Community Colleges Tutors (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 540 of 2007)

 

 

AWARD

 

Part A

 

1.  Arrangement

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Definitions

3.         Classifications and Rates of Pay

4.         Hours of Work

5.         Overtime

6.         Annual Leave and Loading

7.         Dispute Resolution

8.         Sick Leave

9.         Parental Leave

10.       Bereavement Leave

11.       Personal/Carer’s Leave

12.       Long Service Leave

13.       Public Holidays

14.       Statement of Service

15.       Training and Development

16.       Jury Duty

17.       Superannuation

18.       Redundancy

19.       Anti-Discrimination

20.       No Detriment

21.       Leave Reserved

22.       Secure Employment Test Case

23.       Area, Incidence and Duration

 

PART B

 

Table 1A - Salary Rates - Casual/Sessional Tutors

Table 1B - Salary Rates - Full-time Tutors

Table 2 - Other Rates and Allowances

 

2.  Definitions

 

2.1        "ACE Provider" means an organisation receiving funds from the Board of Adult and Community Education (or its successor) under the Multi-Adult and Community Education (ACE) Providers Program - Section 2: General and non-Accredited ACE (or its successor).

 

2.2        "Council" means a constitutionally appointed management council or committee of an ACE Provider.

 

2.3        "Tutor" means any person engaged to deliver and/or assess an Adult Community Education (ACE) program directly to participants.

 

2.4        "AMEP Tutor" is a tutor who is employed to teach the Adult Migrant English Program who has:

 

A recognised undergraduate degree or diploma is a formal qualification awarded by and Australian university or tertiary institution, or its overseas equivalent.  It may be a:

 

Bachelor Degree

 

Advanced Diploma

 

Diploma

 

Provided that it is at least three years full time in length, or its part time equivalent.

 

A recognised postgraduate TESOL qualification must result from a course of study having at least the following characteristics:

 

(a)        content focus on English language, language learning and TESOL methodology;

 

(b)        practical component including at least sixty (60) hours of supervised and assessed practice teaching in TESOL; and

 

(c)        no less than one hundred (100) hours in total devoted to (a) above, or the equivalent in distance education programs.

 

Courses in this category are usually at Master, Graduate Certificate or Graduate Diploma level and have an undergraduate degree or equivalent as a normal entrance criterion;

 

2.5        "Full-time Tutor" means any tutor other than a casual or part-time tutor.

 

2.6        "Part-Time Tutor" means a tutor other than a casual tutor who is engaged to work regularly, but has a lesser tutoring load than a full-time tutor.

 

2.7        "Casual Tutor" means a tutor who is engaged by the hour or the day, as required.

 

2.8        "Sessional Tutor" means a tutor engaged to deliver a specific ACE program that has a set start and completion date, set hours of work and no guarantee of ongoing work.  Engagement of a sessional tutor by an ACE Provider shall be subject to sufficient enrolments in the particular ACE program.

 

2.9        "400 hours" at Step 2 of ACE Tutor Level 1, 2 and/or 3 means experience of 400 hours of face to face tutoring gained in the appropriate level in an organisation providing specifically for adult learning.

 

2.10      "800 hours" at Step 3 of ACE Tutor Level 1, 2 and/or 3 means experience of 800 hours of face to face tutoring gained in the appropriate level in an organisation providing specifically for adult learning.

 

2.11      "1600 hours" at Step 4 of AMEP Tutor means experience of 1600 hours of face to face tutoring gained in the appropriate level in an organisation providing specifically the Adult Migrant English Programs

 

2.12      "Unions" mean the New South Wales Independent Education Union and the New South Wales Teachers Federation.

 

2.13      "Industrial Relations Commission" means the Industrial Relations Commission of New South Wales established under the Industrial Relations Act 1996 (NSW).

 

3.  Classifications and Rates of Pay

 

3.1        Definitions

 

There shall be four levels of tutor as follows:

 

3.1.1     "ACE Tutor Level 1" is a tutor with appropriate subject knowledge and skills as determined by the ACE Provider.

 

3.1.2     "ACE Tutor Level 2" is a tutor with appropriate subject knowledge and skills as determined by the ACE Provider and who has the minimum qualification of Workplace Trainer Category 1 or its equivalent.

 

3.1.3     "ACE Tutor Level 3" is either:

 

(a)        a Vocational Education and Training (VET) tutor who has the qualifications required by the accredited curriculum or training package and who delivers and/or assesses nationally recognised competency based training which may result in a qualification or Statement of Attainment under the Australian Recognition Framework (ARF); or

 

(b)       an English Language, Literacy and Numeracy tutor who has an appropriate degree, teaching qualification and experience required by the accredited curriculum or training package deemed necessary by the program funding authority.

 

3.1.4     An AMEP Tutor is a tutor as defined by clause 2.4.

 

3.2        Rates of Pay

 

3.2.1     Full-time Tutors

 

A full-time tutor shall be paid the appropriate rate of pay as set out in Table 1B - Rates of Pay of Part B, Monetary Rates.

 

3.2.2     Part-Time Tutors

 

A part-time tutor shall be entitled to the same conditions as a full-time tutor and shall be entitled to all conditions on a pro-rata basis.

 

3.2.3     Casual Tutors

 

A casual tutor shall be paid the appropriate rate of pay as set out in Table 1A - Rates of Pay of Part B, Monetary Rates.  This rate includes the pro rata payment in respect of annual holidays to which a tutor is entitled under the Annual Holidays Act 1944.

 

3.2.4     Sessional Tutors

 

(a)        A sessional tutor shall be paid the appropriate hourly rate of pay as set out in Table 1A - Rates of Pay of Part B, Monetary Rates.

 

(b)       The rate paid for sessional tutors duties shall be deemed to cover the duties on which sessional tutors are engaged during the hours for which they have been authorised to give actual class tuition and all duties incidental to tutoring.

 

(c)        This rate includes the pro rata payment in respect of annual holidays to which a tutor is entitled under the Annual Holidays Act 1944.

 

(d)       A sessional tutor engaged by the hour shall be paid in respect of each hour of tutoring, other than for time-tabled meal breaks, and shall be paid for a minimum of one hour for each engagement.

 

3.3        Other Matters

 

3.3.1     Non Engagement on Attendance

 

Where a sessional or casual tutor reports for duty on any day or evening on the basis of a request by an authorised officer and is then advised that her/his services are not required, the tutor shall be entitled to payment for a minimum of one hour at the appropriate rate.

 

3.3.2     Travel Expenses

 

Where a tutor is required to use his or her vehicle at the direction of an authorised officer and in connection with the tutor's employment other than for journeys between home and place of employment, the tutor shall be paid the amount determined by the Australian Taxation Office specified in item 1 of Table 2 - Other Rates and Allowances of Part B, Monetary Rates.

 

3.3.3     Expenses

 

Subject to prior approval, out of pocket expenses reasonably incurred by a tutor in the course of duties required by the ACE Provider shall be reimbursed by the ACE Provider.

 

3.3.4     Payment of Salary

 

The salary payable to any tutor pursuant to this clause shall be payable at the election of the ACE Provider by cash, cheque or electronic funds transfer to an account nominated by the tutor.

 

3.3.5     Recognition of Classification

 

A tutor who has completed a recognised relevant qualification and/or has the relevant experience, may apply for a salary review.

 

3.3.6     Attendance at Staff Meetings

 

Casual and sessional tutors who are required to attend staff meetings are entitled to be paid at the rate specified in item 2 of Table 2 - Other Rates and Allowances of Part B, Monetary Rates.  A minimum 1 hour is payable for each meeting attendance.

 

4.  Hours of Work

 

4.1        The ordinary hours of work shall be an average of 38 per week exclusive of meal breaks and shall be as determined by the ACE Provider between the hours of 7.30am and 10.00pm Monday to Sunday.  Provided that the actual face to face delivery of tutoring for a full-time tutor will ordinarily be 25 hours per week.

 

4.2        A tutor engaged to deliver five (5) hours or more of continuous tutoring on any day shall be allowed a minimum half hour meal break (exclusive of tutoring hours) to be taken at an agreed time.

 

5.  Overtime

 

Full-time and part-time tutors who work beyond the hours stated in Clause 4, shall be paid for any additional hours worked at single time or shall take time off in lieu at a time agreed between the tutor and the ACE Provider.

 

6.  Annual Leave and Loading

 

6.1        Annual Leave

 

Full and part-time tutors shall be entitled to four weeks leave each year in accordance with the Annual Holidays Act 1944 (NSW).

 

6.2        Where a full-time or part-time tutor completes one year of employment with the ACE Provider, he/she shall be entitled to an additional loading at the time of taking annual leave at the rate of 17½ per cent of the appropriate rate of pay as set out in Part B, Monetary Rates.

 

7.  Dispute Resolution Procedure

 

7.1        Procedures relating to grievances of individual tutors -

 

7.1.1     The tutor is required to notify (in writing or otherwise) the ACE Provider as to the substance of the grievance, request a meeting with the ACE Provider for bilateral discussions and state the remedy sought.

 

7.1.2     A grievance must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

7.1.3     Reasonable time limits must be allowed for discussion at each level of authority.

 

7.1.4     At the conclusion of the discussion, the ACE Provider must provide a response to the tutor’s grievance, if the matter has not been resolved including reasons for not implementing any proposed remedy.

 

7.1.5     While a procedure is being followed, normal work must continue.

 

7.2        Procedure for a dispute between the ACE Provider and the tutors -

 

7.2.1     A question, dispute or difficulty must initially be dealt with as close to its source as possible, with graduated steps for further discussion and resolution at higher levels of authority.

 

7.2.2     Reasonable time levels must be allowed for discussion at each level of authority.

 

7.2.3     While a procedure is being followed, normal work must continue.

 

7.2.4     The ACE Provider may be represented by an industrial organisation of employers and the tutors may be represented by an industrial organisation of employees for the purposes of each procedure provided that where representation is sought, twenty four (24) hour’s notice in writing shall be provided to the other party.

 

8.  Sick Leave

 

8.1        Full-time and part-time tutors shall be entitled to be paid sick leave in respect of any absence on account of illness or injury, subject to the following conditions and limitations:

 

8.1.1     In the first year of service and each subsequent year of service with the ACE Provider, the period of sick leave, subject to subclause 8.2 of this clause, shall not exceed, in any year of service, five (5) days.

 

8.1.2     A tutor shall not be entitled to sick leave for any period in respect of which such tutor is entitled to workers compensation.

 

8.1.3     A tutor shall not be entitled to be paid sick leave unless the tutor notifies the ACE Provider prior to the commencement of the first organised activity at the ACE Provider on any day, of the nature of the illness and of the estimated duration of the absence; provided that paid sick leave shall be available if the tutor took all reasonable steps to notify the ACE Provider or was unable to take such steps.

 

8.1.4     On the third day of any absence in respect of sickness in any year a tutor shall, upon request, provide a medical certificate addressed to the ACE Provider, or if the ACE Provider requires, to the ACE Provider medical officer.  Notwithstanding the foregoing, the ACE Provider may require other evidence of sickness.

 

8.1.5     Notwithstanding the provisions of paragraph 8.1.1 of this subclause, the sick leave entitlement of a part-time tutor shall be in that proportion which the tutor's number of tutoring hours in a full week bears to the number of working hours which a full-time tutor at the ACE Provider is normally required to work.

 

8.2        Sick leave shall accumulate from year to year as follows:

 

8.2.1     The maximum accumulation shall not exceed fifteen (15) days.

 

8.2.2     Sick leave which accrues to a tutor at the commencement of a year of service, pursuant to subclause 8.1 of this clause, shall be taken prior to the taking of any sick leave which the tutor has accumulated in accordance with this subclause.

 

9.  Parental Leave

 

9.1        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)

 

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

 

(a)        the tutor or tutor's spouse is pregnant; or

 

(b)        the tutor is or has been immediately absent on parental leave.

 

The rights of an employer in relation to engagement and re-engagement of casual tutors are not affected, other than in accordance with this clause.

 

9.3        Right to request

 

9.3.1     A tutor entitled to parental leave may request the employer to allow the tutor:

 

(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 tutor in reconciling work and parental responsibilities.

 

9.3.2     The employer shall consider the request having regard to the tutor’s circumstances and, provided the request is genuinely based on the tutor’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.

 

9.3.3     Tutor’s request and the employer’s decision to be in writing

 

The tutor’s request and the employer’s decision made under 9.3.1(ii) and 9.3.1(iii) must be recorded in writing.

 

9.3.4     Request to return to work part-time

 

Where a tutor wishes to make a request under 9.3.1(iii), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the tutor is due to return to work from parental leave.

 

9.4        Communication during parental leave

 

9.4.1     Where a tutor 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 tutor held before commencing parental leave; and

 

(ii)        provide an opportunity for the tutor to discuss any significant effect the change will have on the status or responsibility level of the position the tutor held before commencing parental leave.

 

9.4.2     The tutor shall take reasonable steps to inform the employer about any significant matter that will affect the tutor’s decision regarding the duration of parental leave to be taken, whether the tutor intends to return to work and whether the tutor intends to request to return to work on a part-time basis.

 

9.4.3     The tutor shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with paragraph 9.4.1.

 

10.  Bereavement Leave

 

10.1      A tutor, other than a casual/sessional tutor, shall be entitled to up to two days bereavement leave without deduction of pay, up to and including the day of the funeral, on each occasion of the death within Australia of a person prescribed in subclause 10.3 occurs, provided that, if such a person dies outside Australia, the tutor shall be entitled to leave of one day without loss of ordinary pay.

 

10.2      The tutor must notify the ACE Provider as soon as practicable of the intention to take bereavement leave and will, if required by the ACE Provider, provide to the satisfaction of the ACE Provider proof of death.

 

10.3      Bereavement leave shall be available to the tutor in respect to the death of a person prescribed for the purposes of personal/carer’s leave as set out in subclause (ii) of clause 11.1.3 of Clause 11 - Personal/Carer’s Leave, provided that, for the purpose of bereavement leave, the tutor need not have been responsible for the care of the person concerned.

 

10.4      A tutor shall not be entitled to bereavement leave under this clause during any period in respect of which the tutor has been granted other leave.

 

10.5      Bereavement leave may be taken in conjunction with other leave available under subclauses 11.2, 11.3, 11.4 and 11.5 of the said Clause 11.  In determining such a request the ACE Provider will give consideration to the circumstances of the tutor and the reasonable operational requirements of the business.

 

10.6      Bereavement entitlements for casual tutors

 

10.6.1   Subject to the evidentiary and notice requirements in 10.2 casual tutors are entitled to not be available to attend work, or to leave work upon the death in Australia of a person prescribed in subclause (ii) of Clause 11.1.3 Personal/Carer’s Leave

 

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

 

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

 

11.  Personal/Carer’s Leave

 

11.1      Use of Sick Leave

 

11.1.1   A tutor, other than a casual tutor, with responsibilities in relation to a class of person set out in paragraph (ii) of subclause 11.1.3 who needs the tutor’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 8 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.

 

11.1.2   The tutor shall, if required,

 

(a)        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

 

(b)       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 tutor.

 

In normal circumstances, a tutor must not take carer's leave under this subclause where another person had taken leave to care for the same person.

 

11.1.3   The entitlement to use sick leave in accordance with this subclause is subject to:

 

(i)         the tutor being responsible for the care and support of the person concerned: and

 

(ii)        the person concerned being:

 

(a)        a spouse of the tutor; or

 

(b)        a de facto spouse, who, in relation to a person, is a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person; or

 

(c)        a child or an adult child (including an adopted child, a step child, a foster child or an ex-nuptial), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the tutor or spouse or de facto spouse of the tutor; or

 

(d)        a same sex partner who lives with the tutor as the de facto partner of that tutor on a bona fide domestic basis; or

 

(e)        a relative of the tutor who is a member of the same household, where for the purposes of this paragraph:

 

(1)        "relative" means a person related by blood, marriage or affinity;

 

(2)        "affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

(3)        "household" means a family group living in the same domestic dwelling.

 

11.1.4   A tutor shall, wherever practicable, give the ACE Provider notice prior to the absence of the intention to take leave, the name of the person requiring care and their relationship to the tutor, the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the tutor to give prior notice of absence, the tutor shall notify the ACE Provider 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 tutor shall discuss appropriate arrangements which, as far as practicable, take account of the employer’s and tutor’s requirements.

 

Where the parties are unable to reach agreement the disputes procedure at Clause 7 should be followed.

 

11.2      Unpaid Leave for Family Purpose

 

A tutor 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 paragraph (ii) of subclause 11.1.3 above who is ill or who requires care due to an unexpected emergency.

 

11.3      Annual Leave

 

11.3.1   A tutor may elect, with the consent of the employer to take annual leave not exceeding ten days in single-day periods, or part thereof, in any calendar year at a time or times agreed by the parties.

 

11.3.2   Access to annual leave, as prescribed in paragraph 11.3.1 above, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

11.3.3   A tutor and ACE Provider may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

 

11.3.4   A tutor 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.

 

11.4      Time Off in Lieu of Payment for Overtime

 

See Clause 5, Overtime.

 

11.5      Make-up Time

 

A tutor may elect, with the consent of the ACE Provider, to work "make-up time", under which the tutor takes time off during 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.

 

11.6      Personal/Carer’s Entitlement for casual tutors

 

11.6.1   Subject to the evidentiary and notice requirements in 11.1.2 and 11.1.4 casual tutors are entitled to not be available to attend work, or to leave work if they need to care for a person prescribed in paragraph (ii) of subclause 11.1.3 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.

 

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

 

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

 

12.  Long Service Leave

 

Refer to Long Service Leave Act 1955.

 

13.  Public Holidays

 

13.1      New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Eight Hour Day, Christmas Day, Boxing Day and any other day gazetted as a public holiday for the State shall be holidays for the purposes of this award.

 

13.2      Full-time and part-time tutors shall be entitled to the above holidays without loss of pay only if scheduled to work on that day.

 

13.3      All time worked on a public holiday as specified in subclause 13.1 of this clause shall be paid for at the rate of single time with a minimum payment of 2 hours.

 

14.  Statement of Service

 

A Statement of Service will be made available on request.

 

15.  Training and Development

 

15.1      Where a full-time or part-time tutor attends an approved staff development activity which coincides with normal duties, such tutors shall be paid at their normal hourly rate of pay whilst so engaged on staff development activities.  Provided that where the activity occurs outside normal working hours, the tutor shall be entitled to time off in lieu.

 

15.2      Arrangements for staff development activities for sessional tutors will be negotiated between the ACE Provider and the tutor.

 

16.  Jury Duty

 

16.1      A full time or part time tutor required to attend for jury service during the tutor’s ordinary working hours shall be reimbursed by the ACE Provider an amount equal to the difference between the amount paid in respect of the tutor's attendance for such jury service and the amount of wages the tutor would have received in respect of the ordinary time the tutor would have worked had the tutor not been on jury service.

 

16.2      A tutor shall notify the ACE Provider as soon as possible of the date upon which the tutor is required to attend for jury service.  Further, the tutor shall give the ACE Provider proof of attendance, the duration of such attendance and the amount received in respect of such jury service.

 

17.  Superannuation

 

Superannuation Legislation - The subject of superannuation is dealt with extensively by federal legislation including the Superannuation Guarantee (Administration) Act 1992 (CTH), the Superannuation Industry (Supervision) Act 1993 (CTH), the Superannuation (Resolution of Complaints) Act 1993 (CTH), and s124 of the Industrial Relations Act 1996.  This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties.

 

18.  Redundancy

 

18.1      General

 

18.1.1   This clause shall apply in respect of full-time and part-time tutors employed in the classifications specified by this award.

 

18.1.2   This clause shall only apply to an ACE Provider who employs 15 or more employees immediately prior to the termination of employment of employees.

 

18.1.3   Notwithstanding anything contained elsewhere in this award, the provisions of this clause shall not apply to tutors with less than one year's continuous service and the general obligation on the ACE Provider shall be no more than to give such tutors 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 tutors of suitable alternative employment.

 

18.1.4   This clause 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.

 

18.2      ACE Provider’s duty to Notify and Discuss

 

18.2.1   Where an ACE Provider 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 ACE Provider shall notify the tutors who may be affected by the proposed changes and where the tutor(s) request, the union to which they belong.

 

18.2.2   The ACE Provider shall discuss with the tutors affected and where requested by the tutors, the union to which they belong, the introduction of such changes and the likely effect on the tutors and the measures taken to avert or mitigate the adverse effects of such changes.

 

18.2.3   "Significant effects" include termination of employment, major changes in the composition, operation or size of the ACE Provider's 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 tutors to other work or locations and the restructuring of jobs.

 

18.3      Discussions before terminations

 

18.3.1   Where an ACE Provider has made a definite decision that the ACE Provider no longer wishes the job the tutor has been doing done by anyone and that decision may lead to the termination of employment, the ACE Provider shall hold discussions with the tutors directly affected and where the tutor(s) requests, with the union to which they belong.

 

18.3.2   The discussions shall take place as soon as is practicable after the ACE Provider has made a definite decision which will invoke the provision of subclause 18.3.1 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 tutors concerned.

 

18.3.3   For the purposes of the discussion the ACE Provider shall, as soon as practicable, provide to the tutors concerned and where the tutor(s) requests, 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 tutors likely to be affected, and the number of tutors normally employed and the period over which the terminations are likely to be carried out.  Provided that any ACE Provider shall not be required to disclose confidential information the disclosure of which would adversely affect the ACE Provider.

 

18.4      Notice for Changes in Production, Program, Organisation or Structure

 

18.4.1   This subclause sets out the notice provisions to be applied to terminations by the ACE Provider for reasons arising from "production", "program", "organisation" or "structure" in accordance with clause 18.2 of this clause.

 

(a)        In order to terminate the employment of a tutor, the ACE Provider shall give to the tutor the following notice:

 

 

(b)       In addition to the notice above, tutors 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.

 

(c)        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.

 

18.4.2   Notice for Technological Change

 

This paragraph sets out the notice provisions to be applied to terminations by the ACE Provider for reasons arising from "technology" in accordance with clause 18.2 of this clause.

 

(a)        In order to terminate the employment of a tutor the ACE Provider shall give to the tutor three months notice of termination.

 

(b)       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.

 

(c)        The period of notice required by this subclause to be given shall be deemed to be service with the ACE Provider 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.

 

18.4.3   Time off during the notice period

 

(a)        During the period of notice of termination given by the ACE Provider a tutor 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.

 

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

 

18.4.4   Tutor leaving during the notice period

 

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

 

18.4.5   Statement of employment

 

The ACE Provider shall, upon receipt of a request from a tutor whose employment has been terminated, provide to the tutor a written statement specifying the period of the tutor's employment and the classification of or the type of work performed by the tutor.

 

18.4.6   Notice to Centrelink

 

Where a decision has been made to terminate tutors, the ACE Provider shall notify Centrelink as soon as possible giving relevant information including the number and categories of the tutors likely to be affected and the period over which the terminations are intended to be carried out.

 

18.4.7   Department of Social Security Employment Separation Certificate

 

The ACE Provider shall, upon receipt of a request from a tutor whose employment has been terminated, provide to the tutor an "Employment Separation Certificate" in the form required by the Department of Social Security.

 

18.4.8   Transfer to lower paid duties

 

Where a tutor is transferred to lower paid duties for reasons set out in clause 18.2 of this clause, the tutor shall be entitled to the same period of notice of transfer as the tutor would have been entitled to if the tutor's employment had been terminated, and the ACE Provider may at the ACE Provider'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.

 

18.5      Severance Pay

 

18.5.1   Where a tutor is to be terminated pursuant to clause 18.4 of this clause, subject to further order of the Industrial Relations Commission of New South Wales, the ACE Provider shall pay the following severance pay in respect of a continuous period of service:

 

(a)        If a tutor is under 45 years of age, the ACE Provider shall pay in accordance with the following scale:

 

 

(b)       Where a tutor is 45 years old or over, the entitlement shall be in accordance with the following scale:

 

 

(c)        "Weeks Pay" means the all purpose rate of pay for the tutor concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over award payments and allowances provided for in this award.

 

18.5.2   Incapacity to Pay

 

Subject to an application by the ACE Provider and further order of the Industrial Relations Commission, an ACE Provider may pay a lesser amount (or no amount) of severance pay than that contained in subclause 18.5.1.

 

The Commission shall have regard to such financial and other resources of the ACE Provider concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in subclause 18.5.1 above will have on the ACE Provider.

 

18.5.3   Alternative Employment

 

Subject to an application by the ACE Provider and further order of the Industrial Relations Commission, an ACE Provider may pay a lesser amount (or no amount) of severance pay than that contained in subclause 18.5.1 if the ACE Provider obtains acceptable alternative employment for a tutor.

 

19.  Anti-Discrimination

 

19.1      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 a carer.

 

19.2      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.

 

19.3      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.

 

19.4      Nothing in this clause is to be taken to affect:

 

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

 

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

 

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

 

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

 

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

 

NOTES

 

(a)        Employers and employees may also be subject to Commonwealth anti-discrimination legislation.

 

(b)        Section 56(d) of the Anti-Discrimination Act 1977 provides:

 

"Nothing in the Act affects ... any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion."

 

20.  No Detriment

 

In making this award there will be no overall detriment in salary and conditions to any person currently employed by an ACE Provider.

 

21.  Leave Reserved

 

(a)        The unions reserve the right to make application to vary the award in respect of accrued entitlements to apply to casual and sessional tutors working on consecutive appointments.

 

22.  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:

 

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

 

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

 

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

 

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:

 

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

 

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

 

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):

 

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

 

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

 

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

 

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

 

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.

 

23.  Area, Incidence and Duration

 

This award shall apply to tutors (as defined) employed by ACE Providers in NSW (as defined) and shall apply to ACE providers, in NSW and shall rescind and replace the Community Colleges Tutors (State) Award published 18 June 2004 (344 IG 955).

 

This award shall take effect from the beginning of the first pay period to commence on 11 May 2007 and shall remain in force until 31 December 2009.

 

PART B

 

MONETARY RATES

 

Table 1A - Rates of Pay for Casual/Sessional Tutors

 

 

Table 1B - Rates of Pay for Full Time Tutors

 

 

Table 2 - Other Rates and Allowances

 

 

 

 

R. W. HARRISON D.P.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.