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New South Wales Industrial Relations Commission
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DIVISIONS OF GENERAL PRACTICE (STATE) AWARD
  
Date05/19/2006
Volume359
Part2
Page No.357
DescriptionVIRC - Variation by Industrial Relations Commission
Publication No.C4652
CategoryAward
Award Code 1467  
Date Posted05/18/2006

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(1467)

SERIAL C4652

 

Divisions of General Practice (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Health Services Union, Industrial Organisation of Employees.

 

(No. IRC 520 of 2006)

 

Before The Honourable Justice Wright, President

13 February 2006

 

VARIATION

 

1.          Delete clause 16, Bereavement Leave, of the award published 6 May 2005 (350 I.G. 972), as varied,  and insert in lieu thereof the following:

 

16.  Bereavement Leave

 

An employee shall on production of satisfactory evidence be entitled ‑

 

(a)        On the death of a partner, father, mother, brother, sister, child, step‑child, mother‑in‑law or father‑in‑law, grand‑parent, grand‑child, next of kin, or close friend - to leave on full salary for a period not exceeding five (5) days.

 

(b)        For the purpose of this clause the word "partner" shall include a person who lives with, and is in a relationship with the employee, i.e. including a de facto relationship.

 

(c)        Bereavement entitlements for casual employees

 

(i)         Subject to the evidentiary and notice requirements in Clause 16 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 16(a).

 

(ii)        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

 

(iii)       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.

 

2.          Delete clause 22, Parental Leave, and insert in lieu thereof the following:

 

22.  Parental Leave

 

Subject to the terms of this clause, employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child.

 

(a)        Definitions

 

For the purpose of this clause "child" means a child of the employee under the age of one year except for adoption of a child where "child" means a person under the age of eighteen years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.

 

(b)        Basic entitlement

 

(i)         After at least fifty-two weeks continuous service, parents are entitled to a combined total of 52 weeks parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave (up to four weeks of which are paid) may be taken and for males, Paternity leave may be taken. Adoption leave may be taken in the case of adoption.

 

Except for the four weeks paid maternity leave entitlement, all parental leave is unpaid.

 

(ii)        Parental leave is to be available to only one parent at a time, except that both parents may simultaneously access the leave in the following circumstances:

 

for maternity and paternity leave, an unbroken period of one week at the time of the birth of the child;

 

for adoption leave, an unbroken period of up to three weeks at the time of the placement of the child.

 

(c)        Maternity leave

 

(i)         Notice

 

An employee will provide to the employer at least ten (10) weeks in advance of the expected date of commencement of parental leave:

 

(a)        a certificate from a registered medical practitioner stating that she is pregnant and the expected date of confinement;

 

(b)       written notification of the date on which she proposes to commence maternity leave, and the period of leave to be taken; and

 

(c)        a statutory declaration stating particulars of any period of paternity leave sought or taken by her spouse.

 

(ii)        Date of Commencement

 

Subject to subclause (b), paragraph (i), and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of the birth.

 

(iii)       Evidence of fitness

 

Where an employee continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, an employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties.

 

(iv)       Special maternity leave

 

Where the pregnancy of an employee terminates after 28 weeks and the employee has not commenced maternity leave, the employee may take unpaid special maternity leave of such period as a registered medical practitioner certifies as necessary, except that where an employee is suffering from an illness not related to the direct consequences of the birth, an employee may be entitled to paid sick leave in lieu of, or in addition to, special maternity leave.

 

(v)        Where leave is granted under subclause 22 (c) (iv), during the period of leave an employee may return to work at any time, as agreed between the employer and the employee, provided that time does not exceed four weeks from the recommencement date desired by the employee.

 

(vi)       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, or long service leave prior to the birth, such leave ceases two weeks prior to the expected date of birth. The employee then commences maternity leave with the normal provisions applying.

 

(vii)      Effect of Premature Birth on 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.

 

(viii)     Paid maternity leave

 

Eligible employees are entitled to paid maternity leave as follows:

 

(a)        An employee is entitled to four weeks at the ordinary rate of pay from the date maternity leave commences.

 

(b)       paid maternity leave may be paid on a normal fortnightly basis or in advance.

 

(ix)       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.

 

(d)        Paternity leave

 

(i)         Notice

 

An employee will provide to the employer at least ten weeks prior to each proposed period of paternity leave

 

(i)         a certificate from a registered medical practitioner which names his partner, states that she is pregnant and the expected date of confinement, or states the date on which the birth took place; and

 

(ii)        written notification of the dates on which he proposes to start and finish the period of paternity leave; and

 

(iii)       a statutory declaration stating:

 

(a)        he will take that period of paternity leave to become the primary care - giver of a child; and

 

(b)       particulars of any period of maternity leave sought or taken by his spouse.

 

(e)        Adoption leave

 

(i)         Notice

 

The employee will notify the employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of the child takes place earlier.

 

Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:

 

(a)        the employee is seeking adoption leave to become the primary care-giver of the child;

 

(b)       particulars of any period of adoption leave sought or taken by the employee’s spouse.

 

(ii)        Confirmation

 

The employer may require an employee to provide confirmation from the appropriate government authority of the placement.

 

(iii)       Non-continuance

 

Where the placement of a child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the employer will nominate a time not exceeding four weeks from receipt of notification for the employee’s return to work.

 

(f)         Variation of period of parental leave

 

Unless otherwise agreed between the employer and employee, an employee may apply to their employer to change the period of parental leave on one occasion. Any such change is to be notified at least four weeks prior to the commencement of the changed arrangements.

 

(g)        Parental leave and other entitlements

 

An employee may in lieu of, or in conjunction with, parental leave, access other paid leave entitlements which they have accrued, such as annual leave or long service leave, subject to the total amount not exceeding 52 weeks.

 

(h)        Transfer to a safe job

 

(i)         Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee will, if the employer deems it practicable, be transferred to a safe job at the salary rate and on the conditions attaching to that job until the commencement of maternity leave.

 

The position to which the employee is transferred under these circumstances must be as close as possible in status and salary to her substantive position.

 

(ii)        If the transfer to a safe job is not practicable, the employee may elect, or the employer may require the employee, to commence maternity leave.

 

(i)         Return to work after a period of parental leave

 

(i)         An employee will notify their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave

 

(ii)        An employee will be entitled to the position they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to subclause (h), the employee will be entitled to return to the position they held immediately before such transfer.

 

(iii)       Where such position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee will be entitled to a position comparable in status and salary to that of their former position.

 

(j)         Replacement employees

 

(i)         A replacement employee is an employee specifically engaged or temporarily promoted or transferred as a result of an employee proceeding on parental leave.

 

(ii)        A replacement employee will be informed of the temporary nature of the employment and of the rights of the employee who is being replaced.

 

(k)        Effect of Parental 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 or long service leave except in the case of employees who have completed ten years service, the period of unpaid parental leave does not count as service for long service leave purposes. Where the employee has completed ten years service the period of unpaid parental leave shall count as service provided such leave does not exceed six months.

 

(l)         Return for Less than Full-Hours

 

An employee, on application to the employer, may be entitled to return to duty for less than the full time hours they previously worked.

 

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 return to part time 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 part time work to be allowed to individual employees is to be at the discretion and convenience of the employer.

 

salary and other conditions of employment are to be adjusted on a basis proportionate to the employee's full-time hours of work.

 

(m)       Liability for Superannuation Contributions

 

During a period of unpaid parental leave neither the employer nor the employee will be required to meet any superannuation liability.

 

(n)        Part Time Employees

 

Part-time employees as defined in subclause 10(b) of this award are covered by this clause.  

 

(o)        Casual Employees

 

An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Industrial Relations Act 1996 (NSW)) because:

 

(1)        the employee or employee's spouse is pregnant; or

 

(2)        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.

 

(p)        Right to request

 

(i)         An employee entitled to parental leave may request the employer to allow the employee:

 

(A)      to extend the period of simultaneous unpaid parental leave use up to a maximum of eight weeks;

 

(B)       to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months;

 

(C)       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.

 

(ii)        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.

 

(iii)       Employee’s request and the employer’s decision to be in writing

 

The employee’s request and the employer’s decision made under clause 22 must be recorded in writing.

 

(iv)       Request to return to work part-time

 

Where an employee wishes to make a request under clause 22 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.

 

(q)        Communication during parental leave

 

(i)         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:

 

(A)       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

 

(B)       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.

 

(ii)        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 38.

 

(iii)       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).

 

3.          Delete clause 23, Personal /Carer’s Leave, and insert in lieu thereof the following:

 

23.  Personal/Carer’s Leave

 

(a)        From the date of this Award, employees can utilise Personal/Carer’s leave to meet family activities and community service responsibilities.  This could include a need to respond to an emergency situation, for example:

 

the illness of a relative;

 

where a child carer is unable to look after their charge;

 

a household emergency which requires the employee’s presence at home; or

 

where an employee is unable to attend work because of adverse weather conditions which either prevent attendance or threaten life or property.

 

It could also be used in the event of planned absences or where some advance notice is given, for example:

 

to accompany a relative to a medical appointment where there is no element of emergency;

 

parent/teacher meetings;

 

education week activities;

 

to meet elder-care requirements of a relative.

 

The definition of "family" or "relative" for the purposes of this Award shall be:

 

(i)         any person to whom the person is related by blood, marriage, affinity (eg: de-facto), or adoption; or

 

(ii)        any person who is wholly dependent on, or a member of the household of, the person.

 

Leave for other family and community service requirements may be granted to employees at the discretion of the designated manager.

 

(b)        The maximum amount of Personal/Carer’s leave on full pay, which may be granted is five (5) days in each year of service.  Such leave shall not accumulate from year to year.

 

(c)        Where employees have exhausted paid Personal/Carer’s Leave they have the option of using the undermentioned types of leave:

 

(i)         Sick Leave

 

(ii)        Annual leave;

 

(iii)       Long service leave.

 

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 38 should be followed.

 

(d)        Personal Carers Entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements 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 23(a) 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.

 

4.          This variation shall take effect on and from 19 December 2005.

 

 

 

F. L. WRIGHT J, President

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

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