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.