Australian
Red Cross Blood Service Employees (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Health
Services Union, Industrial Organisation of Employees.
(No. IRC 516 of 2006)
Before The Honourable Justice
Wright, President
|
13 February 2006
|
VARIATION
1. Rename in
clause 1, Arrangement, of the Australian Red Cross Blood Service Employees
(State) Award published 22 February 2002 (331 IG 709), as varied, the clause
title 33, Maternity Leave and Adoption Leave, to read as "Clause 33,
Parental Leave".
2. Delete clause
25, Personal/Carer’s Leave and insert in lieu thereof the following:
25. Personal/Carer’s
Leave
(1) Use of Sick
Leave
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) of paragraph (c), 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 16, Sick
Leave, for absences to provide care and support, for such persons when they are
ill or who require care due to an unexpected emergency. Such leave may be taken for part of a single
day.
(b) The employee
shall, if required;
(1) establish
either by production of a medical certificate or statutory declaration, the
illness of the person concerned and that the illness is such as to require care
by another person. In normal
circumstances, an employee must not take carer’s leave under this subclause where
another person has taken leave to care for the same person., or
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer’s leave under this sub-clause 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 person
concerned being:
(a) a spouse of
the employee; or
(b) a de facto
spouse, who, in relation to a person, is 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 that person; or
(c) a child or an
adult child (including an adopted child, a step child, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or spouse or de facto spouse
of the employee; or
(d) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(e) a relative of
the employee who is a member of the same household, where for the purposes of
this subparagraph:
1. "relative"
means a person related by blood, marriage or affinity;
2. "affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
3. "household"
means a family group living in the same domestic dwelling.
(d) An employee
shall, wherever practicable, give the employer notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person’s relationship to the employee, 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.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at Clause 24 should be followed.
(2) Unpaid Leave
for Personal or Carer Purposes
An employee may elect, with the consent of the
employer, to take unpaid leave for the purpose of providing care and support to
a member of a class of person set on in subparagraph (ii) of paragraph (c) of
subclause (1) who is ill or who require care due to an unexpected emergency.
(3) 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 ten 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.
(d) An employee
may elect with the employer’s agreement to take annual leave at any time within
a period of 24 months from the date at which it falls due
(4) Time Off in
Lieu of Payment
(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 12
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 the time
accrued at overtime rates shall be made at the expiry of the 12 month period or
on termination.
(d) Where no
election is made in accordance with said paragraph (a), the employee shall be
paid overtime rates in accordance with the award.
(5) 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.
(6) Allocated Days
Off
(a) An employee
may elect, with the consent of the employer, to take an allocated day off at
any time.
(b) An employee
may elect, with the consent of the employer, to take allocated days off in part
day amounts.
(c) An employee
may elect, with the consent of the employer, to accrue some or all allocated
days off for the purpose of creating a bank to be drawn 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 each union which is both party to the
award and which has members employed at the particular enterprise of its
intention to introduce an enterprise system of ADO flexibility, and providing a
reasonable opportunity for the union(s) to participate in negotiations.
(7) Personal/Carer’s
Entitlement for casual employees
(a) Subject to the
evidentiary and notice requirements in Clauses 25(i)(b) and 23(i)(d) casual
employees are entitled to not be available to attend work, or to leave work if
they need to care for a person prescribed in Clause 25(i)(c)(2) who are sick
and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(b) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the
employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
(c) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
(8) Bereavement
Leave
(a) 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 (c) of this clause provided that, where the employee is
involved in funeral arrangements, travelling, etc., the employee may be allowed
up to three days bereavement leave.
(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
prescribed for the purposes of personal/carer's leave as set out in
subparagraph (ii) of paragraph (c) of this clause; 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 subclauses
(2), (3), (4), (5) and (6) of this clause. In determining such a request the
employer will give consideration to the circumstances of the employee and the
reasonable operational requirements of the business.
(9) Bereavement
entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in Clause 25(8)(b) casual employees are
entitled to not be available to attend work, or to leave work upon the death in
Australia of a person prescribed in Clause 25(i)(c)(2).
(b) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the employee
is entitled to not be available to attend work for up to 48 hours (i.e. two
days) per occasion. The casual employee is not entitled to any payment for the
period of non-attendance
(c) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not engage a casual employee are otherwise not affected.
3. Delete clause
33, Maternity Leave and Adoption Leave, and insert in lieu thereof the following
new clause :
33. Parental
Leave
All employees are entitled to Parental Leave in accordance
with the provisions of the Industrial
Relations Act 1996 (NSW).
A. Maternity
Leave
(i) Eligibility
To be eligible for paid maternity leave an employee
must have completed at least 40 weeks continuous service of not less than 31¼
hours per week prior to the expected date of birth or be a permanent part-time
employee as specified.
An employee who has once met the conditions for paid
maternity leave will not be required to again work the 40 weeks continuous
service in order to qualify for a further period of paid maternity leave,
unless-
(a) there has been
a break in service where the employee has been re-employed or re-appointed
after a resignation, medical retirement, or after her services have been
otherwise dispensed with: or
(b) the employee
has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not
include sick leave without pay, maternity leave without pay, or leave without
pay associated with an illness or injury compensable under the Workers'
Compensation Act.
(ii) Entitlement
Eligible employees are entitled to paid maternity leave
as follows:-
(a) Paid Maternity
Leave - an employee is entitled to nine weeks at the ordinary rate of pay from
the date maternity leave commences.
This leave may commence up to nine weeks prior to the expected date of
birth.
It is not compulsory for an employee to take this
period off work. However, if an employee
decides to work during this period it is subject to the employee being able to
satisfactorily perform the full range of normal duties.
Paid maternity leave may be paid:
- on a normal fortnightly basis
- in advance in a lump sum
- at the rate of half pay over a period of eighteen
weeks on a regular fortnightly basis.
Recreation and/or long service leave credits can be
combined with periods of maternity leave on half pay to enable an employee to
remain on full pay for that period.
(b) Unpaid Maternity
Leave - an employee is entitled to a further period of unpaid maternity leave
of not more than 12 months after the actual date of birth.
(iii) Applications
An employee who intends to proceed on maternity leave
should formally notify her employer of such intention as early as possible, so
that arrangements associated with her absence can be made.
Written notice of not less than eight weeks prior to
the commencement of the leave should accordingly be given. This notice must
include a medical certificate stating the expected date of birth and should
also indicate the period of leave desired.
(iv) Variation
after Commencement of Leave
After commencing maternity leave, an employee may vary
the period of her maternity leave once only without the consent of her employer
by giving the employer notice in writing of the extended period at least 14
days before the start of the extended period. An employer may accept less
notice if convenient.
An employee may extend the period of maternity leave at
any time with the agreement of the employer.
The conditions relating to variation of maternity leave
are derived from Section 64 of the Industrial Relations Act 1996.
(v) Staffing
Provisions
In accordance with obligations established by the
Industrial Relations Act 1966 (Section 69) any person who occupies the position
of an employee on maternity leave must be informed that the employee has the
right to return to her former position. Additionally, since an employee has the
right to vary the period of her maternity leave, offers of temporary employment
should be in writing, stating clearly the temporary nature of the contract of
employment. The duration of employment
should be also set down clearly; to a fixed date or until the employee elects
to return to duty, whichever occurs first.
(vi) Effect of
Maternity Leave on Accrual of Leave, Increments etc.
When the employee has resumed duties, any period of
full pay leave is counted in full for the accrual of annual leave and any
period of maternity leave on half pay is taken into account to the extent of
one half thereof when determining the accrual of annual leave.
Except in the case of employees who have completed ten
years' service the period of maternity leave without pay does not count as
service for long service leave purposes.
Where the employee has completed ten years' service the period of
maternity leave without pay shall count as service provided such leave does not
exceed six months.
Maternity leave without pay does not count as service
for incremental purposes. Periods of
maternity leave at full pay and at half pay are to be regarded as service for
incremental progression on a pro-rata basis.
Where public holidays occur during the period of paid
maternity leave, payment is at the rate of maternity leave received i.e.,
public holidays occurring in a period of full pay maternity leave are paid at
full rate and those occurring during a period of half pay leave are paid at
half rate.
(vii) Illness
Associated with Pregnancy
If, because of an illness associated with her pregnancy
an employee is unable to continue to work then she can elect to use any
available paid leave (sick, annual and/or long service leave) or to take sick
leave without pay.
Where an employee is entitled to paid maternity leave,
but because of illness, is on sick, annual, long service leave, or sick leave
without pay prior to the birth, such leave ceases nine weeks prior to the
expected date of birth. The employee
then commences maternity leave with the normal provisions applying.
(viii) Transfer to a
More Suitable Position
Where, because of an illness or risk associated with
her pregnancy, an employee cannot carry out the duties of her position, an
employer is obliged, as far as practicable, to provide employment in some other
position that she is able to satisfactorily perform. This obligation arises from Section 70 of the Industrial
Relations Act 1996. A position to which
an employee is transferred under these circumstances must be as close as
possible in status and salary to her substantive position.
(ix) Miscarriages
In the event of a miscarriage any absence from work is
to be covered by the current sick leave provisions
(x) Stillbirth
In the case of a stillbirth, (as classified by the
Registry of Births, Deaths and Marriages) an employee may elect to take sick
leave, subject to production of a medical certificate, or maternity leave. She may resume duty at any time provided she
produces a doctor's certificate as to her fitness.
(xi) Effect of
Premature Birth on Payment of Maternity Leave
An employee who gives birth prematurely, and prior to
proceeding on maternity leave shall be treated as being on maternity leave from
the date leave is commenced to have the child.
Should an employee return to duty during the period of paid maternity
leave, such paid leave ceases from the date duties are resumed.
(xii) Right to
return to Previous Position
In accordance with the obligations set out in Section
66 of the Industrial Relations Act 1996, an employee returning from maternity
leave has the right to resume her former position.
Where this position no longer exists the employee is
entitled to be placed in a position nearest in status and salary to that of her
former position and to which the employee is capable or qualified.
(xiii) Return for
Less than Full Time Hours
Employees may make application to their employer to
return to duty for less than the full time hours they previously worked by
taking weekly leave without pay. Such return to work is to be according to the
following principles:
the period is to be limited to 12 months after which
full time duties must be resumed;
the employee is to make an application for leave
without pay to reduce her full time
weekly hours of work. This application
should be made as early as possible to enable the employer to make suitable
staffing arrangements. At least four
weeks notice must be given;
the quantum of leave without pay to be granted to
individual employees is to be at the absolute discretion and convenience of the
employer;
salary and other conditions of employment are to be
adjusted on a basis proportionate to the employees full time hours of work
i.e., for long service leave the period of service is to be converted to the
full-time equivalent, and credited accordingly.
It should be noted that employees who return from
maternity leave under this arrangement remain full-time employees. Therefore
the payment of any part-time allowance to such employees does not arise.
(xiv) Further
Pregnancy While on Maternity Leave
Where an employee becomes pregnant whilst on maternity
leave, a further period of maternity leave may be granted. Should this second
period of maternity leave commence during the currency of the existing period
of maternity leave, then any residual maternity leave from the existing
entitlement lapses.
B. Adoption
Leave
(i) Eligibility
To be eligible for paid adoption leave an employee must
have completed at least 40 weeks continuous service of not less than 31¼ hours
per week (or 40 weeks continuous service for permanent part-time employees as
specified) prior to the date of taking custody of the child. An employee who has once met the conditions
of paid adoption leave, will not be required to again work the 40 weeks
continuous service in order to qualify for further periods of paid adoption
leave, unless
(a) there has been
a break in service where the employee has been re-employed or re-appointed
after a resignation, medical retirement, or after their services have been
otherwise dispensed with; or
(b) the employee has
completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not
include sick leave without pay, maternity leave without pay, or leave without
pay associated with an illness or injury compensable under the Worker's
Compensation Act.
(ii) Entitlement
(a) Paid Adoption
Leave
Eligible employees are entitled to paid adoption leave
of three weeks at the ordinary rate of pay from and including the date of
taking custody of the child.
Paid adoption leave may be paid:-
on a normal fortnightly basis
in advance in a lump sum
at the rate of half pay over a period of six weeks on a
regular fortnightly basis.
Annual and/or long service leave credits can be
combined with periods of adoption leave at half pay to enable an employee to
remain on full pay for that period.
(b) Unpaid Adoption
Leave
Eligible employees are entitled to unpaid adoption
leave as follows:-
where the child is under the age of 12 months - a
period of not more than 12 months from the date of taking custody;
where the child is over the age of 12 months - a period
of up to 12 months, such period to be agreed upon by both the employee and the
employer.
(iii) Applications
Due to the fact that an employee may be given little
notice of the date of taking custody of a child, employees who believe that, in
the reasonably near future, they will take custody of a child, should formally
notify the employer as early as practicable of the intention to take adoption
leave. This will allow arrangements
associated with the adoption leave to be made.
(iv) Variation
after Commencement of Leave
After commencing adoption leave, an employee may vary
the period of leave, once without the consent of the employer and otherwise
with the consent of the employer. A minimum
of four week's notice must be given, although an employer may accept less
notice if convenient.
(v) Staffing
Provisions - As per maternity leave conditions
(vi) Effect of
Adoption Leave on Accrual of Leave, Increments, etc - As per maternity leave conditions
(vii) Return for
Less than Full Time Hours - As per maternity leave conditions
(viii) Liability for
Superannuation Contributions
During a period of unpaid maternity leave or unpaid
adoption leave, the employee will not be required to meet the employer's
superannuation liability.
Note: Permanent part-time employees as defined in
Clause 5 of this Award, viz; employees engaged on a permanent part-time basis
for less than the full-time hours of work, who do not receive the part-time
loading but instead receive proportionate full-time conditions of employment
are covered by this clause.
As such, these permanent part-time employees (as
specified) are entitled to pro-rata paid maternity leave after 40 weeks
continuous service.
C. An employer
must not fail to re-engage a regular casual employee (see section 53(2) of the
Industrial Relations Act 1996 (NSW)) because:
(a) the employee
or employee's spouse is pregnant; or
(b) the employee
is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
D. Right to
request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(1) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(2) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(3) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee’s circumstances and,
provided the request is genuinely based on the employee’s parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer’s business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
(c) Employee’s
request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made
under Clause 33 must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under Clause
33 such a request must be made as soon
as possible but no less than seven weeks prior to the date upon which the
employee is due to return to work from parental leave.
E. Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(1) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(2) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee’s decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return or other contact details which might
affect the employer’s capacity to comply with Clause 33.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer’s capacity to comply with paragraph (a).
4. These
variations shall take effect on and from 19 December 2005
F.
L. WRIGHT J, President
____________________
Printed by
the authority of the Industrial Registrar.