Private Pathology Laboratories (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Liquor, Hospitality and Miscellaneous Union, New South Wales Branch, Industrial Organisation of Employees.

 

(Nos. IRC 743 and 1909 of 2007)

 

 

REVIEWED AWARD

 

PART A

 

1.  Arrangement

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Anti Discrimination

3.         Definitions

4.         Wages

5.         No Extra Claims

6.         Enterprise Consultation

7.         Contract of Employment

8.         Redundancy

9.         Hours

10.       Saturday and Sunday Work

11.       Overtime and Time Off in Lieu of Overtime

12.       Holidays

13.       Annual Leave

14.       Annual Leave Loading

15.       Long Service Leave

16.       Sick Leave

17.       Personal/Carer's Leave

18.       Bereavement Leave

18A.    Parental Leave

19.       Jury Service

20.       Part-time Employees

21.       Casual Employees

22.       On-call Allowance

23.       Travelling Time and Expenses

24.       Locomotion Allowance

25.       First-aid Allowance

26.       Payment of Wages

27.       Union Dues

28.       Secure Employment

29.       Superannuation

30.       Grievance and Industrial Disputes Procedure

31.       Exemptions

32.       Enterprise Arrangements

33.       Savings Clause

34.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Wages

Table 2 - Allowances

 

Schedule A

Schedule B

 

2.  Anti Discrimination

 

(i)         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.

 

(ii)        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.

 

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

 

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

 

(a)        any conduct or act which is specifically 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.

 

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

 

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."

 

3.  Definitions

 

(i)         "Union" means the Liquor Hospitality and Miscellaneous Union, New South Wales Branch.

 

(ii)        "Full-time Employee" means an employee engaged and paid by the week or fortnight or four weeks or month, as the case may be, who is rostered to work the ordinary hours prescribed by subclause (i) of clause 9, Hours.

 

(iii)       "Part-time Employee" means an employee engaged and paid as such by the week or fortnight who is required to work not less than 3 hours per week and not more than an average of 38 ordinary hours per week.

 

(iv)       "Casual Employee" means an employee engaged and paid as such but shall not include an employee working an average of thirty-eight ordinary hours or more per week, subject to the provisions of clause 21, Casual Employees.

 

(v)        "Pathology Aide - Laboratory" means a person employed as such who is engaged in any or all of the following duties: preparation, separation and processing of specimens, washing glassware, filing, media making, solution preparation, sorting, dispatch, delivery and collection of mail and specimens, distribution of specimens, general laboratory work, VDU terminal work and packing and dispatching collection materials and equipment; or who is engaged in other duties of a similar nature, as directed, and shall be classified as one of the following grades by the employer:

 

Grade 3 - On commencement.

 

Grade 2 - After satisfactorily completing twelve months full-time or equivalent service at Grade 3.

 

Grade 1 - Is appointed as a senior employee who works independently and solves problems as a regular and substantial part of the employee’s duties.

 

(vi)       "Pathology Aide - Ancillary" means a person employed as such engaged in work not otherwise classified herein, including work in or in connection with cleaning, gardening, maintenance of premises or machinery or equipment, motor vehicle maintenance or repair, stores and warehouse work, and shall be classified as one of the following grades by the employer:

 

Grade 3 - On commencement.

 

Grade 2 - After satisfactorily completing twelve months full-time or equivalent service at Grade 3.

 

Grade 1 - Is appointed to a position as a senior employee who works independently and solves problems as a regular and substantial part of the employee’s duties.

 

(vii)      "Pathology Aide - Courier" means a person employed as such who holds a current driver's licence and who is engaged principally in courier duties and performs other duties as directed.

 

(viii)     "Pathology Collector" means a person employed as such engaged in collecting pathology specimens and performing procedures in accordance with practice instructions; the care, storage and processing of all such pathology specimens; the timely dispatch of pathology specimens to the laboratory; the accurate recording of information relating to patients and specimens in accordance with practice instructions; operating VDUs; attending to the well-being of patients; liaising with referrers/referees; receiving payments of accounts, and shall be classified as one of the following grades by the employer:

 

Grade 4 - Is in training and receiving detailed instructions on the work to be performed  and is acquiring skills in all aspects of specimen collection, containerisation, labelling, transporting and storage; patient identification and well-being; related clerical work, and/or requires supervision on the work to be performed.  A Grade 4 collector will remain on this classification for a period of three months whilst training is undertaken.  A person employed with previous experience in pathology specimen collection will be reviewed after a period of four weeks as a Pathology Collector Grade 4 for possible appointment to Pathology Collector Grade 3.

 

Grade 3 - Is proficient in all aspects of routine pathology collection required by the practice and is capable of working in any of the practice's centres.

 

Grade 2 - Is appointed to carry out more complex procedures and tasks than Grade 3.

 

Grade 1 - Is appointed to a position as an Educator or as a Co-ordinator of a number of collection centres, usually with five or more years suitable experience as a pathology collector, and in doing so is capable of relieving the area supervisor in all aspects of the supervisor's work.

 

(ix)       "Practice Trainee" - Means a Trainee Scientific Officer or Trainee Technical Officer employed as such who undertakes an appropriate course of study required by the employer as part of the employee’s employment. Progress through the stages and payment at the next stage shall be based on satisfactory academic and work performance.  The top of the wage rate scale for a Practice Trainee Technical Officer shall be at Stage 4 of the appropriate wage rate scale as set out in Table 1 - Wages, of Part B, Monetary Rates.

 

(x)        "Technical Officer" - Means a person employed as such who holds the Pathology Technician's Certificate, an Associate Diploma of Medical Technology, or other qualification acceptable to the employer, and shall be classified as one of the following grades by the employer:

 

Grade 4 - Means a qualified Technical Officer who has not previously worked in providing  pathology services either as a Practice Trainee or otherwise for a period of at least two years.  A Grade 4 employee shall be paid on commencement at Grade 4.2 and after twelve months satisfactory full-time or equivalent service shall be paid at Grade 4.1. After twelve months satisfactory full-time or equivalent service at Grade 4.1 the employee shall progress to Grade 3.3.

 

Grade 3 - Means a qualified Technical Officer who is capable of working competently in the various pathology laboratory departments where the employee may be required by the employer to rotate or to hold a particular position and who is competent to perform testing on  the routine instrumentation of those departments to which the employee is assigned without direct supervision. A Grade 3 employee shall be paid on commencement at Grade 3.3 and after twelve months satisfactory full-time or equivalent service shall be paid at Grade 3.2 and after a further twelve months satisfactory full-time or equivalent service and thereafter shall be paid at Grade 3.1.

 

Grade 2 - Means a qualified Technical Officer employed as such who has usually satisfactorily completed a minimum of four years full-time or equivalent service as a Technical Officer Grade 3, is competent in routine laboratory skills and is responsible for the competent management, maintenance and quality assurance of instrumentation and who may be required to supervise the work of  other  laboratory personnel in their daily routine.  A Grade 2 employee shall be paid at Grade 2.2 on commencement and after two years satisfactory full-time or equivalent service shall be paid at Grade 2.1.

 

Grade 1 - Means a qualified Technical Officer appointed as such who has satisfactorily completed a minimum of three years full-time or equivalent service as a Technical Officer Grade 2 and shall be paid at Grade 1.2 on commencement. After three years satisfactory full-time or equivalent service an employee shall be eligible to be paid at Grade 1.1 on performance.

 

(xi)       "Scientific Officer" Means a person employed as such who possesses one of the following qualifications:

 

(a)        a degree in science, applied science or medical technology awarded after not less than 3 years full-time study or an equivalent period of part-time study, in subjects relevant to the field of pathology at a university or other tertiary institution in Australia; or

 

(b)        an associate qualification conferred by the Australian Institute of Medical Technologists prior to 1 January 1974; or

 

(c)        a qualification which the employer is satisfied is equivalent to a qualification in paragraphs (a) or (b), and which will enable the person to assist in the rendering of pathology services in the private pathology laboratory within which the person is employed.

 

Provided that all Scientific Officers as defined shall be classified by the employer as one of the following grades:

 

Grade 4 - Means a qualified Scientific Officer as defined in paragraphs (a), (b) or (c) of this subclause who has not  previously worked in the provision of pathology services for an employer either as a Practice Trainee or otherwise for a period of at least  two  years.  A Grade 4 employee shall be paid on commencement at Grade 4.2 and after twelve months satisfactory full-time or equivalent service shall be paid at Grade 4.1.  After twelve months satisfactory full-time or equivalent service at Grade 4.1 the employee shall be paid at Grade 3.3.

 

Grade 3 - Means a qualified Scientific Officer who is capable of working competently in scientific work of a professional nature in the various pathology laboratory departments, where the employee  may be required by the employer to rotate or to hold a particular position and is competent to manage the work to which the employee is assigned, or as supervised by a Scientific Officer Grade 2 or Grade 1. A Grade 3 employee shall be paid on commencement at Grade 3.3; after  twelve months satisfactory full-time or equivalent  service shall be paid at 3.2, and after a further twelve months satisfactory full-time or equivalent service and thereafter shall be paid at Grade 3.1.

 

Grade 2 - Means a qualified Scientific Officer appointed as such who has usually satisfactorily completed a minimum of four years full-time or equivalent service as a Scientific Officer Grade 3 and who may  be required to supervise the work of other laboratory personnel.  A Grade 2 employee shall be paid at Grade 2.2 on appointment and after two years satisfactory full-time or equivalent service shall be paid at Grade 2.1.

 

Grade 1 - Means a qualified Scientific Officer appointed as such who has satisfactorily completed a minimum of  three years full-time or equivalent service as a Scientific Officer Grade 2 and shall be paid at Grade 1.2 on appointment.  After three years satisfactory full-time or equivalent service at Grade 1.2 an employee shall be eligible to be paid Grade 1.1 on performance.

 

4.  Wages

 

(i)         The minimum rates of pay for weekly employees in the classifications prescribed by this award shall be as set out in Table 1 Wages, of Part B, Monetary Rates, and the rates for allowances shall be as set out in Table 2 Allowances, of the said Part B.

 

(ii)        Junior Pathology Aides - Laboratory

 

The minimum rates of pay for Junior Pathology Aides Laboratory shall be as set out in the following table:

 

Appropriate Classification	Base Grade Rate Percentage
At 16 years of age and under	75
At 17 years of age	80
At 18 years of age	85
At 19 years of age	90
At 20 years of age	95

 

(iii)       The rates of pay in this award include the adjustments payable under the State Wage Case 2007.  These adjustments may be offset against:

 

(a)        any equivalent overaward payments; and/or

 

(b)        award wage increases since 29 May 1991, other than safety net, State Wage Case, and minimum rates adjustments.

 

5.  No Extra Claims

 

It is a term of this award (arising from the decision of the Industrial Commission in Court Session in the State Wage Case of 29 May 1991) that the Union undertakes, for the duration of the principles determined by that decision, not to pursue any extra claims, award or overaward, except when consistent with those principles.

 

6.  Enterprise Consultation

 

Enterprises covered by this award shall establish a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters affecting their efficiency and productivity.

 

7.  Contract of Employment

 

(i)         Employees under this award shall be engaged as full-time employees or part-time employees or casual employees.

 

(ii)        The rostered times of ordinary hours of work, once notified, shall not be changed, except by a week's notice or with the consent of the employee to an earlier change.  Where the employer requests the change without the employee's consent to the change, the employee shall be paid at overtime rates for the hours worked outside the previously rostered times for the period of the notice.

 

(iii)       The employment of an employee other than a casual shall be terminated only by one week's or one fortnight's notice on either side or by the payment by the employer or forfeiture by the employee of one week's or one fortnight's wages in lieu of notice.

 

(iv)       Notwithstanding the foregoing provisions, the employer may dismiss the employee at any time for misconduct or wilful disobedience and then shall be liable for payment up to the time of dismissal only.

 

(v)        On the termination of employment the employer shall, at the request of the employee, give such employee a statement signed by the employer stating the period of employment and when the employment terminated.

 

(vi)       Employment of full-time and part-time employees during the first three calendar months of employment shall be probationary and either party may terminate the employment during this period by one day's notice.

 

(vii)      Study Time - Practice Trainees shall be granted such time off as necessary for the purposes of attending employer approved courses of study relevant to their employment, including examination times, without reduction of the weekly rate of pay prescribed in Table 1 - Wages, of Part B, Monetary Rates.  Such study time shall include a day off for each examination.

 

(viii)     Employees shall be paid for attendances at such conferences, seminars or workshops that occur during ordinary working time where such attendances are authorised by the employer and where the subject matter of such conferences, seminars or workshops is directly related to the employee's employment.

 

(ix)       Employees classified under this award as defined in subclauses (v) to (xi) inclusive of Clause 3, Definitions, shall be advised in writing by the employer of their classification and grading on commencement of employment and upon each reclassification or promotion by the employer.

 

(x)        Practice Trainees shall progress through the wage scale stages set out in  the said Table 1 upon satisfactorily completing each stage (year) of their course and performing their work satisfactorily and shall, upon attaining their tertiary qualifications, commence on the base rate of the appropriate scale for qualified Scientific Officer or Technical Officer as set out in the said Table 1.  An employer may pay in excess of the prescribed rates for trainees and qualified officers where it is deemed appropriate to do so.

 

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

 

8.  Redundancy

 

(i)         Application -

 

(a)        This clause shall apply in respect of full-time and part-time employees.

 

(b)        This clause shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees.

 

(c)        Notwithstanding anything elsewhere contained in this clause, this clause shall not apply for 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.

 

(d)        Notwithstanding anything elsewhere contained in this clause, this clause shall not apply where an employee 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.

 

(ii)        Introduction of Change -

 

(a)        Employers duty to notify -

 

(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)        "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.

 

Provided that where this award makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

 

(b)        Employer's duty to discuss change -

 

(1)        The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in paragraph (a) Employer's Duty to Notify, of this clause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

 

(2)        The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause (ii) of paragraph (a) Employer's duty to notify.

 

(3)        For the purpose of such discussion, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(iii)       Redundancy -

 

(a)        Discussions before terminations:

 

(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 pursuant to paragraph (a) Employer's Duty to Notify 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.

 

(2)        The discussions shall take place as soon as practicable after the employer has made a definite decision which will invoke the provision of paragraph (a) Employer's Duty to Notify 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)        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 workers 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.

 

(iv)       Termination of Employment -

 

(a)        Notice for Changes in Production, Program, Organisation or Structure - This paragraph 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 paragraph (a) of subclause (ii) , Introduction of Change.

 

(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

 

(2)        In addition to the notice referred to in sub paragraph (1) of this paragraph, 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.

 

(3)        Payment in lieu of the notice referred to 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.

 

(b)        Notice of 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 paragraph (ii)(a) of this clause:

 

(1)        In order to terminate the employment of an employee the employer shall give to the employee three months' notice of termination.

 

(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.

 

(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.

 

(c)        Time off during the notice period -

 

(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.

 

(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.

 

(d)        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 clause 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.

 

(e)        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.

 

(f)         Notice to Centrelink

 

Where a decision has been made to terminate employees, the employer shall notify Centrelink 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.

 

(g)        Centrelink 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.

 

(h)        Transfer to lower paid duties

 

Where an employee is transferred to lower paid duties for reasons set out in paragraph (a) of subclause (ii), Introduction of Change, 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 rates for the number of weeks of notice still owing.

 

(v)        Severance Pay -

 

(a)        Where an employee is to be terminated pursuant to subclause (iv), Termination of Employment; 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

 

(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

 

(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

 

(3)        "Week's 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 paid in accordance with this award.

 

(b)        Incapacity to Pay - Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained paragraph (a) of this subclause.

 

The Industrial Relations Commission of New South Wales shall have regard to such financial and other resources of the employer concerned as the Industrial Relations Commission of New South Wales thinks relevant, and the probable effect paying the amount of severance pay in paragraph (a) of this subclause will have on the employer.

 

(c)        Alternative Employment - Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (a) of this subclause if the employer obtains acceptable alternative employment for an employee.

 

(vi)       Savings Provision

 

Nothing in this award shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions which an employee may be entitled to under any existing redundancy arrangement, taken as a whole, between the union and any employer bound by this award.

 

9.  Hours

 

(i)         The ordinary working hours, exclusive of meal times, shall not exceed an average of 38 per week. Consultation shall occur on the method of implementation of the working week. However, the final choice as to the method of implementation shall rest with the employer. Circumstances may arise where different methods of implementation of the 38 hour week apply to various groups or sections of employees in the establishment.

 

(ii)        Where ordinary hours are worked:

 

(a)        between 7.00 a.m. and 9.00 p.m., Monday to Friday inclusive, no loading is payable;

 

(b)        between 9.00 p.m. and 7.00 a.m., Monday to Friday inclusive, a loading of 15 per cent is payable.

 

(iii)       A meal break of not less than 30 minutes and not more than one hour shall be allowed for a meal. An employee shall not be required to work for more than five hours without a meal break.  Provided that, in emergency circumstances, the meal break may be deferred but must be taken as soon as practicable.

 

(iv)       Up to two paid tea breaks shall be allowed each day or shift for full-time employees; provided that, the taking of such break(s) shall be subject to the workload of the practice.

 

10.  Saturday and Sunday Work

 

(i)         Employees required to work their ordinary hours on a Saturday shall be paid for all time so worked at time and one-quarter.

 

(ii)        Overtime provisions prescribed by clause 11, Overtime and Time Off in Lieu of Overtime, shall apply to employees required to work on a Saturday not part of their ordinary hours.

 

(iii)       Employees required to work their ordinary hours on a Sunday shall be paid for all time so worked at time and one-half.

 

(iv)       Employees required to work on a Sunday not part of their ordinary hours shall be paid for all time so worked at double time.

 

11.  Overtime and Time Off in Lieu of Overtime

 

(i)         Overtime -

 

(a)        For all work done by an employee, other than a casual employee, outside ordinary hours or the employee's rostered number of ordinary hours for the day, the rates of pay shall be time and one half for the first two hours and double time thereafter. In calculating overtime each day's work shall stand alone. The hourly rate for overtime shall be calculated by dividing the weekly rate by 38.

 

(b)        For all work done by a casual employee in excess of the employee's ordinary hours on a day the rate of pay shall be time and one half for the first two hours and double time thereafter. Overtime shall be calculated on a daily basis.

 

(c)        Meal Allowance -  An employee required to work overtime, after working ordinary hours, in excess of two hours without being notified the day before or earlier, or where the employee does not live in the vicinity of the laboratory and customarily returns home for meals, shall be paid a meal allowance as set out in Item 1 of Table 2 - Allowances, of Part B, Monetary Rates, for each meal.  A further meal allowance shall be paid on the completion of each additional four hours' overtime worked.

 

(ii)        Time Off in Lieu Of Overtime

 

Where an employee has performed duty on overtime, the employee may be released from duty for a period not exceeding the period of overtime actually worked, subject to the conditions herein:

 

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

 

(b)        An employee may not accumulate more than 20 hours to be taken as leave in lieu of overtime payment and it shall be taken within four weeks of the accrual. The amount of leave not taken can be extended by mutual agreement between the employer and the employee.

 

(iii)       Subject to subclause (i), an employer may require an employee to work reasonable overtime at overtime rates or as otherwise provided for in this award.

 

(a)        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.

 

(b)        For the purposes of subclause (i) what is unreasonable or otherwise will be determined having regard to:

 

(i)         any risk to employee health and 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 the employee's intention to refuse it; and

 

(v)       any other relevant matter.

 

12.  Holidays

 

(i)         The days on which the following holidays are observed shall be holidays under this award, namely: New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day and Boxing Day and any day which may hereafter be proclaimed a public holiday throughout the State or any locally proclaimed and observed holiday or another day in lieu thereof.

 

(ii)        Except as hereinafter provided -

 

(a)        employees other than casuals shall be entitled to a holiday (as specified in subclauses (i) and (iii) of this clause) without loss of pay;

 

(b)        employees shall be paid at the rate of double time and one-half with a minimum payment of three hours at such rate for all time worked on the above holidays.

 

(iii)       Notwithstanding any other provision of this clause, where an employee requests and the employer agrees, any or all of the holidays of Good Friday, Easter Saturday, Easter Monday and Christmas Day may be substituted to take into account day(s) of religious significance to the employee.

 

13.  Annual Leave

 

See Annual Holidays Act 1944.

 

14.  Annual Leave Loading

 

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

 

(ii)        On each anniversary of the employee's commencement of employment with the employer, or when leave is due and taken the employer shall pay the employee a loading determined in accordance with this clause.

 

(iii)       The loading is the amount payable 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 the employee’s annual holiday, but shall not include any allowances, penalty rates, shift allowances, overtime or any other payments prescribed by this award. The loading is payable in addition to the pay for the period of holiday given and taken and due to the employee under the Act and this award.

 

(iv)       This clause extends to an employee who is given and takes an annual holiday and who would have worked as a shift worker if the employee had not been on holiday; provided that, if the amount to which that employee would have been entitled by way of shift work allowances and weekend penalty rates for the ordinary time (not including time on a public or special holiday) which the employee would have worked during the period of the holiday exceeds the loading calculated in accordance with this clause, then that amount shall be paid to the employee in lieu of the loading.

 

(v)        No loading is payable to an employee who takes an annual holiday wholly or partly in advance; provided that, if the employment of such an 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.

 

15.  Long Service Leave

 

See Long Service Leave Act 1955.

 

16.  Sick Leave

 

(i)         An employee who, after not less than three months' continuous service with the employer, is unable to attend for duty during the employee's 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:

 

(a)        The employee shall not be entitled to paid leave of absence for any period in respect of which the employee is entitled to payment under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998.

 

(b)        The employee shall, as soon as reasonably practicable and prior to the commencement of such absence, inform the employer of the employee's inability to attend for duty and, as far as possible, state the nature of the injury or illness and the estimated duration of the absence.

 

(c)        The employee shall furnish to the employer such evidence as the employer may require 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; provided that a statutory declaration shall be accepted in respect of any single-day absences, but not more than five such absences in any one year.

 

(d)        Subject to the provisions of paragraph (c) of this subclause, an employee who takes sick leave during the first three months of employment shall be paid for such leave at the conclusion of the said three months.

 

(e)        Subject to the provisions of this clause, the employee shall be entitled to eight days' sick leave for each year of employment.

 

(ii)        Cumulative Sick Leave: The rights under this clause shall accumulate from year to year so that any part of an entitlement which has not been allowed in any year may be claimed by the employee and shall be owed by the employer in any subsequent year of employment.

 

(iii)       Definition of Continuous Service:

 

For the purpose of this clause, continuous service shall be deemed not to have been broken by -

 

(a)        any absence from work on leave granted by the employer; or

 

(b)        any absence from work by reason of personal illness, injury or other reasonable cause (proof whereof shall in each case be upon the employee); provided that time so lost shall not be taken into account in computing the qualifying period of three months.

 

17.  Personal/Carer's Leave

 

(i)         Use of Sick Leave

 

(a)        An employee, other than a casual employee, with responsibilities in relation to a class of person set out in 17(i)(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 16, Sick Leave of the award, for absences to provide care and support for such persons when they are ill, or who will require care due to an unexpected emergency.  Such leave may be taken for part of a single day.

 

(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 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 spouse of the employee; 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 child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

 

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

 

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

 

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.

 

(d)        An employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that person's relationship to the employee, the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

 

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 30, Grievance and Industrial Disputes Procedure, should be followed.

 

(ii)        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 member of a class of person set out in 17(i)(c)(ii) above who is ill or who requires care due to an unexpected emergency.

 

(iii)       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 the annual leave loading in respect of single day absences or part thereof, until at least five consecutive annual leave days are taken.

 

(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.

 

(iv)       Time Off in Lieu of Payment for Overtime

 

(a)        For the purpose only of providing care and support for a person in accordance with subclause (i) of this clause, and despite the provisions of clause 11, Overtime and Time Off in Lieu of Overtime the following provisions shall apply.

 

(b)        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 12 months of the said election.

 

(c)        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.

 

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

 

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

 

(v)        Make-up Time

 

(a)        An employee may elect, with the consent of the 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.

 

(b)        An employee on shift work may elect, with the consent of the employer, to work "make-up time" (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate which would have been applicable to the hours taken off.

 

(vi)       Rostered Days Off

 

(a)        An employee may elect, with the consent of the employer, to take a rostered day off at any time.

 

(b)        An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

 

(c)        An employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.

 

(d)        This subclause is subject to the employer informing each union which is both party to the award and which has members employed at the particular enterprise of its intention to introduce an enterprise system of RDO flexibility, and providing a reasonable opportunity for the union(s) to participate in negotiations.

 

(vii)      Personal Carers Entitlement for casual employees -

 

(1)        Subject to the evidentiary and notice requirements in 17(i)(b) and 17(i)(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 17(i)(c)(ii) of this clause who are sick and require care and support, or who require care due to an unexpected emergency, or at 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.

 

18.  Bereavement Leave

 

(i)         An employee other than a casual employee shall be entitled to up to two days bereavement leave without deduction of pay on each occasion of the death of a person prescribed in (iii) below.

 

(ii)        The employee must notify the employer as soon as practicable of the intention to take bereavement leave and will, if required by the employer, provide to the satisfaction of the employer proof of death.

 

(iii)       Bereavement leave shall be available to the employee in respect to the death of a person prescribed for the purposes of Clause 17, Personal/Carer's Leave of this award provided that for the purpose of bereavement leave, the employee need not have been responsible for the care of the person concerned.

 

(iv)       An employee shall not be entitled to bereavement leave under this clause during any period in respect of which the employee has been granted other leave.

 

(v)        Bereavement leave may be taken in conjunction with other leave available under Clause 17, Personal/ Carer's leave of this award. In determining such a request the employer will give consideration to the circumstances of the employee and the reasonable operational requirements of the business.

 

(vi)       Bereavement entitlements for casual employees

 

(a)        Subject to the evidentiary and notice requirements in 18(ii) 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 17(i)(c)(ii) of Clause 17, Personal/Carer's Leave.

 

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

 

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

 

18A.  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).

 

19.  Jury Service

 

(i)         An employee shall be allowed leave of absence during any period when required to attend for jury service.

 

(ii)        During such leave of absence, an employee shall be paid the difference between the jury service fees received and the normal rate of pay as if working.

 

(iii)       An employee shall be required to produce to the employer proof of jury service fees received and proof of requirement to attend and attendance on jury service, and shall give the employer notice of such requirement as soon as practicable after receiving notification to attend for jury service.

 

20.  Part-Time Employees

 

Part-time employees may be employed under the terms of this award, subject to the following conditions -

 

(i)         The definition of a part-time employee as contained in clause 3, Definitions.

 

(ii)        That the provisions prescribed for employees employed under this award are applied to such employees on a pro rata basis.

 

(iii)       Part-time employees shall be paid one thirty-eighth of the appropriate weekly rate for each hour worked, provided that a minimum payment of three hours shall be made for each start.

 

(iv)       Part-time employees may be engaged on broken shifts by mutual agreement and shall be paid a three-hour minimum payment for each start.

 

21.  Casual Employees

 

Casual employees may be employed under the terms of this award subject to the following conditions:

 

(i)         The definition of a casual employee as contained in clause 3, Definitions.

 

(ii)        The ordinary hourly rate for a casual employee shall be one thirty-eighth of the appropriate weekly rate as set out in Table 1 Wages, of Part B, Monetary Rates, plus 15 per cent for each hour worked, provided that there shall be a minimum payment of three hours for each start.

 

(iii)       In addition to the ordinary hourly rate prescribed in subclause (ii) of this clause, a casual employee shall be entitled to one-twelfth of the ordinary hourly rate as entitlement to pro rata annual leave and shall be paid such an amount at the same time as prescribed for the payment of wages in clause 26, Payment of Wages, provided that that time shall be no later than on a weekly or fortnightly basis (dependent upon the employer's pay period).

 

22.  On-Call Allowance

 

(i)         Where an employee is on call, and is not called out, the employee shall be paid an on-call allowance as set out in Item 2 of Table 2 Allowances, of Part B, Monetary Rates, for each day or shift, Monday to Saturday, inclusive, and shall be paid an on-call allowance as set out in Item 3 of the said Table 2 for Sundays.

 

(ii)        In lieu of the foregoing allowances specified in subclause (i) of this clause, an employee shall be paid at overtime rates for all time worked on call, with a two-hour minimum payment calculated from the time the employee leaves home until the employee's return at the appropriate rate and shall be paid an allowance in accordance with clause 24, Locomotion Allowance, where the employee uses the employee's own vehicle whilst on call.

 

23.  Travelling Time and Expenses

 

Where an employee is sent to work from an employer's recognised place or places of business the employer shall pay all travelling time from such place or places of business to the job, and if the employee is required to return the same day to the employer's place or places of business, the employer shall pay travelling time to the recognised place or places of business. An employee sent for duty to a place other than the employee's regular place or places of duty or required to attend a court of inquiry in connection with the employee’s employment shall be paid reasonable authorised expenses.

 

24.  Locomotion Allowance

 

(i)         Where an employee is required by the employer to use a motor vehicle (including a motor cycle), such vehicle shall be supplied and maintained by the employer, but where an employee, by arrangement with the employer, provides the employee's own vehicle the employee shall, in addition to all payments otherwise due, be paid an allowance per kilometre as set out in Item 4 of Table 2 Allowances, of Part B, Monetary Rates.

 

(ii)        The running charges specified in this clause shall be payable for the actual number of kilometres travelled by the employee's vehicle each week in connection with the employee's employment.

 

25.  First-Aid Allowance

 

Where an employee is a qualified first-aid attendant and is appointed to carry out the duties of a qualified first-aid attendant, the employee shall be paid an additional amount per week as set out in Item 5 of Table 2 Allowances, of Part B, Monetary Rates.

 

26.  Payment of Wages

 

(i)         Unless an employee requests fortnightly payment of wages, the employer shall pay wages and other monies due to employees weekly, fortnightly, four-weekly or monthly, depending on the employer's pay period, and the time of payment shall not be more than three working days from the time when such wages become due. An employer may pay in cash or by cheque or electronic transfer; provided that payment other than in cash shall not remove the obligation to pay as prescribed herein.

 

(ii)        Notwithstanding the foregoing, wages and other monies due to part-time or casual employees shall be paid weekly or fortnightly.

 

27.  Union Dues

 

(i)         The employer shall deduct Union membership fees (not including fines or levies) from the pay of any employee, provided that:

 

(a)        the employee has authorised the employer to make such deductions in accordance with subclause (ii) herein;

 

(b)        the Union shall advise the employer of the amount to be deducted for each pay period applying at the employer's workplace and any changes to that amount;

 

(c)        deduction of Union membership fees shall only occur in each pay period in which payment has or is to be made to an employee; and

 

(d)        there shall be no requirement to make deductions for casual employees with less than two months' service (continuous or otherwise).

 

(ii)        The employee's authorisation shall be in writing and shall authorise the deduction of an amount of Union fees (including any variation in that fee effected in accordance with the Union's rules) that the Union advises the employer to deduct.  Where the employee passes any such written authorisation to the Union, the Union shall not pass the written authorisation on to the employer without first obtaining the employee's consent to do so.  Such consent may form part of the written authorisation.

 

(iii)       Monies so deducted from employees' pay shall be remitted to the Union on either a weekly, fortnightly, monthly or quarterly basis at the employer's election, together with all necessary information to enable the reconciliation and crediting of subscriptions to employees' membership accounts, provided that:

 

(a)        where the employer has elected to remit on a weekly or fortnightly basis, the employer shall be entitled to retain up to five per cent of the monies deducted; and

 

(b)        where the employer has elected to remit on a monthly or quarterly basis, the employer shall be entitled to retain up to 2.5 per cent of the monies deducted.

 

(iv)       Where the employee has already authorised the deduction of Union membership fees in writing prior to this clause taking effect, nothing in this clause shall be read as requiring the employee to make a fresh authorisation in order for such deductions to commence or continue.

 

(v)        The Union shall advise the employer of any change to the amount of membership fees made under its rules, provided that this does not occur more than once in any calendar year.  Such advice shall be in the form of a schedule of fees to be deducted specifying either weekly, fortnightly, monthly, or quarterly as the case may be.  The Union shall give the employer a minimum of two months' notice of any such change.

 

(vi)       An employee may at any time revoke in writing an authorisation to the employer to make payroll deductions of Union membership fees.

 

(vii)      Where an employee who is a member of the Union and who has authorised the employer to make payroll deductions of Union membership fees resigns from membership of the Union in accordance with the rules of the Union, the Union shall inform the employee in writing of the need to revoke the authorisation to the employer in order for payroll deductions of union membership fees to cease.

 

28.  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 the employee's 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 their right of election under this subclause if the employer fails to comply with the 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 the employee seeks to elect to convert the 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 the employee's ongoing contract of employment from full-time employment or part-time employment will be deemed to have elected against 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 their 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 of work that will be worked either consistent with any other part-time employment provisions of this award or 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 the employee's 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 the employee's 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 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, 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.

 

29.  Superannuation

 

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

 

Subject to the requirements of this legislation, superannuation contributions must be made to an approved fund as defined in 29.2 (b).

 

29.2      Definitions

 

(a)        "Ordinary-time earnings" means the weekly rate of pay for the employee's classification as set out in Table 1 - Wages, and Table 2 - Allowances, of Part B, Monetary Rates (including allowances and weekend penalties on ordinary hours and any over award payments), for ordinary hours of work.

 

(b)        "Approved Fund"

 

(1)        means "HESTA," the Health Employees Superannuation Trust Australia, constituted by deed made 30 July 1987; or

 

(2)        an existing fund to which the employer contributed before the 17th June 1993 which complies with the Occupational Superannuation Guidelines; or

 

(3)        any other approved fund, e.g., Med Prac Superannuation Fund, at any time during the life of this award

 

(c)        "Eligible employee" means a full-time or part-time employee who has completed one calendar month's service with an employer.

 

29.3      Employers to become party to an approved fund 

 

(a)        For the purposes of this award, contributions shall be made by employers in accordance with the provisions of subclause 29.5 of this clause and shall be paid to the Administrator of the approved fund.

 

(b)        Each employer bound by this award shall participate in the approved fund.

 

(c)        Each employer bound by this award shall become party to the approved fund upon the acceptance by the Trustees of the approved fund of an agreement to become a participating employer, duly signed and executed by each employer and the Trustees of the approved fund.

 

(d)        An employee shall become eligible to join the approved fund on the first day of the calendar month following the commencement of employment.

 

(e)        Each employer bound by this award shall provide every employee who is not already a member of the approved fund with a membership application form for the approved fund upon commencement of service. Each employee shall be required to choose a fund and complete the relevant form and the completed form shall be forwarded to the Administrator of the fund by each employer on or before the last day of the calendar month subsequent to the employee completing one calendar month's service.

 

29.4      Employees to become a party to an approved fund

 

(a)        An eligible employee shall become a participating employee in an approved fund.

 

(b)        Such eligible employee shall sign and execute all necessary documents to become a participating employee within one month of being provided with such documents.

 

29.5      Contributions

 

(a)        Each employer shall pay, in respect of each eligible employee, an amount equal to three per cent of the employee's ordinary-time earnings for all ordinary hours worked from the date of eligibility.

 

(b)        Contributions will only be made in respect of eligible employees as defined, provided that, if a new employee was a member of the approved fund at the employee’s prior place of employment, no eligibility requirement shall apply.

 

(c)        Contributions shall be made to the Administrators of the approved fund on or before the last day of the calendar month subsequent to each calendar month an employee is a member of the scheme for each such calendar month an employee is a member of the scheme.

 

(d)        Notwithstanding the date upon which an employee signs an application form, contributions in accordance with paragraph (a) of this subclause shall be made by an employer to the approved fund from the date when the employee became eligible for membership.

 

29.6      Salary Sacrifice

 

29.6.1   Where agreed between the employer and an employee, an employer may offer salary sacrifice in respect of superannuation. Neither the employer nor the employee may be compelled to enter into a salary sacrifice agreement. 

 

29.6.2   Salary sacrifice means that an employee may make additional superannuation contributions by electing to sacrifice a portion of the gross earnings (pre tax dollars). Such election must be in writing and made prior to the commencement of the period of service to which the earnings relate and be in accordance with relevant legislation.

 

29.6.3   Any additional superannuation contributions made in accordance with this clause shall be paid into the same superannuation fund that receives the employer’s superannuation contributions.

 

29.6.4   The employer has the right to vary or withdraw from a salary sacrifice agreement and/or withdraw from offering salary packaging in the event of changes to the operation of legislation that are detrimental to, or increase the costs of, salary sacrifice agreements.

 

29.6.5   In the event that the employer withdraws from a salary sacrifice agreement, the individual employee’s salary will revert to whichever is the higher of:

 

(a)        The ordinary time rate of pay that applied to the employee prior to the commencement of the salary sacrifice agreement; or

 

(b)       The applicable rate specified in Part B, Table 1 of this Award.

 

29.6.6   Any allowance, penalty rate, overtime, payment for unused leave entitlements, other than any payments for leave taken whilst employed, shall be calculated by reference to the salary which would have applied to the employee in the absence of any salary sacrifice to superannuation.  Payment for leave taken whilst employed will be at the post-salary sacrificed amount.

 

29.6.7   Notwithstanding any of the above arrangements, the employer or employee may cancel any salary sacrifice agreements by the giving of one month’s notice of cancellation to the other party.

 

30.  Grievance and Industrial Disputes Procedure

 

(i)         Grievance Procedure -

 

(a)        If the employee has any problem or concern in relation to the employee’s employment the employee shall, in the first instance, discuss the matter with immediate supervisor who will endeavour to resolve the issue expeditiously.

 

(b)        Any unresolved matter shall be referred by the employee to the Department Head after the employee notifies the employee’s immediate supervisor. The supervisor shall also attend the conference organised by the Department Head to discuss the matter.

 

(c)        Should the matter remain unresolved, appropriate assistance should be sought from the Laboratory Manager/other relevant Manager or other nominated representative(s) of the employer.

 

(d)        In the event of no agreement being reached, the matter shall be referred to Senior Management or their nominee(s) whose decision in the matter shall be final.

 

(e)        Where the matter involves either party seeking to change an existing agreement or practice, the parties shall endeavour to identify and agree on what is the status quo, which shall then continue to prevail until the parties have exhausted all steps in the above procedure.

 

(ii)        Industrial Disputes Procedure - The parties to this award shall confer with a view to resolving all industrial disputes by direct negotiation and consultation. The parties further agree that, subject to the provisions of the New South Wales Industrial Relations Act 1996, all disputes shall be dealt with in the following manner so as to ensure the orderly settlement of the matters in question:

 

(a)        Any dispute, including any matter not resolved in accordance with subclause (i), Grievance Procedure, of this clause which arises shall, where possible, be settled by discussion on the job between the employee and the employee's immediate supervisor.

 

(b)        If the matter is not resolved at this level, the matter will be further discussed between the affected employee, union delegate or union official and the supervisor or manager of the relevant section or department, and the employer's industrial relations representative shall be notified.

 

(c)        If no agreement is reached, the union official and union delegate will discuss the matter with the employer's nominated industrial relations representative.

 

(d)        Whilst the foregoing procedure is being followed work shall continue normally. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

 

(e)        Should the matter still not be resolved it may be referred by the parties to the Industrial Relations Commission of New South Wales for settlement.

 

31.  Exemptions

 

(i)         Registered nurses and enrolled nurses employed as such are exempt from the provisions of this award.

 

(ii)        Subject to the requirement of Chapter 2, Part 1, Division 2 of the Industrial Relations Act 1996, the provisions of this award shall not apply to the extent to which they are otherwise prescribed by a registered industrial instrument in force at the date of the making of this award.

 

(iii)       Douglass Hanly Moir Pathology Pty Limited, Barratt and Smith Pathology and Southern Pathology Services Pty Ltd shall be exempt from the provisions of clause 4, Wages, in accordance with the terms of clause 4, Wages, of the Douglass Hanly Moir, Barratt and Smith and Southern Pathology (State) Award published 24 March 2006 (358 I.G. 560).  The duration of this exemption is for the nominal term of the award.

 

32.  Enterprise Arrangements

 

Enterprise arrangements may be entered into pursuant to the Enterprise Arrangements Principle contained in the State Wage Case 2003 (2003) NSWIRComm 174 (as amended from time to time).

 

33.  Savings Clause

 

Nothing in this award shall act to reduce the wages and conditions of employees being paid or observed as at the date of 17 June 1993.

 

34.  Area, Incidence and Duration

 

(i)         This award shall apply to employees as defined and classified herein employed by approved pathology authorities (other than State or public authorities) or their associated accredited pathology laboratories as defined by the Health Insurance Act 1973 (Commonwealth), in the State of New South Wales, excluding the County of Yancowinna.

 

(ii)        This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Private Pathology Laboratories (State) Award published 22 April 2005 (350 I.G. 287) and all variations thereof.

 

(iii)       The award published 22 April 2005 took effect from the beginning of the first full pay period to commence on 8 March 2004 - and the variations thereof incorporated herein on the dates set out in the attached Schedule A.

 

(iv)       The changes made to the award pursuant to the Award Review pursuant to Section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 18th December 1998 (308 I.G. 307) are set out in the attached Schedule B and take effect from the beginning of the first full pay period to commence on or after 31 October 2007.

 

(v)        This award remains in force for 12 months.

 

SCHEDULE A

 

Award and Variations Incorporated

 

 

SCHEDULE B

 

Changes made on Review

 

Date of Effect: From the beginning of the first full pay period to commence on or after 31 October 2007

 

Provisions Modified

 

 

(2)        Provisions Removed

 

 

PART B

 

MONETARY RATES

 

Table 1 - Wages

 

 

Table 2 - Allowances

 

 

 

 

P. J. CONNOR, Commissioner

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.