Clerical and Administrative
Employees in Temporary Employment Services (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FAMILY PROVISIONS CASE - 19
DECEMBER 2005.
(No. IRC 4201 of 2005)
VARIATION
1. Insert after subclause (v) of clause
26, Bereavement Leave of the award published 10 November 2000 (320
I.G.56), the following new subclause:
(vi) Bereavement entitlements for casual
employees
(a) Subject to the evidentiary and notice
requirements in subclause (ii) 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 subparagraph (2) of paragraph (c) of subclause (i) of
clause 18, Personal/Carer's Leave
(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.
2. Delete subclauses (i), (ii) and (iii) of
clause 18, Personal/Carer's Leave, and insert in lieu the following:
(i) 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 (2) of paragraph (c) of subclause (i) 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 at clause 17, Sick
Leave of the award, 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, 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
subclause where another person had taken leave to care for the same person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(1) the employee
being responsible for the care of the person concerned; and
(2) 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 stepchild, 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:
(i) "relative"
means a person related by blood, marriage or affinity;
(ii) "affinity"
means a relationship that one spouse, because of marriage, has to blood
relatives of the other; and
(iii) "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 33,
Grievance and Dispute Resolution Procedure should be followed.
(ii) Unpaid Leave
for Family Purpose -
(a) An employee may elect, with the consent
of the employer, to take unpaid leave for the purpose of providing care and
support to a class of person set out in subparagraph (2) of paragraph (c) of
subclause (i) above who is ill or who requires care due to an unexpected
emergency.
(iii) Annual Leave
-
(a) An employee may elect, with the consent
of the employer 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) above, 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 employers
agreement to take annual leave at any time within a period of 24 months from
the date at which it falls due.
3. Insert after subclause (v) of clause
18, Personal Carer's Leave the following new subclause:
(vi) Personal Carer's Entitlement for casual
employees -
(a) Subject to the evidentiary and notice
requirements in paragraphs (b) and (d) of subclause (i) 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 subparagraph (2) of paragraph (c) of subclause
(i) of this clause who is sick and requires care and support, or who requires
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. Delete clause 29, Parental Leave and
insert in lieu thereof the following:
29. Parental Leave
(1) 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).
(2) An employer must not fail to re-engage a
regular casual employee (see section 53(2) of the Act) 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.
(3) Right to request
(a) An employee entitled to parental leave
may request the employer to allow the employee:
(i) to extend the period of simultaneous
unpaid parental leave use up to a maximum of eight weeks;
(ii) to extend the period of unpaid parental
leave for a further continuous period of leave not exceeding 12 months;
(iii) 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 subparagraphs (ii)
and (iii) of paragraph (a) of subclause (3) must be recorded in writing.
(d) Request to return to work part-time
Where
an employee wishes to make a request under subparagraph
(iii) of paragraph (a) of subclause (3), 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.
(4) 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:
(i) 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
(ii) 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 to work on a part-time basis.
(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).
5. This order shall take effect on and
from 19 December 2005.
NOTE: This variation is made pursuant to s 50 of
the Industrial Relations Act 1996, to give effect to the orders made by
the Industrial Relations Commission of New South Wales (Full Commission: Wright P, Sams DP, Staff J and Ritchie C) on
19 December 2005, published 27 January
2006 (353 I.G. 731).
G.
M. GRIMSON Industrial
Registrar.
____________________
Printed by
the authority of the Industrial Registrar.