TAB
Clerical and Administrative Agency Casual Staff Award 2006
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by TAB
Agents' Association of New South Wales, Industrial Organisation of
Employers.
(No. IRC 2330 of 2006)
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Before The Honourable
Justice Staunton
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8 June 2006
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AWARD
Arrangement
Clause No. Subject Matter
1. The Award
2. The
Parties
3. Conditions
Not altered by this Award
4. Terms of
Engagement
4A. Casual
Conversion
4B. Bereavement Leave
4C. Personal/Carer's Leave
4D. Parental Leave
4E. Person Prescribed
4F. Evidentiary and Notice Requirements
5. Hours of
Work
6. Seven Day
Roster
7. Payment
of Wages
8. Wage
Rates
9. Overtime
10. Meal
Allowance
11. Meal Break
12. Rest Pause
13. Finishing
at Night
14. Public
Holidays
15. Variations
in Balancing Cash
16. Uniforms
17. Illness on
Duty
18. Adverse
Reports
19. Posting of
Award and Notices
20. Higher
Duties
21. Cancelled
or Postponed Meetings
22. Dispute/Grievance
Resolution Procedure
23. Superannuation
24. Termination
of Employment Caused by Technological Change and/or Agency Closure
25. No Extra
Claims
26. Area,
Incidence and Duration
27. Commitment
28. Anti-Discrimination
1. The Award
This Award shall be known as the TAB Clerical and
Administrative Agency Casual Staff Award 2006. It shall apply to casual staff
employed in all Agencies operated by members of the Association to carry out
clerical/customer service duties.
2. The Parties
This Award has been made between the TAB AGENTS' ASSOCIATION
OF NSW and the New South Wales Local Government, Clerical, Administrative,
Energy, Airlines & Utilities Union.
3. Conditions Not
Altered By This Award
Unless specifically addressed in the context of this Award,
conditions of employment remain unchanged by the implementation of this Award.
4. Terms of
Engagement
Subject to the provisions of clause 4A, all staff employed
under the terms of the Award shall be "casual" employees and engaged on
an hourly basis. They shall be paid for all time worked by taking into account
the time of starting and finishing. Any time worked beyond each quarter shall
be regarded as employment for a further quarter of an hour.
4A. Casual Conversion
(a) A casual
employee engaged on a regular and systematic basis for a sequence of periods of
employment under this Award during a calendar period of six months shall
thereafter have the right to elect to have his or her ongoing contract of
employment converted to permanent full-time employment or part-time employment
if the employment is to continue beyond the conversion process prescribed by
this clause.
(b) The employer
shall give the employee notice in writing of the provisions of this clause
within four weeks of the employee having attained such period of six months.
However, the employee retains his or her right of election under this subclause
if the employer fails to comply with this notice requirement.
(c) Any casual
employee who has a right to elect under paragraph (a), upon receiving notice
under paragraph (b) or after the expiry of the time for giving such notice, may
give four weeks’ notice in writing to the employer that he or she seeks to
elect to convert his or her ongoing contract of employment to full-time or
part-time employment, and within four weeks of receiving such notice from the
employee, the employer shall consent to or refuse the election, but shall not
unreasonably so refuse. Where an employer refuses an election to convert, the
reasons for doing so shall be fully stated and discussed with the employee
concerned, and a genuine attempt shall be made to reach agreement. Any dispute
about a refusal of an election to convert an ongoing contract of employment
shall be dealt with as far as practicable and with expedition through the
disputes settlement procedure.
(d) Any casual
employee who does not, within four weeks of receiving written notice from the
employer, elect to convert his or her ongoing contract of employment to
full-time employment or part-time employment will be deemed to have elected
against any such conversion.
(e) Once a casual
employee has elected to become and been converted to a full-time employee or a
part-time employee, the employee may only revert to casual employment by written
agreement with the employer.
(f) If a casual
employee has elected to have his or her contract of employment converted to
full-time or part-time employment in accordance with paragraph (c), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph (c), discuss and agree upon:
(i) whether the
employee will convert to full-time or part-time employment; and
(ii) if it is
agreed that the employee will become a part-time employee, the number of hours
and the pattern of hours that will be worked, consistent with any other
part-time employment provisions of this award;
(iii) provided that
an employee who has worked on a full-time basis throughout the period of casual
employment has the right to elect to convert his or her contract of employment
to full-time employment and an employee who has worked on a part-time basis
during the period of casual employment has the right to elect to convert his or
her contract of employment to part-time employment, on the basis of the same number
of hours and times of work as previously worked, unless other arrangements are
agreed between the employer and the employee.
(g) Following an
agreement being reached pursuant to paragraph (f), the employee shall convert
to full-time or part-time employment. If there is any dispute about the
arrangements to apply to an employee converting from casual employment to
full-time or part-time employment, it shall be dealt with as far as practicable
and with expedition through the disputes settlement procedure.
(h) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this clause.
(i) If an
employee elects to become a full-time or part time employee, the provisions in
Schedule A will apply.
4B. Bereavement Leave
(a) Subject to the
evidentiary and notice requirements in clause 4F, 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 4E of this Award.
(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) The 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.
4C. Personal/Carer's
Leave
(a) Subject to the
evidentiary and notice requirements in clause 4F, 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 4E of this clause 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.
4D. Parental Leave
(a) Refer to the Industrial
Relations Act 1996 (NSW). The following provisions shall also apply in
addition to those set out in the Industrial Relations Act 1996 (NSW).
(b) The employer
must not fail to re-engage a regular casual employee (see section 53(2) of the
Act) because:
(i) the employee
or employee's spouse is pregnant; or
(ii) the employee
is or has been immediately absent on parental leave.
The rights of the employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(c) 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;
(d) 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 (c)(i)b and (c)(i)c must be recorded in writing.
(iv) Request to
return to work part-time
Where an employee wishes to make a request under
(c)(i)c, 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.
(d) 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 to work on a part-time basis.
(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 (i).
4E. Person Prescribed
For the purposes of clauses 4B and 4C, a "person
prescribed" is a person for whom the employee is responsible to care and
support and who is:
(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), parent (including 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 the 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 paragraph:
(i) "relative"
means a person related by blood, marriage or affinity;
(ii) "household"
means a family group living in the same domestic dwelling.
4F. Evidentiary and
Notice Requirements
(a) For the
purposes of clause 4B and 4C, the employee shall, if required:
(i) 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; or
(ii) 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 clause 4C where another person has taken leave to care for the same
person.
(b) The employee
shall, wherever practicable, give the employer notice prior to 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.
5. Hours of Work
(a) The hours of
work shall be as required by the employer and as notified to the employee.
(b) Each first
daily engagement, Monday to Saturday inclusive in the Sydney Metropolitan Area
(as defined by the Board) shall be for the following minimum periods, viz:
(i) At inner city
Agencies operating on extended city hours, three (3) hours.
(ii) Elsewhere in
the Sydney Metropolitan Area, two (2) hours.
(c) Engagements in
areas other that the Sydney Metropolitan Area shall be for a period of two (2)
hours.
6. Seven Day Roster
A seven day roster showing the commencing and finishing
times of members shall be prepared and posted on the notice board fourteen (14)
days in advance of its commencement.
7. Payment of Wages
(i) Each member
shall be paid weekly for the week commencing on Friday morning and finishing on
Thursday night or such other accounting week approved by the TAB. The pay shall be available from the opening
time on the next business day following the close of the accounting week and
shall be paid during working hours.
8. Wage Rates
(i) Hourly Rates
The following hourly rates shall apply from the first
full pay period after 1 January 2006.
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Adults
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19 & 20
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18 & under
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Casual
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$18.60
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$13.95
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$11.15
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Ordinary Time
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Permanent Full time
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or Part time
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$15.50
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$11.63
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$9.29
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Casual
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$32.55
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$24.41
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$19.51
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Sunday & Public
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Permanent Full time
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Holidays
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or Part time
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$27.13
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$20.35
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$16.26
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(ii) The following
hourly rates shall apply from the first full pay period to commence on or after
1 January 2007.
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Adults
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19 & 20
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18 & under
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Casual
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$19.25
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$14.44
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$11.54
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Ordinary Time
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Permanent Full time
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or Part time
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$16.04
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$12.03
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$9.62
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Casual
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$33.69
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$25.27
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$20.20
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Sunday & Public
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Permanent Full time
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Holidays
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or Part time
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$28.07
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$21.05
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$16.84
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(iii) Trainees
The parties agree that trainees may be employed for a
maximum of 12 hours (usually 3 shifts of 4 hours duration) for on the job
training. Such employees shall be paid
not less than 80% of the hourly rates prescribed in (i) or (ii) above.
(iv) The rates of
pay contained in this clause:
(a) Are expressed
as a total rate for calculation purposes and they are inclusive of pro-rata
loading for Annual Leave, pursuant to the provisions of Clause 4, sub-clause
(3) of the Annual Holidays Act 1944, as amended.
(b) Are calculated
in accordance with the formula agreed to in correspondence between the parties
to this Award, and shall be altered in accordance with any variation to the
basis of or any of the components of such formula.
9. Overtime
All time worked in excess of 9 hours per day shall be
overtime and paid for at the rate of time and one half for the first two hours
and double time thereafter.
All time worked on Sundays and Public Holidays shall be
overtime and paid for at the rate of time and three quarters of ordinary time.
10. Meal Allowance
(a) The employer
shall provide a suitable meal or shall pay a meal allowance according to the
following scale:
(i) $9.61 for
breakfast when required to commence work at or before 6.00 a.m.
(ii) $9.61 for a meal
when rostered or authorised to work ten hours or more per day (inclusive of
meal break) provided that, where the time beyond ten hours, inclusive of meal
breaks, extends beyond four hours, a further allowance of $9.61 for a meal
shall be paid in respect of each and every period of four hours worked.
(iii) The meal
allowance shall be reviewed in April each year in line with the PhoneTAB Casual
Award.
(b) The employer
shall provide ingredients and the facilities for making tea and coffee for
employees.
11. Meal Break
As far as is practicable, staff who work longer than five
and a half (5.5) hours shall be given a meal break of half an hour, after
working for four (4) hours. There shall be no penalty payment for Crib Time.
12. Rest Pause
As far as practicable, each employee shall be allowed a rest
pause of fifteen minutes after two (2) hours and before the expiration of the
third hour of any shift, where it is intended to work such member four (4)
hours or more.
13. Finishing at
Night
Staff required to work a shift terminating at or after
11.00pm shall be paid an amount of $9. 10 where excess fares are incurred or,
alternatively, the full cost of transport to their home where special transport
is required.
14. Public Holidays
New Year's Day, Australia Day, Good Friday, Easter Saturday,
Easter Monday, Anzac Day, Queen's Birthday, Eight Hour Day, Christmas Day,
Boxing Day, Newcastle Show Day within the area proclaimed in the Gazette and
any other day gazetted as a Public Holiday, shall be holidays for the purpose
of this Award.
15. Variations in
Balancing Cash
(a) Each employee
handling cash shall be required to notify the respective officer-in-charge of
any variations in cash when balancing, provided that shortages which are not
the result of any fault or negligence of the members, or which are the result
of faults in the ticket issuing machines or electrical or mechanical systems
shall not be classified as shortages for the purpose of this Clause.
(b) Employees
shall be responsible for correctness of cash.
(c) The Cash
Control procedures as laid down in the TAB Operations Manual, as may be amended
by the Board, are mandatory, and no member shall be responsible for any
shortages arising out of any failure by the Employer to observe or comply with
such procedures.
(d) In the event
of any employee becoming liable to make repayment pursuant to this Clause, the
amount of repayment instalments shall not exceed the rate of 25 percent of the
weekly wages of such member.
(e) Employees
shall be notified, as soon as possible, of any shortages and, where any dispute
arises in connection with a shortage an accredited officer of the Union shall
have the right to discuss the matter with the management of the Board or a
representative of the Association for the purpose of settling the dispute. Failing agreement at such discussion the
dispute shall be referred to an independent arbitrator to be agreed upon
between the Union and the Association, and the arbitrator's decision shall be
final.
(f) The employer
shall allocate a reasonable amount of time to members working as payers or
sellers for the purpose of balancing and setting up.
Such time shall be included for the purpose of the
shift so that the time of commencement and completion of any shift shall
include such time as is necessary to set up and balance cash.
(g) The employer
shall indemnify the employees in respect of any costs or charges incurred by
any member in recovering any shortage of cash, where the Employer has given
consent in writing to such action.
16. Uniforms
Where a member is required to wear a distinctive dress or
uniform, the same shall be supplied by the employer, free of any charge to the
member.
17. Illness on Duty
An employee who is forced through illness to leave duty for
any part of a shift, shall be paid for the minimum period of that shift, and
where more than the minimum period of that shift had been worked prior to
illness, shall be paid for the full rostered shift as if the member had not
been ill and required to leave.
18. Adverse Reports
(a) No adverse
report of a member arising out of the course of such employee's employment
shall be placed with the personnel records or noted thereon unless the member
concerned has been shown the said report and has been given an opportunity of
replying thereto.
(b) Where
employees object to an adverse report being placed with their personnel
records, and having replied to such report, the matter shall be dealt with in accordance
with Clause 22, Dispute/Grievance Resolution Procedure.
19. Posting of Award
and Notices
(a) A copy of this
Award with all variations thereof shall be posted and kept posted by the
employer in a prominent place on the employer's premises accessible to all
employees.
20. Higher Duties
(a) Any person who
is required to act in a position as Agent's Relief for any period of not less
than one (1) hour shall be paid an amount equal to twelve and one half per cent
(12 ½%) of the ordinary time hourly rate of pay for an adult from time to time
effective. Such payment shall be made
as set out in this sub-clause regardless of whether the Higher Duties are
performed during ordinary time or on Sundays or Public Holidays.
(b) For the
purpose of this clause Agent's Relief shall mean any person who is required to
accept responsibility for the operation of an Agency in the absence of the
Agent.
(c) Absences of
more than five (5) continuous working days will be paid at a rate agreed upon
between the Agent and approved Agent's Relief.
21. Cancelled Or
Postponed Meetings
In the event of a member attending for duty and the race
meeting for which the member has been rostered being cancelled or postponed within
one hour prior to the time for commencing work such member shall be paid for
the minimum shift for the relevant periods.
22. Dispute/Grievance
Resolution Procedure
It is a condition of this Award that the procedures outlined
hereunder will be followed and that there shall be no disruption to work whilst
these procedures are being followed.
An individual employee shall have the right to be
accompanied to any or all of the discussions outlined hereunder, by a Union
representative or independent observer.
During the course of the various discussions outlined herein
the parties agree that the proceedings may be audio-taped with copies of such
recordings available to all parties.
(a) Individual
Employees
(i) In the first
instance the employee will notify (in writing or otherwise) to their Agent as
to the substance of the grievance, request a meeting to discuss it and state
the remedy sought. Such a meeting
should, where practicable be held within 48 hours of the notification.
(ii) If the matter
is not resolved at (i), details should be referred to the TAB Agents'
Association where further discussions with the employee and Agent should take
place within 48 hours.
(iii) If the remedy
sought in (i) still cannot be provided, the employee is to be provided with a
written explanation as to why this is so.
(iv) If the matter
still remains unresolved to the satisfaction of either party, the issue may be
referred to the Industrial Relations Commission.
(b) Interpretation,
Application or Operation of Agreement
(i) In the first
instance the employee or Union shall notify (in writing or otherwise) to the
relevant Agent as to the substance of the dispute and request a meeting to
discuss the remedy sought. A meeting shall as far as practicable be held within
48 hours of notification.
(ii) If the matter
is not resolved in this meeting, the matter shall be further discussed by the
employees, the Agent and the TAB Agents' Association. This should take place within 48 hours of the completion of (i).
(iii) The parties
shall have the right to refer the matter to the Industrial Relations Commission
if the matter remains unresolved after (ii).
23. Superannuation
Superannuation contributions shall continue to be paid in
accordance with the Superannuation Guarantee (Administration) Act 1992
based on "ordinary time earnings" as defined in the Act.
24. Termination of
Employment Caused By Technological Change and/Or Agency Closure
Notwithstanding the provisions of Clause 4, Terms of
Engagement, should any employee be affected by the introduction of new
technology or by the possible or actual closure of the Agency, then the parties
undertake to discuss the issue.
Nothing in this clause shall prevent either party from using
the provisions of the dispute/grievance resolution procedure.
25. No Extra Claims
Parties to this Award undertake not to pursue any extra
claims, except those allowed by part 3, Chapter 2 of the Industrial
Relations Act 1996. Under the Act,
items may be raised For discussion with a view to achieving mutually agreed
variations during the life of this Award.
26. Area, Incidence
and Duration
This award rescinds and replaces the TAB Clerical
Administrative Agency Casual Staff Award 2004 published 14 April 2006 (358 I.G.
868).
It shall take effect on and from the first full pay period
to on or after 8 June 2006 and shall remain in force until 31 December 2007.
It shall apply to persons employed on a casual basis in any
clerical capacity whatsoever within the jurisdiction of the Clerks (State)
Industrial Committee.
27. Commitment to
Review
The parties are committed to commence a review of the award
by 1 July 2007.
28.
Anti-Discrimination
(i) 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 carer's
responsibilities.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
"Nothing in the 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."
P. J. STAUNTON J.
____________________
Printed by
the authority of the Industrial Registrar.