Retail
Services Employees (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FAMILY PROVISIONS CASE - 19 DECEMBER 2005.
(No. IRC 4201 of 2005)
VARIATION
1. Delete
paragraphs (a) and (b) subclause (1) of clause 13, Personal/Carer’s Leave of
Part A, of the award published 5 October 2001 (328 I.G. 261), and insert in
lieu thereof the following:
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) of paragraph (c), 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 12, 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,
(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."
2. Delete paragraph
(a) of subclause (2) of clause 13 of Part A, and insert in lieu thereof the
following:
(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 (ii) of paragraph (c) of subclause (1) above who is ill or who
requires care due to an unexpected emergency.
3. Delete
paragraph (a) of subclause (3) of Clause 13 of Part A, and insert in lieu
thereof the following:
(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.
4. Insert after
paragraph (c) of subclause (3) of clause 13 of Part A, the following new
subclause (d):
(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.
5. Insert after
subclause (6) of clause 13 of Part A, the following new subclause:
(7) Personal/Carers
Entitlement for casual employees
(a) Subject to the
evidentiary and notice requirements in paragraphs (b) and (d) of subclause (1)
above 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 (1) 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."
6. Insert in
numerical order in clause 1, Arrangement in Part A of the Appendix, , the
following new clause number and subject matter:
21A. Parental
Leave
7. Insert after
subclause (5) of clause 20 Compassionate Leave, of Part A of the Appendix the
following new subclause (6).
(6) Compassionate
Leave entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in paragraphs (b) and (d) of subclause (1)
of Clause 21 Personal/Carer’s Leave 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 (1) of
Clause 21 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.
8. Delete
paragraphs (a) and (b) of subclause (1) of clause 21 Personal/Carer’s Leave, of
Part A of the Appendix and insert in lieu thereof the following:
(a) An employee, other
than a casual employee, with responsibilities in relation to a class of person
set out in subparagraph (ii) of paragraph (c), 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, 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,
(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.
9. Delete
paragraph (a) of subclause (2) of Clause 21 of Part A of the Appendix and
insert in lieu thereof the following:
(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 (ii) of paragraph (c) of subclause (1) above who is ill or who
requires care due to an unexpected emergency.
10. Delete paragraph
(a) of subclause (3) of clause 21 of Part A of the Appendix and insert in lieu
thereof the following:
(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.
11. Insert after
paragraph (c) of subclause (3) of clause 21 of Part A of the Appendix the
following new paragraph (d).
(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.
12. Insert after
subclause (6) of clause 21 of Part A of the Appendix the following new
subclause (7).
(7) Personal/Carers
Entitlement for casual employees
(a) Subject to the
evidentiary and notice requirements in paragraphs (b) and (d) of subclause (1)
above 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 (1) 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."
13. Insert after clause
21 Personal/Carer’s Leave, of Part A of the Appendix, the following new clause.
21A. 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 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), 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)."
14. This variation
shall take effect 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.