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.