Public
Service Association of New South Wales Industrial and Associated Officers
(Secure Employment) Award 2009
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Public
Service Association and Professional Officers' Association Amalgamated Union of
New South Wales, Industrial Organisation of Employees.
(No. IRC 2027 of 2009)
|
Before Commissioner
Bishop
|
23 December 2009
|
AWARD
Arrangement
Clause No. Subject Matter
1. Title
2. Commencement
Date
3. Definitions
4. Application
and Coverage
5. Area,
Incidence and Duration
6. Deduction
of Union Membership Fees
7. Dispute
Settlement
8. Consultation
and Technological Change
9. Salaries
and Related Matters
10. Separation
from Service Provisions
11. Redundancy
Provisions
12. Recognition
of Service
13. Anti-Discrimination
14. Secure
Employment
15. Existing
Entitlements
Schedule A -Rates of Pay
Schedule B -Breach of Discipline
1. Title
This award shall be known as the Public Service Association
of New South Wales Industrial and Associated Officers (Secure Employment) Award
2009.
2. Commencement Date
This award commences on 23 December 2009.
3. Definitions
3.1 In this award,
unless the contrary intention appears:
Act means the Industrial Relations Act 1996
(NSW).
Agreement has the meaning in the Act.
Association means the Public Service Association and
Professional Officers' Association Amalgamated Union of New South Wales.
Award has the meaning in the Act.
Breach of discipline means misconduct, serious
misconduct or unsatisfactory services as defined in Schedule B, Breach of
Discipline of this Award.
General Secretary means the General Secretary of the
Association or a nominee of the General Secretary of the Association.
Supervisor means the immediate supervisor or manager of
the area in which an employee is employed or any other employee authorised by
the General Secretary to fulfil the role of a supervisor or manager, other than
a person engaged as a consultant or contractor.
Rate of Pay means the applicable substantive rate or
the "Higher Duties" rate in instances where the employee has been
acting in a higher graded position for 12 months or more.
Trade Union means the Industrial Staff Union.
Union means the Industrial Staff Union.
Workplace means the whole of the organisation or, as
the case may be, a branch or section of the organisation in which the employee
is employed.
Workplace Management means the General Secretary or any
other person authorised by the General Secretary to assume responsibility for
the conduct and effective, efficient and economical management of the functions
and activities of the organisation or part of the organisation.
4. Application and
Coverage
4.1 This award was
negotiated between the Union and the Association.
4.2 The provisions
of this award shall apply to the Industrial Staff Union, the Association, and
all Industrial Staff employed by the Association including: Principal
Industrial Officers; Senior Industrial Officers; Industrial Officers;
Organisers; Women’s Industrial Officers; Regional Organisers; Senior
Communications Officers; Information Officers; Aboriginal Liaison Officers;
Training Officers, Occupational Health and Safety Education Officer, Special
Project Officers and Welfare Officer.
5. Area, Incidence
and Duration
5.1 This award
rescinds and replaces the Public Service Association of New South Wales
Industrial and Associated Employees Leave Award published 28 September 2007
(363 I.G.738) and all variations thereof.
5.2 This Award will
be operative from the 23 December 2009 and will remain in force until varied or
rescinded.
6. Deduction of Union
Membership Fees
6.1 The
Union shall provide the Association with a schedule setting out Union weekly
membership fees payable by members of the Union in accordance with the Union’s
rules.
6.2 The Union shall advise the Association of
any change to the amount of weekly membership fees made under its rules. Any variation to the schedule of Union
weekly membership fees payable shall be provided to the Association at least
one month in advance of the variation taking effect.
6.3 Subject to
subclauses 6.1 and 6.2 of this clause, the Association shall deduct Union
weekly membership fees from the pay of any employee who is a member of the
Union in accordance with the Union’s rules, provided that the employee has
authorised the Association to make such deductions.
6.4 Monies so
deducted from the employee’s pay shall be forwarded regularly and promptly to
the Union, together with all necessary information to enable the Union to
reconcile and credit subscriptions to employee’s Union membership accounts.
6.5 Unless other
arrangements are agreed to by the Association and the Union, all Union
membership fees shall be deducted on a weekly basis.
6.6 Where an
employee has already authorised the deduction of Union membership fees from his
or her pay prior to this Award taking effect, nothing in this clause shall be
read as requiring the employee to make a fresh authorisation in order for such
deduction to continue.
7. Dispute Settlement
7.1 There shall be
effective means of consultation, both formal and informal, between the
Association and the Union at various levels on all matters of mutual interest
and concern, irrespective of whether or not these matters are likely to give rise
to a dispute.
7.2 Failure to
observe this fundamental principle of consultation would be contrary to the
intention of these procedures.
(a) Where a dispute
arises in a particular job location which cannot be resolved between the
employee or their representative and the supervising staff, it shall be
referred to the Association’s General Secretary or his/her nominee, who will
then arrange for the matter to be discussed with the Union in a timely manner
(b) If the matter
remains unresolved, it should be referred to the NSW Industrial Relations
Commission pursuant to the relevant section of the Industrial Relations Act 1996.
(c) Whilst these
procedures are continuing, no stoppage of work or any other form of limitation
or work shall be applied.
(d) The Union
reserves the right to vary this procedure where a safety factor is involved.
8. Consultation and
Technological Change
8.1 The
Association will consult with the Union about significant workplace change that
will affect Union members, prior to its implementation. The term ‘consultation’ is understood as a
process of seeking and giving information and advice, participating in
discussions and expressing views to contribute, in a timely fashion, to
decision making.
8.2 The Association will consult and reach
agreement, as far as possible, with the Union about the processes undertaken to
implement the change.
8.3 The Association will arrange a meeting of
directly affected employees to discuss the workplace change. The Union will be invited to attend.
9. Salaries and
Related Matters
9.1 The salaries and
conditions of employees covered by this Award shall be in accordance with the
Crown Employees (Public Sector - Salaries 2008) Award and the Crown Employees
(Public Service Conditions of Employment) Award 2009 or any replacement awards.
9.2 Salaries for
employees covered by this Award are set out in Schedule A - Rates of Pay of
this Award.
10. Separation from
Service Provisions
10.1 At a general
election of the Association, or when there is a change in the leadership of the
Association, every endeavour will be made to retain the services of currently
employed employees having regard to the wishes of the incoming leadership.
10.2 If the
Association at any time has sound grounds for believing that the employee’s
views and attitudes are such that he/she will not give loyal and co-operative
service to the current executive and where the employee/employer working
relationship is irreparable then provisions within both this clause and clause
11, Redundancy Provisions of this Award will apply.
10.3 Where an
employee’s services are terminated the following arrangements are to apply.
(a) Basis of
entitlement
Where the elected leadership of the Association changes
for any reason, an employee whose services are terminated shall be entitled to
a separation of services payment under clause 11, Redundancy Provisions
provided that:
(i) the employee
continues to work for the Association; and
(ii) the incoming
leadership of the Association notifies the employee of his/her intention not to
continue with the existing staffing arrangements.
(b) Exclusions
Excluded from the entitlement to separation payments
are:
(i) employees
on workers’ compensation whose claim is based on compensation for termination
or employees awaiting determination of claims against the employer for
termination of services;
(ii) employees
subject to termination on the grounds of misconduct, serious misconduct, or
unsatisfactory services;
(iii) employees who
resign for any reason other than in circumstances envisaged in subparagraph (i)
or (ii) of this paragraph; and
(iv) employees whose
appointments were facilitated by way of leave without pay from the Public
Service (on the basis that they will return to employment in the Public Service
upon displacement).
(c) Superannuation
Fund entitlements
The Fund entitlements for contributors under these
provisions will be as follows:
(i) Employees who
are contributors to either the State Authorities Superannuation Scheme (SASS),
First State Super (FSS) or the State Superannuation Fund (SSF) who are eligible
for separation payments in accordance with this clause shall be regarded as
having been retrenched, as defined in the State Authorities Superannuation
Act 1987, for the purpose of determining their entitlements to benefits
under those schemes;
(ii) Employees who
are contributors to either of those schemes who are not eligible for separation
payments in accordance with this clause shall be regarded as having resigned
for the purpose of determining their entitlements benefits under those schemes.
11. Redundancy
Provisions
11.1 An employee who
accepts voluntary redundancy, or is eligible under the provision of clause 10,
Separation from Service Provisions, will receive the following redundancy
entitlements:
(a) Four (4) weeks
notice or pay in lieu; and
(b) an additional
one week’s notice or pay in lieu for employees aged 45 years and over with 5 or
more years of completed service; and
(c) severance pay at
the rate of three (3) weeks per year of continuous service up to a maximum of
thirty nine (39) weeks, with pro-rata payments for incomplete years of service
to be on a quarterly basis; and
(d) benefit
allowable as a contributor to a superannuation or retirement fund; and
(e) pro-rata annual
leave loading in respect of leave accrued at the date of termination.
(f) All annual and
long service leave accrued at the date of termination.
11.2 Those employees
who accept an offer of redundancy within 2 weeks of the offer being made and
terminate employment within the time nominated by the Association will be
entitled to the following additional payments:
|
(a)
|
less than 1 year of service
|
2 weeks pay
|
|
(b)
|
1 year and less than 2 years of service
|
4 weeks pay
|
|
(c)
|
2 years and less than 3 years of service
|
6 weeks pay
|
|
(d)
|
3 years of service and over
|
8 weeks pay
|
Note: Reference to service in calculating entitlement
to redundancy is based on a continuous period of employment with the
Association. As with standard leave
provisions, periods of leave without pay, secondments or similar are not
considered as service for these purposes (nor are they considered a break in
employment) and periods of part-time employment will accrue pro-rata
entitlements.
12. Recognition of
Service
12.1 For the purpose
of calculating a redundancy payment and the accrual of Long Service Leave an
employee's service with the Association is taken to include his or her
recognised service.
12.2 The employee's
employment in a public sector agency or a Commonwealth or interstate agency, a
Trade Union either within Australia or overseas ("former agency") is
"recognised service" in relation to their subsequent employment in
the Association if:
(a) the period of
employment in the former agency has been continuous and
(b) the employee's
employment in the Association has immediately followed the employee's
employment in the former agency.
13.
Anti-Discrimination
13.1 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 as a carer.
13.2 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
this Award which, by its terms of operation, has a direct or indirect
discriminatory effect.
13.3 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.
13.4 Nothing in the
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 pursuing matters or unlawful discrimination in any State or federal
jurisdiction.
13.5 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 - Employers and employees may also be subject to
Commonwealth anti-discrimination legislation.
Section 56(d) of the Anti-Discrimination Act 1977
provides:
"Nothing in the Act affects any other act or
practise 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."
14. Secure Employment
14.1 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 casuals and temporary employees have an opportunity
to elect to become permanent full-time or part-time employees.
14.2 Casual and
Temporary Conversion
(a) A casual or temporary employee engaged by
the Association 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 sub clause.
(b) The Association shall give the employee
notice in writing of the provisions of this subclause within four weeks of the
employee having been employed for such a six months period. However, the employee retains his or her
right of election under this subclause if the employer fails to comply with
this notice requirement.
(c) Any casual or
temporary employee who has a right to elect under paragraph 14.2(a), upon
receiving notice under paragraph 14.2(b) or after the expiry of the time for
giving such notice, may give four weeks’ notice in writing to the employer that
he or she seeks to elect to convert his or her ongoing contract of employment
to permanent 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 the Association refuses an election to
convert, the reasons for doing so shall be fully stated and discussed with the
employee concerned, and a genuine attempt shall be made to reach
agreement. Any dispute about a refusal
of an election to convert an ongoing contract of employment shall be dealt with
as far as practicable and with expedition through the disputes settlement
procedure.
(d) Any casual or
temporary employee who does not, within four weeks of receiving written notice
from the Association, elect to convert his or her ongoing contract of
employment to permanent full-time employment or part-time employment will be
deemed to have elected against any such conversion.
(e) Once a casual or
temporary employee has elected to become, and has been converted to, a
permanent full-time employee or a permanent part-time employee, the employee
may only revert to casual or temporary employment by written agreement with the
Association.
(f) If an employee has elected to have his or
her contract of employment converted to full-time or part-time employment in
accordance with this clause the Association and employee shall discuss and
agree upon:
(i) whether the
employee will convert to permanent full-time or part-time employment; and
(ii) if it is
agreed that the employee will become a permanent 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 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 or temporary employment has the right to
elect to convert his or her contract of employment to permanent full-time
employment and an employee who has worked on a part-time basis during the
period of casual or temporary employment has the right to elect to elect to
convert his or her contract of employment to permanent 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 Association and the employee.
(g) Following an
agreement being reached pursuant to paragraph 14.2(f), the employee shall
convert to permanent full-time or part-time employment. If there is any dispute about the arrangements
to apply to an employee converting from casual or temporary employment to
permanent full-time or part-time employment, it shall be dealt with as far as
practicable and with expedition through the disputes settlement procedure.
(h) An employee must
not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this sub clause.
14.3 Exclusions
The Association can refuse an application for
conversion of a temporary or casual employee on the following grounds. Where the contract is for:
(a) a specific task
or project of a short-term nature; or
(b) the purpose of
filling a temporary vacancy that is the result of parental, or other extended
leave;
(c) the
abovementioned reasons will be provided to the employee in writing.
14.4 Occupational Health and Safety
(a) For the purposes
of this sub clause, the following definitions shall apply:
(i) A "labour
hire business" is a business (whether on 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 to provide a specified service or services or to produce a specific
outcome or result for that other employer which might otherwise have been
carried out by that other employer’s own employees.
(b) If the
Association engages a labour hire business and/or 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):
(i) consult with
employees of the labour hire business and/or contract business regarding the
workplace occupational health and safety consultative arrangements;
(ii) 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;
(iii) 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 won employees; and
(iv) ensure
employees of the labour hire business and/or contract business are made aware
of any risks identified in the workplace and the procedures to control those
risks.
(c) Nothing in
subclause 14.4 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.
14.5 Disputes
Regarding the Application of the 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 the Award.
14.6 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.
15. Existing
Entitlements
15.1 The provisions of
this Award shall not affect any entitlements existing in the Association or a
section of the Association at the time this Award is made, if such provisions
are better that the provisions contained in this Award. Such entitlements are hereby expressly
preserved until renegotiated with the Union.
15.2 The following
Award, or its replacement, insofar as they fix conditions of employment
applying to employees covered by this Award, which are not fixed by this Award,
including subclause 14(1), shall continue to apply:
Crown Employees (Public Service Conditions of
Employment) Award 2009
SCHEDULE A
Rates
of Pay
|
Classification and
Grades
|
Salary Point
|
Common Salary Point
|
|
|
|
(Crown Employees
Salaries Award)
|
|
Organiser
|
1
|
61
|
|
|
2
|
67
|
|
|
3
|
75
|
|
|
4
|
82
|
|
|
5
|
85
|
|
Industrial Officer / Regional Organiser
|
1
|
82
|
|
|
2
|
85
|
|
|
3
|
88
|
|
|
4
|
91
|
|
|
5
|
95
|
|
|
6
|
98
|
|
|
7
|
101
|
|
|
8
|
104
|
|
Senior Industrial Officer
|
1
|
108
|
|
|
2
|
111
|
|
Principal Industrial Officer
|
1
|
116
|
|
|
2
|
120
|
|
Welfare Officer
|
1
|
52
|
|
|
2
|
55
|
|
|
3
|
58
|
|
|
4
|
61
|
|
|
5
|
67
|
|
|
6
|
75
|
|
|
7
|
82
|
|
Information Officer
|
1
|
58
|
|
|
2
|
61
|
|
|
3
|
64
|
|
|
4
|
67
|
|
|
5
|
75
|
|
|
6
|
78
|
|
|
7
|
82
|
|
|
8
|
85
|
|
Senior Communication Officer
|
1
|
82
|
|
|
2
|
85
|
|
|
3
|
88
|
|
|
4
|
91
|
|
|
5
|
95
|
|
|
6
|
98
|
|
|
7
|
101
|
|
|
8
|
104
|
SCHEDULE B
Breach
of Discipline
B.1 Breach of
discipline means misconduct, serious misconduct or unsatisfactory services.
B.1.1 Misconduct
includes, but is not limited to, behaviour that is unsatisfactory.
B.1.2 Serious misconduct
includes but is not limited to:
(a) serious misbehaviour
of a kind which constitutes a serious impediment to the carrying out of a
employee's duties or to an employee’s colleagues carrying out their duties;
(b) conviction by a
Court of competent jurisdiction of an offence of a kind that may be reasonably
regarded as constituting a serious impediment to the discharge by the employee
of their functions or duties, or to the employee's colleagues carrying out
their functions or duties; and.
(c) serious
dereliction of duties.
B.1.3 Examples of
serious misconduct in the course of employment include: theft; fraud;
misappropriation of funds; assault; serious harassment (including sexual
harassment); a serious breach of the Association’s policies, rules or
regulations; or repeated actions of misconduct.
B.1.4 Unsatisfactory
services means an employee is not performing duties in a satisfactory manner.
B.2 Procedural
Fairness
Basic principles of procedural fairness should be
afforded to all parties in dealing with matters of misconduct, serious
misconduct, and unsatisfactory services.
E.
A. R. BISHOP, Commissioner.
____________________
Printed by
the authority of the Industrial Registrar.