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MISCELLANEOUS WORKERS' - INDEPENDENT SCHOOLS AND COLLEGES, &c. (STATE) AWARD
  
Date08/25/2006
Volume360
Part4
Page No.788
DescriptionVIRC - Variation by Industrial Relations Commission
Publication No.C4856
CategoryAward
Award Code 481  
Date Posted08/24/2006

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(481)

(481)

SERIAL C4856

 

Miscellaneous Workers' - Independent Schools and Colleges, &c. (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Catholic Commission for Employment Relations.

 

(No. IRC 338 of 2006)

 

Before The Honourable Justice Wright, President

3 February 2006

 

VARIATION

 

1.          Insert in numerical order in clause 2, Arrangement of the award published 4 May 2001 (324 I.G. 579) the following new clause number and subject matter:

 

18A.    Parental Leave

 

2.          Insert after clause 18 Sick Leave, the following new clause:

 

18A.    Parental Leave

 

(i)         Entitlement to Parental Leave

 

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).

 

(ii)        Casual employees

 

An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Act) 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.

 

(iii)       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 (a)(ii) and  (a)(iii) of this subclause 18A(iii) must be recorded in writing.

 

(d)        Request to return to work part-time

 

Where an employee wishes to make a request under (a)(iii) of this subclause, such a request must be made as soon prior to the date upon which the employee is due to return to work from parental leave.

 

(iv)       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).

 

3.          Delete paragraphs (a) and (b) of subclause (i) of clause 19 Carer’s Leave and insert in lieu thereof the following:

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a family member as set out in subparagraph (ii) of paragraph (c) of this subclause, 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 18, 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:

 

(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 this subclause where another person had taken leave to care for the same person."

 

4.          Insert the following notation at the end subclause (i) Use of Sick Leave of clause 19.

 

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 Dispute and Industrial Grievance Procedure at Clause 32 should be followed."

 

5.          Delete subclauses (ii) and (iii) of clause 19 Carer’s Leave and insert in lieu thereof the following:

 

(ii)        Unpaid Leave

 

An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a person referred to in 19(i) (c) (ii) of this clause 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) 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 annual leave loading in respect of single day absences, until at least five 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".

 

6.          Insert after subclause (vii) of clause 19, the following new subclause:

 

(vii)      Personal/Carer’s Entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements in paragraph (b) and (d) of subclause (i) of this clause, 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 (ii) of paragraph (c) of subclause 19 (i) 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."

 

7.          Delete paragraphs (a) and (b) of subclause (i) of Clause 20- Catholic Personal/ Carer’s Leave and insert in lieu thereof the following:

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a family member as set out in subparagraph (ii) of paragraph (c) of this subclause, who needs the employee’s care and support, shall be entitled to use in any year, in accordance with this subclause, any current or accrued sick leave entitlement, provided for at Clause 18, 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:

 

(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 and support by the employee, 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 this subclause where another person had taken leave to care for the same person."

 

8.          Insert the following notation at the end of subclause (i) Use of Sick Leave to Provide Care and Support for a Family Member, of clause 20.

 

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 Dispute and Industrial Grievance Procedure at Clause 32 should be followed.

 

9.          Delete subclauses (iv) (and (v) of Clause 20 and insert in lieu thereof the following:

 

(iv)       Unpaid Leave for Family Purpose-

 

With the consent of the employer, an employee may elect to take unpaid leave for the purpose of providing care and support to a person referred to in 20 (i)(c)(ii) of this clause who is ill or who requires care due to an unexpected emergency."

 

(v)        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) 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 annual leave loading in respect of single day absences, until at least five 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".

 

10.        Insert after subclause (viii) of Clause 20, the following new subclause:

 

(ix)       Catholic Personal/Carer’s Entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements in paragraph (b) of subclause (i) and subclause (iii) of this clause, 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 (ii) of paragraph (c) of subclause (i) or paragraph (c) of subclause (ii) 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."

 

11.        Delete clause 29 Bereavement Leave and insert in lieu thereof the following:

 

29.  Bereavement Leave

 

(i)         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 parent-in-law or on the death of a member of the employee’s immediate family or household, as defined in subparagraph (ii) of paragraph (c) of subclause 19(i) of clause 19, Carer’s Leave.

 

(ii)        The rights to such paid leave shall be dependent on compliance with the following conditions:

 

1.          satisfactory evidence of death shall be furnished by the employee to the employer; and

 

2.          the employee shall not be entitled to leave under this clause in respect of any period which coincides with any other period of leave entitlement under this award or otherwise.

 

(iii)       Bereavement leave may be taken in conjunction with other leave available under subclauses 19(i), 19(ii), 19(iv), 19(v) and 19(vi) of the said clause 19.  In determining such a request, the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

(iv)       Bereavement entitlement for casual employees

 

(a)        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 (ii) of paragraph (c) of subclause 19 (i) of Clause 19- Carer’s Leave. The employee must notify the employer as soon as practicable of the intention to access this entitlement, and, if required by the employer, provide to the satisfaction of the employer proof of death.

 

(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 subclause. The rights of an employer to engage or not engage a casual employee are otherwise not affected."

 

12.        Delete clause 30 Bereavement Leave (Catholic Standard) and insert in lieu thereof the following:

 

30.  Bereavement Leave (Catholic Standard)

 

This clause only applies to employees who are employed under this award by a body which has been established by the Catholic Church to propagate religion, excepting employees employed by Chevalier College, Bowral; Kincoppal, Rose Bay; and Loretto, Kirribilli. Where this clause applies, clause 29, Bereavement Leave, shall not apply.

 

(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 as prescribed in subclause (c) of this clause.

 

(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 in relation to whom the employee could have utilised Catholic Personal/ Carer’s Leave as set out in Clause 20- Catholic Personal/ Carer’s Leave, 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 leave under this clause in respect of 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 the said clause 20. Where such other available leave is to be taken in conjunction with bereavement leave, consideration will be given to the circumstances of the employee and the reasonable operational requirements of the employer.

 

(f)         Bereavement entitlement for casual employees (Catholic Standard)

 

(i)         Casual employees are entitled to not be available to attend work, or to leave work upon the death in Australia of a person in relation to whom the employee could have utilised Catholic Personal/Carer’s Leave in subclause 20(ix) of Clause 20 Catholic Personal/Carer’s Leave, provided that for the purpose of this bereavement entitlement, the employee need not have been responsible for the care of the person concerned. A casual employee must notify the employer as soon as practicable of the intention to access this entitlement and may be required to provide the employer with satisfactory evidence of such death.

 

(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 subclause. The rights of an employer to engage or not engage a casual employee are otherwise not affected."

 

13.        This variation shall take effect from 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

 

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