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New South Wales Industrial Relations Commission
(Industrial Gazette)





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MAINTENANCE, OUTDOOR AND OTHER STAFF (INDEPENDENT SCHOOLS) (STATE) AWARD 2007
  
Date03/29/2007
Volume362
Part3
Page No.347
DescriptionAIRC - Award of Industrial Relations Commission
Publication No.C5408
CategoryAward
Award Code 1550  
Date Posted03/29/2007

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(1550)

(1550)

SERIAL C5408

 

Maintenance, Outdoor and Other 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)

 

Before The Honourable Justice Schmidt

7 March 2007

 

AWARD

 

PART A - CONDITIONS

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Definitions

3.         Wages

4.         Classifications

5.         Allowances

6.         Payment of Wages

7.         Contract of Employment

7A.      Secure Employment

8.         Hours

9.         Overtime

10.       Meal and Rest Breaks

11.       Sick Leave

12.       Public Holidays

13.       Annual Leave and Payment on Termination

14.       Annual Leave Loading

15.       Long Service Leave

16.       Parental Leave

17.       Carer’s Leave

18.       Bereavement Leave

19.       Jury Service

20.       Other Conditions

21.       Superannuation

22.       Remuneration Package

23.       Suspension

24.       Disputes Procedure

25.       Apprenticeship Trades

26.       Board and Lodging

27.       Anti-Discrimination

28.       Savings Clause

29.       Exemptions

30.       No Extra Claims

31.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Wage Rates

Table 2 - Other Rates and Allowances

Table 2 (a) - First Aid Allowance23

 

PART C - REDUNDANCY

 

2.  Definitions

 

(a)        "Award" means the Maintenance, Outdoor and Other Staff (Independent Schools) (State) Award 2007.

 

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

 

(c)        "Bus Driver" means an employee who is employed primarily for the purpose of driving school buses.

 

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

 

(e)        "Employee" means an employee whose principal duties are the maintenance of buildings, plant and equipment; or the preparation and upkeep of grounds, or employment in a school canteen or uniform shop; or driving a school bus or other similar duties as directed by the employer.

 

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

 

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

 

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

 

(i)         "Temporary Employee" means an employee employed to work full-time or part-time for a period not to exceed 12 months.

 

(j)         "Union" means the New South Wales Independent Education Union and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, New South Wales Branch.

 

(k)        "Funds" mean either:

 

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

 

(ii)        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

 

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

 

(b)        Any increases in the minimum rates of payment as set out in the said Table 1, are fully absorbable into any payment that an employee receives in excess of the rates set out in the said Table 1 at the applicable time.  This clause does not override any above award clause specifically mentioned in an employee’s letter of appointment.

 

Without affecting the generality of the foregoing:

 

(i)         where an employee is receiving higher wages than prescribed by this award, the employee shall not, as a right, be entitled to receive the benefit of any change in an award wage until the award wage is higher than that received by the employee; and

 

(ii)        amounts paid above the minimum award rate (i.e. "margins") may be absorbed in variations to the minimum award rates as and when the variations occur.

 

(c)        The rates of payment in the said Table 1 of this award are inclusive of any increases pursuant to State Wage Case decisions as at the date of this award and during the nominal term of this award.

 

(d)        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 (a) of this clause) for the level at which they are employed for a minimum of three hours each start, except as otherwise provided for in subclause 8(d), Bus Drivers.

 

(e)        Casual Employees -

 

Casual employees shall be paid:

 

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

 

(ii)        20% of that amount (inclusive of payment in lieu of annual holidays required to be paid under the Annual Holidays Act 1944 and in compensation for the casual employee not having access to benefits such as sick leave and redundancy pay);

 

for a minimum of three hours each start.

 

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

 

4.  Classifications

 

(a)        Levels

 

Level 1 - General Hand -

 

A General Hand position is one where the employee:

 

(i)         requires no previous experience and uses a limited range of skills;

 

(ii)        undertakes routine or repetitive duties involving the application of standard procedures which require the use of some discretion; and

 

(iii)       works under close supervision, either individually or as a member of a team.

 

Without limiting the foregoing, a General Hand may be required to perform the following indicative duties:

 

(a)        general labouring tasks;

 

(b)       general gardening tasks including preparation of grounds and planting procedures;

 

(c)        responsibility for horticultural duties in areas such as sports playing fields, garden maintenance and foliage control at a level not considered to be at trade qualified level;

 

(d)       general ground, plant and building maintenance and operation requiring the application of specific skills;

 

(e)        moving equipment or furniture;

 

(f)        purchasing and stock control duties, including receipt, ordering and inventory control of goods;

 

(g)       handling, storing an distributing goods and materials;

 

(h)       completion of basic stock control documentation;

 

(i)         duties of canteen assistant or uniform shop assistant;

 

(j)         general care and driving of school vehicles.

 

Level 2 - Qualified Trade -

 

A Qualified Trade position is one where the employee:

 

(i)         holds trade qualifications or other qualifications or experience recognised by the employer as equivalent;

 

(ii)        receives limited instructions regarding work assignments and usually works without supervision;

 

(iii)       is regularly required to exercise independent initiative and judgement; and

 

(iv)       may supervise one or two employees in a section of the school or college.

 

Without limiting the foregoing an employee in a Qualified Trade position may be required to perform the following indicative duties:

 

general maintenance work which may include the use of trade accredited skills in areas such as carpentry, plumbing or electrical services;

 

the control and responsibility for the maintenance of gardens and/or sports grounds which may include the use of accredited trade skills in areas such as horticulture, gardening or the maintenance of sports grounds; or

 

responsibility for the operation of the school canteen or uniform shop, including supervision of assistants or volunteers.

 

Level 3 - Supervisor -

 

A Supervisor’s position is one where the employee:

 

(i)         requires minimal instruction in the performance of their duties;

 

(ii)        exercises substantial responsibility and independent initiative and judgement with a detailed knowledge of workplace procedures and of the employer’s business;

 

(iii)       has the responsibility for supervision, training and coordination of staff, responsibility for their efficient allocation and control, in one or more sections of the school or college; and

 

(iv)       is required to have undertaken and completed post secondary training provided by any accredited training provider relevant to the tasks required by the employer for this Level, or has engaged in extensive equivalent in service training, or has significant and substantial technical and procedural knowledge which is regarded by the employer to be equivalent to the required post secondary training.

 

(b)        Progression - Level 1 - General Hand Employees

 

Level 1 employees shall progress to the next step within the Level on completion of one year of full-time service or the part time or casual equivalent providing their performance is considered to be satisfactory.

 

(c)        Promotion -

 

(i)         An employee will only progress to a position at a higher classification where:

 

(A)      an employee is required on a regular basis to perform duties appropriate to a higher classification; or

 

(B)       a position at the higher classification is vacant; and

 

(C)       the employee has the appropriate skills and qualifications for that position.

 

(Notation:  For the avoidance of doubt, under this clause an employee will not automatically be appointed to a position in a higher classification.  An employee will be entitled to apply for a position at a higher classification and will be considered with other applicants for such a position (both internal and external) as appropriate.  By way of example, if an employee in a General Hand position gains a trade or other qualifications (or has trade or other qualifications) but the position to which the employee is appointed is a General Hand position, the employee will not be reclassified simply by virtue of his or her qualifications).

 

(ii)        An employee classified as a General Hand may apply for promotion to the Level 2 - Qualified Trade classification where such employee can demonstrate that he/she performs duties at a level equal to that of a trade qualified employee, irrespective of whether or not such employee actually holds trade qualifications.  Where the employee’s regular duties require and involve the use of trade accredited skills, the employer shall not unreasonably withhold approval of such promotion.  Any such promotion shall take effect from the date of the application.  The provisions of this paragraph shall not affect the right of an employee to apply for promotion pursuant to the provisions of paragraph (i) of this subclause.

 

(d)        Higher Duties (Temporary)

 

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.

 

(e)        Apprentices - The minimum rates of wages for four year apprentices shall be:

 

Percentage of Qualified Trade Rate

 

1st year

50

2nd year

65

3rd year

75

4th year

90

 

Adult apprenticeships 21 years of age and over shall commence and remain at the second year rate for two years, except existing employees of an employer who undertake adult apprenticeships or traineeships shall not suffer a reduction in their ordinary time earnings by virtue of becoming an adult apprentice or trainee.

 

5.  Allowances

 

(a)        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.

 

(b)        Travelling Expenses -

 

When an employee, in the course of his or her duty, is required by the employer to travel to any place away from their usual place of employment, the employee shall be reimbursed for reasonable expenses actually incurred.  Where possible, such expenses shall be approved in advance.

 

(c)        Vehicle Allowance -

 

(i)         An employee is required by the employer to use his or her own motor vehicle for the purpose of carrying out his or her duties because the employer does not provide that motor vehicle, shall be paid an amount as set out in Item 2 of the said Table 2.

 

(ii)        An employee is required by the employer to use his or her own motor vehicle on a casual or incidental basis, shall be paid the rate set by Item 3 of the said Table 2 for such use.

 

(d)        First-aid

 

An employee who has been trained to render first-aid and who is the current holder of appropriate first-aid qualifications, such as a certificate from the St John Ambulance or similar body, may be appointed by the employer to perform first-aid duties.  An employee so appointed shall be paid an allowance as set by Table 2 (a) First-aid Allowance of Part B Monetary Rates.

 

(e)        Uniform

 

In the event of an employee being required to wear a uniform, such uniform shall be provided by the employer and laundered at the employer’s expense or, by mutual agreement, such employee shall be paid an amount per week as set out in Item 4 of Table 2.

 

(f)         Broken Shifts

 

Bus Drivers working a broken shift as provided in clause 8, Hours (d) shall be paid for each broken shift so worked - a shift allowance as set out in Table 2, Other Rates and Allowances per day extra.

 

(g)        Excess fares allowance

 

Bus Drivers working a broken shift as provided in clause 8, Hours (d) shall be paid at the rate as set out in Table 2, Other Rates and Allowances per day extra.

 

Provided that the excess fares allowance shall not be payable to a Bus Driver whose break between shifts is less than two and one-half hours inclusive of meal breaks or to a Bus Driver who is permitted to drive the bus home during the break between shifts.

 

6.  Payment of Wages

 

(a)        The wages payable to an employee, other than a casual employee, shall be payable at the employer’s discretion either fortnightly or half-monthly.  Where an employee was, prior to the commencement of this award, paid on a weekly basis, the employer shall not change the frequency of payment without at least four weeks written notice to the employee.

 

(b)        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.

 

(c)        The employer may elect to stand down an employee in accordance with subclause (e) of clause 7, Contract of Employment, or to average the employee’s payment of wages over the year.

 

(d)        When the employer elects to average the employee’s payment of wages in accordance with subclause (c) of this clause, the rates will be paid in equal instalments throughout the year.  The following formula shall be used to determine the appropriate weekly rate:

 

N + 11

 

X

Annual rate of salary

240

52.14

 

Where:

 

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

 

Provided that:

 

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

 

(ii)        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 (i.e., the number of weeks per year the employee will be required to work multiplied by five).  However, it is then necessary to convert the averaged weekly full-time salary to a part-time basis.

 

(For example: To calculate the averaged salary for a Level 3 employee who works three days per week for 38 weeks per year, the correct value for N is 190 (i.e, 38 x 5) less any public holidays which fall within the weeks the employee is deemed to work.  If it is assumed that one such public holiday falls within the period worked by the employee, the value of N becomes 189 (i.e, 190-1).  The calculation would then proceed as follows:

 

189+11

x

$39,820

(Level 3 Annual Salary)

240

 

52.14

 

 

=  0.8333

x

$763.71

 

 

=  $636.43 per week (Averaged weekly full time salary)

 

To convert to a part time weekly rate:

 

$636.43

=

$16.75 per hour

38

 

 

 

$16.75 x 24 (i.e. 3 days x 8 hours)  =  $402.00 per week

 

Therefore, the part-time averaged annual salary in this example is $402.00 per week.]

 

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

 

(f)         An employee whose salary is averaged according to the formula in subclause (d) and who works additional hours ordinary hours, which are not specifically accounted for in the application of the formula in subclause (d) (ii), shall have those additional hours paid at the casual rate.

 

7.  Contract of Employment

 

(a)        Employees covered by this award shall perform all work within their skill and competence including work which is incidental or peripheral to their main tasks or functions.

 

(b)        Letter of Appointment -

 

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

 

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

 

(ii)        the number of hours to be worked each week and the number of weeks to be worked throughout the year.

 

(iii)       a statement in relation to superannuation entitlements as required by subclause (b) of clause 21, Superannuation; and

 

(iv)       whether the rate of pay is payable during term time only or throughout the year in accordance with subclause (c) of clause 6, Payment of Wages.

 

(v)        All employees may be employed for a probationary period not to exceed three months.  This probationary period will only apply if the employer has advised the employee at the time of offer of appointment of the fact and length of the probationary period.  During any probation period that applies an employee shall be advised on an ongoing basis of any concerns of the employer in relation to the employee’s performance and the steps taken by the employee in sufficient time for the employee to address these concerns.

 

(c)        Notice of Termination -

 

(i)         The employment of an employee other than a casual may be terminated by either the employer or the employee by notice given at any time and as specified in this clause, or by payment or forfeiture of the equivalent pay in lieu of notice as the case may be:

 

Period of Continuous Service

Period of Notice

 

 

Up to and including one month

1 week

More than one month

2 weeks

 

(ii)        The period of notice in paragraph (i) of subclause (c) does not apply in the case of:

 

(A)      dismissal for conduct that justifies instant dismissal, including refusal or neglect of duty, or misconduct; or

 

(B)       casual employees.

 

(iii)       The employment of a casual employee may be terminated at any time by one day’s notice.

 

(d)        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.

 

(e)        Pupil Vacation Periods -

 

(i)         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 for 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 which the employee normally works.

 

(ii)        Where the employment of an employee is terminated by the employer in accordance with the provisions of subclause (c), Notice of Termination 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.  Any period of stand down for any employee who is so re-employed shall not count as qualifying service for the purpose of such Act.

 

(iii)       In accordance with the employee’s letter of offer 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; provided that such eight week’s notice shall not be required if any change to the days required to be worked during pupil vacation periods is by mutual agreement between the employer and the employee.

 

(iv)       An employee required to work as outlined in subclause (iii) (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 clause 6. Payment of Wages (d).

 

(v)        An employee not stood down during school vacation periods prior to the making of this award shall not be stood down after the making of this award except by agreement.

 

(f)         Redundancy

 

The provisions of Part C shall apply as a minimum entitlement in cases of redundancy.

 

7A.  Secure Employment

 

(a)        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.

 

(b)        Casual Conversion

 

(i)         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.

 

(ii)        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.

 

(iii)       Any casual employee who has a right to elect under paragraph (b)(i), upon receiving notice under paragraph (b)(ii) 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.

 

(iv)       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.

 

(v)        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.

 

(vi)       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 (b)(iii), the employer and employee shall, in accordance with this paragraph, and subject to paragraph (b)(iii), discuss and agree upon:

 

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

 

(B)       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.

 

(vii)      Following an agreement being reached pursuant to paragraph (vi), 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.

 

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

 

(c)        Occupational Health and Safety

 

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

 

(A)      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.

 

(B)       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.

 

(ii)        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):

 

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

 

(B)       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;

 

(C)       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

 

(D)       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.

 

(iii)       Nothing in this subclause (c) 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.

 

(d)        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.

 

(e)        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.

 

8.  Hours

 

(a)        Notice of Hours -

 

The employer shall fix the employee’s ordinary hours of work and the ordinary time of meal breaks 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.

 

(b)        Ordinary Hours -

 

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, provided that work performed up to 12 noon on Saturday only on essential watering duties or marking playing field areas which cannot be performed Monday to Friday may be regarded as ordinary hours if the employee is allowed, without loss of pay, equivalent time off during the following week, provided that there must be mutual agreement as to when such time off will be taken.

 

(c)        38 hour week -

 

(i)         Subject to paragraphs (ii), (iii), and (iv) of this clause, the ordinary hours of work of an employee shall be worked over five days.

 

(ii)        Provided that where an employer has reached agreement in relation to rostered days of in accordance with clause 7 of the Miscellaneous Workers’ - Independent Schools and Colleges,  &c. (State) Award made on 19 August, 1994 (IRC 1808 of 1993) the rights and obligations of  employees employed by that employer at the date of commencement of this award will remain unchanged.

 

(iii)       19 Day Month -

 

Provided also that an employer and an employee may agree that the ordinary hours of work provided by this clause will be worked as a 19-day month, in which case the following provisions shall apply:

 

(A)      The employee shall work 152 hours over 19 days in each four week period with one rostered day off on full pay in each such period.

 

(B)       The employee shall accrue 24 minutes for each eight hour shift or eight hour day worked by the employee to give the employee an entitlement to take a rostered day off.

 

(C)       Each day of paid leave taken by the employee (including annual leave, but not including long service leave or any period of stand down as provided in subclause ( c) of clause 6, Payment of Wages) and any public holiday occurring during any cycle of four weeks shall be regarded as a day worked for the purpose of accruing an entitlement under paragraph (B) of this subclause.

 

(D)       Rostered days off shall not be regarded as part of the employee’s annual leave for any purpose.

 

(E)       Notwithstanding any other provisions of this clause, the employee shall not be entitled to more than 12 paid rostered days off in any 12 months of consecutive employment.

 

(F)       An employee who is scheduled to take a rostered day off before having worked a complete four week cycle shall be paid a pro rata amount for the time that the employee has accrued in accordance with the said paragraph (B) for each day worked by the employee in the cycle.

 

(G)       An employee whose employment is terminated in the course of a four week cycle shall be paid a pro rata amount for the time accrued by the employee in accordance with the said paragraph (B) for each day worked by the employee in the cycle.

 

(H)       Rostered days off shall be scheduled by mutual agreement between the employee and the employer.

 

(I)        The employee shall be advised by the employer at least four weeks in advance of the day on which the employee is to be rostered off duty.

 

(J)        The employee may, with the agreement of the employer, substitute the day on which the employee is scheduled to be rostered off duty for another day.

 

(K)       If an employee is rostered off duty on the day which coincides with the employee's normal pay day, the employee shall be paid no later than the working day immediately following their rostered day off.

 

(L)       If an employee's rostered day off falls on a public holiday, an alternative rostered day off shall be observed to be fixed by mutual agreement between the employee and the employer.

 

(M)      An employee required to work on their rostered day off shall be paid in accordance with the provisions of clause 9, Overtime, and shall also receive another rostered day off in lieu.

 

(N)       Employees are not eligible for sick leave in respect of absences on rostered days off.

 

(iv)       Any Other Method -

 

Provided also that an employer may apply any other method of implementing the ordinary hours of work provided by this clause on the understanding that the employer reaches agreement with an employee.  This may include an accrual of RDO's to be taken during any unpaid stand down period subject to subclause (c) of clause 7 Contract of Employment.

 

(d)        Bus Drivers

 

(i)         A bus driver may be engaged to work a broken shift pursuant to the provisions of this subclause.

 

(ii)        Where a bus driver works a broken shift on any given day, the bus driver shall be entitled to a minimum payment of two (2) hours pay for each start, provided that the bus driver shall not be required to work more than two (2) shifts as part of the broken shift arrangement. Where a bus driver works a broken shift he/she shall be paid the allowances set out in subclauses (f) and (g) of Clause 5 as applicable.

 

(iii)       In the event that a bus driver starts work only once in a given day, that bus driver shall be entitled to a minimum payment of three (3) hours pay for that start.

 

9.  Overtime

 

(a)        Subject to the provisions of subclause (d) of this clause an employer may require an employee to work reasonable overtime at overtime rates, or as otherwise provided for in subclauses 9 (b) and 17.4 of this award.  All work done outside ordinary hours may be dealt with in accordance with subclause (b) of this clause provided that where under that subclause payment is made for such overtime, the rate of pay shall be time and one-half for the first two hours and double time thereafter.  In computing overtime, each day shall stand alone.

 

All overtime worked by an employee between midnight Friday and midnight Sunday shall be paid at the rate of double time for a minimum of three hours.

 

(b)        Time off in lieu of overtime -

 

Where an employee has performed duty on overtime, the employee may take time off in lieu of payment for overtime 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:

 

(i)         There is agreement between the employer and employee.

 

(ii)        The time off in lieu must be taken within four weeks of the end of the week in which the overtime was worked.  Where such time off is not given or taken within this period it shall be paid for at the appropriate overtime rate.

 

(iii)       An employee may not accumulate more than 20 hours to be taken as time off in lieu of overtime payment.  Any overtime in excess of 20 hours must be paid for at the appropriate overtime rate.

 

(iv)       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.

 

(c)        Call Back -

 

An employee required to attend the employer's premises for a reason other than carrying out rostered duties after leaving the place of employment (whether notified before or after leaving the place of employment) shall be paid a minimum of two hours pay at the appropriate rate for each such attendance, provided that the attendance is not continuous with completion of ordinary working hours.  The taking of a meal break shall not of itself mean that the duty is not continuous.  Provided that a bus driver who normally works a broken shift who is called back to school to drive the bus during the break in that shift shall be paid for a minimum of two hours.

 

(d)        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.

 

(e)        For the purposes of subclause 9 (d) what is unreasonable or otherwise will be determined having regard to:

 

(i)         any risk to employee health or safety;

 

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

 

(iii)       the needs of the workplace or enterprise;

 

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

 

(v)        any other relevant matter.

 

Notation: The employers and the Union are of the view that where hours are varied in accordance with clause 8 (a) such hours cannot properly be regarded as overtime.

 

10.  Meal and Rest Breaks

 

(a)        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 6.30 pm.  This meal break shall be at a time mutually agreed upon between the employer and employee.  The meal break shall not be at the end of a shift.

 

(b)        All employees shall be allowed a rest break of ten minutes daily and this break shall be counted as time worked.  The rest break shall not be taken at the beginning or end of a shift, nor immediately before or after a meal break.

 

11.  Sick Leave

 

(a)        An employee, other than a casual employee, who is unable to attend for duty during ordinary working hours by reason of personal illness or incapacity not due to the employee's own serious or wilful misconduct, shall be entitled to be paid at the ordinary time rate of pay for the time of such non-attendance subject to the following conditions and limitations:

 

(i)         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.

 

(ii)        The employee shall be entitled to ten days sick leave per year of service on full pay. Provided that the payment for any absence on sick leave in accordance with this clause within the first three months of employment with the employer may be withheld by the employer until the employee completes such three months' employment at which time the payment shall be made.

 

(iii)       The employee shall notify the Principal of the school, or other such person deputised by the Principal, of the general nature of the injury or illness and the estimated duration of the absence, where practicable, prior to the commencement of the first organised school activity on that day and in any case within 24 hours of the commencement of such absence.

 

(iv)       The employee shall provide to the employer such evidence as the employer or school medical officer may request 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.

 

(v)        Where a single day absence occurs before or after a public holiday or a rostered day off, the employee shall supply a medical certificate to the employer.

 

(vi)       Where the employer has reasonable grounds to believe that the employee may be absent for a reason or reasons other than illness or incapacity the employer may require the employee to be examined by a medical practitioner nominated by the employer (at the employer's expense) to substantiate eligibility for sick leave.  Alternatively the employer may have a medical practitioner nominated by the employer contact the employee's treating doctor and require the employee to advise the employee's treating doctor to provide information to substantiate eligibility for sick leave.  No other information shall be provided by the medical practitioner to the employer unless specifically authorised by the employee.

 

An employee who refuses to be examined by a medical practitioner or who refuses to direct his or her treating doctor to provide information to the medical practitioner without reasonable cause shall not be entitled to paid sick leave.

 

Provided that the employer shall not utilise this provision except as follows:

 

The direction to the employee shall be in writing, signed by the Principal, and shall refer to the provisions of this award clause and shall nominate the reasonable grounds for the view of the employer that the employee is absent for reason other than illness or incapacity.  Such direction must be received by the employee in sufficient time for the employee to reasonably comply with the direction.

 

(b)        Accumulation of Sick Leave -

 

Sick leave not taken in a year shall accumulate from year to year and may be taken, provided that current sick leave entitlements have been exhausted, in accordance with the conditions set out in sub-clause (a). Sick leave will accumulate indefinitely. Service before the first full pay period commencing on or after 1 April 2007 will be taken into account in determining for the purpose of calculating sick leave accumulation in accordance with the award or any agreement applying to that employee prior to that date.

 

(c)        Definition of Day -

 

For the purposes of this clause 'day' means the number of hours which the employee would have worked on that day if not absent.

 

(d)        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; provided that this provision will not apply to employees whose salary has been averaged according to clause 6, Payment of Wages (d) and to whom extra hours worked have been are remunerated at the casual rate as provided for in clause 6, Payment of Wages (f), and clause 7, Contract of Employment, (e) (iv).

 

12.  Public Holidays

 

(a)        Subject to subclauses (b) and (c) of this clause, the days on which the following holidays are observed shall be holidays, namely; New Years 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 whole 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.

 

(b)        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 which he or she normally works.

 

(c)        All time worked on a public holiday or additional holiday in subclause (a) 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.

 

13.  Annual Leave & Payment on Termination

 

(a)        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.  For the avoidance of doubt, this clause applies to all such employees including those employees who are stood down for some period during a year without pay.

 

(b)        Where an employee whose employment ceases is paid in accordance with subclause (c) of clause 6, 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 (c) of clause 6, Payment of Wages, then the employee shall be paid on termination the difference between the averaged amount paid and such higher amount.

 

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

 

14.  Annual Leave Loading

 

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

 

(b)        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 annual holiday wholly or partly in advance, see subclause (f) of this clause.)

 

(c)        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.

 

(d)        The loading is to be calculated in relation to any period of annual holiday to which the employee becomes entitled under the Act, where such a holiday is given and taken in separate periods, then in relation to each such separate period.

 

(Note: - See subclause (f) of this clause, as to holidays taken wholly or partly in advance).

 

(e)        The loading is the amount payable for the period or the separate period, as the case may be, stated in subclause (d) 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.

 

(f)

 

(i)         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 (e) of this clause, applying the award rates of wages payable on that day.

 

(ii)        Notwithstanding the provisions of paragraph (i) 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.

 

(g)

 

(i)         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 (e) of this clause for the period not taken.

 

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

 

(Note: This means that no loading is payable when an employee resigns).

 

15.  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 April 2007 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 1 April 2007; and

 

(b)        an amount calculated on the basis of the provisions of this clause from 1 April 2007.

 

(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.

 

16.  Parental Leave

 

(a)        Maternity Leave

 

(i)         Subject to subparagraph (iii) of this paragraph, an employee who takes unpaid maternity leave of at least 12 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 after 1 April 2007 shall be twelve weeks, provided that an employee who commences maternity leave prior to 1 April 2007, shall be entitled to nine weeks leave.

 

(iii)       Where an employee give birth to a second and subsequent child following an earlier 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) or this sub-clause.  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, or

 

(C)       if the employee requests, the payment may be paid at half pay for a period of 24 weeks.

 

(vi)       The school must pay the first or lump sum payments at the pay period commencing closet to:

 

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

 

(B)       if birth occurs before the time referred to in paragraph (A) of this subclause, the date of the birth; or

 

(C)       if the employee has not commenced maternity leave at the time referred to in the said paragraph (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 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 in relation to Maternity, Paternity and Adoption Leave.

 

(b)        Paternity Leave

 

(i)         An employee who takes paternity leave on or after 1 April 2007 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 17 of this award (NB: spouse means a spouse as defined in Clause 17 Carer's Leave). Provided that prior to 1 April 2007, an employee shall be entitled to one day’s leave with pay on the date of the birth of his child or on the day on which the child’s mother leaves hospital following the birth.

 

(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).

 

17.  Carer's Leave

 

17.1      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 11, Sick Leave of the award, for absences to provide care and support for such persons when they are ill, or who require care due to an unexpected emergency. Such leave may be taken for part of a single day.

 

(b)        The employee shall, if required,

 

(i)         establish either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person, or

 

(ii)        establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

 

In normal circumstances, an employee must not take carer's leave under this subclause where another person 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.

 

17.2      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 17.1 of this clause who is ill or who requires care due to an unexpected emergency.

 

17.3      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.

 

17.4      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.

 

17.5      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.

 

17.6      Carer’s Entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements in paragraphs (b) and (d) of subclause 17.1 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 17.1 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.

 

18.  Bereavement Leave

 

(a)        An employee shall, on the death of a parent-in-law or on the death of a member of the employee's immediate family or household, as defined in subparagraph (ii) of paragraph (c) of subclause 17, Carer’s Leave, be entitled to leave up to and including the day of the funeral of such person.  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.

 

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

 

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

 

(ii)        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.

 

(c)        Bereavement leave may be taken in conjunction with other leave available under subclauses 17.2, 17.3, 17.4 and 17.5 of the said clause 17.  In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the school.

 

(d)        Bereavement entitlements for casual employees

 

(i)         Subject to the evidentiary and notice requirements in subparagraph (b)(i) 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 17.1 of clause 17 Carer’s Leave.

 

(ii)        The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(iii)       An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not engage a casual employee are otherwise not affected.

 

19.  Jury Service

 

An employee, other than a casual employee, required to attend for jury service during the employee's ordinary working hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of the employee's attendance for such jury service and the amount of wages the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.

 

An employee shall notify the employer as soon as possible of the date upon which the employee is required to attend for jury service.  Further, the employee shall give the employer proof of attendance,  the duration of such attendance and the amount received in respect of such jury service.

 

20.  Other Conditions

 

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

 

(b)        Accommodation for Meals -

 

Employers shall allow employees to partake of their meals, crib breaks or tea breaks in a suitable place protected from the weather and every such employee shall leave such place in a thoroughly clean condition.

 

(c)        Dressing Accommodation -

 

Where it is necessary or customary for employees to change their dress or uniform, suitable dressing rooms and dressing accommodation and individual lockable lockers shall be provided.

 

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

 

(e)        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.

 

(f)         All materials, equipment, etc required for cleaning purposes shall be supplied by the employer.

 

21.  Superannuation

 

(a)        Fund -

 

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

 

(b)        Benefits -

 

(i)         Except as provided in paragraphs (iii), (iv) and (vi) 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.

 

(ii)        Subject to paragraph (iv) 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.

 

(iii)       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.

 

(iv)       Contributions shall commence to be paid from the beginning of the first pay period commencing on or after 1 July 1988, or from the beginning of the first pay period commencing on or after the employee's date of engagement, whichever is later.

 

Provided that if the employee has not applied to join a fund within six weeks of 1 July 1988 (in the case of an employee employed at 1 July 1988) or within six weeks of the employee's date of engagement (in the case of an employee who is employed after 1 July 1988), 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.

 

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

 

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

 

(A)      casual employees who earn in excess of $2,274.00 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

 

(B)       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.

 

(vii)      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.

 

(viii)     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 (iv) of this subclause in the case of an employee other than a casual employee, and paragraph (vi) in the case of a casual employee.

 

(c)        Transfer 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 (v) of subclause (b), 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:

 

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

 

(ii)        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.

 

(d)        Explanatory Clause

 

The figure which appears in subparagraph (A) of paragraph (vi) of subclause (b) of this clause is calculated by the following formula:

 

General Hand casual hourly rate of pay (including pro rata annual leave) x 152, or $2,274.00, whichever is the greater.

 

22.  Remuneration Package

 

(a)        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.

 

(b)        For the purpose of this clause:

 

(i)         "Benefits" means the benefits nominated by the employee from the benefits provided by the school and listed in paragraph (iii) of subclause (d) of this clause.

 

(ii)        "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.

 

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

 

(c)        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.

 

(d)        Salary Packaging

 

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

 

(i)         the Benefits nominated by the employee; and

 

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

 

(iii)       The available Benefits are those made available by the school from the following list:

 

(A)      superannuation;

 

(B)       child care provided by the school;

 

(C)       other benefits offered by the school.

 

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

 

(e)        During the currency of an agreement under subclause (d) of this clause:

 

(i)         Any employee who takes paid leave on full pay shall receive the Benefits and salary referred to in paragraphs (i) and (ii) of subclause (d) of this clause.

 

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

 

(iii)       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 (ii) of subclause (d) of this clause.

 

P = the percentage of salary payable during the leave.

 

B = Benefit Value.

 

A = Amount of salary.

 

(iv)       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 (c) of this clause, in the absence of an agreement under paragraphs (i) and (ii) of subclause (d) of this clause.

 

23.  Suspension

 

Notwithstanding any of the provisions of this award, an employer may suspend an employee with or without pay while considering any matter which in the view of the employer could lead to the employee's summary dismissal.  Suspension without pay shall not be implemented by the employer without prior discussion with the employee (and would normally follow a period of suspension with pay) and shall not, except with the employee's consent, exceed a period of four weeks.

 

24.  Disputes Procedure

 

(a)        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.

 

(b)        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.

 

(c)        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 where relevant.

 

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

 

25.  Apprenticeship Trades

 

(a)        Apprentices may be indentured to a school as gardeners in the industry of this award subject to the provisions of the Industrial and Commercial Training Act 1989.

 

(b)        Limitation of Overtime

 

(i)         No apprentice under the age of 18 years shall be required to work overtime unless he/she so desires.

 

(ii)        No apprentice except in an emergency, shall work or be required to work overtime at times which would prevent his/her attendance at technical college as required by any statute, award or regulation applicable to the apprentice.

 

26.  Board and Lodging

 

An employer shall not be compelled to board and/or lodge any worker but where board and/or lodgings are provided the employer shall be entitled to deduct in respect of all workers the following amounts:

 

(a)        For full board of 21 meals per week - an amount equal to 18.5% of the adult basic wage.

 

(b)        For full lodging for seven days per week - an amount equal to 7% of the adult basic wage.

 

(c)        Where, by mutual consent, part board and/or lodgings are provided, the deductions referred to in subclauses (a) and (b) of this clause, may be made on a pro rata basis.  Non-resident employees shall not suffer any deduction for meals provided unless by mutual consent.

 

27.  Anti-Discrimination

 

(a)        It is the intention of the parties bound by this award to seek to achieve the object in 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.

 

(b)        It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions 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.

 

(c)        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.

 

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

 

(i)         any conduct or act which is specifically exempted from anti-discrimination legislation;

 

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

 

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

 

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

 

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

 

28.  Savings Clause

 

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

 

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

 

29.  Exemptions

 

An employee who is in receipt of a salary 10 per cent in excess of the rate applying from time to time for the Level 3 - Supervisor grade as set out in Table 1, Wage Rates of Part B, Monetary Rates, shall not be entitled to the benefits of clause 8, Hours, clause 9, Overtime, clause 10, Meal and Rest Breaks.

 

30.  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.

 

31.  Area, Incidence and Duration

 

(a)        This award replaces the Maintenance, Outdoor and Other Staff (Independent Schools) (State) Award 2004, published 11 February 2005 (348 I.G. 406) and all variations thereof in so far as that award applies to employees covered under this award employed by an employer bound by this award.

 

(b)        Subject to paragraph (c) this award shall apply to all employees as defined in clause 2, Definitions but shall not apply to:

 

(i)         employees employed in a clerical or administrative capacity or as school assistants pursuant to the School Support Staff (Independent Schools) (State) Award 2004, published 15 April 2005, (350 I.G. 175).

 

(ii)        persons employed as teachers;

 

(iii)       persons employed as a cleaner, a catering employee, or in a boarding school as a housekeeper, security employee, laundry employee, or domestic employee;

 

(iv)       employees of any cleaning, catering, security, laundry, gardening, building or domestic services contractor.

 

(c)        This award shall apply to recognised independent schools registered under the provisions of the Education Act 2000 including the independent schools listed below:

 

Loreto Convent Kirribilli, St Ignatius College, St Stanislaus College, Kincoppal Rose Bay, and St Vincents College.

 

but excluding all other Catholic schools.

 

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

 

PART B

 

MONETARY RATES

 

Minimum Rates of Pay

 

Table 1 - Wage Rates

 

Adult Basic Wage:  $121.40 per week

 

Classification

From the first

From the first

From the first

From the

 

full pay period

full pay period

full pay period

first full pay

 

on or after

on or after

on or after

period on or after

 

1 April 2007

1 February 2008

1 February 2009

1 February 2010

 

per annum

per annum

per annum

per annum

 

4%

4%

4%

4%

 

$

$

$

$

Level 1 - General Hand

 

 

 

 

Step 1

34,041

35,403

36,819

38,292

Step 2

35,362

36,776

38,247

39,777

Step 3

36,709

38,177

39,704

41,292

Level 2 - Qualified

 

 

 

 

Trade

38,120

39,645

41,231

42,880

Level 3 - Supervisor

39,820

41,412

43,069

44,792

 

 

Percentage of Qualified Trade

Apprentices

Rate of Pay for

 

Level 3

1st Year

50

2nd Year

65

3rd Year

75

4th Year

90

 

Table 2 - Other Rates and Allowances

 

Item No.

Clause No.

Brief Description

Amount

 

 

 

$

1

5 (a)

Meal Allowance - Overtime

$12.14

2

5 (c) (i)

Own Car Allowance for vehicle 1500 cc or under for

$98.32 per week

 

 

vehicle over 1500 cc

$121.54 per week

3

5 (c) (ii)

Own Car Allowance for use on casual or incidental basis

0.58c per km

 

 

 

 

4

5 (e)

Laundering Allowance

$7.52 per week

 

 

Uniforms

$1.50 per shift

5

5 (f)

Broken Shift Allowance (Bus Drivers)

$5.37 per day

 

 

 

$26.85 per week

6

5 (g)

Excess Fares Allowance (Bus Drivers)

$3.22 per day

 

 

 

$16.10 per week

 

Table 2 (a) - First-Aid Allowance

 

 

Rates effective

Rates effective

Rates effective

Rates effective

 

from the first full

from the first full

from the first full

from the first full

 

pay period

pay period

pay period

pay period

 

on or after

on or after

on or after

on or after

 

1 April 2007

1 February 2008

1 February 200

1 February 2010

 

$

$

$

$

 

4%

4%

4%

4%

First Aid and

 

 

 

 

Medication

$4.41 per day

$4.59 per day

$4.77 per day

$4.96 per day

Allowance

 

 

 

 

(clause 5(d))

$22.06 per week

$22.94 per week

$23.86 per week

$24.82 per week

 

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:

 

Period of continuous service

Period of Notice

 

 

Less than 1 year

1 week

1 year and less than 3 years

2 weeks

3 years and less than 5 years

3 weeks

5 years and over

4 weeks

 

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:

 

Years of Service

Under 45 Years of Age Entitlement

 

 

Less than 1 year

Nil

1 year and less than 2 years

4 weeks

2 years and less than 3 years

7 weeks

3 years and less than 4 years

10 weeks

4 years and less than 5 years

12 weeks

5 years and less than 6 years

14 weeks

6 years and over

16 weeks

 

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

 

Years of Service

45 Years of Age and Over Entitlement

 

 

Less than 1 year

Nil

1 year and less than 2 years

5 weeks

2 years and less than 3 years

8.75 weeks

3 years and less than 4 years

12.5 weeks

4 years and less than 5 years

15 weeks

5 years and less than 6 years

17.5 weeks

6 years and over

20 weeks

 

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.

 

 

 

M. SCHMIDT J

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

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