School Support Staff (Independent Schools) (State) Award 2007

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by New South Wales Independent Education Union, Industrial Organisation of Employees.

 

(No. IRC 196 of 2007)

 

 

AWARD

 

PART A

 

1.  Arrangement

 

PART A - CONDITIONS

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Definitions

3.         Wages

4.         Allowances

5.         Payment of Wages

6.         Contract of Employment

6A.      Secure Employment

7.         Hours

8.         Overtime

9.         Meal and Rest Breaks

10.       Sick Leave

11.       Public Holidays

12.       Annual Leave and Payment on Termination

13.       Annual Leave Loading

14.       Long Service Leave

15.       Parental Leave

16.       Carer's Leave

17.       Bereavement Leave

18.       Jury Service

19.       Other Conditions

20.       Superannuation

21.       Remuneration Package

22.       Disputes Procedure

23.       Anti Discrimination

24.       Savings Clause

25.       Exemptions

26.       No Extra Claims

27.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Wage Rates

Table 2 - Other Rates and Allowances

 

PART C

 

REDUNDANCY

 

ATTACHMENT A

 

Disputes Settlement Procedure

 

2.  Definitions

 

(i)         "Award" means the School Support Staff (Independent Schools) (State) Award 2007.

 

(ii)        "Basic Earnings" means the minimum rate of pay prescribed for the employee by this award.

 

(iii)       "Employer" means the employer of an employee to whom this award applies.

 

(iv)       "Employee" means, without limiting the generality of this expression, an employee other than a teacher who may be employed in a position described as  food technology assistant, art assistant, TAS assistant, music assistant, laboratory assistant, library / audio-visual assistant, book-room assistant, bilingual aide, or teachers' aide, or other position in which the employee is required to assist the teaching staff in the curricula or co-curricula activities of the school (such persons are described in this award as school assistants) or employed in a clerical or administrative capacity.

 

Employees shall not be deployed instead of a teacher to conduct classroom lessons.

 

(v)        "Full-time Employee" means an employee who is employed to work 38 hours per week.

 

(vi)       "Part-time Employee" means an employee who works a constant number of ordinary hours less than 38 hours per week.

 

(vii)      "Casual Employee" means an employee engaged and paid as such.

 

(viii)     "Temporary Employee" means an employee employed to work full-time or part-time for a period not to exceed 12 months. An employee may be employed as a Temporary employee in the following circumstances:

 

a.          where an employee is employed to replace an employee on leave or secondment.

 

b.         where a school’s staffing is to be reduced in the following year overall or in a department (in a secondary school).  This may include but is not limited to circumstances such as declining enrolments or school amalgamations.

 

c.          where an employee is employed on a specific programme not funded by the school.

 

Applicants must be advised in writing prior to accepting a position that it is temporary, the expected length of the appointment and the reason why it is temporary.

 

(ix)       "Union" means the New South Wales Independent Education Union.

 

(x)        "Fund" means either:

 

(a)        the New South Wales Non-Government Schools Superannuation Fund; or

 

(b)        any other superannuation fund approved in accordance with the Commonwealth operational standards for occupational superannuation funds which the employee is eligible to join and which is approved by the employer as a fund into which an employee of that employer may elect to have the employer pay contributions made pursuant to this award in respect of that employee.

 

3.  Wages

 

(i)         The minimum weekly rate of pay for employees shall, subject to the other provisions of this award, be calculated by dividing the rates set out in Table 1 - Wage Rates, of Part B - Monetary Rates, by 52.14.

 

(ii)        Part-Time Employees

 

Part-time employees shall be paid for each hour worked during ordinary time one thirty-eighth of the minimum weekly rate (as calculated in accordance with subclause (i) of this clause) for the level at which they are employed for a minimum of three hours each start, unless employed for a specific program (such as ESL or Special Learning Needs) in which case they must be paid for a minimum of one hour.

 

School assistants employed part-time shall be entitled to an additional loading in accordance with the following table:

 

 

(iii)       Casual Employees

 

Casual employees shall be paid:

 

(a)        for each hour worked during ordinary time, one thirty-eighth of the minimum weekly rate (as calculated in accordance with subclause (i) of this clause) for the level at which they are employed;  plus

 

(b)        20% of that amount (inclusive of payment in lieu of annual holidays required to be paid under the Annual Holidays Act 1944);

 

for a minimum of three hours each start.

 

(iv)       The hourly rates for part-time and casual employees shall be calculated to the nearest whole cent, any amount less than a half cent in the result to be disregarded.

 

(v)        Classifications

 

An employee shall be initially appointed to the appropriate level as determined by the employee's skills and duties required to be performed in the position.

 

School Assistants

 

A "Level 1" position is one where the employee:

 

(a)        requires no previous experience and a limited range of skills are exercised;

 

(b)        is required to undertake only basic duties under close supervision;

 

(c)        is not expected to demonstrate independent initiative and judgement;

 

(d)        is not required to supervise other employees; and

 

(e)        may not assist students without at least a level 3 school assistant or teacher present.

 

A "Level 2" position is one where the employee:

 

(a)        has the experience and skills required to perform basic duties without technical instruction;

 

(b)        requires instruction for more complex tasks;

 

(c)        may be expected to demonstrate independent initiative and judgement;

 

(d)        is not required to supervise other employees; and

 

(e)        may not assist students without at least a level 3 school assistant or teacher present.

 

A "Level 3" position is one where the employee:

 

(a)        possesses technical competencies required for the position;

 

(b)        only limited instruction is required for the performance of complex duties;

 

(c)        is normally required to exercise independent initiative and judgement;

 

(d)        if required by the employer, may supervise up to three employees; and

 

(e)        may supervise a small group of children without a teacher present.

 

A "Level 4" position is one where the employee:

 

(a)        possesses a knowledge of workplace practices and procedures including a detailed knowledge of complex procedures relevant to the position;

 

(b)        resolves complex operational problems and co-ordinates work within a department or unit of the school;

 

(c)        displays a high level of initiative and judgement;

 

(d)        if required to supervise other employees, will be responsible for  maintaining the quality of work of those supervised;

 

(e)        may supervise students without a teacher present; and

 

(f)         is responsible for planning future department or school organisational needs within his / her areas of responsibility.

 

Clerical and Administrative Staff

 

Level 1 Clerical Assistant

 

An employee at this level may:

 

(a)        be required to undertake tasks involving basic clerical skills under supervision;

 

(b)        be required to undertake tasks such as handling orders and mail, messenger work and photocopying; and

 

(c)        be required to perform telephone relief duties for a short duration.

 

An employee at this level will have no prior experience or training.

 

Level 2 - Clerical Officer

 

An employee at this level:

 

(a)        may be required to undertake the complete range of clerical duties;

 

(b)        may be required to perform a range of financial tasks;

 

(c)        has responsibility for operational issues in work area;

 

(d)        may be required to co-ordinate work within own area of responsibility;

 

(e)        may be required to supervise up to two employees;

 

(f)         may be required to prepare standard operational reports and statistical returns; and

 

(g)        be able to deal with standard information systems.

 

Examples of titles at this level include, but are not limited to: Enrolment Officer, Receptionist, General Secretary, Word Processing Officer/Typist, Data Entry Clerk Administrative Assistant

 

Level 3 - Senior Clerical Officer

 

An employee at this level:

 

(a)        is required to have a high level of financial responsibility;

 

(b)        resolves complex operational problems;

 

(c)        may be required to supervise up to four employees;

 

(d)        may be required to prepare detailed operational reports; and

 

(e)        may be required to deal with more complex financial and administrative systems; or

 

(f)         an employee at this level may be required to take responsibility for the co ordination and ongoing management of special projects where an advanced level of clerical and administrative skill is required.

 

Examples of titles at this level include, but are not limited to; Personal Assistant, Payroll Officer, Finance Assistant, Creditors Clerk, Debtors Clerk, Bookkeeper, Special Projects Officer

 

Level 4 - Administrator

 

An employee at this level:

 

(a)        provides financial advice to the Principal or Bursar and/or manages financial systems;

 

(b)        has proven skills/knowledge in complex office procedures;

 

(c)        where applicable has responsibility for the professional development of other support staff employees;

 

(d)        contributes to operational and strategic planning for area of responsibility; and

 

(e)        has post secondary qualifications or equivalent experience.

 

Examples of titles at this level include, but are not limited to: Assistant Bursar, Administration Manager, Secretary (Finance and Administration)

 

(vi)       Progression

 

(a)        Subject to paragraph (b) of this subclause, an employee shall be appointed to Step one of the appropriate level and shall progress to each further step within the level, on completion of a year’s full-time service or equivalent, subject to paragraph (b) of this subclause.  Provided that in the case of an employee employed as Level 4 - Administrator, the employee shall progress on the completion of two years of full time service or equivalent.  The number of steps within each level shall be as set out in Table 1-Wage Rates of Part B Monetary Rates.

 

(b)        Where an employer considers that service of an employee is not satisfactory and competent, and for that reason considers progression to the next step is not warranted, a formal review of these matters shall be undertaken by the employer pursuant to clause 22, Disputes Procedure, before the date on which progression would otherwise occur.

 

(vii)      Re-Classification

 

(a)        An employee may apply to progress to another level or seek reclassification if regularly called upon to perform a substantial proportion of duties appropriate to the higher level. The employer will examine the skills utilised and the duties performed by the employee.

 

(b)        Where an application is made to progress to a higher level, the employer shall determine the application within one month of receipt of the application.

 

(c)        Progression to a higher level shall take place from the first full pay period on or after the application has been approved by the employer.

 

(d)        The employee shall be placed on the first step of the new level following reclassification.

 

(viii)     Juniors (Clerical and Administrative Staff Only)

 

Junior employees shall receive the percentages of the adult rate for their classification as set out in Table 1 - Wage Rates, of Part B - Monetary Rates.

 

(ix)       Higher Duties

 

Employees required to temporarily perform duties in a higher grade for more than five days shall be paid at the higher grade rate for the whole period during which those duties are performed.

 

4.  Allowances

 

(i)         Meals

 

Where an employee is required to work overtime after ordinary working hours in excess of one and one half hours on any day, the employee shall be paid an amount as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B - Monetary Rates, for a meal, or be supplied with a suitable meal.

 

Any employee required to work more than five hours overtime shall be paid a further sum as set out in the said Item 1 or be supplied with a meal.

 

(ii)        First Aid and Medication Allowance

 

An employee who is required by the employer to perform first aid duty and/or who is required from time to time to dispense medication to pupils in accordance with the school’s medication plan shall be paid an allowance as set by Item 2 of Table 2 of Part B - Monetary Rates, provided that an employee shall not be rostered to perform first aid duty if the employee is not the current holder of appropriate first-aid qualifications, such as a certificate from the St John Ambulance or similar body.

 

Employees required to dispense medication shall receive written instructions relating to the administration and dosage of all medications, prior to the requirement to dispense, and where a particular medication requires that training be undertaken, such training shall be arranged and conducted during normal working hours at no expense to the employee.

 

(iii)       Travelling Expenses

 

(a)        When an employee, in the course of their duty, is required by the employer to go to any place away from their usual place of employment, they shall be paid all reasonable expenses actually incurred.

 

(b)        Any employee required to provide a motor car shall be paid extra per week at the rate set by Item 3 of the said Table 2.

 

(c)        Where an employee is required to use their motor car by their employer on a casual or incidental basis, they shall be paid the rate set by Item 4 of the said Table 2, during such use.

 

(d)        If the employer provides a vehicle the employer shall pay the whole of the cost of the upkeep, registration, insurance, maintenance and running expenses.

 

(iv)       Where a School Assistant employed by the Autism Association agrees to supervise a class on a given day without a Teacher present, such employee shall be paid the amount  set out in Item 5 of Table 2 - Other Rates and Allowances, of Part B - Monetary Rates. Provided that an employee shall receive the allowance notwithstanding that the class may be merged with another class that has a teacher for a session or particular activity on that day. Provided further that, in the case of satellite schools, an employee shall receive the allowance notwithstanding that the class is merged with the mainstream for part(s) of the day in the regular program.  Nothing contained in this subclause prevents such an employee from refusing a request to supervise a class without the teacher present.

 

5.  Payment of Wages

 

(i)         The wages payable to an employee, other than a casual employee, shall be payable at the employer's discretion either fortnightly or half-monthly.

 

(ii)        Wages payable to an employee shall be payable at the employer's discretion, by either cash, cheque or electronic funds transfer into an account nominated by the employee.

 

(iii)       The employer may elect to stand down an employee in accordance with subclause (iv) of clause 6, Contract of Employment, or to average the employee's payment of wages over the year.

 

(iv)       When the employer elects to average the employee's payment of wages in accordance with sub-clause (iii) of this clause, the rates will be paid in equal instalments throughout the year including annual leave (this is not inclusive of the annual leave loading).  The following formula shall be used to determine the appropriate weekly rate:

 

N + 11	x	annual rate of salary
240		52.14

 

Where:

 

N  =  number of days the employee will be required to work each year;

 

Provided that:

 

(a)        the number of days worked excludes public holidays;  and

 

(b)        for the purpose of this formula only, and to avoid a mathematical inconsistency, a part-time employee shall be deemed to work the same number of days during school terms as a full-time employee at the same school.

 

(v)        Part time averaged rates shall be calculated by determining the full time averaged salary then dividing by 38 and adding a part time loading for School Assistants (see clause 3 subclause (ii) for part time loading)

 

(vi)       The rate of pay of an employee determined by paragraph (iv) of this subclause, shall be the appropriate rate for all purposes.  However, such rate shall not be used in the calculation of casual and overtime rates of pay which may be payable to the employee.

 

(vii)      An employee whose salary is averaged according to the formula in subclause (iv) of this clause and who works additional ordinary hours which are not specifically accounted for in the application of the formula in subclause (iv) shall have those additional hours paid at the casual rate appropriate to their classification.

 

6.  Contract of Employment

 

(i)         Letter of Appointment

 

On appointment, the employer shall provide full-time and part-time employees with a letter of appointment setting out the following:

 

(a)        the classification and rate of pay of the employee;

 

(b)        the number of hours to be worked each week and the number of weeks to be worked throughout the year;

 

(c)        a statement in relation to superannuation entitlements as required by paragraph (h) of subclause (ii) of clause 20, Superannuation;  and

 

(d)        whether the rate of pay is payable during term time only or throughout the year in accordance with subclause (iii) of clause 5, Payment of Wages.

 

If there is a requirement to work during pupil vacation periods, the number of such days to be worked shall be clearly specified.

 

(ii)        Notice of Termination

 

(a)        Except for the first month of employment, the employment of a full-time or part-time employee may be terminated by two weeks notice given by either party or by the payment or forfeiture, as the case may be, of two weeks wages in lieu of notice.  This shall not affect the right of the employer to dismiss any employee without notice for misconduct and in such cases wages shall be paid up to the time of dismissal only.

 

(NOTATION  Reference should be made to Federal legislation which may require more than two weeks notice to be given by employers when terminating the services of an employee in some instances.)

 

(b)        During the first month of employment, the employment of a full-time or part-time employee may be terminated by a week of notice given by either party or by the payment or forfeiture, as the case may be, of one week of wages in lieu of notice.

 

(c)        In the case of a casual employee, one day's notice shall be given by either party.

 

(iii)       Statement of Service

 

On the termination of employment the employer shall, at the request of the employee, give to such employee a statement signed by the employer stating the period of employment, the employee's classification, and when the employment terminated.

 

(iv)       Pupil Vacation Periods

 

(a)        An employee may be stood down on leave of absence without pay during all pupil vacation periods when no work is available.  Provided that the contract of employment shall be deemed not to have been broken for all award and statutory purposes by such leave of absence during pupil vacation periods.  Any public holidays falling within such period of stand-down on leave of absence without pay shall be paid at ordinary rate if they fall on a day on which the employee ordinarily works.

 

(b)        Where the employment of an employee is terminated by the employer in accordance with the provisions of this clause through no fault of the employee within one week of the end of any school term or during the following vacation, and such employee whose services are so terminated is re‑employed by the same employer before the expiration of two weeks after the commencement of the next school term, the contract of employment shall not be deemed to have been broken for the purposes of the Long Service Leave Act 1955.

 

(c)        In accordance with the employee's letter of appointment, an employee may be required to work during pupil vacation periods during which the employee is ordinarily stood down.  If the employee's letter of appointment does not specifically designate the period required to be worked during pupil vacation periods, the employee shall be given eight weeks notice of such requirement to work prior to the commencement of the pupil vacation period.  The employee may be required to work during the ordinary hours and days which the person normally works, provided that the employee may agree to work on different days or for different hours or with a lesser period of notice.

 

An employee required to work as outlined in this paragraph (where the period required to be worked is not specifically designated in the employee's letter of appointment) shall be paid at casual rates in addition to any other remuneration received if the employee is paid an averaged rate of pay pursuant to subclause (iii) of clause 5, Payment of Wages.

 

(d)        An employee who, prior to 1 May 1995 was not stood down, shall not be stood down after the introduction of the award unless he or she agrees in writing.

 

(v)        Redundancy

 

See part C - Redundancy of this award

 

6A.  Secure Employment

 

(i)         Objective of this Clause

 

The objective of this clause is for the employer to take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce, in particular by ensuring that casual employees have an opportunity to elect to become full-time or part-time employees.

 

(ii)        Casual Conversion

 

(a)        A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this Award during a calendar period of six months shall thereafter have the right to elect to have his or her ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by this subclause.

 

(b)        Every employer of such a casual employee shall give the employee notice in writing of the provisions of this sub-clause within four weeks of the employee having attained such period of six months. However, the employee retains his or her right of election under this subclause if the employer fails to comply with this notice requirement.

 

(c)        Any casual employee who has a right to elect under paragraph (ii)(a), upon receiving notice under paragraph (ii)(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that he or she seeks to elect to convert his or her ongoing contract of employment to full-time or part-time employment, and within four weeks of receiving such notice from the employee, the employer shall consent to or refuse the election, but shall not unreasonably so refuse. Where an employer refuses an election to convert, the reasons for doing so shall be fully stated and discussed with the employee concerned, and a genuine attempt shall be made to reach agreement. Any dispute about a refusal of an election to convert an ongoing contract of employment shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

(d)        Any casual employee who does not, within four weeks of receiving written notice from the employer, elect to convert his or her ongoing contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.

 

(e)        Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

 

(f)         If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with paragraph (ii)(c), the employer and employee shall, in accordance with this paragraph, and subject to paragraph (ii)(c), discuss and agree upon:

 

(1)        whether the employee will convert to full-time or part-time employment; and

 

(2)        if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked either consistent with any other part-time employment provisions of this award pursuant to a part time work agreement made under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW);

 

Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert his or her contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and the employee.

 

(g)        Following an agreement being reached pursuant to paragraph (f), the employee shall convert to full-time or part-time employment. If there is any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment, it shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.

 

(h)        An employee must not be engaged and re-engaged, dismissed or replaced in order to avoid any obligation under this subclause.

 

(iii)       Occupational Health and Safety

 

(a)        For the purposes of this subclause, the following definitions shall apply:

 

(1)        A "labour hire business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which has as its business function, or one of its business functions, to supply staff employed or engaged by it to another employer for the purpose of such staff performing work or services for that other employer.

 

(2)        A "contract business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which is contracted by another employer to provide a specified service or services or to produce a specific outcome or result for that other employer which might otherwise have been carried out by that other employer’s own employees.

 

(b)        Any employer which engages a labour hire business and/or a contract business to perform work wholly or partially on the employer’s premises shall do the following (either directly, or through the agency of the labour hire or contract business):

 

(1)        consult with employees of the labour hire business and/or contract business  regarding the workplace occupational health and safety consultative arrangements;

 

(2)        provide employees of the labour hire business and/or contract business with appropriate occupational health and safety induction training including the appropriate training required for such employees to perform their jobs safely;

 

(3)        provide employees of the labour hire business and/or contract business with appropriate personal protective equipment and/or clothing and all safe work method statements that they would otherwise supply to their own employees; and

 

(4)        ensure employees of the labour hire business and/or contract business are made aware of any risks identified in the workplace and the procedures to control those risks.

 

(c)        Nothing in this subclause (iii) is intended to affect or detract from any obligation or responsibility upon a labour hire business arising under the Occupational Health and Safety Act 2000 or the Workplace Injury Management and Workers Compensation Act 1998.

 

(iv)       Disputes Regarding the Application of this Clause

 

Where a dispute arises as to the application or implementation of this clause, the matter shall be dealt with pursuant to the disputes settlement procedure of this award.

 

(v)        This clause has no application in respect of organisations which are properly registered as Group Training Organisations under the Apprenticeship and Traineeship Act 2001 (or equivalent interstate legislation) and are deemed by the relevant State Training Authority to comply with the national standards for Group Training Organisations established by the ANTA Ministerial Council.

 

7.  Hours

 

(i)         Notice of Hours

 

The employer shall fix the employee's ordinary hours of work and the ordinary time of meal breaks which shall be displayed in a conspicuous place accessible to the employees and such hours shall not be changed, without payment of overtime, for work done outside the fixed hours unless seven days notice of any change of hours is given by the employer to the employee;  provided that such seven days notice shall not be required if any change of hours is by mutual agreement between the employer and the employee.

 

The ordinary hours of employees, exclusive of meal breaks, shall not, without payment of overtime, exceed an average of 38 hours per week to be worked in five days, Monday to Friday inclusive.

 

An employer may request, but not require, a part-time employee to work additional hours in accordance with the provisions of this subclause. Where:

 

(a)        the employee’s wages are averaged in accordance with subclause (iv) of Clause 5, the employee shall be paid for all such additional hours at the casual rate in accordance with subclause (iii) of Clause 3, provided that such hours fall within the spread of ordinary hours as set out in subclause (i) of this clause and do not result in the employee working more than 8 hours on that day. Where additional hours are worked on a day the employee is already attending for work, the minimum casual start of three hours shall not apply;

 

(b)        the employee’s wages are not averaged, the employee shall be paid for all such hours at their normal hourly rate of pay, provided that such hours fall within the spread of ordinary hours as set out in subclause (i) of this clause and do not result in the employee working more than 8 hours on that day.

 

Where additional hours worked by a part-time employee fall outside the spread of ordinary hours or result in an employee working more than 8 hours on a day, those hours shall be overtime and paid in accordance with Clause 8 Overtime. However an employee may request that additional hours be taken as time in lieu in accordance with the provisions of subclause 8(v) of this award.

 

8.  Overtime

 

(i)         Subject to the provisions of subclause (vii) of this clause, an employer may require an employee to work reasonable overtime at overtime rates, or as otherwise provided for in subclauses 8 (v) and 16.4 of this award.

 

(ii)        Subject to the provisions of subclause (iii) of this clause, for all time required by the employer to be worked outside the ordinary hours of work prescribed by clause, 7 Hours, shall be overtime and shall be paid for at the un-averaged rate of time and one-half for the first two hours and double time thereafter.

 

(iii)       All overtime worked by an employee between midnight Friday and midnight Sunday shall be paid at the rate of double time.

 

(iv)       In computing overtime, each day shall stand alone.

 

(v)        Where an employee has performed duty on overtime, the employee may be released from duty for a period not exceeding the period of overtime actually worked (that is an hour for each hour of overtime worked) subject to the conditions herein:

 

(a)        An employee may only be released from duty in lieu of payment for overtime at the request of the employee and with the agreement of the employer.  Such agreement shall be in writing and be kept with the time and wages records.

 

(b)        An employee may not accumulate more than 20 hours to be taken as leave in lieu of overtime payment and shall be taken within four weeks of the accrual.  Where such leave is not taken in this period it shall be paid for at the appropriate overtime rate.

 

(c)        This provision shall only apply in respect of overtime worked between Monday to Friday inclusive.  Normal penalties for overtime worked on Saturday and Sunday shall apply for those days.

 

(vi)       Where:

 

(a)        an employee is required to attend school after leaving, other than to carry out rostered duties; and

 

(b)        the duty is not continuous with completion of ordinary working hours;

 

the employee must be paid a minimum of two hours pay at the relevant rate.   For the purpose of paragraph (b) of this subclause, the taking of a meal break shall not of itself mean that the duty is not continuous.

 

(vii)      An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

 

(viii)     For the purposes of subclause 8 (vii) what is unreasonable or otherwise will be determined having regard to:

 

(a)        any risk to employee health or safety;

 

(b)        the employee’s personal circumstances including any family and carer responsibilities;

 

(c)        the needs of the workplace or enterprise;

 

(d)        the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

 

(e)        any other relevant matter.

 

[Notation: The employers and the Union are of the view that where hours are varied in accordance with clause 7 (i) such hours cannot properly be regarded as overtime.]

 

9.  Meal and Rest Breaks

 

(i)         Not more than one hour nor less than half an hour shall be allowed to employees each day for lunch and/or an evening meal where work continues after 6 pm.  This meal break shall be at a time mutually agreed upon between the employer and employee.

 

(ii)        All employees shall be allowed a rest break of ten minutes daily and this break shall be counted as time worked.

 

10.  Sick Leave

 

(i)         An employee, with the exception of a casual employee, shall be entitled to ten days sick leave per year of service on full pay, subject to the following conditions:

 

(a)        Employees shall not be entitled to paid leave of absence for any period in respect of which the employee is entitled to payment under the Worker’s Compensation Act 1987.

 

(b)        The employee shall notify the Principal of the school, or other such person deputised by the Principal, of the nature of the illness and the estimated duration of the absence, where practicable, prior to the commencement of the first organised school activity on that day.

 

(c)        The employer may require the employee to provide such evidence as the employer or school medical officer may desire that the employee was unable, by reason of such illness or injury to attend for duty on the day or days for which sick leave is claimed.

 

(ii)        Part-Time Employees

 

The sick leave entitlement of a part-time employee shall be in that proportion which the average number of hours worked by the employee in a week bears to 38.  When the number of hours worked by a part-time employee varies, the sick leave entitlement of the employee shall be calculated and credited to the employee in hours at the time of such variation.

 

(iii)       Accumulation of Sick Leave

 

If all sick leave is not taken in a year, the untaken part shall accumulate from year to year. Sick leave will accumulate indefinitely.

 

(iv)       Current sick leave entitlements shall be exhausted before accumulated sick leave is taken.

 

(v)        Service before the first full pay period commencing on or after 1 April 2007 shall be taken into account for the purpose of calculating the annual entitlement to sick leave and accumulation in respect of service prior to that date shall be calculated in accordance with the award or any agreement applying to that employee prior to that date.

 

(vi)       If an award holiday occurs during an employee’s absence on sick leave then such award holiday shall not be counted as sick leave.

 

11.  Public Holidays

 

(i)         Subject to subclauses (ii) and (iii) of this clause, the days on which the following holidays are observed shall be holidays, namely; New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen’s Birthday, Eight Hour Day, Christmas Day and Boxing Day, together with any day which may hereafter be proclaimed as a public holiday throughout the State of New South Wales.  In addition to the holidays specified in subclause (a) of this clause an employee shall be entitled to one additional day as a holiday in each calendar year.  Such additional holiday shall be observed on the day when the majority of employees in an establishment observe a day as an additional holiday or on another day mutually agreed between the employer and employee.  The additional holiday is not cumulative and must be taken within each year.  Provided that the additional holiday shall not apply to those employees whose rate of pay is averaged over the year in accordance with subclause (c) of clause 6, Payment of Wages.

 

(ii)        Full-time and part-time employees shall be entitled to the above holidays without loss of pay, provided that an employee who is regularly rostered to work ordinary hours on Monday to Friday shall only be paid for such holidays as occur on those days.

 

(iii)       All time worked on a public holiday or additional holiday in subclause (i) of this clause shall be paid for at the rate of double time and one half the ordinary-time rate with a minimum payment of four hours.

 

12.  Annual Leave & Payment on Termination

 

(i)         All employees, other than casual employees, shall receive four weeks paid annual leave in accordance with the Annual Holidays Act 1944, such leave normally to be taken during the school summer pupil vacation period.

 

(ii)

 

(a)        Where an employee whose employment ceases is paid in accordance with  subclause (iv) of clause 5, Payment of Wages, and the total amount received by the employee during that school year since the school service date or the date of commencement of employment of the employee (if after the school service date that year) is less than such amount the employee would have earned if their salary had not been averaged in accordance with subclause (iv) of Clause 5, Payment of Wages, then the employee shall be paid on termination the difference between the averaged amount paid and such higher amount.

 

(b)        For the purposes of this subclause "school service date" means the usual date of commencement of employment at a school in each year.

 

13.  Annual Leave Loading

 

(i)         In this clause the Annual Holidays Act 1944, is referred to as "the Act".

 

(ii)        Before an employee is given and takes the annual holiday or where, by agreement between the employer and employee, the annual holiday is given and taken in more than one separate period, then before each of such separate periods, the employer shall pay the employee a loading determined in accordance with this clause.

 

(Note:  The obligation to pay in advance does not apply where an employee takes an annual holiday wholly or partly in advance - see subclause (vi) of this clause.)

 

(iii)       The loading is payable in addition to the pay for the period of holidays given and taken and due to the employee under the Act and this award.

 

(iv)       The loading is to be calculated in relation to any period of annual holiday to which the employee becomes entitled under the Act and this award or, where such a holiday is given and taken in separate periods, then in relation to each such separate period.  (Note:  See subclause (vi) of this clause, as to holidays taken wholly or partly in advance.)

 

(v)        The loading is the amount payable for the period or the separate period, as the case may be, stated in subclause (iv) of this clause, at the rate per week of 17.5 per cent of the appropriate ordinary weekly time rate of pay prescribed by this award for the classification in which the employee was employed immediately before commencing annual holiday, but shall not include any other allowances, penalty rates, shift allowances, overtime or any other payments prescribed by this award.

 

(vi)

 

(a)        No loading is payable to an employee who takes an annual holiday wholly or partly in advance; provided that, if the employment of such employee continues until the day when the employee would have become entitled under the Act to an annual holiday, the loading then becomes payable in respect of the period of such holiday and is to be calculated in accordance with subclause (v) of this clause, applying the award rates of wages payable on that day.

 

(b)        Notwithstanding the provisions of paragraph (a) of this subclause, an employee shall be paid an annual holiday loading where the annual holiday is taken by agreement wholly or partly in advance during the summer pupil vacation period.  The employee shall be entitled to the fraction of four weeks holiday loading as is equal to the number of weeks worked by the employee in that school year compared to the number of weeks in the year since the school service date.

 

(vii)

 

(a)        Where the employment of an employee is terminated by their employer for a cause other than misconduct and at the time of the termination the employee has not been given and has not taken the whole of an annual holiday to which the employee became entitled, the employee shall be paid a loading calculated in accordance with subclause (v) of this clause for the period not taken.

 

(b)        Except as provided in paragraph (a) of this subclause, no loading is payable on the termination of an employee's employment.

 

14.  Long Service Leave

 

(i)         Applicability of Long Service Leave Act 1955

 

Except in so far as expressly varied by the provisions of this clause, the provisions of the Long Service Leave Act 1955 shall apply.

 

(ii)        Quantum of Leave

 

Subject to subclause (iii) of this clause, the amount of long service leave to which an employee shall be entitled shall:

 

(a)

 

(A)      in the case of an employee who has completed ten years service be, in respect of such service - 10.5 weeks; and

 

(B)       in respect of each additional five years of service with the employer since the employee last became entitled to long service leave - 5.25 weeks; and

 

(C)       on the termination of the employee's services in respect of the number of years service with the employer completed since the employee last became entitled to an amount of long service leave, be a proportionate amount on the basis of 1.05 weeks for each completed year of service; and

 

(b)        in the case of an employee who has completed five years adult service with an employer and whose services with the employer are terminated or cease for any reason other than misconduct, be a proportionate amount on the basis of 10.5 weeks for ten years service (such service to include service with the employer as an adult and otherwise than as an adult).

 

(iii)       Calculation of Entitlement

 

In the case of an employee whose service with an employer began before 1 May 1995 and whose service would entitle the employee to long service leave under this clause, the amount of long service leave to which the employee shall be entitled shall be the sum of the following amounts:

 

(a)        the amount calculated on the basis of the provisions of the Long Service Leave Act 1955 in respect of the period of service before May 1995; and

 

(b)        an amount calculated on the basis of the provisions of this clause from 1 May 1995.

 

(iv)       The service of an employee with an employer shall be deemed continuous notwithstanding the service has been interrupted by reason of the employee taking maternity leave (including paid and unpaid leave) or approved leave without pay, but the period during which the service is so interrupted shall not be taken into account in calculating the period of service.

 

Any long service leave shall be inclusive of any public holidays falling within the period of such leave.  Pupil vacation days which the employee is not normally required to work and which fall within the period of long service leave shall not be charged against long service leave.

 

15.  Parental Leave

 

(a)        Maternity Leave

 

(i)         Subject to subparagraph (iii) of this paragraph, an employee who takes unpaid maternity leave of at least twelve weeks under the provisions of the Industrial Relations Act 1996 must be paid under this clause.

 

(ii)        The amount of paid leave for an employee who takes leave shall be twelve weeks.

 

(iii)       Where an employee gives birth to a second and subsequent child following a period of maternity leave and has not returned to work before the birth of the second or subsequent child, the employee will not be entitled to an additional twelve weeks payment in accordance with paragraph (a)(i) of this subclause. However, the employee will be entitled to unpaid maternity leave in accordance with Part 4 of Chapter 2 of the Industrial Relations Act 1996.

 

(iv)       The employee must be paid at the rate the employee was paid at the time of commencing leave.

 

(v)        The employee must be paid:

 

(A)      at the usual times and intervals that other employees are paid at the school, or

 

(B)       if the employee asks two weeks in advance and the School agrees, in a lump sum.

 

(vi)       The employer must pay the first or lump sum payments at the pay period commencing closest to;

 

(A)      six weeks before the anticipated date of birth, or

 

(B)       if birth occurs before the time referred to in (a), the date of the birth; or

 

(C)       if the employee has not commenced maternity leave at the time referred to in (A), when the employee commences leave.

 

(vii)      If an employee's pregnancy is terminated other than by the birth of a living child:

 

(A)      more than 20 weeks before the anticipated date of birth the employee is not entitled to the payment;

 

(B)       less than 20 weeks before the anticipated date of birth the employee is entitled to the payment while she remains on leave.

 

(viii)     The period of maternity leave will not count as a period of service under this award or any statute.

 

(ix)       Except as varied by this provision, Part 4 of Chapter 2 of the Industrial Relations Act 1996 shall apply.

 

(b)        Paternity Leave

 

(i)         An employee who takes paternity leave shall be entitled to 2 weeks paid leave commencing on the day of birth of his child or on the day on which his spouse leaves hospital following the birth.  This paid leave is to be deducted from Carer's Leave available to the employee pursuant to clause 16 of this award (NB: spouse means a spouse as defined in Clause 16 Carer's Leave).

 

(ii)        An employee shall be required to give at least 10 weeks written notice of the intention to take leave and shall provide other notice consistent with the provisions of section 58 (2) of the Industrial Relations Act 1996.

 

(c)        Adoption Leave

 

An employee shall be entitled to twelve weeks paid leave for the purpose of adopting any child providing the leave is taken on or after 1 April 2007 and before the child reaches full-time enrolment age, provided that an employee who commences adoption leave prior to 1 April 2007 shall be entitled to nine weeks paid leave.

 

(d)        Parental Leave Entitlement for Casual Employees

 

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

 

(i)         the employee or employee's spouse is pregnant; or

 

(ii)        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.

 

(e)        Right to request

 

(i)         An employee entitled to parental leave may request the employer to allow the employee:

 

(A)      to extend the period of simultaneous unpaid parental leave use up to a maximum of eight weeks;

 

(B)       to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months;

 

(C)       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.

 

(ii)        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.

 

(iii)       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 this paragraph must be recorded in writing.

 

(iv)       Request to return to work part-time

 

Where an employee wishes to make a request under subparagraph (i) (C) of this paragraph, such a request must be made as soon as possible before the date upon which the employee is due to return to work from parental leave.

 

(f)         Communication during parental leave

 

(i)         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:

 

(1)        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

 

(2)        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.

 

(ii)        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.

 

(iii)       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 subparagraph (i).

 

16.  Carer’s Leave

 

16.1      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 (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 10 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.

 

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 22, Disputes Procedure should be followed

 

(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 has taken leave to care for the same person.

 

(c)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

(i)         the employee being responsible for the care and support of the person concerned; and

 

(ii)        the person concerned being:

 

(A)       a member of the employee’s immediate family; or

 

(B)       a member of the employee’s household.

 

The term ‘immediate family’ includes:

 

(1)        a spouse (including former spouse, a de facto spouse and a former de facto spouse) of the employee.  A de facto spouse, in relation to a person, means 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 bonafide domestic basis although not legally married to the person; and

 

(2)        a child or adult child (including an adopted child, a step child, a foster child or an ex-nuptial child), a parent (including a foster parent or legal guardian), grandparent, grandchild or sibling of the employee or spouse of the employee.

 

(d)        The employee shall not be entitled to paid carer’s leave unless he or she notifies the Principal of the school (or a person deputised by the Principal) of the need for carer’s leave and the estimated period of absence at the first available opportunity and where possible, before the first organised activity at the school on the day of absence.  The employee will have sick leave credits available to the extent of the leave to be taken.

 

(e)        Notwithstanding paragraph (a) of this subclause, a part-time employee is only entitled to an amount of carer’s leave in the same proportion the hours of a part-time employee bears to the hours of a full-time employee.

 

(f)         Any carer’s leave taken in accordance with this clause shall be deducted from the sick leave entitlement of the employee in accordance with Clause 10 of the award.

 

16.2      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 class of person set out in subparagraph (ii) of paragraph (c) of subclause 16.1 of this clause who is ill or who requires care due to an unexpected emergency.

 

16.3      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 employer’s agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

16.4      Time Off in Lieu of Payment for Overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within twelve (12) months of the said election.

 

(b)        Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

 

(c)        If, having elected to take time as leave in accordance with paragraph (a) above, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve (12) months period or on termination.

 

(d)        Where no election is made in accordance with paragraph (a), the employee shall be paid overtime rates in accordance with the award.

 

16.5      Make-up Time

 

An employee may elect, with the consent of their employer, to work ‘make-up time’, under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

16.6      Carer’s Entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements in paragraphs (b) and (d) of subclause 16.1 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 paragraph (c) of subclause 16.1 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.

 

17.  Bereavement Leave

 

(i)         An employee shall, on the death of the wife, husband, father, mother, parent-in-law, brother, sister, child, step-child, grandparent or grandchild of the employee, be entitled to leave up to and including the day of the funeral of such relation.  Such leave, for a period not exceeding three days in respect of any such death, shall be without loss of any ordinary pay which the employee would have received if the employee had not been on such leave.

 

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

 

(a)        satisfactory evidence of such death shall be furnished by the employee to the employer; and

 

(b)        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.

 

For the purpose of this clause, the words  "wife" and "husband" shall include de facto wife or husband and the words "father" and "mother" shall include foster-father or mother and stepfather or mother.

 

(iii)       Bereavement leave shall be available to the employee in respect of the death of a member of the employee's immediate family or household, as defined in clause 16, Carer's Leave, of this award.

 

(iv)       Bereavement leave may be taken in conjunction with other leave available under subclauses 16.2, 16.3 16.4 and 16.5 of clause 16, Carer's Leave.  In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the school.

 

(v)        Bereavement entitlements for casual employees

 

(a)        Subject to the evidentiary and notice requirements in subparagraph (ii)(a) of this clause, 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 paragraph (c) of subclause 16.1 of clause 16 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.

 

18.  Jury Service

 

A full time or part-time employee required to attend for jury service during ordinary working hours shall be provided with paid leave for this purpose.  The employee shall be required to reimburse to the employer any monies payable to the employee for such attendance (excluding reimbursement of expenses) which required the employee’s absence from school.

 

The employee shall notify the employer as soon as possible of the date upon which he or she is required to attend for jury service.  The employee shall provide to the employer a copy of the summons to attend jury duty and a record of payments received as proof of attendance.

 

19.  Other Conditions

 

(i)         Where employees are required to use chemicals or other injurious substances, they shall be supplied with overalls or lab coats, serviceable rubber gloves, and masks free of charge.  Protective clothing, uniforms and rubber gloves supplied pursuant to this award shall remain the property of the employer and shall be returned upon termination of employment.

 

(ii)        Employees shall be supplied with facilities for the heating of water and food.

 

(iii)       Employees using chemicals on a regular basis shall be entitled to have, as a minimum, an annual medical examination.  The cost of such examination shall be met by the employer.

 

20.  Superannuation

 

(i)         Fund

 

The New South Wales Non-Government Schools Superannuation Fund shall be made available by each employer to each employee.

 

(ii)        Benefits

 

(a)        Except as provided in paragraphs (c), (d) and (f) of this subclause, each employer shall, in respect of each employee employed by the employer, pay contributions into a fund to which the employee is eligible to belong and, if the employee is eligible to belong to more than one fund, the fund nominated by the employee, at the rate of three per cent of the employee's basic earnings.

 

(b)        Subject to paragraph (d) of this subclause, contributions shall be paid at intervals in accordance with the procedures and subject to the requirements prescribed by the relevant fund or as agreed between each employer and the trustees of a fund.

 

(c)        An employer shall not be required to make contributions pursuant to this clause in respect of an employee in respect of a period when that employee is absent from his or her employment without pay.

 

(d)        Contributions shall commence to be paid from the beginning of the first pay period commencing on or after the employee's date of engagement.

 

Provided that if the employee has not applied to join a fund within six weeks of the employee's date of engagement  the employer shall commence to pay contributions from the beginning of the next pay period commencing on or after the date on which the employee applied to join a fund.

 

(e)        The employee shall advise the employer in writing of the employee's application to join a fund pursuant to this award.

 

(f)         An employer shall make contributions pursuant to this award in respect of:

 

(1)        casual employees who earn in excess of the Casual Qualification Amount, calculated in accordance with subclause (iv) of this Clause, during their employment with that employer in the course of any year, running from 1 July to the following 30 June (all such casual employees are hereinafter called "qualified employee");  and

 

(2)        qualified employees in each ensuing year of employment with that employer.

 

Such contributions shall be made in respect of all days worked by the employee for the employer during that year and shall be paid by the employer to the relevant fund at the time of issue to the employee of his or her annual group certificate; provided that, prior to the immediately preceding 30 June, the employee has applied to join a fund.

 

(g)        Where an employer approves a fund, other than the Non-Government Schools Superannuation Fund, as one to which the employer will pay contributions in respect of its employees or a class or classes of such employees, within two weeks of such approval the employer shall notify its employees of such approval and shall, if an employee so requests, provide the employee with a copy of the trust deed of such fund and of a letter from the Insurance and Superannuation Commissioner granting interim or final listing to the fund at a cost of 80 cents per page of such copies.

 

(h)        When a new employee commences in employment, the employer shall advise the employee in writing of the employee's entitlements under this clause and also of the provisions of paragraph (d) of this subclause in the case of an employee other than a casual employee, and paragraph (f) in the case of a casual employee.

 

(iii)       Transfers Between Funds

 

If an employee is eligible to belong to more than one fund, the employee shall be entitled to notify the employer that the employee wishes the employer to pay contributions in respect of the employee to a new fund but shall not be entitled to do so within three years after the notification made by the employee pursuant to paragraph (e) of subclause (ii), Benefits, of this clause, or within three years after the last notification made by the employee pursuant to this subclause.   The employer shall only be obliged to make such contributions to the new fund where the employer has been advised in writing:

 

(a)        of the employee's application to join the other fund;  and

 

(b)        that the employee has notified the trustees of the employee's former fund that the employee no longer wishes the contributions which are paid on the employee's behalf to be paid to that fund.

 

(iv)       Casual Qualification Amount

 

The "Casual Qualification Amount" referred to in subparagraph (1) of paragraph (f) of subclause (ii) of this clause is calculated by the following formula:

 

Level 1 step 1 - clerical and administrative employee casual hourly rate of pay x 152 or $2,274.00, whichever is the greater.

 

21.  Remuneration Package

 

(i)         This clause shall apply to those individual schools wishing to facilitate the provision of salary and benefit packages to individual members of staff covered by this award.

 

(ii)        For the purposes of this clause:

 

(a)        "Benefits" means the benefits nominated by the employee from the benefits provided by the school and listed in paragraph (c) of subclause (iv) of this clause.

 

(b)        "Benefit Value" means the amount specified by the school as the cost to the school of the benefit provided including Fringe Benefit Tax, if any.

 

(c)        "Fringe Benefit Tax" means tax imposed by the Fringe Benefits Tax Act 1986.

 

(iii)       Conditions of Employment

 

Except as provided by this clause, employees must be employed at a salary based on a rate of pay, and otherwise on terms and conditions, not less than those prescribed by this award.

 

(iv)       Salary Packaging

 

The school may offer to provide and the employee may agree in writing to accept:

 

(a)        the benefits nominated by the employee; and

 

(b)        a salary equal to the difference between the Benefit Value and the salary which would have applied to the employee or under subclause (iii) of this clause, in the absence of an agreement under this subclause.

 

(c)        The available benefits are those made available by the school from the following list:

 

(A)      superannuation;

 

(B)       childcare provided by the school;

 

(C)       other benefits offered by the school.

 

(d)        The school must advise the employee in writing of the Benefit Value before the agreement is entered into.

 

(v)        During the currency of an agreement under subclause (iv) of this clause:

 

(a)        Any employee who takes paid leave on full pay shall receive the benefits and salary referred to in paragraphs (a) and (b) of subclause (iv) of this clause.

 

(b)        If a employee takes leave without pay, the employee will not be entitled to any benefits during the period of leave.

 

(c)        If an employee takes leave on less than full pay he or she shall receive:

 

(A)      the benefits; and

 

(B)       an amount of salary calculated by applying the formula:

 

A  =  S  x  P%

(100% - P%) x B)

 

where:

 

S  =  the salary determined by paragraph (b) of subclause (iv) of this clause.

 

P  =  the percentage of salary payable during the leave.

 

B  =  Benefit Value.

 

A  =  Amount of salary.

 

(d)        Any other payment under this award, calculated by reference to the employee's salary, however described, and payable:

 

(A)      during employment; or

 

(B)       on termination of employment in respect of untaken paid leave; or

 

(C)       on death,

 

shall be at the rate of pay which would have applied to the employee under subclause (iii) of this clause, in the absence of an agreement under paragraphs (a) and (b) of subclause (iv) of this clause.

 

22.  Disputes Procedure

 

(i)         Subject to the provisions of the Industrial Relations Act 1996, all grievances, claims or disputes shall be dealt with in the following manner so as to ensure the orderly settlement of the matters in question.

 

(ii)        Any grievance or dispute which arises shall, where possible, be settled by discussion between the employee and the Principal in accordance with any procedures that have been adopted by the school.

 

(iii)       If no agreement is reached and if the employee seeks assistance from the union or another person, the matter will be referred to the Association of Independent Schools by the union or that person and shall be dealt with in accordance with the agreement between the Association of Independent Schools and the Union as set out in Attachment A - Disputes Settlement Procedures.

 

(iv)       Should the matter not be resolved, it may be referred by either party to the Industrial Relations Commission of New South Wales for settlement.

 

23.  Anti - Discrimination

 

(i)         It is the intention of the parties bound by this award to seek to achieve the objective of section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace.  This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.

 

(ii)        It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award that parties have obligations to take all reasonable steps to ensure that the operations of this award are not directly or indirectly discriminatory in their effects.  It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award, which, by its terms or operation, has a direct or indirect discriminatory effect.

 

(iii)       Under the Anti Discrimination Act 1977, it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

 

(iv)       Nothing in this clause is to be taken to affect:

 

(a)        any conduct or act which is specifically exempt for anti discrimination legislation:

 

(b)        offering or providing junior rates of pay to persons under 21 years of age;

 

(c)        any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977;

 

(d)        a party to this award from pursuing matters of unlawful discrimination on any State or Federal jurisdiction.

 

(v)        This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.

 

24.  Savings Clause

 

(i)         No employee shall suffer a reduction in the salary enjoyed by that employee as a result of the implementation of this award.

 

(ii)        An employee's conditions of employment, other than those provided in this award, shall not be altered as a consequence of the introduction of this award.

 

25.  Exemptions

 

An employee who is in receipt of an annual salary 18 per cent in excess of the rate applying from time to time for Level 4, Step 2 as set out in Table 1 - Wage Rates, of Part B, Monetary Rates, shall not be entitled to the benefits of clause 7, Hours, and clause 8, Overtime, where there is agreement between the employer and employee that the salary is inclusive of compensation for any overtime payment to which the employee would otherwise be entitled.  Any dispute in this matter will be dealt with in accordance with clause 22, Disputes Procedure.

 

26.  No Extra Claims

 

It is a term of this award that the union undertakes not to make or pursue any extra claims for improvements in wages or other terms and conditions of employment until 31 January  2011.

 

27.  Area, Incidence & Duration

 

(i)         This award replaces the School Support Staff (Independent Schools) (State) Award 2004 published on 15 April 2005 (350 I.G. 175), as varied.

 

(ii)        This award shall apply to all employees as defined in clause 2, Definitions, employed in non-government schools in New South Wales including Loreto Convent, Kirribilli, but excluding all other Catholic schools.

 

Provided further that this award shall not apply to a person employed as a Bursar/Business Manager (however titled) employed in a senior managerial (or executive) position in a non-government school who has managerial responsibilities including the delegated authority to act for the employer from time to time in the recruitment and termination of staff.

 

(iii)       This award shall take effect from 16 February 2007 and remain in force until 15 February 2010.

 

PART B

 

MONETARY RATES

 

Table 1 - Wage Rates

 

Clerical and Administrative Staff

 

 

 

School Assistants

 

 

Table 2 - Other Rates and Allowances

 

 

Note:-

 

1.          Items 1,4 and 5 to be adjusted for CPI increases.

 

PART C

 

REDUNDANCY

 

1.1        This Part shall apply in respect of full-time and part-time persons employed in the classifications specified by the award.

 

1.2        This part shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees.

 

1.3        Notwithstanding anything contained elsewhere in this award, the provisions of this part shall not apply to employees with less than one year’s continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

1.4        This part shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

2.          EMPLOYERS DUTY TO NOTIFY AND DISCUSS

 

2.1        Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the union to which they belong.

 

2.2        The employer shall discuss with the employees effected and the union to which they belong the introduction of such changes and the likely effect on the employees and the measures taken to avert or mitigate the adverse effects of such changes.

 

2.3        ‘Significant effects’ include termination of employment, major changes in the composition, operation or size of the employers workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

3.          DISCUSSIONS BEFORE TERMINATIONS

 

3.1        Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

3.2        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subclause 3.1 of this clause and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination of the employees concerned.

 

3.3        For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and the union to which they belong, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees  normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

4.          NOTICE FOR CHANGES IN PRODUCTION, PROGRAM, ORGANISATION OR STRUCTURE

 

4.1        This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from production, program, organisation or structure in accordance with clause 2 of this part.

 

4.1.1    In order to terminate the employment of an employee the employer shall give to the employee the following notice:

 

 

4.1.2    In addition to the notice above, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, shall be entitled to an additional week’s notice.

 

4.1.3    Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

4.2        Notice for Technological Change

 

This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from ‘technology’ in accordance with clause 2 of this part.

 

4.2.1    In order to terminate the employment of an employee the employer shall give to the employee three months notice of termination.

 

4.2.2    Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

4.2.3    The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts.

 

4.3        Time off during the notice period

 

4.3.1    During the period of notice of termination given by the employer an employee shall be allowed up to one day’s time off without loss of pay during each week of notice, to a maximum of five weeks, for the purposes of seeking other employment.

 

4.3.2    If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.

 

4.4        Employee leaving during the notice period

 

If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this part had the employee remained with the employer until the expiry of such notice.  Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

 

4.5        Statement of employment

 

The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employee’s employment and the classification of or the type of work performed by the employee.

 

4.6        Notice to Commonwealth Employment Service

 

Where a decision has been made to terminate employees, the employer shall notify the Commonwealth Employment Service thereof as soon as possible giving relevant information including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

4.7        Department of Social Security Employment Separation Certificate

 

The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an ‘Employment Separation Certificate’ in the form required by Centrelink.

 

4.8        Transfer to lower paid duties

 

Where an employee is transferred to lower paid duties for reasons set out in clause 2 of this part, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee’s employment had been terminated, and the employer may at the employer’s option make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new ordinary time rate for the number of weeks of notice still owing.

 

5.          SEVERANCE PAY

 

5.1        Where an employee is to be terminated pursuant to clause 4 of this part, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the following severance pay in respect of a continuous period of service:

 

5.1.1    If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:

 

 

5.1.2    Where an employee is 45 years old or over, the entitlement shall be in accordance with the following scale:

 

 

5.1.3    ‘Weeks Pay’ means the all purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over award payments, shift penalties and allowances provided for in the relevant award.

 

5.2        Incapacity to Pay

 

Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause 5.1.

 

The Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in subclause 5.1 above will have on the employer.

 

5.3        Alternative Employment

 

Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause 5.1 if the employer obtains acceptable alternative employment for an employee.

 

ATTACHMENT A

 

DISPUTES SETTLEMENT PROCEDURE: AGREEMENT BETWEEN THE AIS AND THE IEU

 

1.          UNDERLYING PRINCIPLES

 

The Association of Independent Schools and the New South Wales Independent Education Union each has responsibilities toward their respective members which are recognised and respected.  The two organisations also have a number of interests in common.  These include the recognition and acceptance of the following:

 

A.        The quality and public perception of independent schooling is of significance and both recognise that there is mutual responsibility to protect, promote, develop and enhance this sector of schooling in New South Wales.

 

B.         There is mutual benefit to their memberships in there being a working relationship between the two organisations which is built on professional attitudes and clearly established and recognised procedures.

 

C.         The individuality and authority of each independent school, as well as the individuality and rights of each staff member.

 

D.         The attitudes and interests in common include:

 

(i)         An interest in helping to maintain a working environment in which quality education can be provided in a manner consistent with the school's aims and objectives and its philosophy.

 

(ii)        A common view that quality education is most likely to be provided where there is recognition, encouragement and support for the professional attitudes, rights and growth of staff members as well as for their personal needs and developments and the industrial rights of all parties.

 

E.         The right of employee(s) and the employer(s) to seek assistance and advice from their respective Associations.

 

2.          OPERATIONAL PROCEDURES BETWEEN THE AIS AND THE IEU

 

The right of each organisation to deal with its members as it sees fit notwithstanding, it is agreed that the following will be the general principles upon which each organisation will approach the attempts to resolve difficulties that have not been resolved by direct discussion between the employer and employee concerned.

 

A.        Both organisations recognise that it is generally preferable for perceived problems to be discussed between the staff member and the Principal of the school concerned with a view to resolving the matter and that it is only when the normal employer/employee process does not achieve a mutually satisfactory result that it is appropriate for the matter to be discussed formally between the AIS and the IEU.  This does not preclude earlier informal discussions where appropriate nor does it preclude discussion between the IEU and its members in a school as to the most appropriate method of resolving a problem.

 

B.         The IEU undertakes to refer to the AIS matters in which it seeks information from an Independent School or to discuss the matters that are of concern to its members and to do this wherever possible before encouraging school staff and IEU chapters to pass resolutions about the matter.

 

C.         The AIS undertakes to respond by seeking discussions with the school to ascertain its wishes as to how (and where necessary, through whom) it wishes to proceed in dealing with the matter and to advise the IEU of the school's decision.

 

D.         The steps that will then follow will be determined to suit the particular matter but in general can be expected to be as follows:

 

The AIS and IEU will discuss the matter with a view to:

 

(a)        identifying the facts of the matter to ensure that it is not misunderstandings that have created the problem;

 

(b)       clarifying the issues and wishes of each of those involved;

 

(c)        exploring the options that appear to be available;

 

(d)       where possible, assisting the parties to arrive at a mutually satisfactory solution;

 

(e)        nothing in the above diminishes the right of either party to refer any matter to the Industrial Relations Commission of New South Wales.

 

E.         As a general rule the school, the employee, the AIS and the IEU will maintain confidentiality to ensure that the dignity of the employee, the school and its personnel are maintained wherever possible.

 

The AIS and IEU will, where deemed advisable, prepare sufficient documents to confirm the agreement and assist in its implementation.

 

 

 

M. SCHMIDT J

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.