Kellogg
(Aust) Pty Ltd Botany (NUW) Consent Award 2003
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FAMILY PROVISIONS CASE - 19 DECEMBER
2005.
(No. IRC 4201 of 2005)
VARIATION
1. Insert into
clause 44, Bereavement Leave, of the award published 29 October 2004 (347 I.G.
1), the following new item 44(f):
(f) Bereavement
entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in 44(c) 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 subclause 43.1(c)II of clause 43, Family / Carer’s
Leave.
(b) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the
employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
(c) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage or
not engage a casual employee are otherwise not affected.
2. Delete
43.1(a) of clause 43, Family / Carer’s Leave, and insert in lieu thereof the
following:
(a) An employee,
other than a casual employee, with responsibilities in relation to a class of person
set out in 43.1(c)II 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 33, 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.
3. Delete
43.1(b) of clause 43, Family / Carer’s Leave, and insert in lieu thereof the
following:
(b) The employee
shall, if required,
(1) 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
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
4. Delete
43.1(c) II(e) of clause 43, Family / Carer’s Leave and insert in lieu thereof
the following item 43.1(d):
(d) An employee
shall, wherever practicable, give the Company notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person’s relationship to the employee, the reasons for taking such leave and
the estimated length of absence. If it is not practicable for the employee to
give prior notice of absence, the employee shall notify the Company by
telephone of such absence at the first opportunity on the day of absence.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at clause 35, Grievance/Disputes Procedure, should be
followed.
5. Delete 43.2
of clause 43, Family / Carer’s Leave, and insert in lieu thereof the following:
43.2 Unpaid Leave
For Family Purpose
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 43.1(c)II above who is ill or who requires care due to an
unexpected emergency.
6. Delete
43.3(a) of clause 43, Family / Carer’s Leave, and insert in lieu thereof the
following:
(a) An employee
may elect, with the consent of the employer to take annual leave not exceeding
ten days in single-day periods, or part thereof, in any calendar year at a time
or times agreed by the parties.
7. Insert the following
new item 43.3(d) into clause 43, Family / Carer’s Leave, as follows:
(d) An employee
may elect with the employers agreement to take annual leave at any time within
a period of 24 months from the date at which it falls due.
8. Insert the
following new item 43.5 into clause 43, Family / Carer’s Leave, as follows:
43.5 Personal Carers Entitlement for casual employees -
(1) Subject to the
evidentiary and notice requirements in 43.1(b) and 43.1(d) 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 subclause 43.1(c)II of this clause who are sick
and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(2) 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.
(3) 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.
9. Delete clause
42, Parental Leave, and insert in lieu thereof the following:
42. Parental Leave
(1) Refer to the Industrial
Relations Act 1996 (NSW). The
following provisions shall also apply in addition to those set out in the
Industrial Relations Act 1996 (NSW).
(2) An employer
must not fail to re-engage a regular casual employee (see section 53(2) of the
Act) because:
(a) the employee
or employee's spouse is pregnant; or
(b) the employee
is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to
request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) to return
from a period of parental leave on a part-time basis until the child reaches
school age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee's circumstances and,
provided the request is genuinely based on the employee's parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer's business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
(c) Employee's
request and the employer's decision to be in writing
The employee's request and the employer's decision made
under 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than seven
weeks prior to the date upon which the employee is due to return to work from
parental leave.
(4) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(i) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(ii) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee's decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return to work on a part-time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer's capacity to comply with paragraph (a).
10. This order
shall take effect on and from 19 December 2005.
NOTE: This variation
is made pursuant to section 50 of the Industrial Relations Act 1996, to
give effect to the orders made by the Industrial Relations Commission of New
South Wales (Full Commission: Wright J,
President, Sams DP, Staff J and Ritchie C) on 19 December 2005, published 27 January 2006 (353 I.G. 731).
G. M. GRIMSON Industrial Registrar.
____________________
Printed by the authority of the Industrial Registrar.