Miscellaneous Workers' - Kindergartens and Child
Care Centres, &c. (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 585 of 2015)
Before Commissioner Stanton
|
27 October 2015
|
REVIEWED
AWARD
1. Arrangement
PART A
Clause No. Subject Matter
10. Additional
Rates and Allowances
20. Annual
Leave
21. Annual
Leave Loading
34. Anti
Discrimination
39. Area Incidence
and Duration
1. Arrangement
25. Bereavement
Leave
8. Classification
Structure
4. Contract
of Employment
3. Definitions
35. Dispute
Settling Procedure
31. Examination
and Study Leave
36. Exemptions
5. Hours
6. Implementation
of 38 Hour Week
28. In
Service: Preschools and OOSHC Centres
16. Job
Sharing
26. Jury
Service
38. Leave
Reserved
22. Long
Service Leave
13. Make up
Time
29. Meetings
and Activities
15. Miscellaneous
Conditions
2. Name of
Award
12. Overtime
23. Parental
Leave
14. Payment of
Wages
24. Personal
Carers Leave
30. Professional
Development, Training & Planning
19. Public
Holidays
27. Redundancy
17. Relieving
in Other Positions
7. Rostered
Days Off Duty
37. Salary
Packaging
11. Saturday
and Sunday Work
4A. Secure
Employment Provisions
18. Sick Leave
33. Superannuation
32. Supported
Wage
9. Wages
PART B
MONETARY RATES
Table 1A - Former Wages
Table 1B - Wages - Support Worker Classifications
Table 1C - New Wages - Child Care Classifications Long
Day Care
Table 1D - New Wages - Child Care Classifications
Pre-Schools
Table 2 - Additional Rates and Allowances
Appendix A - Casual Service Card
Appendix B - Parental Leave
2. Name of Award
This Award shall be known as the Miscellaneous Workers
Kindergarten and Child Care Centres (State) Award 2006.
3. Definitions
(i) Full-Time
Employee - means an employee employed and paid by the week subject to clause 4,
Contract of Employment and clause 5 (i) of the award.
(ii) Part-time
Employee - means an employee who works a constant number of ordinary hours less
than the ordinary number of hours prescribed for full-time employees in
subclause (i) of this clause and clause 5 (i) of the award.
(iii) Casual
Employee - means an employee engaged and paid as such.
Notation: Certain casual employees may have rights to
make an election to convert their employment under the provisions of Clause 4A
of this award.
(iv) Temporary
Employee
(a) means an
employee engaged to work full-time or part-time for a specified period which is
not more than two years but not less than 20 days.
(b) Such employees
shall be engaged solely for the following specified purposes:
(1) to replace
existing employees proceeding on annual leave, maternity leave, long service leave,
workers compensation or leave without pay;
(2) to occupy
specially funded positions;
(3) to occupy
positions approved by the Department of Community Services which vary a
centre’s licence;
(4) to occupy
positions resulting from seasonal employment fluctuations in a locality;
(5) to occupy
positions resulting from increases in enrolments.
Notation: Employees engaged pursuant to (4) and (5),
above, shall not be engaged in such a way that would displace existing
employees or future permanent employees.
(v) Day - means
the period from midnight to midnight.
(vi) Union - means
The Liquor, Hospitality and Miscellaneous Union, New South Wales Branch.
(vii) Night Shift -
means any shift finishing subsequent to midnight and at or before 8.00am or any
shift commencing at or after midnight and before 5.00am.
(viii) Afternoon
Shift - means any shift finishing after 6.30pm and at or before midnight.
(ix) Early Morning
Shift - means any shift commencing at or after 5.00am and before 6.30am.
(x) Night Shift,
Non-rotating - means any shift system in which night shifts are worked which do
not rotate or alternate with another shift so as to give the employee at least
one third of the employee’s working time off night shift in each roster cycle.
4. Contract of
Employment
(i)
(a) All employees
will be engaged on a probationary period of three months.
(b) Except for the
first three months of employment, the employment of a full-time or part time employee
may be terminated by a week's notice given by either party or by the payment or
forfeiture, as the case may be, of one week's wages in lieu of such notice.
This shall not affect the right of an employer to dismiss any employee without
notice for misconduct and in such cases wages shall be paid up to the time of
dismissal only.
(c) During the
first three months of employment, the employment may be terminated by a day's
notice given by either party or by the payment or forfeiture, as the case may
be, of one day's wages in lieu of such notice.
(ii) Payment
During Vacations: Notwithstanding the foregoing provisions, where an
establishment is closed during a vacation period and no work is available, an
employee shall be paid the ordinary rate of pay during such a period provided
that during the Christmas vacation only an employee with insufficient credit of
annual leave to maintain the ordinary rate of pay during the said vacation
period may be stood down without pay for a maximum of four weeks.
Provided further that where the employment of an
employee is terminated by the employer in accordance with the provisions of
this clause through no fault of the employee during the vacation, and such
employee whose services are so terminated is re-employed by the same employer
before the expiration of two weeks after the commencement of the next term, the
contract of employment shall not be deemed to have been broken for the purposes
of the Long Service Leave Act 1955.
Any period of non- employment of any such employee who is so re-employed
shall not count as qualifying service for the purposes of such Act.
(iii) The
employment of a casual employee may be terminated by one hour's notice.
(iv) Upon request
by an employee, the employer shall give an employee a signed statement of
service upon termination. Such statement shall certify the period of commencing
and ceasing employment and the class of work upon which the employee was
employed. Note: with respect to casual
employees, see paragraph (e) of subclause (i) of clause 8, Classification
Structure of this award.
(v) Employees
terminating employment shall be paid all wages and other monies due forthwith,
including any payments which may be due in lieu of annual leave and/or long
service leave.
(vi) Flexibility of
Work
(a) An employer
may direct an employee to carry out such duties as are within the limits of the
employee's skills, competence and training consistent with the classification
structure of this award, provided that such duties are not designed to promote
de-skilling.
(b) Persons
employed as Child Care Workers may be required to assist with duties incidental
to their primary contact care role.
(c) Any direction
issued by an employer shall be consistent with the employer's responsibilities
to provide a safe and healthy working environment.
4A. Secure Employment
Provisions
(i) 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.
(ii) Casual
Conversion
(a) A casual
employee engaged by a particular employer on a regular and systematic basis for
a sequence of periods of employment under this Award during a calendar period
of six months shall thereafter have the right to elect to have his or her
ongoing contract of employment converted to permanent full-time employment or
part-time employment if the employment is to continue beyond the conversion
process prescribed by this subclause.
(b) Every employer
of such a casual employee shall give the employee notice in writing of the
provisions of this sub-clause within four weeks of the employee having attained
such period of six months. However, the employee retains his or her right of
election under this subclause if the employer fails to comply with this notice
requirement.
(c) Any casual
employee who has a right to elect under paragraph (ii)(a), upon receiving
notice under paragraph (ii)(a) or after the expiry of the time for giving such
notice, may give four weeks’ notice in writing to the employer that he or she
seeks to elect to convert his or her ongoing contract of employment to
full-time or part-time employment, and within four weeks of receiving such
notice from the employee, the employer shall consent to or refuse the election,
but shall not unreasonably so refuse.
Where an employer refuses an election to convert, the reasons for doing
so shall be fully stated and discussed with the employee concerned, and a
genuine attempt shall be made to reach agreement. Any dispute about a refusal of an election to
convert an ongoing contract of employment shall be dealt with as far as
practicable and with expedition through the disputes settlement procedure.
(d) Any casual
employee who does not, within four weeks of receiving written notice from the
employer, elect to convert his or her ongoing contract of employment to
full-time employment or part-time employment will be deemed to have elected
against any such conversion.
(e) 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.
(f) If a casual
employee has elected to have his or her contract of employment converted to
full-time or part-time employment in accordance with paragraph (ii)(c), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph (ii)(c), discuss and agree upon:
(1) whether the
employee will convert to full-time or part-time employment; and
(2) if it is agreed
that the employee will become a part-time employee, the number of hours and the
pattern of hours that will be worked either consistent with any other part-time
employment provisions of this award 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 his or her contract of employment to full-time employment and an
employee who has worked on a part-time basis during the period of casual
employment has the right to elect to convert his or her contract of employment
to part-time employment, on the basis of the same number of hours and times of
work as previously worked, unless other arrangements are agreed between the
employer and the employee.
(g) Following an
agreement being reached pursuant to paragraph (e), 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.
(h) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
(iii) Occupational
Health and Safety
(a) For the
purposes of this subclause, the following definitions shall apply:
(1) A "labour hire business"
is a business (whether an organisation, business enterprise, company,
partnership, co-operative, sole trader, family trust or unit trust, corporation
and/or person) which has as its business function, or one of its business
functions, to supply staff employed or engaged by it to another employer for
the purpose of such staff performing work or services for that other employer.
(2) A
"contract business" is a business (whether an organisation, business
enterprise, company, partnership, co-operative, sole trader, family trust or
unit trust, corporation and/or person) which is contracted by another employer
to provide a specified service or services or to produce a specific outcome or
result for that other employer which might otherwise have been carried out by
that other employer’s own employees.
(b) 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.
(c) Nothing in
this subclause (iii) 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.
(iv) 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.
(v) 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.
(vi) Exemption
The above mentioned casual conversion clause will not apply
to persons who perform work pursuant to the Technical and Further Education
Commission Act 1990.
5. Hours
(i) Ordinary
Working Hours - The ordinary working hours, inclusive of crib breaks, shall not,
without payment of overtime, exceed an average of thirty eight per week. Such
hours shall be worked as follows:
(a) Day Workers -
Between the hours of 6.30 a.m. and 6.30 p.m., Monday to Friday inclusive. The
above hours shall be worked on each day in either one or two shifts provided
that the total hours worked on any day shall not exceed the applicable hours
provided for in clause 6 Implementation of 38 Hour Week without payment for
overtime.
(b) Shift Workers
- Fixed shifts of a duration provided for in Clause 6, Implementation of 38
hour week to be worked on five days of the week, Monday to Sunday inclusive.
(ii) Notification
of Hours - The employer shall, by legible notice displayed at some place
accessible to the employees, notify the ordinary hours of commencing and
ceasing work and the ordinary times of meal or crib breaks. Such hours, once notified, shall not be
changed without the payment of overtime except by seven days' clear notice to
the employee, or by mutual agreement between the employer and employee to waive
or shorten the notice period, or due to an emergency outside the employer’s
control.
Any dispute as to the existence of an emergency will be
dealt with in accordance with the dispute settling procedure of this award.
Notation: An ‘emergency’ must be given it’s ordinary
meaning. It is not to be understood to comprehend routine events, such as an
employee having to remain at the end of their rostered hours, when a parent
fails to arrive on time to collect a child. Such work, if required will involve
overtime to which the award overtime provisions will apply.
Notation: For part time employees see subclause (iii)
of Clause 12, Overtime.
(iii) Rest Pauses -
All employees shall be allowed a rest break of ten minutes per shift between
the second and third hour from starting time and, if the work exceeds seven
hours from starting time the employee shall be allowed a further rest break of
ten minutes, to be taken at a time mutually convenient to the employer and the
employees in the establishment concerned, subject to the provisions relating to
the supervision of children under the Children and Young Persons (Care and
Protection) Act 1998.
(iv) Crib Breaks -
Not more than thirty minutes nor less than twenty shall be allowed to employees
each day for a midday crib break between the fourth and fifth hour if such
employee's shift exceeds five hours from commencement of work. Such crib breaks shall be counted as time
worked.
Provided however that employee may, by agreement with
the employer, leave the premises during the crib break. Where such reasonable
request has been made by an employee, the employer shall give favourable
consideration to any such request having regard to the provisions of the Children
and Young Persons (Care and Protection) Act 1998 relating to supervision of
children. Such time away from the premises shall not count as time worked nor
shall any payment be made for such time. A record of unpaid lunch periods shall
be kept in the Time and Wages records.
(v) Unpaid Meal breaks
for those employed on or after 28 August 2000.
An employer may direct an employee engaged on or after 28 August 2000 to
take an unpaid meal break of up to thirty minutes between the fourth and fifth
hour of the employee’s shift provided that the shift exceeds five hours and
having regard to the provisions of the Children and Young Persons (Care and
Protection) Act 1998 relating to supervision of children. During this unpaid time, the employee may
leave the premises.
(vi) Unpaid Meal
breaks for those employed prior to 28 August 2000. With the prior written agreement of the
employee, an employer may direct an employee engaged prior to 28 August 2000 to
take an unpaid meal break of up to thirty minutes between the fourth and fifth
hour of the employee’s shift provided that the shift exceeds five hours and
having regard to the provisions of the Children and Young Persons (Care and
Protection) Act 1998 relating to supervision of children. The prior agreement of the employee shall be
recorded in the time and wages record. During this unpaid time, the employee
may leave the premises.
(vii) Employee
performing duties during meal break. If
an employee is required to perform duties during and unpaid meal break, the
employee shall be paid at time and one half for the time worked with a minimum
payment as for fifteen minutes work. Where the employee works more than fifteen
minutes, the payment shall be as for thirty minutes.
6. Implementation of
38 Hour Week
6A. Ordinary Hours
of Work
(i) The ordinary hours
of work shall not exceed an average of 38 per week, as provided in clause 5,
Hours, of this award.
(ii) In respect of
employees engaged prior to 28 August 2000, the 38 hour week is to be
implemented by the working of a 19 day month in accordance with sub-clause
6.B. Provided that, with the consent of
the employee, the ordinary hours of work may be implemented in accordance with
(b), (c), (d), or (e) of sub-clause (iii) of this clause. The consent of the
employee must be in writing and a notation of the consent shall be kept in the
time and wages record.
(iii) In respect of
employees engaged on or after 28 August 2000, ordinary hours of work in
accordance with clause 5, Hours of this award, may be implemented in one of the
following ways:-
(a) by working a 19
day month; or
(b) by working 3 x
10 hour shifts and 1 x 8 hour shift per week; or
(c) by working 4 x
9.5 hour shifts per week; or
(d) by working 5 x
7.6 hour shifts per week; or
(e) by working 4 x
8 hour shifts and 1 x 6 hour shift per week.
6B. 19 Day Month
(iv) An employee
shall accrue two hours per week or 0.4 of an hour (i.e., 24 minutes) for each
eight hour shift or day worked, to give an entitlement to take an accrued
rostered day off in each four week cycle as though worked.
(v)
(a) Each day of
paid leave taken (including annual leave but not including long service leave
or any period of paid or unpaid stand-down as provided in clause 4 (ii) of this
award) and any public holiday occurring during any cycle of four weeks shall be
regarded as a day worked for accrual purposes. Provided however that accrued
days off shall not be regarded as part of annual leave for any purpose.
(b) Notwithstanding
the provisions of paragraph (a) of this subclause, an employee shall be entitled
to no more than 12 paid accrued days off in any twelve months of consecutive
employment.
(c) An employee
who has not worked a complete four week cycle in order to accrue a rostered day
off, shall be paid a pro rata amount for credits accrued for each day worked in
such cycle payable for the rostered day off or, in the case of termination of
employment, on termination, (i.e. an amount of 24 minutes for each 8 hour day
worked).
(vii) Subject to
subclause (v) of this clause, an employee shall accrue an entitlement to
rostered days off in any twelve months of consecutive employment to the extent
provided in the following table:
Number Of Weeks
|
Accrued Days Off
|
Establishment
|
Per Year
|
Open Per Year
|
|
41 weeks
|
10.25
|
42 weeks
|
10.50
|
43 weeks
|
10.75
|
44 weeks
|
11.00
|
45 weeks
|
11.25
|
46 weeks
|
11.50
|
47 weeks
|
11.75
|
48 weeks - 52 weeks
|
12.00
|
6C. Implementation
of 19 Day Month
(viii) By mutual agreement
between the employer and employee concerned, the employer may fix one work day
in every fourth week as an accrued rostered day off to the extent of such
rostered days off accrued in accordance with subclause (vii) of this clause; or
Accumulation
(ix) Establishments
Operating 48 - 52 Weeks
The employee may accrue sufficient accrued days off to
enable such days to be taken as rostered days off to a maximum block of five
(5) days at any one time in any twelve (12) months of consecutive employment,
and provided that no two (2) blocks of rostered days off shall follow on
consecutively.
The employee shall take such rostered days off by
mutual agreement with the employer.
(x) Establishments
Operating 41 - 47 Weeks
Accumulated rostered days off shall be taken during
non-term time, including but not limited to the period of paid stand-down
provided in Clause 4 (ii) of this award.
6D. Part Time
Employees
(a) A part time
employee as defined in clause 3 (ii) of this award who is regularly rostered to
work ordinary hours over five days per week shall accrue an entitlement to
rostered days off in the same ratio of weeks worked to accrued days as set out
in subclause (vi) of this clause. A part
time employee may choose to be paid the appropriate higher hourly rate (that is
a rate based on a 38-hour divisor, as set out in clause 7(ii) in lieu of
accruing an entitlement to rostered days off subject to mutual agreement
between employer and employee. A
notation of such agreement shall be kept in the Time and Wages Records.
Provided that in respect of part time employees engaged
on or after 28 August 2000, the employer may require that such employee be paid
the higher rate in lieu of the rostered day off.
(b) Where rostered
days off are taken the provisions of subclause 6C of this clause shall apply.
(c) A part-time
employee as defined in subclause (ii) of clause 3, Definitions, who works less
than five days per week shall be paid for all hours worked (on the basis of a
38-hour divisor) subject to subclause (iv) of clause 9, Wages in lieu of an
entitlement to rostered days off subject to mutual agreement between the
employer and the employee/s.
6E. Casual
Employees
A casual employee as defined in subclause (iii) clause
3, Definitions, shall be paid for all hours worked subject to subclause (v) of
clause 9, Wages in lieu of an entitlement to accrued days off prescribed by
this clause.
7. Rostered Days Off
Duty
(i) Rostering
(a) Notice - Except
as provided in paragraph (b), an employee shall be advised by the employer at
least four weeks in advance of the day or days he or she is to be rostered off
duty.
(b) Substitution -
An individual employee with the agreement of the employer may substitute the
day he or she is rostered off duty for another day.
(c) Payment of
Wages - Subject to Clause 14, Payment of Wages, of this award, where an
employee is paid by cash or cheque and such employee is rostered off duty on a
day which coincides with pay day, such employee shall be paid no later than the
working day immediately following pay day.
(d) Accumulation -
Rostered days off may accumulate in accordance with subclause (iv) of clause 6,
Implementation of 38 Hour Week of this award.
(ii) Payment of
Rostered Days Off - For every ordinary hour paid for, payment to the employee
of one twentieth (5%) of the hourly rate will be withheld by the employer and
then paid in the pay week in which the employee’s rostered day off is taken.
Notation: The withholding of payment for
rostered days off for part time employees may also be implemented by applying a
divisor of 40 in lieu of a 38 divisor to the appropriate full time rate of pay
used to determine the part time rate applicable.
(iii) Rostered Day
Off Falling on a Public Holiday - Where an employee's rostered day off falls on
a public holiday the employee and the employer shall agree to the substitution
of an alternative day off. Provided
however that where such agreement is not reached the substituted day may be
determined by the employer.
(iv) Sick Leave and
Rostered Days Off - An employee is not eligible for sick leave in respect of
absences on rostered days off as such absences are outside the ordinary hours
of duty.
(v) Bereavement
& Rostered Days Off - An employee shall not be entitled to payment for
Bereavement leave in respect of absences on rostered days off as such absences
are outside the ordinary hours of duty.
(vi) Work on
Rostered Day Off - Except as provided in paragraph (b) of subclause (i) of this
clause, any employee required to work on a rostered day off shall be paid in
accordance with the provisions of clause 12, Overtime, of this award and an
alternative day shall be granted as a rostered day off.
8. Classification
Structure
(i) Implementation
of Classification Structure
(a) The employer
shall determine the appropriate classification for each position in the service
having regard to the needs of the service. The employer may choose not to
appoint anyone to a particular classification in the Award, subject to the
provisions of the Children and Young Persons (Care and Protection) Act
1998 and/or the Children’s Services Regulations 2004.
(b) An employee
will be appointed to the position and the corresponding classification in this award
having regard to the duties required by the employer to be undertaken by the
employee, the qualifications of the employee and the employee’s length of
service.
(c) An employee shall
commence on the step in the appropriate classification commensurate with the
number of years of employment in early childhood and child care services for
children aged 0 - 12 years whether conducted by the employer or not and shall
progress thereafter in accordance with the award.
Progression through the steps of each classification in
this clause for part-time and casual employees shall be based on full-time
equivalent service.
(d) Calculation of
Employment: When calculating employment
for the purposes of this clause, one year of employment may be deducted for
every period of five year's absence from early childhood and child care
services.
(e) Employment
History on Engagement:
(1) Full time or
Part time employees - upon engagement, an employee shall establish the
employee’s employment history in early childhood and child care services for
the purposes of determining, where necessary, the appropriate step applicable
under the classification structure set out in subclause (ii) of this clause.
(2) Casual
employees - a casual employee shall maintain and keep up to date a record of
employment as set out in Appendix A of this award. Such record shall be signed by the employer
at the conclusion of each period of casual employment.
(f) An employee
may apply for a higher classification when a position becomes available in the
service subject to the employee possessing the requisite qualifications and
appropriate selection procedures for the particular service being followed.
(g) Any dispute in
relation to the implementation of the classification structure shall be dealt
with in accordance with Clause 35 - Dispute Settling Procedure of this award.
(h) Translation
(1) Existing
employees whose duties fall within the classification structure set out in this
award should confer with their employer and seek to reach agreement on any
translation that may apply to the employee’s classification as a result of the
introduction of new classifications in this award.
(2) Employees will
translate to new classifications, if applicable, on the basis of the following
principles:
where an existing employee retains their existing
classification, they will retain their current incremental position in that
classification based on their years of experience in the industry;
where an existing employee is subsequently reclassified
to a higher classification, they will be paid at the rate for the
classification to which they are appointed to in accordance with 8(i)(c).
Co-ordinators will be classified according to their
qualifications, the service type, and the number of licensed child care places.
New employees will be classified and paid according to
the appropriate table in Part B Monetary Rates of this award.
(ii) Classification
Structure
An employer shall classify the position to which an
employee is appointed in accordance with the following structure:
Child Care Support Worker (as defined)
Child Care Support Worker (Qualified Cook) (as defined)
Child Care Worker (as defined)
Step
|
|
1
|
on engagement without early childhood or child care
service
|
2
|
after 1 year's employment in this classification, or the
satisfactory completion of an AQF
|
|
Certificate III in Children’s Services (with less than 12 months
employment in an early
|
|
childhood or child care service)
|
3
|
after 2 year's employment in this classification
|
4
|
after 3 year's employment in this classification
|
5
|
after 1 year’s employment in this classification, in addition
to the satisfactory completion of
|
|
an AQF Certificate III in Children’s Services.
|
Advanced Child Care Worker (as defined)
Step
|
|
1
|
on engagement with early childhood or child care service
|
2
|
after 1 year's employment in this classification
|
3
|
after 2 year's employment in this classification
|
Advanced Child Care Worker (Qualified) (as defined)
Step
|
|
1
|
on engagement with early childhood or child care service
|
2
|
after 1 year's employment in this classification
|
3
|
after 2 year's employment in this classification
|
4
|
required to supervise other Associate Diploma or Diploma
qualified employees within the
|
|
group they have responsibility for
|
Assistant Co-ordinator (as defined)
Assistant Co-ordinator Qualified (as defined)
Co-ordinator (as defined)
Level
|
|
|
1
|
OOSH
|
on engagement with an Out Of School Hours centre
|
2
|
LDC/Pre-School
|
on engagement with long day care or Pre-School service up
to 29
|
|
|
licensed places
|
3
|
LDC/Pre-School
|
on engagement with long day care or Pre-School service up
to
|
|
|
69 licensed places.
|
4
|
LDC/Pre-School
|
on engagement with long day care or Pre-School service
with
|
|
|
70 licensed places or more.
|
Co-ordinator Qualified (as defined)
Level
|
|
|
1
|
OOSH
|
on engagement with an Out Of School Hours Centre
|
2
|
LDC/Pre-School
|
on engagement with long day care or Pre-School service up
to 29.
|
|
|
licensed places
|
3
|
LDC/Pre-School
|
on engagement with long day care or Pre-School service up
to 69
|
|
|
licensed places.
|
4
|
LDC/Pre-School
|
on engagement with long day care or Pre-School service
with 70
|
|
|
licensed places or more.
|
(iii) Child Care
Support Worker means an employee appointed by the employer to perform some or
all of the following duties:
assisting a qualified cook;
laundry work;
cleaning;
gardening;
cooking (where the employee is unqualified);
driving (as part of other duties);
handy work; and
other duties as required by the employer as are within
the knowledge, skills and capabilities of the carer, including duties at a
higher classification; provided that this does not promote de skilling.
(iv) Child Care
Support Worker (Qualified Cook) - means an employee who holds basic
qualifications in cooking, and who is appointed by the employer to cook meals
in the service. An employee in this classification may be required by the
employer to perform other duties as required by the employer as are within the
knowledge, skills and capabilities of the employee including duties at a higher
or lower classification; provided that this does not promote de skilling.
(v) Child Care
Worker - means a carer appointed by the employer to contribute to the
development of and assist in the implementation of the child care program under
the general direction of and responsible to a supervisor who is regularly
present with the group of children.
Qualifications are not required for Steps 1 to 4.
(a) An employee
who has completed an AQF Certificate III in Children’s Services shall be paid
no less than Child Care Worker Step 2.
(b) An employee
who has completed both an AQF Certificate III in Children’s services and 12
months equivalent full-time service in a child care service, or has
successfully completed an approved Certificate III traineeship of no less than
12 months duration, shall be classified at Step 5.
(c) An employee at
this level is responsible for their own work and may be required by the
employer to perform some or all of the following duties:
positively interact with children, give each child
individual attention and comfort as required;
assist to implement daily routines;
assist with ensuring a safe, healthy and clean indoor
and outdoor environment for children;
supervise the activities of a group of children for
short periods of time during the day;
work with other staff members to ensure the smooth
running of the service subject to the service policies and procedures;
understand and work according to the service policies
and procedures;
assist in the development and/or evaluation of the
program;
assist in the observation and evaluation of the
children’s development;
assist with the recording of children’s development and
assist in planning for the ongoing development of the child;
communicate with parents as instructed;
attend to incidental cleaning and housekeeping or
associated with individual and group activities, experiences and routines;
perform incidental administrative duties including but
not limited to: completing receipts, signing deliveries, ruling up the roll,
checking the roll and the like;
other duties as required by the employer as are within
the knowledge, skills and capabilities of the carer, including duties at a
lower classification; provided that this does not promote de skilling.
(d) An employee at
this level may be required by the employer to possess and maintain a current
first aid certificate recognised under the Children and Young Persons (Care
and Protection) Act 1998.
(e) Employees
appointed to the position of child care worker, but required to perform the
duties of an advanced child care worker, will be paid the higher rate
applicable to that classification.
(vi) Advanced Child
Care Worker - means an unqualified carer appointed by the employer with the
responsibility to develop, plan and implement the child care program. An employee at this level is responsible to
the overall employer of a service and may be responsible for the direction of
other staff within the group for which they have responsibility. An employee at this level may be required by
the employer to perform some or all of the following duties:
has direct responsibility for the management of a group
or groups of children in conjunction with the employer of the service;
ensure the maintenance of a healthy and safe work
environment;
ensure a safe, healthy and clean indoor and outdoor
environment for children;
liaise with parents as to needs of the children and the
service;
maintain appropriate and up-to-date records;
ensure that programs are planned, implemented and
evaluated for each child in their care;
ensure that all regulations, licensing guidelines.
service policies and procedures are observed;
carry out administrative duties which relate to
effective room management and child care responsibilities;
other duties as required by the employer as are within
the knowledge, skills and capabilities of the carer, including duties at a
lower classification; provided that this does not promote de skilling.
An employee at this level is required to possess and
maintain a current first aid certificate recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended and administer
first aid as required.
An employee at this level will be required to continue
to demonstrate the skills and knowledge required for the position.
(vii) Advanced Child
Care Worker: Qualified - means a qualified carer who holds a Diploma in
Children’s Services, an Associate Diploma in Social Science (Child Studies)
from TAFE or equivalent qualifications which are recognised under the Children
and Young Persons (Care and Protection) Act 1998 as amended,
appointed by the employer with the responsibility to develop, plan and
implement the child care program. An
employee at this level is responsible to the overall employer of a service and may
be responsible for the direction of other staff within the group for which they
have responsibility. An employee at this
level may be required by the employer to perform some or all of the following
duties:
has direct responsibility for the management of a group
or groups of children in conjunction with the employer of the service;
ensure the maintenance of a healthy and safe work
environment;
ensure a safe, healthy and clean indoor and outdoor
environment for children;
liaise with parents as to needs of the children and the
service;
maintain appropriate and up-to-date records;
ensure that programs are planned, implemented and
evaluated for each child in their care;
ensure that all regulations, licensing guidelines. service
policies and procedures are observed;
carry out administrative duties which relate to
effective room management and child care responsibilities;
other duties as required by the employer as are within
the knowledge, skills and capabilities of the carer including duties at a lower
classification; provided this does not promote de skilling.
An employee at this level is required to possess and
maintain a current first aid certificate recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended, and administer
first aid as required.
An employee at this level will be required to continue
to demonstrate the skills and knowledge required for the position.
Advanced Child Care Worker Qualified Step 4 means a
qualified carer who holds the Associate Diploma in Social Science (Child
Studies), Diploma in Children’s Services or equivalent qualifications which are
recognised under the Children and Young Persons (Care and Protection) Act
1998 as amended, and who is appointed by the employer to a position where the
employee is required to supervise other Associate Diploma or Diploma qualified
employees within the group they have responsibility for.
(viii) Assistant
Co-ordinator - means carer appointed by the employer to perform administrative
and management functions which assist in the co-ordination administration and
management of a service, under direction from and responsible to a supervisor
who is regularly present at the service. In addition to those of an Advanced
Child Care Worker, an employee at this level may be required by the employer to
perform some or all of the following duties:
Supervise, direct and co-ordinate the activities of
groups of children across the service.
Co-ordinate and manage day-to-day staffing matters across
the service.
Perform administrative duties which assist in the
effective management of the service.
Ensure that groups within the service meet programming,
planning administrative and regulatory requirements.
other duties as required by the employer which are
within the knowledge, skills and capabilities of the carer, including duties at
a lower classification; provided that this does not promote de skilling.
An employee will not be regarded as working at this
level for undertaking responsibilities such as evaluating and improving the
activities of a service.
An employee will not be regarded as working at this
level for relieving in a supervisory position to fill a temporary absence where
the provisions of Clause 17 ‘Relieving Other Positions’ of this Award apply.
An employee at this level is required to possess and
maintain a current first aid certificate recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended, and administer
first aid as required.
(ix) Assistant
Co-ordinator Qualified means a carer who holds a Diploma in Children’s
Services, or an Associate Diploma in Social Science (Child Studies) from TAFE
or equivalent qualifications which are recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended, appointed by the
employer to perform administrative and management functions which assist in the
co-ordination administration and management of a service, under direction from
and responsible to a supervisor who is regularly present at the service. In
addition to those of an Advanced Child Care Worker Qualified, an employee at
this level may be required by the employer to perform some or all of the
following duties:
Supervise, direct and co-ordinate the activities of
groups of children across the service.
Co-ordinate and manage day-to-day staffing matters
across the service.
Perform administrative duties which assist in the
effective management of the service.
Ensure that groups within the service meet programming,
planning administrative and regulatory requirements.
other duties as required by the employer which are
within the knowledge, skills and capabilities of the carer, including duties at
a lower classification; provided that this does not promote de skilling.
An employee will not be regarded as working at this
level for undertaking responsibilities such as evaluating and improving the
activities of a service.
An employee at this level is required to possess and
maintain a current first aid certificate recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended, and administer
first aid as required.
(x) Co-ordinator -
means a carer appointed by the employer to co-ordinate, administer and manage a
service. An employee at this level is
required to perform all of the following duties:
be accountable to the employer for the administration
of the service;
co-ordinate and manage the day-to-day operations of the
service;
manage staff through liaison and consultation with the
employer;
oversee and ensure the implementation and maintenance
of a healthy, safe and clean environment for staff and children;
ensure day-to-day administrative tasks are completed
appropriately, including requirements for funding and licensing;
ensure the Service adheres to all relevant regulations
and licensing guidelines;
ensure all appropriate records are maintained;
liaise with and consult with parents regarding the
needs of the children and the community;
liaise with management to ensure that all matters and
procedures relating to government funding
are complied with in accordance with appropriate guidelines and, where
applicable, submissions for funding to relevant authorities are made and funds
applied in accordance with the relevant guidelines and approvals;
assist with the preparation of budgets in consultation
with the employer, making appropriate recommendations and manage service
financial responsibilities within approved levels;
attend meetings as required by the employer consistent
with position responsibilities.
In addition an employee may be required to perform some
or all of the following duties:
develop, implement and evaluate service policies and
procedures and ensure these and licensing conditions are met in consultation
with the employer;
prepare and present reports regarding Service issues;
develop goals and directions for the service in
consultation with staff and management in line with early childhood policy and
practice;
ensure that Government guidelines on priority access to
services are adhered to;
other duties as required by the employer which are
within the knowledge, skills and capabilities of the carer, including duties at
a lower classification; provided that this does not promote de skilling.
An employee at this level is required to possess and
maintain a current first aid certificate recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended, and administer
first aid as required.
(xi) Co-ordinator:
Qualified means a qualified carer who holds the Diploma in Children’s Services,
an Associate Diploma in Social Science (Child Studies) from TAFE or equivalent
qualifications which are recognised under the Children and Young Persons
(Care and Protection) Act 1998 as amended, and who is appointed by the
employer to co-ordinate, administer and manage a service. An employee at this level is required to
perform the following duties:
be accountable to the employer for the administration
of the Service;
co-ordinate and manage the day-to-day operations of the
service;
manage staff through liaison and consultation with the
employer;
oversee and ensure the maintenance and implementation
of a healthy, safe and clean environment for staff and children;
ensure day-to-day administrative tasks are completed
appropriately, including requirements for funding and licensing;
ensure the Service adheres to all relevant regulations
and licensing guidelines;
ensure all appropriate records are maintained;
liaise with and consult with parents regarding the
needs of the children and the community;
liaise with management to ensure that all matters and
procedures relating to government funding
are complied with in accordance with appropriate guidelines and, where
applicable, submissions for funding to relevant authorities are made and funds
applied in accordance with the relevant guidelines and approvals;
assist with the preparation of budgets in consultation
with the employer, making appropriate recommendations and manage service
financial responsibilities within approved levels;
attend meetings as required by the employer consistent
with position responsibilities.
In addition an employee may be required to perform some
or all of the following duties:
acts as Authorised Supervisor in accordance with the Children
and Young Persons (Care and Protection) Act 1998 as amended, where required
by the employer;
develop, implement and evaluate Service policies and
procedures and ensure these and licensing conditions are met in consultation
with the employer;
prepare and present reports regarding service issues;
develop goals and directions for the service in
consultation with staff and management in line with early childhood policy and
practice;
ensure that government guidelines on priority access to
services are adhered to;
other duties as required by the employer which are
within the knowledge, skills and capabilities of the carer, including duties at
a lower classification; provided that this does not promote de skilling.
An employee at this level is required to possess and
maintain a current first aid certificate recognised under the Children and
Young Persons (Care and Protection) Act 1998 as amended, and administer
first aid as required.
(xii) Co-ordinator
Level 1 (Out Of Schools Hours) - means a Co-ordinator (as defined) appointed to
an OOSH service who does not hold a Diploma Children’s Services, an Associate
Diploma in Social Science (Child Studies), or equivalent qualifications which
are recognised under the Children and Young Persons (Care and Protection)
Act 1998 as amended.
(xiii) Co-ordinator
Level 2 - LDC / Pre School means a Co-ordinator (as defined) appointed to a
Long Day Care or Pre School service of up to 29 licensed places.
(xiv) Co-ordinator
Level 3 - LDC / Pre School means a Co-ordinator (as defined) appointed to a
Long Day Care or Pre School service of between 30 and 69 licensed places.
(xv) Co-Ordinator
Level 4 - LDC / Pre School means a Co-ordinator (as defined) appointed to a
Long Day Care or Pre School service of 70 licensed places or more.
(xvi) Co-ordinator
Qualified Level 1 (Out Of School Hours) means a Co-ordinator Qualified (as
defined) appointed to an OOSH service.
(xvii) Co-ordinator
Qualified Level 2 - LDC / Pre School means a Co-ordinator Qualified (as
defined) appointed to a Long Day Care or Pre School service of up to 29
licensed places.
(xviii) Co-ordinator
Qualified Level 3 - LDC / Pre School means a Co-ordinator Qualified (as
defined) appointed to a Long Day Care or Pre School service of between 30 and
69 licensed places.
(xix) Co-ordinator
Qualified Level 4 - LDC / Pre School means a Co-ordinator Qualified (as defined)
appointed to a Long Day Care or Pre School service of 70 licensed places or
more.
9. Wages
(i) Full-Time
Employees
(a) Rates:- The
minimum rate of pay for the classifications as set out in clause 8,
Classification Structure, of employees engaged in Long day Care Centres or
services operating more than 41 weeks per year shall be the rates as set out,
in Table 1B and 1C - Wages, of Part B, Monetary Rates.
(b) Rates:- The
minimum rate of pay for the classifications as set out in clause 8, Classification
Structure, of employees engaged in Pre-Schools or services operating 41 weeks
per year shall be the rates as set out, in Table 1B and 1D - Wages, of Part B,
Monetary Rates.
(c) The rates of
pay in this award include the adjustments payable under the State Wage Case
2010. These adjustments may be offset against:
(i) any
equivalent overaward payments, and/or
(ii) award wage
increases since 29 May 1991 other than safety net, State Wage Case, and minimum
rates adjustments.
(ii) Savings
Clause - Leading Hand and First Aid Allowance:
With the exception of employees classified as Co-ordinators under the
new structure, an employee who is employed as at July 8, 1997 and who is
currently appointed as a leading hand and/or appointed first aid attendant and
is in receipt of an allowance for such appointment(s) shall continue to receive
the amount of such allowance(s), as an over award payment, whilst they continue
in employment in that position with that employer.
(iii) Part time
Employees:
(a) Rates - For
each hour worked during ordinary time, part-time employees shall be paid the
hourly equivalent of the minimum weekly wage prescribed by this award for the
class of work performed by them.
(b) Minimum Starts
1. Child Care
Support Worker. A part-time employee engaged as a Child Care Support Worker or
Child Care Support Worker (Qualified Cook) working a single shift on any day
shall be paid a minimum of two hours for each start.
2. Out of School
Hours Care. A part-time employee working a single shift shall be paid a minimum
of two hours for each start.
3. Broken Shift
Workers. A part-time employee working a broken shift pursuant to paragraph (a)
Day Workers of subclause (i) of Clause 5, Hours, of this award, shall be paid a
minimum of two hours for each of the two shifts so worked.
4. All other
part-time employees shall be paid a minimum of three hours for each start.
(iv) Casual
Employees
(a) Rates. Casual
employees, for each hour worked during ordinary time shall be paid the hourly
equivalent of the minimum weekly wage prescribed by this award for the class of
work performed by them, plus an additional amount of 15 per centum of the
appropriate weekly rate. Casuals are
entitled to annual leave payments under the Annual Holidays Act,
1944. The employer must make the payment
by adding an additional one twelfth of the ordinary time casual hourly rate to
the aggregate ordinary pay after each engagement.
(b) Minimum Starts
1. Child Care
Support Worker A casual employee engaged as a Child Care Support Worker or
Child Care Support Worker (Qualified Cook) working a single shift on any day
shall be paid a minimum of two hours for each start.
2. Out of School
Hours Care A casual employee working a single shift shall be paid a minimum of
two hours for each start.
3. Broken Shift
Workers A casual employee working a
broken shift pursuant to paragraph (a) Day Workers of subclause (i) of Clause
5, Hours, of this award, shall be paid a minimum of two hours for each of the
two shifts so worked.
4. All other
casual employees shall be paid a minimum of three hours for each start.
(v) The hourly
rates for part-time and casual employees shall be calculated to the nearest
whole cent, any amount less than half a cent in the result to be disregarded.
(vi) Juniors:
Junior Child Care Workers employed shall be paid the following percentages of
the appropriate adult rate of pay specified for the classification under which
the junior is engaged:
Age
|
Percentage (per
week)
|
Under 17 years of age
|
70
|
At 17 years of age
|
80
|
At 18 years of age
|
90
|
At 19 years of age
|
100
|
The above mentioned percentages shall be calculated to
the nearest ten cents, provided however that any broken part of ten cents in the
result less than five cents shall be disregarded.
(vii) Junior
Employees (Special Conditions): Junior employees employed otherwise than in
accordance with subclause (vii), of this clause, shall be paid the appropriate
adult rate of pay. The employment of junior employees is further subject to the
following conditions:-
(a) The ratio of
juniors to adults employed in any capacity in any establishment shall not
exceed the following ratios -
Where up to 20 children are catered for - one junior to one adult.
Where over 20 children are catered for - one junior to
two adults.
(b) Junior
employees engaged as trainee Advanced Child Care Worker shall be required, as a
condition of employment, to train as such. employees shall attend the Associate
Diploma of Social Science (Child Studies) Course or such other technical
college course as is necessary.
(c) The employer
shall, in respect of each trainee Advanced Child Care Worker, pay all fees and
charges necessary to attend and complete the said course and shall, if
necessary, allow the employee time off duty without deduction of pay to attend
the said course.
(viii) Phasing in and
Savings provision
(a) Savings
No employee shall suffer a reduction in wages and/or
allowances as a result of the insertion of the new classification structure
into this award on 7 March 2006.
(b) Commencement
The rates of pay set out in this award will apply on
and from the first pay period after 7 March 2006.
(c) Phasing in of
Increases. Where the employee’s current rate of pay is below the total new end
rate of pay specified in this Award for the classification appropriate to the
employee, the difference will be phased in according to the following
provisions:
Date
|
Increase
|
|
7 March 2006
|
4%
|
|
1 September 2006
|
4%
|
Or, the balance of the remaining increase, if less than 4
per cent
|
1 March 2007
|
4%
|
Or, the balance of the remaining increase, if less than 4
per cent
|
1 September 2007
|
4%
|
Or, the balance of the remaining increase, if less than 4
per cent
|
1 March 2008
|
|
The balance of the remaining increase.
|
(d) The employer
and employee may agree to earlier implementation dates for wage increases than those
set out in subclause (c) above.
(e) In the event
that the employer and the employee cannot reach agreement as envisaged by
clause 8(i)(h)(1), or in the event that a dispute arises as the transitional
arrangements referred to in clause 8, the procedures specified in clause 35 -
Dispute Settling Procedure must be followed.
10. Additional Rates
and Allowances
(i) Straight
Shifts: The following additional allowances for shift work shall be paid to employees
in respect of work performed during ordinary hours for shifts as defined in
subclauses (vii), (viii), (ix) and (x) of Clause 3, Definitions, of this award:
|
Percentage
|
Early morning shift
|
10%
|
Afternoon shift
|
15%
|
Night shift, rotating with day
or afternoon shift
|
17.5%
|
Night shift, non-rotating
|
30%
|
(ii) Broken Shifts
- Employees working broken shifts as provided in paragraph (a) of subclause (i),
of clause 5, Hours, shall be paid the following additional allowances:
(a) For each
broken shift so worked - a shift allowance in accordance with Item 1 of Table 2
Additional Rates and Allowances, of Part B, Monetary Rates.
(b) Excess fares
allowance - at the rate in accordance with Item 2 of the said 2.
(iii) Uniform
Laundry Allowance - In the event of an employee being required to wear a
uniform such uniform shall be provided by and laundered at the employer’s
expense, or, by mutual agreement, such employees shall be paid a uniform
laundry allowance, in accordance with Item 3 of the said Table 2.
(iv) Cooks Uniform
Laundry Allowance - Where an employer requires a cook to wear an ordinary white
overall or wrap, coat, cap, apron and trousers, usually worn by cooks, such
garments shall be laundered either at the employer’s expense or at the option
of the employer, the employee shall be paid a cooks uniform laundry allowance,
in accordance with Item 4 of the said Table 2.
(v) First Aid
Certificate:
(a) If an employer
requires an employee who is not required to have a first aid certificate under
the award definition of the classification, to obtain and/or maintain such a
qualification, the employee shall be allowed time off without loss of pay for
the purpose of completing the course required. The cost of the course shall be
met by the employer.
(b) Employers who
require employees to attend to medical procedures such as administering epi
pens, suppositories and drip feeding shall ensure staff are adequately trained
in such procedures, before being required to undertake them. The cost of any
such training will be met by the employer.
(vi) Qualification
Allowances
(a) An employee
who has completed successfully the Commercial Cookery Basic Training Course at
TAFE or a course deemed by the employer to be an equivalent qualification,
shall be paid an additional allowance in accordance with Item 5 of the said
Table 2, such amount shall be part of the ordinary rate of pay for all award
purposes.
(b) An employee
who has completed successfully the Hotel and Restaurant Cookery Course at the
Sydney Technical college or a course deemed by the employer to be an equivalent
qualification, shall be paid an allowance in accordance with Item 6 of the said
Table 2, such amount shall be part of the ordinary rate of pay for all award
purposes.
(c) An employee
shall advise the employer of the date of completion of such course as specified
in paragraph (a) and/or (b) of this subclause.
(vii) The rate of
pay for a Support Worker (Qualified Cook) provided for in subclause (i) of
clause 9, Wages of this award shall include any allowance for the
responsibility of directing or supervising the duties of an assistant cook when
such is employed.
(viii) Board and
Lodging : An employer shall not be
compelled to board and/or lodge any worker but where board and/or lodging are
provided the employer shall be entitled to deduct in respect of all workers the
following amounts:-
(a) For full board
of twenty-one (21) meals per week, an amount equal to 18.5 per cent of the
adult basic wage.
(b) For full
lodging for seven (7) days per week, an amount equal to 7 per cent of the adult
basic wage.
(c) Where by
mutual consent, part board and/or part lodgings are provided the deductions referred
to in subclauses (a) and (b), of this clause, may be made on a pro-rata basis.
Non-residential employees shall not suffer any deductions for meals provided
unless by mutual consent.
(ix) Authorised
Supervisor Allowance: An employee (other than a Co-ordinator: Qualified or a
Co-ordinator) who is required by the employer to act as an Authorised
Supervisor in accordance with the Children and Young Persons (Care and
Protection) Act 1998, as amended, shall be paid an amount as set out in
Item 8, of the said Table 2. The daily rate for such allowance shall be
calculated by dividing the weekly allowance by 5.
11. Saturday and
Sunday Work
(i) Ordinary
Hours - Shift Workers - Shift workers required to work their ordinary hours on
a Saturday and/or Sunday shall as prescribed by subclause (i)(b) of clause 5,
Hours of this award, be paid for all time so worked at the following rates:
Saturday Work
|
Time and one-half
|
Sunday Work
|
Double time
|
(ii) The rates prescribed
in this clause shall be in substitution for and not cumulative upon the shift
work allowances prescribed in subclause (i) of clause 10, Additional Rates and
Allowances, of this award.
(iii) Overtime -
Day Workers
(a) Overtime performed
on Saturday shall be paid for at the rate of time and one half for the first
three hours and double time thereafter with a minimum payment of not less than
four hours at such rate.
(b) Overtime
performed on Sundays shall be paid for at the rate of double time.
(iv) Overtime -
Shift Workers
(a) Overtime
performed on Saturday shall be paid for at the rate of time and one half for
the first two hours and double time thereafter.
(b) Overtime
performed on Sundays shall be paid for at the rate of double time.
12. Overtime
(i) Subject to
subclause (iii) of this clause and subclauses (iii) and (iv) of clause 11,
Saturday and Sunday Work of this award, for all work done outside ordinary
hours the rates of pay shall be time and one half for the first two hours and
double time thereafter. In computing overtime each day's work shall stand
alone.
(ii) Where
overtime or extra shifts are required to be worked, the employer shall give
preference for such work to employees as classified and covered by the terms of
this award where it is reasonably practicable to do so.
(iii) Part-time
employees -
If a part-time employee agrees to work additional
hours, the additional hours must be paid at the same rate as full time
employees are paid under the award. The work
must be paid for at the ordinary hourly rate for all hours unless they fall
outside the ordinary hours fixed by this Award for full-time employees. Any hours worked in addition to ordinary
full-time hours must be paid at the overtime rate applicable to full-time
employees under this Award.
(iv) Meal Money: An
employee required to work overtime in excess of one and one half hours shall
either be paid an allowance in accordance with Item 7 of Table 2 of Part B,
Monetary Rates or be supplied with a meal of equivalent value.
(v) Time Off in
Lieu of Overtime : Where an employee performs duty on overtime the employee may
at the employee’s request and with the agreement of the employer subsequently
be released from duty in ordinary hours subject to the following conditions:
(a) The agreement
shall be in writing and be kept with the time and wages records;
(b) Where an
employee takes subsequent time off the relevant and equivalent period of
overtime shall be paid for at ordinary rates of pay; all other overtime worked
and in respect of which time off is not taken shall be paid for at the
appropriate overtime rate otherwise provided in this award;
(c) Where an
employee elects to take any period/s of time off in ordinary hours in accordance
with this clause such time off shall be with pay and shall equate to the
relevant period/s of overtime worked;
(d) Time off may
be taken only in respect of overtime worked between Monday to Friday inclusive;
(e) Payment for
any period/s of overtime worked and in relation to which the employee elects to
take time off may be paid by the employer to the employee in the pay period in
which the time off is taken;
(f) An employee
may not accumulate more than 20 hours of equivalent time off which shall be
taken within four weeks of its accrual.
Where such time off is not taken the period/s of overtime referable
thereto shall be paid for in the next relevant pay period at the appropriate
overtime rate otherwise applicable.
(vi) Reasonable
Overtime: Subject to clause (vii) an employer may require an employee to work
reasonable overtime at overtime rates.
(vii) 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.
(viii) For the
purposes of clause (vii) what is unreasonable or otherwise will be determined
having regard to:
(1) any risk to
employee’s health and safety;
(2) the employee’s
personal circumstances including any family responsibilities;
(3) the needs of
the workplace or enterprise;
(4) the notice (if
any) given by the employer of the overtime and by the employee of his or her
intention to refuse it; and
(5) any other
relevant matter.
13. Make Up Time
An employee may elect, with the consent of their
employer, to work "make-up time", under which the employee takes time
off ordinary hours, and works those hours at a later time, during the spread of
ordinary hours provided in the award, at the ordinary rate of pay.
14. Payment of Wages
(i) Wages shall
be paid weekly or fortnightly in ordinary working time. An employee kept waiting after the normal
ceasing time for the payment of wages shall be paid at overtime rates from the
normal ceasing time until payment is made.
Casual employees shall be paid within one hour of the termination of the
employment or on the normal pay day for the establishment.
(ii) Where an
employer and employee agree, the employee may be paid the employee’s wages by
cheque or direct transfer into the employee's bank (or other recognised
financial institution) account.
Notwithstanding this provision, if the employer and the majority of
employees agree, all employees may be paid their wages by cheque or direct
transfer into an employee's bank (or other recognised financial institution)
account.
(iii) Where payment
is made by cheque the employer shall ensure that clearance of such cheque is
made available by the appropriate bank or, alternatively, an employer may make
a direct deposit by cheque to the appropriate bank for transfer to nominated
employee accounts to ensure access by the employee to wages on the nominated
pay day.
15. Miscellaneous
Conditions
(i) Boiling
Water: Hot water shall be provided by the employer where practicable.
(ii) Accommodation
for Meals: Employers shall allow employees to partake of their meals, crib
breaks or tea breaks in a suitable place protected from the weather and every
such employee shall leave such place in a thoroughly clean condition.
(iii) Rubber Boots:
Where employees are required to work outside or in toilets in wet conditions
they shall be supplied with rubber boots, which should remain the property of
the employer.
(iv) Rubber Gloves:
Where employees are required to clean toilets or to use acids or other
injurious substances or detergents they shall be supplied with rubber gloves,
which shall remain the property of the employer and shall be replaced by the
employer when unserviceable.
(v) Dressing
Accommodation: Where it is necessary or customary for employees to change their
dress or uniform suitable dressing rooms or dressing accommodation and
individual lockable lockers shall be provided.
(vi) Clean overalls
shall be supplied by the employer for all outdoor staff where such employee
requires same.
(vii) A first aid
kit shall be supplied and be readily available to all employees.
(viii) All materials,
equipment, etc. required for the work and for cleaning purposes shall be
supplied by the employer.
(ix) Protective
clothing, overalls or uniforms supplied pursuant to this award shall remain the
property of the employer and shall be returned upon termination of employment.
16. Job Sharing
(i) Definitions 'Job Sharing' may be defined as the occupation
of a full-time or part-time position by two employees (job sharers) sharing all
of the duties and responsibilities of the position.
(ii) General
Employment Conditions
(a) A job share
position shall only be created by mutual agreement between the employer and the
employee occupying the position to be job shared.
(b) Subject to the
provisions of subclause (iii) of this clause relating to overtime, job sharers
will be employed on pro-rata hours, wages and conditions for the relevant
classification or grade of the position filled.
(c) Before any job
sharing arrangements are approved, the employer shall provide each prospective
job sharer with a copy of this clause and obtain her or his acceptance of the
job share position to be worked.
(d) Job sharers
will discuss with the employer arrangements to determine how the job is to be
split and agree the hours to be worked by each job sharer including the
arrangements to be adopted when one job sharer is absent.
(e) Where a job
share position is of a specific duration and instead of being filled by two
existing employees an additional employee must be engaged to share the
position, such additional employee shall be advised that the position is only
available for the duration sought and approved.
(iii) Hours of Duty
(a) The hours of
work of job sharers shall be worked in accordance with clause 5, Hours of this
award.
(b) The hours of
job sharers once established will not be changed except by mutual consent of
both the job sharers and the employer or subject to the operational requirement
of the centre. Where an employer is required to change a job sharers hours
because of the operational requirement of the centre, the employer shall give
the job share employees notice in accordance with subclause (ii) of Clause 5,
Hours of this award.
(c) The total
weekly hours of job sharers of a full-time position shall not exceed an average
of 38 hours per week to be worked in accordance with Clause 6, Implementation
of the 38 Hour Week. Hours worked in
excess of the arrangements set out in the said Clause 6 by a job sharer shall
be paid in accordance with Clause 12, Overtime of this award.
(d) Job Sharers
shall not be entitled to accrue credits towards rostered days off provided for
under clause 6, Implementation of 38 Hour Week and clause 7, Rostered Days Off
Duty of this award.
(iv) Leave
(a) Job sharers
shall be entitled to all leave provisions available under this award on a pro
rata basis.
(b) Job sharers may
take annual leave or other leave at the same time or separately.
(c) Job sharers
may be asked and may agree to cover for the absences of the other job share
employees. Such coverage may be either
for part of the absence or for the full period.
(d) All leave
arrangements wherever possible will be made by mutual agreement between both
job sharers and the employer.
(e) Where a job
share employee agrees to cover for the other job share employee whilst he or
she is on leave, they shall be paid at ordinary rates for the extra days or
extra hours worked subject to the provisions of paragraph (f) of this
subclause.
(f) Where the
absence of one job sharer on leave is covered by the other job sharer the
aggregate number of hours worked shall not exceed those of a full-time employee
without the payment of overtime.
(v) Redundancy Subject to the provisions of clause 27,
Redundancy of this award where a job share position is made redundant then the
job sharers shall be entitled to the provisions of the said clause 27.
(vi) Termination of
Employment
(a) The position
of a job sharer may be terminated in accordance with the relevant provisions of
clause 4, Contract of Employment of this award.
(b) Where one job
sharer has terminated the position of the remaining job sharer shall not be
prejudiced.
(c) Where one
job-sharer has terminated, the position may be filled internally or externally
provided that any replacement employee is advised of the job share nature of
the position and particularly when the position is of a specific duration, or
the remaining job-sharer may be offered the option of occupying the full
position on a permanent basis.
(d) Any
replacement employee shall also be advised of the provisions of this clause
applying to the job share position.
17. Relieving in Other
Positions
(i) Employees
employed at work for which a higher rate is fixed shall be paid such higher
rate whilst so employed. If employed for four hours or more on the higher class
of work employees shall be paid the higher rate for the whole of that day.
(ii) Where an
employee is called upon to perform duties for which a lower rate is fixed the
employee shall suffer no reduction in pay.
18. Sick Leave
For exemptions to certain provisions of this clause for
certain categories of employees, see clause 36, Exemptions of this award.
(i) A full time
employee is entitled to 15 days sick leave in the first year of employment, and
12 days in each subsequent year. Any leave accrued and not utilised accumulates
to a maximum of 120 days.
(ii) A part time
employee is entitled to pro rata sick leave commensurate with the proportion
which their ordinary hours bears to 38 hours per week.
(iii) The employee
shall provide to the employer a doctors certificate in respect of absences of
two days or more or where the sick leave occurs before or after a public
holiday, rostered day off or weekend.
(iv) A Statutory
Declaration shall be accepted in respect of any single day absences.
(v) The employee
shall, as soon as reasonably practicable and in any case within 24 hours of the
commencement of such absence, inform the employer of an inability to attend for
duty and, and as far as practicable, the estimated duration of the absence.
Payment During the Initial Three Months of Service
(vi) Paid sick
leave which may be granted to a staff member in the first three months of
service shall be limited to five days’ paid sick leave unless the centre
approves otherwise. Paid sick leave in
excess of five days granted in the first three months of service shall be
supported by a satisfactory medical certificate.
(vii) Following the
completion of three months of service with an employer the employee shall be
entitled to the balance of leave not taken up to a maximum of 15 days in the
first year of service.
Infectious Diseases at the Centre or Service
(viii) Consideration
shall be given to extending the sick leave amount in the circumstances where an
infectious disease or illness has been identified at the centre, and an
employee is subsequently infected.
Workers Compensation
(ix) An employee
shall not be entitled to sick leave for any period in respect of which the
employee is entitled to workers compensation.
(x) Notwithstanding
anything contained in subclause (i), of this clause, a weekly employee
suffering injury through an accident arising out of and in the course of
employment (not being an injury in respect of which there is an entitlement to
workers' compensation) necessitating his or her attendance during working hours
on a doctor, chemist or trained nurse, or at a hospital, shall not suffer any
deduction from his or her pay for the time (not exceeding four hours) so
occupied on the day of the accident and shall be reimbursed by the employer for
all expenses reasonably incurred in connection with such attendance and
expenses shall include fares.
Definition of Week
(xi) For the
purpose of this clause "week" means:-
(a) In the case of
part-time employees - the number of ordinary weekly hours regularly worked by
such employees;
(b) in the case of
all other weekly employees - thirty eight hours.
Savings for sick leave accruals
(xii) Employees
engaged at 7 March 2006 who have accrued in excess of 120 days of sick leave
under previous accruals will not have their entitlement reduced as a
consequence of this award. Such accruals in excess of 120 days will, as of 7
March 2006 be capped at that higher level, and that level will form the maximum
accrual for the employee whilst employed by the same employer.
(xiii) Current
employees will receive the sick leave allowances in sub clause (i) of this
clause on their next anniversary with their current employer.
19. Public Holidays
(i) The days on
which the following holidays are observed shall be holidays, namely, New Year's
Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day,
Queen's Birthday, Eight Hour Day, Christmas Day and Boxing Day and any day
which may hereafter be proclaimed as a public holiday throughout the State of
New South Wales, and the first Monday in August or such other day as is
mutually agreed between the employer and an employee or the employer and the
majority of employees. Provided that for
pre-schools operating 41 weeks per year only, the first Monday in August may be
subsumed into a period of paid stand-down provided in clause 4(ii) of this
award.
(ii) The above
holidays falling on an ordinary working day shall be paid for if not worked,
irrespective of such holidays falling in a vacation period.
(iii) Employees
required to work on any of the above holidays shall be paid at the rate of
double time and one-half with a minimum payment of four hours at such rate.
(iv)
(a) Where a
holiday occurs on the rostered day off of a seven day shift worker as provided
for in subclause (i)(b) of clause 5, Hours and:
(1) the employee is
not required to work on that day, the employer shall pay such employee eight
hours' ordinary pay in respect of such day;
(2) the employee is
required to work on that day, the employer shall pay such employee eight hours'
ordinary pay in respect of such time and in addition at the rate of time and
one-half for the first eight hours (with a minimum payment of four hours) and
double time and one-half thereafter.
(b) The employer
may, in lieu of the payment of eight hours' ordinary pay prescribed in
paragraph (a) of this subclause, add a day to the annual leave period.
(c) Any day or
days added in accordance with this subclause shall be the working day or
working days immediately following the annual leave period to which the
employee is entitled to under clause 20, Annual Leave, of this award.
(d) Where the
employment of an employee has been terminated and the employee thereby becomes
entitled under section 4 of the Annual Holidays Act 1944, to payment in
lieu of an annual holiday with respect to a period of employment, the employee
shall be entitled also to an additional payment for each day accrued to the
employee under this clause at the appropriate ordinary rate of pay, if payment
has not already been made in accordance with paragraph (a) of this subclause.
(v) For the
purpose of this clause any employee whose ordinary hours of work commence
before and continue past midnight shall be regarded as working on a holiday
only if the greater number of the employee’s working hours fall on the holiday,
in which case all time worked shall be regarded as holiday work; provided that
if the number of ordinary hours worked before and past midnight is equal, all
ordinary time worked shall be regarded as time worked on the day on which the
shift commenced.
20. Annual Leave
(i) All employees
except seven day shift workers - see Annual Holidays Act 1944.
(ii) Seven Day
Shift Workers - in addition to the leave provided by section 3 of the Annual
Holidays Act 1944, a seven day shift worker at the end of each year of
employment shall be entitled to the additional leave as prescribed below:-
(a) If during the
year of employment the employee has served continuously as a seven day shift
worker, the additional leave with respect to that year shall be one week.
(b) If during the
year of employment the employee has served only a portion of it as a shift
worker, the additional leave shall be 3.5 hours for each completed month of
employment as a shift worker, or provided that where the additional leave is or
comprises a fraction of a day, such fraction shall not form part of the leave
period and any such fraction shall be discharged by payment only.
Where the employment of a seven day shift worker is
terminated and the shift worker thereby becomes entitled under section 4 of the
Annual Holidays Act 1944, to payment in lieu of an annual holiday with
respect to a period of employment, he or the shift worker shall be entitled to
an additional payment of 3.5 hours at such ordinary rate of pay for each
completed month of service as a seven day shift worker.
(iii) For the
purposes of this clause, a seven day shift worker means an employee whose
ordinary working hours includes Sundays and/or holidays on which the shift
worker may be regularly rostered for work.
21. Annual Leave
Loading
(i) In this
clause the Annual Holidays Act 1944, is referred to as "the
Act".
(ii) Before an employee
is given and takes his or her annual holiday, or where, by agreement between
the employer and the employee the annual holiday is given and taken in more
than one separate period, then before each of such separate periods, the
employer shall pay the employee a loading determined in accordance with this
clause (Note: The obligation to pay in advance does not apply where an employee
takes an annual holiday wholly or partly in advance - see subclause (vi)).
(iii) The loading
is payable in addition to the pay for the period of holidays given and taken
and due to the employee under the Act and this award.
(iv) The loading is
to be calculated in relation to any period of annual holiday to which the
employee becomes or has become entitled under the Act and this award (but
excluding days added to compensate for public or special holidays worked or
public or special holidays falling on an employee's rostered day off not
worked), or where such a holiday is given and taken in separate periods, then
in relation to each such separate period. (Note: See subclause (vi) as to
holidays taken wholly or partly in advance).
(v) The loading is
the amount payable for the period or the separate period, as the case may be,
stated in subclause (iv) of this clause at the rate per week of 17.5 per cent
of the appropriate ordinary weekly time rate of pay prescribed by this award
for the classification in which the employee was employed immediately before
commencing his or her annual holiday together with, where applicable, the following
allowances prescribed by clause 10, Additional Rates and Allowances, in
subclause (vii) Leading Hands and subclause (vi) Qualification Allowances of
this award, but shall not include any other allowances, penalty rates, shift
allowances, overtime rates or any other payment prescribed by this award.
(vi) 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 he or she would have become entitled under the Act to an annual holiday,
the loading then becomes payable in respect of the period of such holiday, and
is to be calculated in accordance with subclause (v), of this clause, applying
the award rates of wages payable on that day. This subclause applies where an
annual holiday has been taken wholly or partly in advance and the entitlement
to the holiday arises after that date.
(vii) Where, in
accordance with the Act the employer's establishment or part of it is
temporarily closed down for the purpose of giving an annual holiday or leave
without pay to the employee concerned -
(a) an employee
who is entitled under the Act to an annual holiday and who is given and takes
such a holiday shall be paid the loading calculated in accordance with
subclause (v), of this clause;
(b) an employee
who is not entitled under the Act to an annual holiday and who is given and
takes leave without pay shall be paid in addition to the amount payable to him
or her under the Act such proportion of the loading that would have been
payable to him or her under this clause if he or she had become entitled to an
annual holiday prior to the close down as his or her qualifying period of
employment in completed weeks bears to 52.
(viii)
(a) When the
employment of an employee terminates for a
cause other than misconduct and at the time of the termination the
employee has not been given and has not taken the whole of an annual holiday to
which he or she became entitled he or she shall be paid a loading calculated in
accordance with subclause (v), of this clause, for the period not taken.
(b) Except as
provided in paragraph (a), of this subclause, no loading is payable on the
termination of an employee's employment.
(ix) This clause
extends to an employee who is given and takes an annual holiday and who would
have worked as a shift worker if he or she had not been on holiday; Provided
that, if the amount to which the 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.
(x) By agreement
between the employer and employee, the loading may be calculated in relation to
such period of an employee’s annual holiday as is equal to the period of annual
holiday to which the employee is entitled for the time being under the Annual
Holidays Act 1944 at the end of either each calendar year or at the end of
each year of the employee’s employment. The employer will identify the payment
on the employee’s payslip when the payment is made.
Any agreement made pursuant to sub-clause (x) will be
recorded in writing in the time and wages record.
22. Long Service Leave
See Long Service Leave Act 1955.
23. Parental Leave
(i) See Appendix
B to this award.
(ii) 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.
(iii) Right to
request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(1) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(2) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(3) 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 Clause 23(iii)(a)(2) and 23(iii)(a)(3) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under Clause
22(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.
(iv) 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:
(1) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(2) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(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 or other contact details which might
affect the employer’s capacity to comply with Clause 23(iv)(a).
24. Personal/Carers
Leave
For exemptions to the provisions of this clause for
certain categories of employees see clause 36, Exemptions of this award.
(i) Use of sick
leave
(a) An employee with
responsibilities in relation to a class of person set out in 24(i)(c)(2) who
needs their care and support shall be entitled to use, in accordance with this
subclause, any sick leave entitlement which accrues after September 12th, 1996
for absences to provide care and support for such persons when they are ill or
who require care due to an unexpected emergency.
(b) The employee
shall, if required,
(1) establish by
production of a medical certificate or statutory declaration, the illness of
the person concerned and that the illness is such as to require care by another
person, or
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(1) the employee
being responsible for the care and support of the person concerned; and
(2) 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 paragraph:
1. "relative"
means a person related by blood, marriage or affinity;
2. "affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
3. "household"
means a family group living in the same domestic dwelling.
(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 their
relationship to the employee, the reasons for taking such leave 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
settling procedure at Clause 35 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 class of person set out in 24(i)(c)(2) above, who is ill or who require care
due to an unexpected emergency. Such
leave may be taken for part of a single day.
(iii) Annual leave
(a) To give effect
to this clause an employee may elect, with the consent of the employer, to take
annual leave not exceeding ten days in any calendar year at a time or times
agreed by the parties.
(b) Access to
annual leave, as prescribed in paragraph 24(iii)(a) above, 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, 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) An employee
may elect, with the consent of their employer, to take time off in lieu of payment
of overtime at a time or times agreed with the employer.
(b) Arrangements
for taking overtime as time off shall be governed by Clause 12 - Overtime of
the Award.
(v) Make-up time
An employee may elect, with the consent of their
employer, to work "make-up time" in accordance with Clause 13 - Make
Up Time of the Award.
(vi) Grievance
process
In the event of any dispute arising in connection with
any part of this clause, such dispute shall be processed in accordance with the
dispute settling provisions of this award.
(vii) Personal
Carers Entitlement for casual employees
(a) Subject to the
evidentiary and notice requirements in Clause 24(i)(b) and 24(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 Clause 24(i)(c)(2) who are sick
and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(b) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the
employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
(c) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
25. Bereavement Leave
(i) An employee
other than a casual employee shall be entitled to up to two days bereavement
leave without deduction of pay, up to and including the day of the funeral, on
each occasion of the death of a person prescribed in (iii) below. Provided that
where the death of a relative as defined occurs outside Australia and a
memorial service is held, one day's leave without loss of any ordinary pay
shall be allowed.
(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 by (i)(c)(2) of Clause 24 Carer's Leave, 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 subclauses
(i), (ii), (iii) (iv) and (v) of Clause 24 Personal/Carers 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 Clause 25(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 Clause 24(i)(c)(2).
(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.
26. 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 employee's 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.
27. Redundancy
(i) Application
(a) This clause
shall apply in respect of full time and part time employees as set out in
clause 9, Wages.
(b) In respect to
employers who employ more than 15 employees immediately prior to the
termination of employment of employees, in the terms of subclause (v) of this
clause.
(c) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply to
employees with less than one year's continuous service and the general
obligation on employers shall be no more than to give such employees an
indication of the impending redundancy at the first reasonable opportunity, and
to take such steps as may be reasonable to facilitate the obtaining by the
employees of suitable alternative employment.
(d) Notwithstanding
anything contained elsewhere in this award, this clause shall not apply where
employment is terminated as a consequence of conduct that justifies instant
dismissal, including malingering, inefficiency or neglect of duty, or in the
case of casual employees, apprentices or employees engaged for a specific
period of time or for a specified task or tasks or where employment is
terminated due to the ordinary and customary turnover of labour.
(ii) Introduction
Of Change
(a) 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.
(b) '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.
(iii) Employers
Duty To Discuss Change
(a) 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 subclause (ii) 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.
(b) 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 this
clause.
(c) 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.
(iv) Discussions
Before Terminations
(a) 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) of
subclause (ii), of this clause 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.
(b) The
discussions shall take place as soon as is practicable after the employer has
made a definite decision which will invoke the provision of paragraph (a) of
this subclause 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.
(c) 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.
(v) Notice For Changes
In Production, Program, Organisation Or Structure
This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from 'production',
'program', 'organisation' or 'structure' in accordance with paragraph (a) of
subclause (ii) of this clause.
(a) 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
|
(b) In addition to
the notice above, employees over 45 years of age at the time of the giving of the
notice with not less than two years continuous service, shall be entitled to an
additional week's notice.
(c) Payment in
lieu of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(vi) Notice For
Technological Change
This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from 'technology'
in accordance with paragraph (a) of subclause (ii) of this clause:
(a) In order to
terminate the employment of an employee the employer shall give to the employee
3 months notice of termination.
(b) Payment in
lieu of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(c) The period of
notice required by this subclause to be given shall be deemed to be service
with the 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.
(vii) Time Off
During The Notice Period
(a) 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.
(b) 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.
(viii) 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.
(ix) 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.
(x) Notice To
Centrelink
Where a decision has been made to terminate the
employment of 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.
(xi) Centrelink
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.
(xii) Transfer To
Lower Paid Duties
Where an employee is transferred to lower paid duties
for reasons set out in paragraph (a) of subclause (ii), of this clause, 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.
(xiii) Severance Pay
Where the employment of an employee is to be terminated
pursuant to subclause (v) of this clause, subject to further order of the
Industrial Relations Commission, the employer shall pay the following severance
pay in respect of a continuous period of service:
(a) 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
|
(b) 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
& 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
|
(c) 'Weeks Pay'
means the all purpose rate of pay for the employee concerned at the date of
termination, and shall include, in addition to the ordinary rate of pay, over
award payments, shift penalties and all purpose allowances paid in accordance
with this award.
(xiv) Incapacity To
Pay
Subject to an application by the employer and further
order of the Industrial Relations Commission, an employer may pay a lesser amount
(or no amount) of severance pay than that contained in subclause (xiii) of this
clause.
The Industrial Relations Commission shall have regard
to such financial and other resources of the employer concerned as the
Industrial Relations Commission thinks relevant, and the probable effect paying
the amount of severance pay in subclause (xiii) of this clause will have on the
employer.
(xv) Alternative
Employment
Subject to an application by the employer and further
order of the Industrial Relations Commission, an employer may pay a lesser
amount (or no amount) of severance pay than that contained in subclause (xiii)
of this clause if the employer obtains acceptable alternative employment for an
employee.
(xvi) Procedures
Relating To Grievances
Grievances relating to individual employees will be
dealt with in accordance with clause 33, Dispute Settling Procedure of this
award.
28. In-Service -
Pre-Schools and Out of School Hours Care Centres
(i) This clause
shall apply only to pre-schools operating 41 weeks per year and out of school
hours care centres operating 41 weeks per year.
(ii) Employees may
be required to attend in-service courses totalling up to an accrued value time
of 38 hours duration in any calendar year.
In computing attendance at in-service courses, each year shall stand
alone.
(iii) Attendance at
such in-service courses may be during stand-down (non-term) time.
(iv) An employee
attending in-service courses outside his or her ordinary hours of work shall
accrue such hours as 'accrued value time' at the rate of one and a half hours
accrued for each of the first two hours of such in-service attended and two
hours accrued for each additional hour of in-service attendance
thereafter. In computing 'accrued value
time' each day's in-service shall stand alone.
Such 'accrued value time' shall count towards hours of
attendance at in-service courses in accordance with subclause (ii) of this
clause.
29. Meetings and
Activities
An employee may be required to attend up to a maximum of
two hours per month and co-ordinators up to four hours per month where such
time involves parental meetings, staff meetings and other duties not including
the supervision of children without any payment being due. Part-time employees may be required to attend
such meetings outside of ordinary hours on a pro rata basis.
Any hours required to be worked in excess of those
specified above will be paid in accordance with Clause 12 Overtime of this
award.
30. Professional
Development, Training and Planning
(a) Employees are
responsible for ensuring that they are aware of new developments in early
childhood education. However, the
parties recognise that continuing professional development of employees is a
joint responsibility of both the employer and the employee.
(b) The employer
may request an employee to attend any courses in non-term time or after hours
relating to professional development, training and planning. The employee cannot unreasonably refuse to
attend such courses, provided that a full-time employee who receives no more
than four weeks' annual leave in a calendar year shall receive time in lieu for
time spent at any courses outlined in this clause.
(c) Any dispute in
relation to attendance shall be dealt with in accordance with clause 35, Dispute
Settling Procedure of this award.
31. Examination and
Study Leave
An employee who for the purpose of obtaining the
Certificate III in Children’s Services or the Diploma in Children’s Services
enrols at a College of Technical and Further Education shall be granted leave
with pay on the day of any examination required in the course. Provided that such leave of absence shall
only be approved where a month's prior notice is given to enable alternate
staffing arrangements to be effected.
32. Supported Wage
Definition:
(i) This clause
defines the conditions which will apply to employees who because of the effects
of a disability are eligible for a supported wage under the terms of this
award. In the context of this clause,
the following definitions will apply:
(a) "Supported
wage system" means the Commonwealth Government system to promote
employment for people who cannot work at full award wages because of a
disability, as documented in "(Supported Wage System: Guidelines and
Assessment Process)".
(b) "Accredited
assessor" means a person accredited by the management unit established by
the Commonwealth under the Supported Wage System to perform assessments of an
individual’s productive capacity within the Supported Wage System.
(c) "Disability
support pension" means the Commonwealth pension scheme to provide income
security for persons with a disability as provided under the Social Security
Act 1991, as amended from time to time, or any successor to that scheme.
(d) "Assessment
instrument" means the form provided for under the Supported Wage System
that records the assessment of the productive capacity of the person to be
employed under the Supported Wage System.
Eligibility criteria
(ii) Employees
covered by this clause will be those who are unable to perform the range of
duties to the competence level required within the class of work for which the
employee is engaged under this award, because of the effects of a disability on
their productive capacity and who meet the impairment criteria for receipt of
Disability Support Pension.
(The clause does not apply to any existing employee who
has a claim against the employer which is subject to the provisions of workers’
compensation legislation or any provision of this award relating to the rehabilitation
of employees who are injured in the course of their current employment).
(The award does not apply to employers in respect of
their facility, program, undertaking, service or the like which receives
funding under the Disability Services Act 1986 and fulfils the dual role of
service provider and sheltered employer to people with disabilities who are in
receipt of, or eligible for, a disability support pension, except with respect
to an organisation which has received recognition under section 10 or section
12A of the Act, or if a part only has received recognition, that part).
Supported wage rates
(iii) Employees to
whom this clause applies shall be paid the applicable percentage of the rate of
pay prescribed by this award for the class of work which the person is
performing according to the following schedule:
Assessed Capacity
Rate
|
% of Prescribed
Award
|
(Subclause (d))
|
|
*10%
|
10%
|
20%
|
20%
|
30%
|
30%
|
40%
|
40%
|
50%
|
50%
|
60%
|
60%
|
70%
|
70%
|
80%
|
80%
|
90%
|
90%
|
Provided that the amount payable shall not be less than
$45.00 per week.
* Where a
person’s assessed capacity is ten percent, they shall receive a high degree of
assistance and support.
Assessment of capacity
(iv) For the purpose
of establishing the percentage of the award rate to be paid to an employee
under this award, the productive capacity of the employee will be assessed in
accordance with the Supported Wage System and documented in an assessment
instrument by either:
(a) the employer
and the union party to the award, in consultation with the employee or, if
desired by any of these.
(b) the employer
and an accredited Assessor from a panel agreed by the parties to the award and
the employee.
Lodgement of assessment instrument
(v)
(a) All assessment
instruments under the condition of this clause, including the appropriate
percentage of the award wage to be paid to the employee, shall be lodged by the
employer with the Registrar of the Industrial Relations Commission.
(b) All assessment
instruments shall be agreed and signed by the parties to the assessment,
provided that where the union which is party to the award/agreement, is not a
party to the assessment, it shall be referred by the Registrar to the union by
certified mail and shall take effect unless an objection is notified to the
Registrar within ten working days.
Review of assessment
(vi) The assessment
of the applicable percentage should be subject to annual review or earlier on
the basis of a reasonable request for such a review. The process of review shall be in accordance
with the procedures for assessing capacity under the Supported Wage System.
Other terms and conditions of employment
(vii) Where an
assessment has been made, the applicable percentage shall apply to the wage
rate only. Employees covered by the
provisions of the clause will be entitled to the same terms and conditions of
employment as all other employees covered by this award paid on a pro rata basis.
Workplace adjustment
(viii) An employer
wishing to employ a person under the provisions of this clause shall take
reasonable steps to make changes in the workplace to enhance the employee’s
capacity to do the job. Changes may
involve re-design of job duties, working time arrangements and work
organisation in consultation with other employees in the area.
Trial Period
(ix)
(a) In order for
an adequate assessment of the employee’s capacity to be made, an employer may
employ a person under the provision of this clause for a trial period not
exceeding 12 weeks, except that in some cases additional work adjustment time
(not exceeding four weeks) may be needed.
(b) During the
trial period the assessment of capacity shall be undertaken and the proposed
wage rate for a continuing employment relationship shall be determined.
(c) The minimum
amount payable to the employee during the trial period shall be no less than
$45.00 per week.
(d) Work trials
should include induction or training as appropriate to the job being trialled.
(e) Where the
employer and employee wish to establish a continuing employment relationship
following the completion of the trial period, a further contract of employment
shall be entered into based on the outcome of assessment under subclause (iv)
of this clause.
33. Superannuation
A. Definitions
(i) "ASSET"
means the Australian Superannuation Savings Employment Trust constituted by
deed made 14 October 1987.
(ii) "HESTA"
means the Health Employees Superannuation Trust Australia, constituted by deed
made 30 July 1987.
(iii) "Union"
means The Australian Liquor, Hospitality and Miscellaneous Workers Union of
Australia, New South Wales Branch.
(iv) "Eligible
employee" means:
(a) a full-time
employee engaged under the terms and conditions of this Award.
(b) a part-time or
casual employee engaged under the terms and conditions of the above Award who
earns two hundred dollars ($200.00) or more per calendar month.
(v) "Ordinary
time earnings" means the weekly rate of pay for the employee’s
classification (including leading hand allowances, broken shift allowance,
excess fares allowance, toilet cleaning allowance, qualification allowances and
shift work premiums) and any overaward payments for ordinary hours of work.
B. Fund
(i) For the
purposes of this clause, contributions made by employers shall be made as
follows:
(a) the employer
shall offer each employee a choice between H.E.S.T.A. and A.S.S.E.T.
(b) the employee
shall nominate the fund into which contributions shall be made.
(ii) Each employer
bound by this award shall sign and execute an agreement to become a
participating employer to either H.E.S.T.A. or A.S.S.E.T. dependent upon the
fund chose by the employee.
(iii) Each employer
bound by this award shall become party to H.E.S.T.A. or A.S.S.E.T. upon the
acceptance of the respective Trustee of a Deed of Adoption, duly signed and
executed by each employer and the respective Trustee.
(iv) An employee
shall become eligible to join H.E.S.T.A. or A.S.S.E.T. in accordance with the
following:
(a) in the case of
an employee who is employed at 1 July 1988, from the beginning of the first pay
period commencing on or after 1 July 1988, and
(b) in the case of
an employee employed after 1 July 1988, from the beginning of the first pay
period commencing on or after the employee’s date of engagement.
(v) An employer
shall take all necessary steps to ensure an eligible employee becomes a member
of the fund.
C. Contributions
(i) Each employer
shall pay to the respective Trustee in respect of each eligible employee an
amount equal to three percentum of employee’s ordinary time earnings for all
ordinary hours worked from the date the employee becomes eligible in accordance
with Clause 3(iv) of this award.
(ii) A pro-rata
deduction shall be made from the weekly contribution payable for any
unauthorised absence of at least one day’s duration.
(iii) An employer
shall not be required to contribute during any period of unpaid leave - such as
unpaid sick leave, maternity leave or the like, or periods of workers
compensation beyond the expiry of any entitlement to full pay in accordance
with the Workers Compensation Act, 1987.
Further an employer shall not be required to make additional
contributions in respect of annual leave paid out on termination.
(iv) Contributions
shall be made at the end of each calendar month for periods of employment
worked during that month.
(v) Notwithstanding
the date upon which an employee signs an Application Form, contributions in
accordance with subclause (I) of this clause shall be made from the date when
the employee became eligible for membership.
D. Records
The employer shall retain all records relating to the
calculation of payments due to the fund/s in respect of each employee and such
records shall be retained for a period of six years.
E. Exemptions
Employers of employees who are contributions or
eligible to become contributors to the following Superannuation Funds or any
scheme/s replacing such Funds shall be exempt from the provisions of this
Award:
State Superannuation Fund
State Public Service Superannuation Scheme
Public Authorities Superannuation Scheme
34.
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 and 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."
35. Dispute Settling
Procedure
The parties agree that, subject to the provisions of
the New South Wales Industrial Relations Act 1996, all grievances, claims
or disputes shall be dealt with in the following manner so as to ensure the
orderly settlement of the matters in question.
(i) Any grievance
or dispute which arises shall, where possible, be settled by discussion on the
job between the employee(s) and the employee's immediate supervisor.
(ii) If the matter
is not resolved at this level, it will be further discussed between the
affected employee(s), the union delegate (if any) or contact and the employer
. Both the employer's industrial
representative and the employee's union representative may be notified.
(iii) If no
agreement is reached the union representative or contact will discuss the
matter with the employer's nominated industrial relations representative.
(iv) 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.
(v) 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.
36. Exemptions
The provisions of clause 24, Personal/Carers Leave,
Clause 25 Bereavement Leave and subclause (iv) of clause 18, Sick Leave shall
not apply to employees of the following:
(a) licensed child
care centres, child minding centres, day nurseries and pre-school kindergartens
attached to or operated by a non-Government school; or
(b) licensed child
care centres, child minding centres, day nurseries and pre-school kindergartens
operated by a Catholic Diocese, a Catholic religious order or a Catholic
parish; or
(c) licensed child
care centres, child minding centres, day nurseries and pre-school kindergartens
operated by the following organisations:
(A) Society of St
Vincent de Paul;
(B) AMIGOSS
Co-operative Limited;
(C) Camperdown
Child Care Centre Limited;
(D) Wunanbiri
Pre-School; and
(E) St Patrick's
SHOOSH Care Association Inc.
Such employees shall continue to be entitled to family leave
provisions and additional sick leave in the first year of employment contained
in the Miscellaneous Workers Kindergartens and Child Care Centres Family Leave
(Catholic Kindergartens, Child Care Centres and Others and Independent Schools)
(State) Award published 17 November 1995 (289 IG 519) as varied.
37. Salary Packaging
(i) Where agreed
between the employer and a full-time or part-time employee, an employer may
offer salary packaging in respect of salary. Neither the employer nor the
employee may be compelled to enter into a salary packaging agreement.
(ii) Salary
packaging shall mean that the employee will have part of their salary packaged
into a fringe benefit which does not constitute a direct payment to the
employee but is payable to a bona fide third party.
(iii) The terms and
conditions of such a package shall not, when viewed objectively, be less
favourable than the entitlements otherwise available under this award and shall
be subject to the following provisions:
(a) the employer
shall ensure that the structure of any agreed remuneration package complies
with taxation and other relevant legislation;
(b) where there is
an agreement to salary package, the agreement shall be in writing and made
available to the employee;
(c) the employee shall
have access to details of the payments and transactions made on their behalf.
Where such details are maintained electronically, the employee shall be
provided with a printout of the relevant information;
(d) the employer
has the right to vary or withdraw from a salary packaging 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 packaging arrangements;
(e) prior to
entering into any salary packaging agreements, the employee will be given the
opportunity by the employer to seek independent advice in respect of salary
package arrangements including advice from the union;
(f) in the event
that the employer withdraws from a salary packaging agreement, the individual
employee’s salary will revert to whichever is the higher of:
(i) the ordinary
time rate of pay that applied to the employee prior to the commencement of the
salary packaging agreement; or
(ii) the applicable
rate specified in Table 1, Rates of Pay of this Award.
(g) notwithstanding
any of the above arrangements, the employer or employee may cancel any salary
packaging agreements by the giving of one month’s notice of cancellation to the
other party;
(h) Superannuation
Guarantee Contributions will be calculated with reference to the ordinary time
rate of pay the employee would have been entitled to receive but for the salary
packaging arrangement;
(i) any
allowance, penalty rates, overtime, payment for unused leave entitlements shall
be calculated by reference to the ordinary time rate of pay which would have
applied to the employee but for the salary packaging arrangement
(j) unless there
is agreement between the employer and the employee to the contrary, all salary
packaging arrangements shall cease during any period of leave without pay,
including periods of unpaid sick leave.
38. Leave Reserved
Leave is reserved to Employers First to apply in
relation to unpaid meal break and crib break provisions in the Award.
39. Area, Incidence
and Duration
This award rescinds and replaces the Miscellaneous
Workers Kindergartens and Child Care Centres &c. (State) Award, published
22 June 2001 (325 I.G. 652), and all variations thereof.
It shall apply to all persons of the classes herein
provided for within the jurisdiction of the Kindergartens, &c. (State)
Industrial Committee.
This award shall take effect on and from the 7 March
2006 and shall remain in force for a period of three years.
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 28 April 1999 (310 I.G. 359) take
effect on and from 27 October 2015.
This award remains in force until varied or rescinded,
the period for which it was made already having expired.
PART B
MONETARY
RATES
Table 1A - Former Wages
Classification
|
Weekly Rate From First
Pay Period
|
|
On or After 28th
August 2005
|
Child Care Worker
|
|
Step 1
|
524.80
|
Step 2
|
529.40
|
Step 3
|
533.80
|
Step 4
|
538.40
|
Advance Child Care Worker
|
|
Step 1
|
549.30
|
Step 2
|
561.30
|
Step 3
|
572.20
|
Advanced Child Care Worker Qualified
|
|
Step 1
|
616.50
|
Step 2
|
625.60
|
Step 3
|
634.80
|
Co-ordinator - Unqualified Small
|
|
Step 1
|
568.50
|
Step 2
|
582.50
|
Step 3
|
593.40
|
Co-ordinator - Unqualified Large
|
|
Step 1
|
580.10
|
Step 2
|
592.00
|
Step 3
|
603.00
|
Co-ordinator - Qualified Small
|
|
Step 1
|
643.30
|
Step 2
|
652.40
|
Step 3
|
661.60
|
Co-ordinator - Qualified Large
|
|
Step 1
|
662.40
|
Step 2
|
671.50
|
Step 3
|
678.70
|
TABLE 1B
Wages - Support Worker
Classifications
Classification
|
Rate at 16/12/12
|
Rate at 16/12/13
|
Rate at 16/12/14
|
Rate at 16/12/15
|
|
(2.5%)
|
(2.27%)
|
(2.38%)
|
(2.5%)
|
|
$
|
$
|
$
|
$
|
|
|
|
|
|
Support Worker
|
666.70
|
682.90
|
699.20
|
716.70
|
Support Worker
|
682.70
|
698.20
|
714.80
|
732.70
|
(Qualified Cook)
|
|
|
|
|
TABLE 1C
New Wages - Child Care Classifications in Long Day Care
Level
|
Step
|
Rate at
|
Rate at
|
Rate at
|
Rate at
|
|
|
16/12/12
|
16/12/13
|
16/12/14
|
16/12/15
|
|
|
(2.5%)
|
(2.27%)
|
(2.38%)
|
(2.5%)
|
|
|
$
|
$
|
$
|
$
|
CCW
|
1
|
762.70
|
780.00
|
798.60
|
818.60
|
|
2
|
768.90
|
786.40
|
805.10
|
825.20
|
|
3
|
774.90
|
792.50
|
811.40
|
831.70
|
|
4
|
781.20
|
798.90
|
817.90
|
838.30
|
|
5
|
788.60
|
806.50
|
825.70
|
846.30
|
|
|
|
|
|
|
ACCW
|
1
|
796.10
|
814.20
|
833.60
|
854.40
|
|
2
|
812.60
|
831.00
|
850.80
|
871.00
|
|
3
|
838.40
|
857.40
|
877.80
|
899.70
|
|
|
|
|
|
|
ACCWQ
|
1
|
852.40
|
871.70
|
892.40
|
914.70
|
|
2
|
939.30
|
960.60
|
983.50
|
1008.10
|
|
3
|
984.70
|
1007.10
|
1031.10
|
1056.90
|
|
4
|
1033.70
|
1057.20
|
1082.40
|
1109.50
|
|
|
|
|
|
|
Asst Co-ord
|
|
868.90
|
888.60
|
909.70
|
932.40
|
|
|
|
|
|
|
Asst Co-ord Qual
|
|
1056.70
|
1080.70
|
1106.40
|
1134.10
|
|
|
|
|
|
|
Co-Ord OOSH
|
L1
|
930.90
|
952.00
|
974.70
|
999.10
|
|
|
|
|
|
|
Co-Ord LDC
|
L2
|
953.80
|
975.50
|
998.70
|
1023.70
|
|
L3
|
985.10
|
1007.50
|
1031.50
|
1057.28
|
|
L4
|
1024.50
|
1047.80
|
1072.70
|
1099.50
|
|
|
|
|
|
|
Co-Ord Qual OOSH
|
|
1137.30
|
1163.10
|
1190.80
|
1220.60
|
|
|
|
|
|
|
Co-Ord Qual LDC
|
L2
|
1160.20
|
1186.50
|
1214.70
|
1245.10
|
|
L3
|
1191.60
|
1218.60
|
1247.60
|
1278.80
|
|
L4
|
1230.90
|
1258.80
|
1288.80
|
1321.00
|
TABLE 1D
New Wages - Child Care Classifications In Pre-Schools
Level
|
Step
|
Rate at
|
Rate at
|
Rate at
|
Rate at
|
|
|
16/12/12
|
16/12/13
|
16/12/14
|
16/12/15
|
|
|
(2.5%)
|
(2.27%)
|
(2.38%)
|
(2.5%)
|
|
|
$
|
$
|
$
|
$
|
CCW
|
1
|
735.10
|
751.90
|
769.80
|
789.00
|
|
2
|
741.20
|
758.00
|
776.00
|
795.40
|
|
3
|
746.90
|
763.90
|
782.10
|
801.70
|
|
4
|
752.90
|
770.00
|
788.30
|
808.00
|
|
5
|
760.10
|
777.40
|
795.90
|
815.80
|
|
|
|
|
|
|
ACCW
|
1
|
767.20
|
784.60
|
803.30
|
823.40
|
|
2
|
783.00
|
800.80
|
819.90
|
840.40
|
|
3
|
808.00
|
826.30
|
845.00
|
866.10
|
ACCWQ
|
1
|
821.50
|
840.10
|
860.90
|
882.40
|
|
2
|
905.00
|
925.30
|
947.30
|
971.00
|
|
3
|
948.60
|
970.10
|
993.20
|
1018.00
|
|
4
|
995.80
|
1018.40
|
1042.60
|
1068.70
|
|
|
|
|
|
|
Asst Co-ord
|
|
837.30
|
856.30
|
876.70
|
898.60
|
|
|
|
|
|
|
Asst Co-ord Qual
|
|
1017.90
|
1041.00
|
1065.80
|
1092.40
|
|
|
|
|
|
|
Co-ordOOSH
|
L1
|
900.90
|
921.10
|
943.00
|
966.60
|
|
|
|
|
|
|
Co-Ord Pre-Sch
|
L2
|
923.70
|
944.70
|
967.20
|
991.40
|
|
L3
|
955.10
|
976.80
|
1000.00
|
1025.00
|
|
L4
|
994.50
|
1017.10
|
1041.30
|
1067.30
|
|
|
|
|
|
|
Co-Ord Qual OOSH
|
|
1099.40
|
1124.40
|
1151.20
|
1180.00
|
|
|
|
|
|
|
Co-Ord Qual Pre-Sch
|
L2
|
1122.30
|
1147.80
|
1175.10
|
1204.50
|
|
L3
|
1153.60
|
1179.80
|
1207.90
|
1238.10
|
|
L4
|
1193.00
|
1220.10
|
1249.10
|
1280.30
|
TABLE 2
Additional Rates
and Allowances
Item No
|
Clause No.
|
Brief Description
|
Amount
|
Amount
|
Amount
|
Amount
|
|
|
|
16/12/12
|
16/12/13
|
16/12/14
|
16/12/15
|
|
|
|
(2.5%)
|
(2.27%)
|
(2.38%)
|
(2.5%)
|
|
|
|
$
|
$
|
$
|
$
|
1
|
10 (ii)(a)
|
Broken Shift
|
67.40
|
68.90
|
70.50
|
72.30
|
|
|
|
Per week
|
Per week
|
Per week
|
Per week
|
|
|
|
13.50
|
13.80
|
14.10
|
14.50
|
|
|
|
Per day
|
Per day
|
Per day
|
Per day
|
2
|
10 (ii)(b)
|
Excess Fares
|
9.20
|
9.40
|
9.60
|
9.80
|
3
|
10 (iii)
|
Uniform:
|
4.90
|
5.00
|
5.10
|
5.20
|
|
|
Laundry Allowance
|
|
|
|
|
4
|
10 (iv)
|
Cooks
|
7.80
|
8.00
|
8.20
|
8.40
|
|
|
Uniforms:
|
|
|
|
|
|
|
Laundry Allowance
|
|
|
|
|
5
|
10 (vi)(a)
|
Qualification
|
6.70
|
6.90
|
7.10
|
7.30
|
|
|
Allowance
|
|
|
|
|
|
|
Commercial
|
|
|
|
|
|
|
Cookery Basic
|
|
|
|
|
|
|
Certificate
|
|
|
|
|
6
|
10 (vi)(b)
|
Hotel & Restaurant
|
14.10
|
14.40
|
14.70
|
15.10
|
|
|
Cookery Certificate
|
|
|
|
|
7
|
12 (iv)
|
Meal Money
|
7.50
|
7.70
|
7.90
|
8.10
|
|
|
|
|
|
|
|
8
|
10(ix)
|
Authorised
|
36.40
|
37.20
|
38.10
|
39.10
|
|
|
Supervisor
|
weekly
|
weekly
|
weekly
|
weekly
|
|
|
|
|
|
|
|
|
|
|
7.30
|
7.50
|
7.70
|
7.90
|
|
|
|
daily
|
daily
|
daily
|
daily
|
Note: The rates at Table 1B, Table 1C, Table 1D and
Table 2 reflect the State Wage Case 2015 outcome and are effective from the
first full pay period on or after 16 December 2015.
APPENDIX A
RECORD OF CASUAL EMPLOYMENT
EMPLOYEE’S RECORD TO BE MAINTAINED BY EMPLOYEE
1.
|
Name:
|
|
2.
|
Number of years of training:
|
|
3.
|
Name of qualification:
|
|
4.
|
Year of attainment of this qualification:
|
|
Period
of engagement
|
No.
of days/hours worked
|
Name,
address &
|
Signed
by Centre Director
|
(from
date to date)
|
in
total, classification;
|
telephone
number of
|
(signature,
date & name)
|
|
years
trained & step
|
Centre
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
APPENDIX B
PARENTAL LEAVE
Set out below are the provisions relating to Parental
Leave contained in Part 4, Chapter 2, of the Industrial Relations Act
1996.
Division 1 - Parental Leave Generally
53. Employees to
Whom Part Applies
This Part applies to all employees, including part time
employees, but does not apply to casual or seasonal employees.
54. Entitlement to
Unpaid Parental Leave
(1) An employee is
entitled to a total of 52 weeks unpaid parental leave in connection with the
birth or adoption of a child, as provided by this Part.
(2) Parental leave
is not to extend beyond 1 year after the child was born or adopted.
Note: See also Part 5 relating to entitlements to part
time work agreements.
55. What is
Parental Leave?
(1) For the
purposes of this Part, parental leave is maternity leave, paternity leave or
adoption leave.
(2) Maternity
leave is taken by a female employee in connection with the pregnancy or the birth
of a child of the employee. Maternity
leave consists of an unbroken period of leave.
(3) Paternity
leave is leave taken by a male employee in connection with the birth of a child
of the employee or of the employee’s spouse.
Paternity leave consists of:
(a) an unbroken
period of up to one week at the time of the birth of the child or other
termination of the pregnancy (short paternity leave), and
(b) a further
unbroken period in order to be the primary care-giver of the child (extended
paternity leave).
(4) Adoption leave
is leave taken by a female or male employee in connection with the adoption by
the employee of a child under the age of 5 years (other than a child who has
previously lived continuously with the employee for a period of at least 6
months or who is a child or step child of the employee or of the employee’s
spouse). Adoption leave consists of:
(a) an unbroken
period of up to 3 weeks at the time of the placement of the child with the
employee (short adoption leave), and
(b) a further
unbroken period in order to be the primary care giver of the child (extended
adoption leave).
(5) For the
purposes of this Part, spouse includes a de facto spouse.
Note: Employees
are also entitled to special maternity leave for recovery from a termination of
pregnancy or illness related to pregnancy (section 71) and to special adoption
leave up to 2 days to attend interviews or examinations for the purposes of
adoption (section 72). The requirement
of unbroken periods of leave is subject to section 63 (employee and employer
may agree to interruption of parental leave by return to work).
56. This Part
Provides Minimum Entitlements
(1) This Part sets
out the minimum entitlements of employees to parental leave.
(2) The provisions
of an industrial instrument, contract of employment or other agreement (whether
made or entered into before or after the commencement of this Part) do not have
effect to the extent that they provide an employee with a benefit that is less
favourable to the employee than the benefit to which the employee is entitled
under this Part.
57. Length of
Service for Eligibility
(1) An employee is
entitled to parental leave only if the employee has had at least 12 months of
continuous service with the employer.
(2) Continuous service
is service under one or more unbroken contracts of employment, including:
(a) any period of
authorised leave or absence, and
(b) any period of
part time work.
Note: Under Part 8 of this Chapter a period of service
in the business of a former employer counts as service with a new employer to
whom the business concerned has been transferred.
58. Notices and
Documents Required to be Given to Employer
(1) Maternity
Leave
The notices and documents to be given to the employer
for the purposes of taking maternity leave are as follows:
(a) The employee
should give a least 10 weeks’ written notice of the intention to take the
leave.
(b) The employee
must, at least 4 weeks before proceeding on leave, give written notice of the
dates on which she proposes to start and end the period of leave.
(c) The employee
must, before the start of leave, provide a certificate from a medical
practitioner confirming that she is pregnant and the expected date of birth.
(d) The employee
must, before the start of leave, provide a statutory declaration by the
employee stating, if applicable, the period of any paternity leave sought or
taken by her spouse.
(2) Paternity
Leave
The notices and documents to be given to the employer for
the purposes of taking paternity leave are as follows:
(a) In the case of
extended paternity leave, the employee should give at least 10 weeks’ written
notice of the intention to take the leave.
(b) The employee
must, at least 4 weeks before proceeding on leave, give written notice of the
dates on which he proposes to start and end the period of leave.
(c) The employee
must, before the start of leave, provide a certificate from a medical
practitioner confirming that his spouse is pregnant and expected date of birth.
(d) In the case of
extended paternity leave, the employee must, before the start of leave, provide
a statutory declaration by the employee stating:
(i) if
applicable, the period of any maternity leave sought or taken by his spouse,
and
(ii) that he is
seeking that period of extended paternity leave to become the primary care
giver of a child.
(3) Adoption Leave
The notices and documents to be given to the employer
for the purposes of taking adoption leave are as follows:
(a) In the case of
extended adoption leave, the employee should give written notice of any
approval or other decision to adopt a child at least 10 weeks before the
expected date of placement.
(b) The employee
must give written notice of the dates on which the employee proposes to start
and end the period of leave, as soon as practicable after the employee is
notified of the expected date of placement of the child but at least 14 days
before proceeding on leave.
(c) The employee
must, before the start of leave, provide a statement from an adoption agency or
another appropriate body of the expected date of placement of the child with
the employee for adoption purposes.
(d) In the case of
extended adoption leave, the employee must, before the start of leave, provide
a statutory declaration by the employee stating:
(i) if
applicable, the period of any adoption leave sought or taken by his or her
spouse, and
(ii) that the
employee is seeking that period of extended adoption leave to become the primary
care giver of a child.
(4) An employee
does not fail to comply with this section if the failure was caused by:
(a) the child being
born (or the pregnancy otherwise terminating) before the expected date of
birth, or
(b) the child being
placed for adoption before the expected date of placement, or if it was not
otherwise reasonably practicable to comply in the circumstances.
In the case of the birth of a living child, notice of
the period of leave is to be given within 2 weeks after the birth and the
certificate of the medical practitioner is to state that the child was born and
the date of birth. In the case of the
adoption of a child, notice of the period of leave is to be given within 2
weeks after the placement of the child.
(5) An employee must
notify the employer of any change in the information provided under this
section within 2 weeks after the change.
(6) If required by
the employer, an employee who applies for parental leave is to give the
employer a statutory declaration, or enter into an agreement with the employer,
that for the period of the leave the employee will not engage in any conduct
inconsistent with the employee’s contract of employment.
59. Continuity of
Service
(1) Parental leave
does not break an employee’s continuity of service, but is not to be taken into
account in calculating an employee’s period of service for any purpose.
(2) However,
parental leave counts as service for any purpose authorised by law or by any
industrial instrument or contract of employment.
60. Parents Not to
Take Parental Leave at the Same Time
(1) An employee is
not entitled to parental leave at the same time as his or her spouse is on
parental leave under this Part.
(2) If this
section is contravened the period of parental leave to which the employee is
entitled under this Part is reduced by the period of leave taken by his or her
spouse.
(3) This section
does not apply to short paternity leave or short adoption leave.
61. Cancellation of
Parental Leave
(1) Before
Starting Leave
Parental leave applied for but not commenced is
automatically cancelled if:
(a) the employee
withdraws the application for leave by written notice to the employer, or
(b) the pregnancy
concerned terminates other than by the birth of a living child or the placement
of the child concerned does not proceed.
(2) After Starting
Leave
If:
(a) the pregnancy
of an employee or an employee’s spouse terminates other than by the birth of a
living child while the employee or spouse is on parental leave, or
(b) the child in
respect of whom an employee is then on parental leave dies, or
(c) the placement
of a child for adoption purposes with an employee then on adoption leave does
not proceed or continue, the employee is entitled to resume work at a time
nominated by his or her employer within 2 weeks after the date on which the
employee gives his or her employer a notice in writing stating that the
employee intends to resume work and the reason for the intended resumption.
(3) Special Leave
Not Affected
This section does not affect an employee’s entitlement
to special maternity leave under section 71.
62. Parental Leave
and Other Leave
(1) An employee
may take any annual leave or long service leave (or any part of it) to which
the employee is entitled instead of or in conjunction with parental leave.
(2) However, the
total period of leave cannot be so extended beyond the maximum period of
parental leave authorised by this Part.
(3) Any paid sick
leave or other paid absence authorised by law or by an industrial instrument or
contract of employment is not available to an employee on parental leave,
except if the paid absence is annual leave or long service leave or with the
agreement of the employer.
63. Employee and
Employer may Agree to Interruption of Parental Leave by Return to Work
(1) An employee on
parental leave may, with the agreement of the employer, break the period of
leave by returning to work for the employer, whether on a full time, part time
or casual basis.
(2) The period of
leave cannot be extended by such a return to work beyond the maximum period of
leave authorised by this Part.
(3) Nothing in
this section affects any other work undertaken by the employee during parental
leave.
Note: - Section 58(6) requires the employee when taking
parental leave to provided the employer with a statutory declaration, or enter
into an agreement with the employer, that the employee will not engage during
leave in any conduct inconsistent with the employee’s contract.
64. Extension of
Period of Parental Leave
(1) An employee
may extend the period of parental leave once only by giving the employer notice
in writing of the extended period at least 14 days before the start of the
extended period. The period of leave
cannot be extended by such a notice beyond the maximum period of leave
authorised by this Part.
(2) An employee
may extend the period of parental leave at any time with the agreement of the
employer. The period of leave can be
extended by such an agreement beyond the maximum period of leave authorised by
this Part.
(3) This section
applies to an extension of leave while the employee is on leave or before the
employee commences leave.
65. Shortening of
period of Parental Leave
An employee may shorten the period of parental leave
with the agreement of the employer and by giving the employer notice in writing
of the shortened period at least 14 days before the leave is to come to an end.
66. Return to Work
After Parental Leave
(1) An employee returning
to work after a period of parental leave is entitled to be employed in:
(a) the position
held by the employee immediately before proceeding on that leave, or
(b) if the employee
worked part time because of the pregnancy before proceeding on maternity leave
- the position held immediately before commencing that part time work, or
(c) if the
employee was transferred to a safe job under section 70 before proceeding on
maternity leave - the position held immediately before the transfer.
(2) If the
position no longer exists but there are other positions available that the
employee is qualified for and is capable of performing, the employee is
entitled to be employed in a position as nearly as possible comparable in
status and pay to that of the employee’s former position.
(3) This section
extends to a female employee returning to work after a period of leave under
section 71 (special maternity leave and sick leave).
(4) An employer
who does not make available to an employee a position to which the employee is
entitled under this section is guilty of an offence.
Maximum penalty:
100 penalty units.
Note: - An employee returning to work after parental
leave may also have an entitlement to work part time under an industrial
instrument or a part time work agreement under Part 5.
Division 2 - Miscellaneous Provisions
67. Employer’s
Obligations
(1) Information to
employees on becoming aware that an employee (or an employee’s spouse) is
pregnant, or that an employee is adopting a child, an employer must inform the
employee of:
(a) the employee’s
entitlements to parental leave under this Part, and
(b) the employee’s
obligations to notify the employer of any matter under this Part.
An employer cannot rely on an employee’s failure to give
a notice or other document required by this Part unless the employer
establishes that this subsection has been complied with in relation to the
employee.
(2) Records An
employer must keep, for at least 6 years, a record of parental leave granted
under this Part to employees and all notices and documents given under this
Part by employees or the employer.
Maximum penalty:
20 penalty units.
68. Termination of
Employment Because of Pregnancy or Parental Leave
(1) An employer
must not terminate the employment of an employee because:
(a) the employee or
employee’s spouse is pregnant or has applied to adopt a child, or
(b) the employee or
employee’s spouse has given birth to a child or has adopted a child, or
(c) the employee
has applied for, or is absent on, parental leave, but otherwise the rights of
an employer in relation to termination of employment are not affected by this
Part.
Maximum penalty:
100 penalty units.
(2) For the
purposes of establishing such a termination of employment, it is sufficient if
it is established that the alleged reason for termination was one of two or
more reasons for termination.
(3) This section
does not affect any other rights of a dismissed employee under this or any
other Act or under any industrial instrument or contract of employment, or the
rights of an industrial organisation representing such an employee.
Note: - A dismissed employee may also make a claim
under Part 6 (unfair dismissals).
69. Replacement
Employees
(1) A replacement
employee is a person who is specifically employed as a result of an employee
proceeding on parental leave (including as a replacement for an employee who
has been temporarily promoted or transferred in order to replace the employee
proceeding on parental leave).
(2) Before a replacement
employee is employed, the employer must inform the person of the temporary
nature of the employment and of the rights of the employee on parental leave to
return to work.
Maximum penalty:
50 penalty units.
(3) A reference in
this section to an employee proceeding on parental leave includes a reference
to a pregnant employee exercising a right under section 70 to be transferred to
a safe job.
70. Transfer to a
Safe Job
(1) This section
applies whenever the present work of a female employee is, because of her
pregnancy or breastfeeding, a risk to the health or safety of the employee or
of her unborn or new born child. The
assessment of such a risk is to be made on the basis of a medical certificate
supplied by the employee and of the obligations of the employer under the Occupational
Health and Safety Act 1983.
(2) The employer
is to temporarily adjust the employee’s working conditions or hours of work to
avoid exposure to that risk.
(3) If such an
adjustment is not feasible or cannot reasonably be required to be made, the
employer is to transfer the employee to other appropriate work that:
(a) will not expose
her to that risk and
(b) is as nearly as
possible comparable in status and pay to that of her present work.
(4) If such a
transfer is not feasible or cannot reasonably be required to be made, the
employer is to grant the employee maternity leave under this Part (or any
available paid sick leave) for as long as is necessary to avoid exposure to
that risk, as certified by a medical practitioner.
(5) An employer
who does not comply with any obligation imposed on the employer by this section
is guilty of an offence.
Maximum penalty (subsection (5)): 50 penalty units.
71. Special
Maternity Leave and Sick Leave If the pregnancy of an employee terminates
before the expected date of birth (other than by the birth of a living child),
or she suffers illness related to her pregnancy, and she is not then on
maternity leave:
(a) the employee
is entitled to such period of unpaid leave (to be known as special maternity
leave) as a medical practitioner certifies to be necessary before her return to
work, or
(b) the employee
is entitled to such paid sick leave (either instead of or in addition to special
maternity leave) as she is then entitled to and as a medical practitioner
certifies to be necessary for her return to work.
72. Special
Adoption Leave An employee who is seeking to adopt a child is entitled to up to
2 days unpaid leave if the employee requires that leave to attend compulsory
interviews or examinations as part of the adoption procedure.
KINDERGARTENS,
&c, (STATE) INDUSTRIAL COMMITTEE
Industries And Callings
All persons employed in or in connection with child
care, child minding centres, day nurseries and pre-school kindergartens in the
State, excluding the County of Yancowinna; excepting -
Persons employed as teachers or teachers in training
but not excepting unqualified teachers’ aides, helpers or assistants;
Persons employed as teachers’ aides in pre-school
kindergartens and nurseries within the grounds of public schools;
Persons employed by the Department of Corrective
Services;
Drivers of vehicles;
Employees of all city, municipal, shire and county
councils;
Employees in child minding centres in public hospitals;
and excepting also employees within the jurisdiction of
the following Conciliation Committees -
Private Hospital Employees (State);
Trained Nurses, &c. Other Than In Hospitals,
&c, (State);
Voluntary Care Association Employees (State).
J. D. STANTON, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.