall not be entitled to the provisions of clauses 9, Overtime; 13, Annual Leave Loading; 14, Public Holidays; 15, Sick Leave; 20, Uniforms and Laundry Allowances, and 25, Termination of Employment.

 

9.          Delete the words "clause 4, Salaries" of subclause 9.3 of clause 9, Casual Employees, and insert in lieu thereof the following:

 

"clause 3, Salaries"

 

10.        Delete the words "subclause 10.1" of paragraph (b) of subclause 10.2 of clause 10, Overtime, and insert in lieu thereof the following:

 

"subclause 9.1"

 

11.        Delete clause 14, Annual Leave Loading, and insert in lieu thereof the following:

 

13.  Annual Leave Loading

 

13.1      In this clause the Annual Holidays Act 1944 is referred to as "the Act".

 

13.2      Before an employee is given and takes her/his annual holiday or, where by agreement between the employer and employee the annual holiday is given and taken in more than one separate period, then before each of such separate periods the employer shall pay the employee a loading determined in accordance with this clause.

 

(NOTE: The obligation to pay in advance does not apply where an employee takes an annual holiday wholly or partly in advance - see subclause 13.6 of this clause.)

 

13.3      The loading is payable in addition to the pay for the period of annual holidays given and taken and due to the employee under the Act.

 

13.4      The loading is to be calculated in relation to any period of annual holiday to which the employee becomes or has become entitled under the Act (but excluding days added to compensate for holidays prescribed by clause 14, Public Holidays) or, where such annual holiday is given and taken in separate periods, then in relation to each such separate period.

 

(NOTE See subclause 13.6 of this clause, as to annual holidays taken wholly or partly in advance.)

 

13.5      The loading is the amount payable for the period or the separate period, as the case may be, stated in subclause 13.4 at the rate per week of 17.5 per cent of the appropriate ordinary weekly rate calculated in accordance with the provisions of clause 3, Salaries, applicable immediately before commencing her/his annual holiday but shall not include any allowances, penalty or disability rates, overtime or other payments prescribed by this award.

 

13.6      No loading is payable to an employee who takes an annual holiday wholly or partly in advance; provided that, if the employment of such an employee continues until the day when she/he would have become entitled under the Act to an annual holiday, the loading then becomes payable in respect of the period of such annual holiday, and is to be calculated in accordance with subclause 13.5 of this clause, applying the award rates of wages payable on that day.

 

13.7      Where, in accordance with the Act, the employer's establishment or part of it is temporarily closed down for the purpose of giving an annual holiday or leave without pay to the employees concerned:

 

(a)        An employee who is entitled under the Act to an annual holiday, and who is given and takes such a holiday, shall be paid the loading calculated in accordance with subclause 13.5 of this clause.

 

(b)        An employee who is not entitled under the Act to an annual holiday and who is given and takes leave without pay shall be paid, in addition to the amount payable to her/him under the Act, such proportion of the loading that would have been payable to her/him under this subclause if she/he had become entitled to an annual holiday prior to the closedown as her/his qualifying period of employment in completed weeks bears to 52.

 

13.8

 

(a)        When the employee's employment is terminated by her/his employer for a cause other than misconduct, and at the time of termination the employee has not been given and has not taken the whole of an annual holiday to which she/he became entitled, she/he shall be paid a loading calculated in accordance with subclause 13.5 of this clause, for the period not taken.

 

(b)        Except as provided by paragraph (a) of this subclause, no loading is payable on the termination of an employee's employment.

 

12.        Delete paragraph (a) of subclause 17.1 of clause 17, Personal/Carer’s Leave, and insert in lieu thereof the following:

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (2) 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 in clause 15, Sick Leave, 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.

 

 

 

13.        Delete paragraph (a) of subclause 17.4 of clause 17, and insert in lieu thereof the following:

 

(a)        For the purpose of providing care and support for a person in accordance with subclause 16.1, of this clause, by mutual agreement between an employee and employer, the employee may take time off in lieu of payment for overtime, subject to the provisions contained in clause 9, Overtime.

 

14.        Delete clause 17A, Bereavement Leave, and insert in lieu thereof the following:

 

17.  Bereavement Leave

 

17.1      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 person prescribed in subclause (iii) of this clause.

 

17.2      The employee must notify the employer as soon as practicable of the intention to take bereavement leave and will provide to the satisfaction of the employer proof of death.

 

17.3      Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of subclause 16.1 of clause 16, Personal/Carer’s Leave, provided that, for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

17.4      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.

 

17.5      Bereavement leave may be taken in conjunction with other leave available under subclauses 16.2, 16.3, 16.4, and 16.5 of the said clause 16. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

17.6      The Catholic Commission for Employment Relations, representing Catholic employers, being Catholic Dioceses, Catholic Parishes or Religious Orders who operate a service are exempted from the provisions of this clause.  The Charitable Institutions Catholic Personal/Carer’s Leave (State) Award published 7 May 1999 (309 I.G. 200) shall apply.

 

15.        Delete clause 23A, Anti-Discrimination, and insert in lieu thereof the following:

 

24.  Anti-Discrimination

 

24.1      It is 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.

 

24.2      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.

 

24.3      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.

 

24.4      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.

 

24.5      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.

 

NOTES:

 

(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 this 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".

 

16.        Delete the words "subclause 25.2" in paragraphs (a) and (b) of subclause 25.3, 25.4, 25.5, 25.6, and 25.12, of clause 25, Redundancy, and insert in lieu thereof the following:

 

"subclause 26.2"

 

17.        Delete the words "subclause 25.13" in the two paragraphs of subclause 25.14, and 25.15,of clause 25,  and insert in lieu thereof the following:

 

"subclause 26.13"

 

18.        Delete the words "subclause 8.1 of clause 8, Part-time Employees" of paragraph (ix) of subclause (B) Adoption Leave, of clause 27, Parental Leave, and insert in lieu thereof the following:

 

"subclause 7.1 of clause 7, Part-time Employees"

 

19.        Delete the words "subclause 8.1 of clause 8, Part-time Employees" of paragraph (ix) of subclause (C) Paternity Leave, and insert in lieu thereof the following

 

"subclause 7.1 of clause 7, Part-time Employees"

 

20.        Delete existing clause 28, Remuneration Packaging, and insert in lieu thereof the following:

 

29.  Remuneration Packaging

 

29.1      Where agreed between the employer and an employee, an employer may introduce remuneration packaging. Neither the employer nor the employee may be compelled to enter into a remuneration packaging agreement. Employees may exercise their right to continue to receive their applicable award salary.

 

29.2      Remuneration packaging means that an employee will have part of their remuneration packaged into a fringe benefit, which does not constitute a direct payment to the employee but is payable to a bona fide third party.

 

29.3      The terms and conditions of a remuneration package offered to an employee shall not, when viewed objectively, be less favourable than the entitlements otherwise available under the award and shall be subject to the following provisions.

 

(a)        A copy of the agreement shall be made available to the employee.

 

(b)        The employer shall ensure that the structure of any package complies with taxation and other relevant laws.

 

(c)        All award conditions, other than the salary and those conditions as agreed in sub-clause (d) below shall continue to apply.

 

(d)        Where packaging arrangements apply, the employer and employee may by mutual agreement delete the application of certain award clauses, excepting clauses involving: Annual Leave; Sick Leave; Long Service Leave; Personal/Carer’s Leave; Public Holidays; and Grievance and Disputes Resolution Procedures.

 

(e)        The employee shall be entitled to inspect details of the payments made under the terms of this agreement.

 

(f)         Superannuation Guarantee Contributions will be calculated with reference to the salary the employee would have been entitled to receive but for the remuneration packaging agreement.

 

(g)        Any allowance, penalty rates, overtime, payment for unused leave entitlements, other than any payments for leave taken whilst employed, shall be calculated by reference to the salary which would have applied to the employee but for the remuneration packaging agreement.

 

(h)        Pay increases granted to employees in accordance with this award shall also apply to employees subject to remuneration packaging arrangements.

 

(i)         Remuneration packaging arrangements shall cease during any period of leave without pay, including periods of unpaid sick leave.

 

(j)         Where at the end of the Fringe Benefit Tax year the full amount allocated to a specific benefit has not been utilised, it will be paid as salary, which will be subject to appropriate taxation requirements.  By agreement between the employer and the employee, any unused benefit may be carried forward to the next period on the basis that any FBT obligation is accepted by the employee.

 

(k)        A remuneration package may be changed or terminated at any time, by agreement of the parties.

 

(l)         Either party may unilaterally withdraw from a remuneration packaging agreement by providing one month’s written notice to the other party.  A lesser period of notice or no notice may be provided in circumstances identified in subclause 29.3(m).

 

(m)       The employer may terminate a remuneration packaging agreement, at any time, should the employer cease to attract exemption from the payment of Fringe Benefit Tax or should amendments to legislation be made that are detrimental to, or increase the costs of remuneration packaging arrangements.

 

(n)        Where a remuneration packaging agreement is terminated the employee’s salary will revert to the applicable award classification rate the employee would have been entitled to receive but for the remuneration packaging agreement.

 

(o)        In the event that the employee ceases to be employed by the employer this agreement will cease to apply as at the date of termination. Benefits not paid on or before the date of termination shall be treated as salary and the appropriate tax deducted.

 

21.        Insert after clause 29, Remuneration Packaging, the following new clause:

 

30.  Reasonable Hours

 

30.1      Subject to subclause (ii) an employer may require an employee to work reasonable overtime at overtime rates or as otherwise provided for under the award.

30.2      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.

 

30.3      For the purposes of sub-clause (ii) what is reasonable or other wise will be determined having regard to:

 

(a)        any risk to employee health and safety.

 

(b)        The employee’s personal circumstances including any family and carer responsibilities.

 

(c)        The needs of the workplace or enterprise.

 

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

 

(e)        Any other relevant matter.

 

22.        Delete clause 29, Area, Incidence and Duration, and insert in lieu thereof the following:

 

31.  Area, Incidence and Duration

 

31.1      This award shall apply to all employees as defined herein within the jurisdiction of the Charitable Institutions (Professional Staff Social Workers) (State) Industrial Committee.

 

31.2      This award rescinds and replaces the Charitable Institutions (Professional Staff Social Workers) Award published 6 September 1996 (294 IG 944), and all variations thereof.

 

31.3      It shall take effect on and from 8 December 1998 and remain in force until 30 June 1999.

 

31.4      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 of Awards made by the Industrial Relations Commission of NSW on 28 April 1999 (310 I.G. 359) and take effect on 8 June 2004.

 

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

 

 

 

J. P. GRAYSON  D.P.

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.