MANNEQUINS AND MODELS (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FAMILY PROVISIONS CASE - 19
DECEMBER 2005.
(No. IRC 4201 of 2005)
VARIATION
1. Insert in
numerical order in clause 1, Arrangement, of the award published 9 February
2001 (322 I.G. 172), the following new clause numbers and subject matters:
9A. Personal /
Carer’s Leave
9B. Bereavement
Leave
9C. Parental
Leave
2. Insert after
clause 9, Sundays and Public Holidays, the following new clauses:
9A. Personal/Carer’s
Leave
(1) Evidentiary,
Qualification and Notice Requirements
(a) The
entitlement to Personal / Carer’s Leave in accordance with this clause is
subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
1. a spouse of
the employee; or
2. 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
3. a child or an
adult child (including an adopted child, a step child, 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
4. a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
5. a relative of
the employee who is a member of the same household, where for the purposes of
this subparagraph:
"relative" means a person related by blood,
marriage or affinity,
"affinity" means a relationship that one
spouse because of marriage has to blood relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(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.
(c) 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.
(2) Personal/Carers
Entitlement for casual employees
(a) Subject to the
evidentiary and notice requirements in paragraphs (b) and (c) 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 (a) 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."
9B. Bereavement Leave
(1) 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, together with proof of attendance
in the case of a funeral outside of Australia.
(2) Bereavement
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of personal/carer’s leave as set out in
subparagraph (ii) of paragraph (a) of subclause (1) of clause 9A, Personal/
Carer’s Leave, provided that, for the purpose of compassionate leave, the
employee need not have been responsible for the care of the person concerned.
(3) Bereavement
Leave entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in paragraphs (b) and (c) of subclause (1)
of clause 9A 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 (a) of subclause (1) of
clause 9A 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.
9C. 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)."
3. 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.