Staff Specialists (State) Award 2019

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by NSW Ministry of Health.

 

(Case No. 203185 of 2019)

 

 

AWARD

 

PART A

 

Arrangement

 

Clause No.       Subject Matter

 

1.         Title

2.         Definitions

3.         Issue Resolution

4.         Normal Duties

4A.      Multiple Assignments

5.         Salary

6.         Salary Sacrifice - Definition

7.         Salary Sacrifice

8.         Salary Sacrifice for Superannuation

9.         Limitation on the Amount to be Sacrificed

10.      Exclusions

11.      Managerial Allowance

12.      Performance Agreement

13.      Part-time Employment and Arrangements

14.      Work Location

15.      Outside Practice

16.      Postgraduate Fellow

17.      Annual Leave

18.      Long Service Leave

19.      Sick Leave

20.      Family and Community Service Leave

20A.   Family Violence Leave

21.      Personal/Carer’s Leave

22.      Maternity, Adoption and Parental Leave

22A.   Lactation Breaks

23.      Telephones

24.      Office, Secretarial and Administrative Support

25.      Specialist Medical Administrators

26.      Labour Flexibility

27.      Anti-Discrimination

28.      Underpayment and Overpayment of Salaries

29.      Monthly Leave Return

30.      Consultation Regarding Change

31.      No Extra Claims

32.      Area, Incidence and Duration

 

PART B - MONETARY RATES

 

Schedule 1 - Staff Specialists Salary Rates

Schedule 2 - Allowances

 

PART C - OTHER MATTERS

 

Schedule 1 - List of exclusions in relation to clauses 7 - 10 (inclusive)

Schedule 2 - List of recognised Australasian Specialist Colleges

Schedule 3 - Specialties undertaking shiftwork

Annexure - Pro-forma Staff Specialist Performance Agreement

 

PART A

 

1.  Title

 

This Award shall be known as the Staff Specialists (State) Award 2019.

 

2.  Definitions

 

"Award" means the Staff Specialists (State) Award 2019.

 

"Employer" means the Secretary of the Ministry of Health exercising employer functions on behalf of the Government of New South Wales (and includes a delegate of the Secretary).

 

"Entitlements" means entitlements pursuant to this Award as varied from time to time.

 

"Federation" means the Australian Salaried Medical Officers' Federation (New South Wales).

 

"Health System" means the Public Health System of New South Wales.

 

"Hospital" means a public hospital as defined in section 15 of the Health Services Act 1997.

 

"Normal Duties" means clinical, teaching, research, administrative, quality improvement or other duties and responsibilities undertaken by the Staff Specialist.

 

"Part-time Working Arrangement" means an agreement between a Staff Specialist and the Employer for the Staff Specialist to provide his/her services on a part-time employment basis pursuant to clause 13 of this Award.

 

"Performance Agreement" is an agreement in accordance with the provisions of clause 12 of this Award.

 

"Postgraduate Fellow" means an employee who has completed postgraduate medical training but who has not yet been appointed as a specialist/senior specialist and who occupies a position classified as Postgraduate Fellow.

 

"Practice" means clinical, administrative, teaching, research, quality improvement or other duties and responsibilities undertaken by the Staff Specialist.

 

"Public Health Organisation" is as defined in section 7 of the Health Services Act 1997.

 

"Salary" means the salary set out in Part B, Schedule 1 to this Award as varied from time to time by clause 5 of this Award.

 

"Staff Specialist" means a Specialist, Senior Specialist and Post Graduate Fellow (except where specifically excluded) employed on either a full-time or a part-time basis.

 

"Specialist" means a person appointed to a position of Specialist by the Employer. To be eligible for appointment a specialist must be a person who: -

 

(a)       holds a medical qualification that is registrable in New South Wales; and

 

(b)       after full registration has spent not less than five years in the practice of medicine in New South Wales in the Health System or in any other institution, whether in New South Wales or elsewhere, deemed by the Employer to be of equivalent standing; and

 

(c)       inclusive within the period described in (b) above has spent not less than three years in supervised specialist training and/or experience; and

 

(d)

 

(i)        has obtained a Fellowship of a recognised Australasian Specialist College (see Part C, Schedule 2 for list of recognised Australasian Specialist Colleges); or

 

(ii)       has proof of recognition as a specialist by the Specialists Recognition Advisory Committee; or

 

(iii)     has conditional registration with the NSW Medical Board as an overseas-trained specialists (not including conditional registration as a general practitioner; or

 

(iv)      does not have a qualification recognised under (i), (ii) or (iii) above, but has obtained an appropriate higher qualification in his/her specialty acceptable to the Employer after consideration by the Medical and Dental Advisory Committee of the Employer.

 

(e)       Any decision made by the Employer in determining whether any person is eligible to be appointed as a specialist shall not contravene any applicable provision of the Anti-Discrimination Act 1977

 

Notwithstanding the provisions of subclause (d) above, Staff Specialists who are paid pursuant to this Award in place immediately before the commencement of this Award will continue to be recognised as Staff Specialists for the purpose of this Award.

 

"Senior Specialist" means a person who:

 

(a)       has been employed by the Employer on the maximum salary provided by this Award or the Award for a Specialist for a period of at least three years; and/or

 

(b)       has gained such experience and attained such ability in his/her specialty which is acceptable to the Employer after consideration by the Medical Appointments Advisory Committee of the employer to justify appointment to the classification; and

 

(c)       is appointed to a position having such duties and responsibilities as are deemed by the Employer to require the services of a Senior Specialist.

 

3.  Issue Resolution

 

(a)       All parties must:

 

(i)        use their best endeavours to co-operate in order to avoid grievances and disputes arising between the parties or between the Employer and individual Staff Specialists; and

 

(ii)       abide by the procedures set out in this clause to resolve any issue which might arise; and

 

(iii)     place emphasis on negotiating a settlement of any issue at the earliest possible stage in the process.

 

(b)       In this clause, "issue" means any question, issue, grievance, dispute or difficulty which might arise between the parties about the interpretation, application or operation of this Award.

 

(c)       The following procedures will be facilitated by the earliest possible advice by one party to the other of any issue or problem which may give rise to a grievance or dispute.

 

(d)       Any issue must be discussed in the first instance by the Staff Specialist and his or her immediate supervisor.

 

(e)       If the issue is not resolved within a reasonable time it must be referred by the Staff Specialist's immediate supervisor to the Chief Executive (however called) of the relevant Public Health Organisation (or his or her nominee). Discussions at this level must take place and be concluded within a reasonable time or such extended period as may be agreed.

 

(f)       If the issue remains unresolved the Staff Specialist may request the Federation to then confer with the Chief Executive of the Public Health Organisation or his/her nominee. The conclusions reached by those representatives must be reported to the parties involved in the grievance/dispute within a reasonable time or such extended period as may be agreed.

 

(g)       If these procedures are exhausted without the issue being resolved, either party may seek to have the matter mediated by an agreed third party being:

 

(i)        by way of preference, a person who is not employed as a Staff Specialist by the Employer and who has a knowledge of Staff Specialist arrangements, including this Award; or

 

(ii)       a suitably qualified mediator.

 

If the matter remains unresolved either party may then:

 

refer the matter to the Secretary of the NSW Ministry of Health; or

 

refer the matter in accordance with the provisions of the Industrial Relations Act 1996 (NSW) to the Industrial Relations Commission for its assistance in resolving the issue.

 

(h)       The parties agree that normal work will continue and there will be no stoppages of work or any other bans or limitations on the performance of work while these procedures are being followed. Unless agreed otherwise by the parties, the status quo before the emergence of the issue must continue whilst these procedures are being followed. For this purpose, "status quo" means the work procedures and practice in place:

 

(i)        immediately before the issue arose; or

 

(ii)       immediately before any change was made to those procedures or practices which caused the issue to arise.

 

(i)        The Employer must ensure that all practices applied during the operation of these procedures are in accordance with safe working practices.

 

(j)        Throughout all stages of these procedures adequate records must be kept of all discussions.

 

4.  Normal Duties

 

Part A - General

 

(a)       Normal Duties will be worked for:

 

(i)        Not less than 40 hours per week; or

 

(ii)       10 sessions per week

 

over five days per week.

 

(b)       The Normal Duties hours set out in (a) above may be averaged over

 

(i)        four days per week; or

 

(ii)       a longer roster period

 

as agreed between the Staff Specialist and the Employer, and specified in the Staff Specialist’s performance agreement.

 

(c)

 

(i)        With the exception of Staff Specialists working in accordance with paragraph (d) below, Normal Duties will be worked within the span of hours of 7.00 am to 6.00 pm Monday to Friday inclusive.

 

(ii)       Where Normal Duties hours are averaged over a roster period longer than 1 week as provided for in (b) above, Normal Duties may be worked Monday to Sunday inclusive.

 

(d)       Shift Work

 

(i)        Staff Specialists who are employed in a specialty or category specified in Part C Schedule 3 to this Award may be required to undertake shiftwork as part of their Normal Duties as specified in (a) or (b) above. This shiftwork may comprise day or evening shifts.

 

(ii)       For Staff Specialists working shift work, Normal Duties will be worked within the span of hours of 7.00 am to midnight Monday to Sunday inclusive;

 

(iii)     For Staff Specialists who undertake shiftwork, the normal rostered duties hours will be paid at ordinary time plus the appropriate penalty rate:

 

hours worked between 6.00 pm and midnight Monday to Friday - 12.5%;

 

hours worked between 7.00 am and midnight Saturday - 50%;

 

hours worked between 7.00 am and midnight Sunday - 75%; and

 

all hours worked on Public Holidays - 150%.

 

The penalty rate will be calculated on the Staff Specialist’s salary as set in Part B Schedule 1 Rates of Pay of this Award plus the Special Allowance and Level 1 Private Practice Allowance specified in the Salaried Senior Medical Practitioners Determination, as varied from time to time.

 

(iv)      Additional specialties or categories may be included in Part C, Schedule 3, to this Award from time to time by agreement between the Federation and the Secretary of the NSW Ministry of Health. If agreement cannot be reached, either party may make application to the Industrial Relations Commission for a variation to Part C, Schedule 3.

 

(e)       Staff Specialists will be available for reasonable on call and recall duties outside of Normal Duties.

 

Part B - Normal Duties Roster Changes

 

(a)       When developing rosters for Normal Duties in accordance with the provisions of clause 4, Normal Duties, of the Award, the Employer will ensure that:

 

(i)        Staff specialists are consulted and regard is to be given to any family, carer or other personal and professional concerns and responsibilities identified by the staff specialist to ensure, where practicable, that the staff specialist is not adversely affected and that alternative arrangements can be made if possible (e.g. change of child care or outside practice arrangements); and

 

(ii)       the principal outcome of changes to rosters is to maximise the effective delivery of clinical services by ensuring that senior medical staff are rostered to work Normal Duties at times and at places that most effectively meet the service delivery needs and operational requirements; and

 

(iii)     rosters identify the general nature of the work to be performed on each shift (clinical/direct patient care, administrative, teaching, research or quality improvement) and the facility at which the shift is to be worked.

 

(b)       On call rosters and responsibilities should align with Normal Duties roster days wherever practicable.

 

(c)       Wherever practicable, the usual pattern of Normal Duties will be consistent from one roster period to the next.

 

(d)       Notice Periods

 

(i)        Wherever possible, the following notice periods will apply to changes to the Normal Duties roster:

 

3 months notice of an ongoing change; or

 

1 months notice of short-term change (e.g. to cover a planned absence or one-off event);

 

(ii)       These provisions do not prevent the Employer from varying the roster of Normal Duties at short notice in an emergency, in response to an unplanned event or to cover an unplanned absence.

 

(e)       Shifts are to be shared equally amongst the staff specialists unless otherwise agreed.

 

Part C - Transition Arrangements for Implementation of clause 4 Normal Duties

 

(a)       Staff Specialists employed at the time of making this Award will continue to work in accordance with the rostering arrangements in place at that time for a period of 6 months, unless a shorter transitional period is agreed between the Employer and Staff Specialists.

 

(b)       During this 6-month period, the Employer and Staff Specialists will work co-operatively to review the existing Normal Duties rostering arrangements and, where necessary, develop new Normal Duties rosters in accordance with the principles set out in the Normal Duties Roster Changes clause.

 

4A - Multiple Assignments

 

(a)       Multiple assignments exist when an employee has more than one position under this Award within the NSW Health Service. Each of these positions are referred to in this clause as "assignments".

 

(b)       The employee can only enter into a multiple assignment where the subsequent assignment is at the same grade and level within the Award.

 

(c)       Where an employee has multiple assignments, the employee will progress from one increment (year step) to the next increment in accordance with subclause 5(c) and (d) and clause 13(f).

 

Multiple Assignments within a single Public Health Organisation

 

(d)       The following provisions apply to employees with two or more assignments within a single Public Health Organisation:

 

(i)        The work performed in each of an employee’s assignments shall be aggregated for the purposes of determining all of the employee’s entitlements under this Award. 

 

Hours of Duty

 

(ii)       The combined total number of ordinary hours worked under an employee’s multiple assignments will be in accordance with the provisions of Part A (General) of clause 4, Normal Duties.

 

(iii)     Where the combined total number of ordinary hours worked under an employee’s multiple assignments is equivalent to those set out in clause 4, Normal Duties, Part A (General), they will be considered as a full time employee for the purposes of the Award and:

 

(iv)      Where the combined total number of ordinary hours worked under an employee’s multiple assignments is less than those set out in paragraph (ii) of this subclause, the provisions of clause 13, Part Time Employment and Arrangements, shall apply.

 

Leave

 

(v)       All ordinary hours worked by an employee in multiple assignments shall count towards determining the employee’s leave entitlements. 

 

(vi)      Employees with multiple assignments shall be entitled to take all forms of leave in any of their assignments.  That is, leave accrued by an employee through work performed in one assignment, can be taken by that employee in their other assignment/s. Service in all assignments will be recognised for the purposes of subclause (b) of clause 19, Sick Leave. 

 

(vii)    Where an employee’s combined total number of ordinary hours worked in their multiple assignments is equivalent to those set out in (d) (ii) of this subclause, the additional leave shall accrue from both assignments in accordance with the provisions of clause 17, Annual Leave. 

 

(viii)   Service in all assignments will be recognised for the purposes of entitlements under clause 22, Maternity, Adoption and Parental Leave.

 

(ix)      Where an employee’s assignment is terminated but the employee remains employed under another full time or part time assignment, all leave credits will be transferred to the remaining assignments. The employee shall not be paid out the monetary value of the annual leave or long service leave accrued in the terminated assignment.

 

Disclosures, Notifications and Approvals

 

(x)       Employees must, at the time they apply for any second or further assignment, disclose in writing that they are already employed by NSW Health and provide details of that assignment including:

 

1.         the position/s currently held

 

2.         the facility in which the existing position/s are worked

 

3.         the classification/s under which they are engaged in each position

 

4.         the number of ordinary hours worked in each position

 

5.         any regular additional hours that is worked in each position

 

6.         whether the position/s is worked according to a set roster and if so, the details of that roster arrangement; and

 

(xi)      Prior to accepting an offer for a second or further assignment, employees must provide to their current manager details of that proposed assignment including:

 

1.         the position they have applied for

 

2.         the facility in which the proposed new assignment is to be worked

 

3.         the classification under which they would be engaged in the new assignment

 

4.         the number of ordinary hours to be worked in the proposed assignment

 

5.         whether the position is to be worked according to a set roster and if so, the details of that roster arrangement.

 

(xii)    A Public Health Organisation may elect on reasonable grounds to withhold the approval of a second or further assignment to employees who are already employed in another assignment.

 

(xiii)   Before accepting any change in roster or undertaking additional hours that will impact on another assignment, employees who hold multiple assignments must notify their current manager of the details of their next shift in either assignment.  Managers must not change rosters or require employees to work additional hours where these will impact on the employee’s roster in the other assignment without first consulting the manager of the other assignment/s. (By way of example, if an employee is requested by Manager 1 in Assignment 1 to undertake additional hours in Assignment 1 that may impact on the roster in Assignment 2, the employee must notify Manager 1 of the impact.  Manager 1 must not change rosters/hours that impact on Assignment 2 without first consulting Manager 2.)

 

Multiple Assignments Across Different Public Health Organisations

 

(e)       Assignments in different Public Health Organisations will be regarded as entirely separate for all purposes under the Award, including the accrual and taking of leave. The only exceptions are the provisions of subclause (c) of this clause (regarding incremental progression) and:

 

(i)        At the time an employee commences an assignment in another Public Health Organisation the employee’s accrued leave will be apportioned across their assignments (for example, a 0.6 full time equivalent Staff Specialist who commences another 0.4 full time equivalent assignment in another Public Health Organisation will have 60% of their leave accruals allocated to the former assignment and 40% to the latter assignment) unless prior to commencing the new assignment the employee elects that this apportioning does not occur.  After this apportioning, leave accrues separately in each assignment, based on the hours worked in each assignment.  The employer will notify the employee of their right to make this election prior to the apportioning taking place.

 

(ii)       Employees who have multiple assignments across different Public Health Organisations at the time this clause was inserted into this award may elect to apportion their accrued leave across their assignments.

 

(iii)     Service in all assignments will be aggregated for the purposes of calculating long service leave entitlements under the Award.

 

(iv)      Service in all assignments will be recognised for the purposes of entitlements under clause 22, Maternity, Adoption and Parental Leave.

 

(v)       Service in all assignments will be recognised for the purposes of entitlements of Family and Community Services Leave as provided in clause 20.

 

(vi)      Where an employee terminates an assignment, any leave credits that are held against that assignment will be transferred to the remaining assignment/s.

 

(vii)    Where an employee has three or more assignments, one or more of which are in different Public Health Organisations, subclause (d) of this clause shall apply to those assignments which are within a single Public Health Organisation.

 

Changes to the composition of Public Health Organisations

 

(f)       The employer and the Union agree to review this clause in the event that the boundaries of any Public Health Organisation change.

 

(g)       Where any change to the boundaries of any Public Health Organisation causes an employee’s multiple assignments to which subclause (d) of this clause previously applied to then be subject to subclause (e) of this clause, subclause (d) of this clause shall continue to apply (to the exclusion of subclause (e) of this clause) to those assignments until one of them is terminated. 

 

5.  Salary

 

(a)       A full-time Staff Specialist will be paid the salary as set out in Schedule 1 of Part B - Monetary Rates of this Award.

 

(b)       A Postgraduate Fellow will be paid the salary as set out in Schedule 1 of Part B - Monetary Rates of this Award.

 

(c)       A Staff Specialist will progress to the next incremental step on the anniversary date of his/her commencement as a Staff Specialist pursuant to clause 2, Definitions.

 

(d)       This clause does not preclude the Employer, at the Employer's sole discretion:

 

(i)        initially appointing a Staff Specialist to a higher step within the Staff Specialist range; or

 

(ii)       accelerating a Staff Specialist through the steps within the Staff Specialist range irrespective of the length service.

 

Such accelerated progression does not include the Senior Specialist rate, which can only be accessed by appointment to a Senior Specialist position, in accordance with the definition in clause 2 of this Award.

 

(e)       The weekly rate will be ascertained by dividing the annual salary by 52.17857.

 

(f)       The hourly rate for calculation of penalty rates will be 1/40th of the weekly rate.

 

(g)       Except as provided for elsewhere in this Award and other relevant industrial instruments, the salary set out in Part B Schedule 1, Rates of Pay of this Award will be full compensation for all aspects and hours of work.

 

6.  Salary Sacrifice - Definition

 

For the purposes of clauses 7, 8, 9 & 10 "salary sacrifice" means the reduction in legally payable salary and allowances in exchange for benefits provided by the Employer.

 

7.  Salary Sacrifice

 

In this clause ‘superannuable salary’ means the Staff Specialist’s salary as notified from time to time to the New South Wales public sector superannuation trustee corporations as per the relevant superannuation legislation governing the fund, or, in respect of Staff Specialists who elect to have contributions made to a non public sector superannuation scheme, ‘superannuable salary’ means the Staff Specialist’s salary that would have been notified from time to time to the New South Wales public sector superannuation trustee corporations but for the Staff Specialist’s election to have contributions made to a non public sector superannuation scheme.

 

(a)       Subject to the other provisions of this clause, Staff Specialists may salary sacrifice from the range of benefits the Secretary of the NSW Ministry of Health and Federation agree upon from time to time.

 

(b)       Salary sacrifice arrangements must be formalized by an agreement between the Staff Specialist and the employer.

 

(c)       The salary sacrifice agreement must be prospective, that is, the agreement must be made prior to the commencement of the period of service to which the earnings relate.

 

(d)       Subject to Australian Taxation Law, the sacrificed amount of superannuable salary will reduce the Staff Specialist’s remuneration subject to appropriate PAYE taxation deductions by the amount sacrificed.

 

(e)       The fringe benefits tax on the benefits chosen by the Staff Specialist that would have been payable except for the public hospital fringe benefit exemption status, will be calculated for each Staff Specialist who enters into a salary sacrifice arrangement. This amount will be divided equally between the Employer and the Staff Specialist.

 

(f)       Any fringe benefits tax applicable to the benefits packaged by a Staff Specialist will be deducted from the total amount sacrificed in that Staff Specialist’s salary sacrifice agreement.

 

(g)       The administration cost of each salary sacrifice agreement will be shared equally by the Employer and the participating Staff Specialist. The Staff Specialist’s share will be deducted from the total amount sacrificed in that Staff Specialist’s salary sacrifice agreement.

 

(h)       Subject to clause 9, the total amount sacrificed in any salary sacrifice agreement may be up to 100% of the Staff Specialist’s superannuable salary.

 

(i)        Any allowance, payment for unused leave entitlements, weekly workers’ compensation or other payment, other than any payment for leave taken in service, to which a Staff Specialist is entitled under this Award or applicable Act or statute which is expressed to be determined by reference to a Staff Specialist’s salary, shall be calculated by reference to the salary and allowances which would have applied to the Staff Specialist in the absence of any salary sacrifice arrangements made pursuant to this Award.

 

(j)        Any pre-tax or post-tax payroll deductions must be taken into account prior to determining the amount of available salary to be sacrificed. Such payroll deductions may include but are not limited to superannuation payments, HECS payments, child support payments, judgement debtor/garnishee orders, union fees, and private health fund membership fees.

 

8.  Salary Sacrifice for Superannuation

 

(a)       In this clause ‘superannuable salary’ means the Staff Specialist’s salary as notified from time to time to the New South Wales public sector superannuation trustee corporations as per the relevant superannuation legislation governing the fund, or, in respect of Staff Specialists who elect to have contributions made to a non public sector superannuation scheme, ‘superannuable salary’ means the Staff Specialist’s salary that would have been notified from time to time to the New South Wales public sector superannuation trustee corporations but for the Staff Specialist’s election to have contributions made to a non public sector superannuation scheme.

 

(b)       Consistent with the provisions of clause 7, Salary Sacrifice, a Staff Specialist may elect, subject to the agreement of the Staff Specialist’s employer, to sacrifice a part or all of his/her superannuable salary to additional employer superannuation contributions. Such election must be made prior to the commencement of the period of service to which the earnings relate. Subject to clause 9, the amount sacrificed may be up to 100% of the superannuable salary.

 

(c)       Where the Staff Specialist has elected to sacrifice a part or all of that superannuable salary to additional employer superannuation contributions:

 

(i)        Subject to Australian Taxation Law, the sacrificed amount of superannuable salary will reduce the Staff Specialist’s remuneration subject to appropriate PAYE taxation deductions by the amount sacrificed; and

 

(ii)       Any allowance, payment for unused leave entitlements, weekly workers’ compensation, or other payment, other than any payment for leave taken in service, to which a Staff Specialist is entitled under this Award or any applicable Act or statute which is expressed to be determined by reference to a Staff Specialist’s salary, shall be calculated by reference to the salary and allowances which would have applied to the Staff Specialist in the absence of any salary sacrifice arrangements made pursuant to this Award.

 

(d)       The Staff Specialist may elect to have the amount of superannuable salary which is sacrificed to additional superannuation contributions:

 

(i)        paid into the superannuation scheme established under the First State Superannuation Act 1992 as optional employer contributions; or

 

(ii)       subject to the employer’s agreement, paid into a private sector complying superannuation scheme as employer superannuation contributions.

 

(e)       Where a Staff Specialist elects to salary sacrifice in terms of subclause (d) above, the employer will pay the specified amount into the relevant superannuation fund.

 

(f)       Where the Staff Specialist is a member of a superannuation scheme established under:

 

(i)        the Police Regulation (Superannuation) Act 1906;

 

(ii)       the Superannuation Act 1916;

 

(iii)     the State Authorities Superannuation Act 1987;

 

(iv)      the State Authorities Non-contributory Superannuation Act 1987; or

 

(v)       the First State Superannuation Act 1992.

 

The Staff Specialist’s employer must ensure that the amount of any additional employer superannuation contributions specified in subclause (a) above is included in the Staff Specialist’s superannuable salary which is notified to the New South Wales public sector superannuation trustee corporations.

 

(g)       Where, prior to electing to sacrifice a part or all of his/her superannuable salary to superannuation, a Staff Specialist had entered into an agreement with the employer to have superannuation contributions made to a superannuation fund other than a fund established under legislation listed in subclause (f) above, the employer will continue to base contributions to that fund on the superannuable salary to the same extent as applied before the Staff Specialist sacrificed that amount of salary to superannuation. This clause applies even though the superannuation contributions made by the employer may be in excess of the superannuation guarantee requirements after the salary sacrifice is implemented.

 

(h)       Any pre-tax and post-tax payroll deductions must be taken into account prior to determining the amount of available salary to be sacrificed. Such payroll deductions may include but are not limited to superannuation payments, HECS payments, child support payments, judgement debtor/garnishee orders, union fees and private health fund membership fees.

 

9.  Limitation on the Amount to be Sacrificed

 

If a Staff Specialist sacrifices under both clauses 7 and 8, the total amount to be sacrificed may be up to 100% of the superannuable salary.

 

10.  Exclusions

 

For the individuals named in Part C Schedule 1 to this Award, the provisions of clauses 6, 7, and 9 will be applied with certain modifications, while they remain in the positions they occupy as at 22 October 1999. The details of the modifications are set out in Schedule 1 of Part C - Other Matters, of this Award. Those individuals who move to new positions or who elect to be removed from Schedule 1, Part C Other Matters will be entitled to the provisions of clauses 6, 7, and 9 without modification and will have no right of reversion to the previous provisions.

 

11.  Managerial Allowance

 

(a)       It is an expectation that a certain level of management responsibility is an essential part of the duties of a Staff Specialist.

 

(b)       In addition to the salaries prescribed by this Award, a Staff Specialist required by the Employer to undertake additional responsibilities specifically associated with the management of a unit, department or service shall be paid an additional allowance as set out in Schedule 2 of Part B, of this Award.

 

(c)       To be eligible for payment of this allowance, the additional management responsibilities will include direct line responsibility for a unit, department or service and involvement in a number of, but not necessarily all, of the following:

 

(i)        cost centre management including budget preparation and management of allocated budget

 

(ii)       participation in planning and policy development

 

(iii)     responsibility for the co-ordination of research, training or teaching programs

 

(iv)      membership and participation in senior executive management teams

 

(d)       The Managerial Allowance at the Level 1 rate is payable to Staff Specialists who satisfy the criteria in (c) and who are specifically required by the Employer to undertake these additional managerial responsibilities. It is expected that a Staff Specialist receiving a Level 1 allowance will as a minimum perform human resource management responsibilities which include the direct supervision of staff (including other Staff Specialists, Career Medical Officers and Junior Medical Officers where staff from these classifications are in the unit, service or department being managed), allocation of duties, approval of staff rosters, implementation of the provisions of clause 12, Performance Agreement, in respect of other Staff Specialists in the unit, service or department being managed, monitoring of hours worked and other performance management matters. It is also expected that a Staff Specialist receiving a Level 1 allowance will be responsible for ensuring that quality improvement and clinical governance activities are implemented.

 

(e)       The Managerial Allowance at the Level 2 rate is payable to those Staff Specialists satisfying the criteria in (c) and (d) who, in the assessment of the Employer, have significant additional managerial responsibilities involving multiple units, services or departments, e.g. Divisional responsibility.

 

(f)       The Managerial Allowance at the Level 3 rate is payable to those Staff Specialists who, in addition to satisfying the criteria in (e), have a level of managerial responsibility deemed by the Employer to require an allowance at the Level 3 rate, e.g. Area-wide responsibility. It is recognised that managerial responsibilities at this level may not involve the duties at a Department or unit level outlined in (d).

 

(g)       The Managerial Allowances are not cumulative and are only payable for the period in which the Staff Specialist has been allocated the additional managerial responsibilities by the Employer.

 

(h)       Managerial allowances may be withdrawn with one month’s notice by the Employer if it determines that it no longer requires the Staff Specialist to undertake the relevant managerial responsibilities. This subclause does not apply to Staff Specialists who have been appointed to a position where the managerial duties for which the allowance is paid are an intrinsic part of the substantive position.

 

(i)        The Managerial Allowances shall be paid during paid absences on approved leave, on termination of employment including voluntary redundancy (on the basis of pro rata the annual amount for each week of paid leave) and for superannuation.

 

(j)        The Employer may direct a Staff Specialist, as a condition of receiving the managerial allowance, to attend training intended to support and improve management skills and competencies.

 

12.  Performance Agreement

 

(a)       Each full-time and part-time Staff Specialist will have a written annual Performance Agreement developed jointly by the Staff Specialist and his/her designated supervisor and signed by the Chief Executive (however called) of the relevant Public Health Organisation or his or her nominee. The standard format to be used for performance agreements is annexed to this Award.

 

(b)       The Performance Agreement will be developed and completed within one month of the offer of a draft performance agreement. A Staff Specialist who at the time of making of this Award does not have a written Performance Agreement, will develop and complete a Performance Agreement within one month of the offer of a draft performance agreement.

 

(c)       In the event that agreement is not reached within a further 2 weeks, the matter must be resolved in accordance with the provisions of clause 3, Issues Resolution, of this Award.

 

(d)       The Staff Specialist and his/her designated supervisor will jointly review the Staff Specialist’s performance under the Performance Agreement once in each 12 month period. Each review is to include an evaluation of the Staff Specialist’s level of achievement of any specified service improvement objectives which are agreed between the Staff Specialist and his/her supervisor.

 

(e)       A Performance Agreement will include, but not necessarily be limited to, the following:

 

Details of the time and place that the normal duties are to be worked.

 

The nature of work to be performed during normal duties, (whether that is clinical, teaching, administrative, research, quality improvement or other activities).

 

The anticipated on call frequency and roster.

 

Any specific call back requirements.

 

Private billing expectations for Level 1 Staff Specialists.

 

Any agreement on the amount of time that the Staff Specialist will be released from Normal Duties eg to undertake college and other professional association activities.

 

Where appropriate, any financial, activity targets or health targets.

 

Specific commitments and standards from the Employer for the provision of clinical support, including staff, equipment, facilities and billing.

 

Expectations in respect of management responsibilities, quality improvement and clinical governance activities, post graduate and undergraduate teaching activities, continuing education, research, health outcomes.

 

Any part-time working arrangement in accordance with clause 13 of this Award or outside practice approvals in accordance with clause 15 of this Award.

 

(f)       The parties agree that clinical, research, teaching, administrative, quality improvement and managerial duties are important aspects of the Normal Duties of a staff specialist. The allocation of time to perform these duties will form part of the performance agreement process and be reviewed as part of the performance agreement review process.

 

13.  Part-Time Employment and Arrangements

 

(a)       Staff Specialists covered by this Award may, with the approval of the Employer, work part-time with the Employer by entering into a written Part-time Working Arrangement which may be varied from time to time by agreement.

 

(b)       The minimum period of work under a part-time working arrangement is 0.1 full-time equivalent (FTE).

 

(c)       Part-time Working Arrangements can either be on an on-going basis or for a fixed term (with subsequent return to full-time hours for permanent Staff Specialists). The type of working arrangement must be specified in the Part-time Working Arrangement and if the arrangement is for a fixed term, then the period of time must also be specified.

 

(d)       Transfer from an on-going Part-time Working Arrangement to full-time employment, or early termination of a fixed term Part-time Working Arrangement (with consequential return to full-time employment for permanent Staff Specialists) must be by agreement between the Staff Specialist and the Employer and recorded in writing.

 

(e)       A Staff Specialist employed under a Part-time Agreement pursuant to this clause will be entitled to accrue all entitlements including salary on a proportionate basis to a Staff Specialist employed on a full-time basis.

 

(f)       A Staff Specialist who works pursuant to a Part-time Agreement will progress to the next incremental step every 12 months from the date of the Staff Specialists commencement of employment, provided the work performed by the Staff Specialist extraneous to the Part-time Agreement is commensurate with the experience of a full-time Staff Specialist and is acceptable to the Employer. This subclause does not preclude accelerated progression.

 

(g)       Staff Specialists employed pursuant to a Part-time Working Arrangement must participate in the on-call roster to a reasonable extent. The on-call obligations of part-time Staff Specialists will be, wherever practicable, aligned to the part-time Staff Specialist’s normal duties.

 

(h)       In determining reasonable on-call rosters for part-time Staff Specialists, consideration should be given to the level of on-call participation applicable to full-time and part-time Staff Specialists on the same on-call roster.

 

(i)        A Staff Specialist is required to provide a minimum notice period of three months when requesting the Employer’s approval to reduce from full-time to part-time employment, or to reduce a fractional appointment. The Employer may consider a lesser period of notice of the request where pressing personal circumstances apply.

 

14.  Work Location

 

(a)       Subject to the provisions of this clause, a Staff Specialist may be required by the Employer to work at any of the hospitals, institutions or other health services conducted by the relevant public health organisation.

 

(b)       Before a requirement under subclause (a) above is made, the Employer will ensure that:

 

(i)        the Staff Specialist is consulted in regard to the proposal to require work at another location;

 

(ii)       the duties are consistent with the Staff Specialist’s area of specialty, expertise and seniority and the Labour Flexibility clause of this Award;

 

(iii)     the travel requirements are reasonable having regard to:

 

(1)       the number of work locations,

 

(2)       the frequency of attendance at each work location,

 

(3)       the distance of those work locations from the Staff Specialist’s place of residence at the time the Staff Specialist accepted his/her offer of appointment as a Staff Specialist, and

 

(4)       the travelling time normally involved in attending the place of work at the time of making this Award;

 

(iv)      while it is generally expected that Staff Specialists will not be required to provide services at more than two locations, in particular specialties, geographic circumstances or networking arrangements, Staff Specialists may be required to provide services at more than two locations;

 

(v)       a Staff Specialist required to work at another location will have access to the same parking arrangements as those provided to other Staff Specialists at that location and shall be reimbursed by the Employer for any additional parking fees or road tolls paid as a consequence of working at more than one location;

 

(vi)      where on call duties are rostered, the Staff Specialist is capable of returning to the workplace within a reasonable timeframe for an emergency call back (a change of the Staff Specialist’s place of residence does not exempt the Staff Specialist from the on call obligations established at the time of his or her appointment or the obligations in place at the time of the making of this Award);

 

(vii)    wherever practicable, on-call obligations are aligned to the Staff Specialist’s normal duties. There shall be no additional on call obligations placed upon a Staff Specialist by reason of any requirement arising from this clause. In determining on-call rosters, consideration should be given to the level of on-call participation of other Staff Specialists on the same on-call roster;

 

(viii)   the letter of appointment and/or the performance agreement will specify the locations where the Staff Specialist will be required to provide services. Where the Employer requires a Staff Specialist to commence work at an additional location not specified in the letter of appointment/annual performance agreement, the Employer will give 3 months notice;

 

(ix)      regard is given to any family, carer or other personal responsibilities identified by the Staff Specialist so as to minimise any potential adverse impacts on those responsibilities;

 

(x)       a Staff Specialist required to work at another location will not be financially disadvantaged in regard to drawings, accounting fees for partnerships and reimbursement of medical indemnity payments made from the No.1 Account, as a result of any such requirement;

 

(xi)      the relevant factors for determining financial disadvantage will be:

 

(1)       Drawings - percentage of maximum drawings paid to the Staff Specialist averaged over the last three full financial years (or for Staff Specialists where three years comparison is not available, such lesser periods as may be available by way of comparison) prior to the date on which the requirement to work at another location came into effect;

 

(2)       Accounting fees for partnerships - the accounting fees for partnerships reimbursement received by or paid on behalf of the Staff Specialist, relative to her/his partnership share, averaged over the last three full financial years (or for Staff Specialists where three years comparison is not available, such lesser periods as may be available by way of comparison) prior to the date on which the requirement to work at another location came into effect; and

 

(3)       Medical indemnity payments - percentage of indemnity reimbursement received by or paid on behalf of the staff specialist relative to the amount claimed where any differential is as a result of insufficient funds available in the No.1 Account, averaged over the last three full financial years (or for Staff Specialists where three years comparison is not available, such lesser periods as may be available by way of comparison) prior to the date on which the requirement to work at another location came into effect.

 

Where financial disadvantage occurs in relation to drawings, accounting fees for partnerships and medical indemnity reimbursement in accordance with these comparators, the Employer will provide supplementary funding to fully alleviate the financial disadvantage.

 

The supplementary funding, when provided, will be for an initial period of five years. At the conclusion of the five year period, the supplementary funding may be continued by approval of the Secretary of the NSW Ministry of Health.

 

(xii)    adequate resources are made available to the Staff Specialist at the additional work location;

 

(xiii)   the next annual performance review process will be the means of determining whether non-clinical time should be changed as a result of the requirement to work at another location;

 

(xiv)   reporting lines are clearly specified for each location at which the Staff Specialist is required to work;

 

(xv)     the requirement for a staff specialist to work at another location will not impose an unreasonable workload on the staff specialists remaining at the primary work location.

 

(c)       In the event that a Staff Specialist is required to work at an additional location and the Staff Specialist contends that the requirement is unreasonable and/or would have a harsh or unfair impact, the Staff Specialist may invoke the Issue Resolution clause of this Award.

 

(d)       These arrangements in no way proscribe the Employer’s capacity to direct a Staff Specialist to temporarily work at a location other than the Staff Specialist’s primary work location or locations where there is an emergency situation, subject to the Employer considering any personal circumstances that may be raised by the Staff Specialist.

 

15.  Outside Practice and Other Business Activities

 

(a)       A full-time Staff Specialist must seek the Employer’s approval to engage in medical practice, paid employment or other business activities otherwise than with the Employer.

 

(b)       Any such approval must be in writing, may be time limited, and must not conflict with the Staff Specialist’s commitments to the Employer or obligations under the Code of Conduct issued by the Ministry of Health as varied from time to time.

 

(c)       Details of the proposed outside practice commitments, including the location, employer (if any), working times, duration of work, and any on-call commitments must be included in the request for approval.

 

(d)       Part-time staff specialists must notify the Employer of any outside practice (including services provided for another public health organisation or Division of the NSW Health Service). Where the Employer has identified a conflict of interest, or a significant risk of a conflict of interest or conflict with the employer’s duty of care arising, and the staff member refuses to cease, or to make necessary adjustments to, his or her outside practice, the Employer may take action to resolve the conflict consistent with any applicable Ministry policies and the Code of Conduct as varied from time to time.

 

(e)       Subject to any commercial arrangement, a Staff Specialist is not to use any of the Employer’s staff or property for activities associated with any outside practice they may undertake.

 

(f)       No outside practice is to be performed by a Staff Specialist during the span of hours designated for the performance of normal duties as applicable to him or her.

 

16.  Postgraduate Fellow

 

(a)       Appointment as a post-graduate fellow will be limited to one year with eligibility for re-appointment on an annual basis for a maximum of 3 years unless there is specific agreement between the individual and the Employer for a lesser period.

 

(b)       Remuneration will be as outlined in Schedule 1 of Part B - Monetary Rates of this Award.

 

(c)       Post-graduate fellows will be entitled to all other provisions of this Award as if they were appointed as a Staff Specialist, except for salary.

 

17.  Annual Leave and Annual Leave Loading

 

A.        Annual Leave

 

(a)       All Staff Specialists shall be allowed 5 weeks annual leave on full pay in respect of each 12 months service with the Employer plus 1 day on full pay in respect of each public holiday occurring within the period of such leave.

 

(b)       Staff Specialists who are employed in a specialty or category specified in Part C, Schedule 3 to this Award and who are required to work on Sundays during a qualifying period of employment for annual leave purposes shall be entitled to receive additional annual leave in respect of each shift so worked as follows:

 

if 30 or more Sunday shifts have been worked - one week;

 

if less than 30 have been worked - leave proportionately calculated on the basis of 40 hours leave for 30 such shifts worked.

 

(c)       Annual leave shall be given and shall be taken within a period of 6 months after the date when the right to the annual leave accrued; provided that the giving and taking of the whole or any separate period of such annual leave may, by mutual agreement between the Employer and the Staff Specialist be postponed for a further period not exceeding 6 months.

 

(d)       If the Staff Specialist and the Employer so agree, the annual leave or any such separate period may be taken wholly or partly in advance, before the Staff Specialist has become entitled to that leave, but where leave is taken in such circumstances a further period of annual leave shall not commence to accrue until the expiration of the 12 months in respect of which the annual leave or part thereof has been so taken.

 

(e)       Except as provided by this clause, payment shall not be made by the Employer to a Staff Specialist in lieu of any annual leave or part thereof nor shall any such payment be accepted by the Staff Specialist.

 

(f)        Subject to the provisions of the New South Wales Annual Holidays Act 1944, the Staff Specialist and the Employer should determine a mutually agreeable date from which annual leave is to be taken and unforeseen circumstances excepted, agreement should be reached two months prior to the commencement of the annual leave.

 

(g)       The Employer shall pay each Staff Specialist before entering upon annual leave his/her salary for the period of leave if requested by the Staff Specialist, otherwise, the payment will be made in the usual pay period.

 

(h)       Where the employment of a Staff Specialist is terminated, the Staff Specialist shall be entitled to receive proportionate payment for each completed month of service at the salary which such Staff Specialist is entitled under this Award.

 

(i)        Where the annual holiday under this clause or any part thereof has been taken in advance by a Staff Specialist pursuant to paragraph (d) of this subclause, and

 

(i)        the employment of the Staff Specialist terminates before he/she has completed the year of employment in respect of which such annual holiday or any part was taken; and

 

(ii)      the sum paid by the Employer to the Staff Specialist as ordinary pay for the annual holiday or any part so taken in advance exceeds the sum which the Employer is required to pay to the Staff Specialist under paragraph (g) of this subclause;

 

the Employer shall not be liable to make any payment to the Staff Specialist under the said paragraph (g), and shall be entitled to deduct the amount of such excess from any remuneration payable to the Staff Specialist upon the termination of the employment.

 

B.        Entitlement to Annual Leave Loading or Shift Allowances and Weekend Penalties

 

(a)       Staff Specialists who become entitled to and take annual leave pursuant to subclause A of this clause, shall be paid ordinary salary plus either:

 

(i)        an annual leave loading in respect of that entitlement equivalent to 17.5% of four weeks ordinary salary, not exceeding the amount equivalent to 17.5% of four weeks ordinary salary for maximum salary of Clerk Grade 12 under the provisions of the Crown Employees (Administrative and Clerical Officers - Salaries 2007) Award varied from time to time; or

 

(ii)      in the case of a Staff Specialist employed in a specialty or category specified in Part C, Schedule 3 to this Award who would have earned shift allowances and/or weekend penalties in excess of the amount of annual leave loading indicated in subparagraph (a)(i) above, had he/she not taken annual leave; those shift allowances and weekend penalties relating to the ordinary time the Staff Specialist would have earned had he/she not taken annual leave (provided that shift allowances and weekend penalties shall not be payable for public holidays which occur during a period of annual leave).

 

(b)       In respect of a Staff Specialist who becomes entitled to take annual leave pursuant to paragraph (a) of subclause B of this clause, and takes that annual leave in broken periods; both the annual leave loading and the maximum amount referred to in subparagraph (a)(i) of subclause B of this clause are to calculated pro rata for the broken period being taken in the same proportion as the period being taken bears to four weeks. The resultant amount of annual leave loading calculated for the broken period of annual leave, not exceeding the maximum amount calculated for the same broken period, is to be paid to the Staff Specialist in addition to ordinary salary for the period.

 

(c)       In respect of a Staff Specialist employed in a specialty or category specified in Part C, Schedule 3 of this Award, who becomes entitled to take annual leave pursuant to subclause A of this clause, and who takes that annual leave in broken periods, the entitlement to annual leave loading and the maximum amount are to be calculated in the same way as indicated in paragraph (b) of subclause B of this clause, for the period of annual leave being taken compared with the ordinary time shift allowances and weekend penalties the Staff Specialist would have earned had he/she not taken the annual leave (provided that shift allowances and weekend penalties shall not be payable for public holidays which occur during the period of annual leave), and the greater of either the calculated annual leave loading (not exceeding the calculated maximum amount) or ordinary time shift allowances and weekend penalties is to be paid to the Staff Specialist in addition to ordinary salary for the period.

 

(d)       The entitlement to annual leave loading or shift allowances and weekend penalties referred to in paragraphs (a), (b) and (c) of subclause B of this clause are to be calculated and paid at the same time as the annual leave is paid.

 

(e)       Annual leave loading is to calculated at the rate of ordinary salary payable when the annual leave is taken (except provided for in subclause (f) of subclause B of this clause), and excludes allowances, penalty or disability rates, commission, bonuses or incentive payments etc. Where the ordinary rate payable changes effective from a date falling within a period of annual leave, the changed rate is to be taken into account, and if necessary, adjustments calculated and corrections to pay made.

 

(f)        No annual leave loading is payable to a Staff Specialist who takes annual leave wholly or partly in advance of becoming entitled to such annual leave, except if his/her employment continues until the day he/she would have become entitled to take such annual leave, in which case the loading then becomes payable on that day (calculated on rates applicable on that day) in respect of the period/s of annual leave already taken wholly or partly in advance. Staff specialists employed in a specialty or category specified in Part C, Schedule 3 of this Award already paid ordinary time shift allowances and weekend penalties in respect of annual leave taken wholly or partly in advance are not eligible to be paid annual leave loading under this subclause.

 

(g)       No annual leave loading or shift allowances and weekend penalties are payable to a Staff Specialist who is paid the monetary value of annual leave to his/her credit on resignation (not including retirement).

 

(h)       Upon retirement of a Staff Specialist or upon termination by the Employer of a Staff Specialist for any reason other than misconduct, the Staff Specialist shall be paid annual leave loading on that annual leave which he/she had become entitled to take that the loading would have applied to had the annual leave been taken.

 

(i)        In respect of that additional annual leave accrued by virtue of being rostered to work and working ordinary hours shifts on Sundays pursuant to subclause (b) of Part A, of this clause, no annual leave loading is payable. Staff specialists employed in a specialty or category specified in Part C, Schedule 3 of this Award are to be paid, in addition to ordinary salary for such annual leave period/s the ordinary time shift allowances and weekend penalties the Staff Specialist would have earned had he/she not taken the annual leave (provided that shift allowances and weekend penalties shall not be payable for public holidays which occur during the period of annual leave).

 

C.        Pay out of Additional Accrued Annual Leave

 

(a)       The provisions of paragraphs 17(A)(a) and 17(A)(b) above entitle Staff Specialists to paid annual leave additional to that available under clause 3(1)(b) of the Annual Holidays Act 1944, which is four weeks paid leave per annum. A Staff Specialist entitled to such additional paid annual leave can elect at any time to be paid an amount equivalent to the value of accrued additional annual leave in lieu of taking the additional leave. This can include additional annual leave accrued through recognised prior service in a classification other than as a Staff Specialist, provided that such leave is additional to that available under clause 3(1)(b) of the Annual Holidays Act 1944.

 

(b)       Such salary for the period of additional leave paid out will be calculated in the manner detailed at paragraph (g) below.

 

(c)       A Staff Specialist electing to be paid an amount equivalent to the value of such accrued additional annual leave in lieu of taking the additional leave shall make such request in writing, which for this purpose can include electronic requests.

 

(d)       Each election for cashing in additional leave shall be by way of a separate request.  Payment shall be made provided the request is received by the employer with a minimum of four weeks’ notice, with the payment being effected on the next usual pay day for that employee following the conclusion of such minimum notice.

 

(e)       An election to cash in additional leave is purely at the volition of the Staff Specialist.

 

(f)        The amount of accrued additional annual leave to be cashed in will be at the discretion of the requesting Staff Specialist, who may nominate a number of hours or days or weeks. Such nomination will be for a minimum of 40 hours/ five days/one week of additional annual leave.

 

(g)       Payment of accrued additional annual leave shall occur as follows:

 

(i)        Staff Specialists Level 1

 

Cashing in is at the rate that would have been otherwise payable if the annual leave was actually taken. This rate is the applicable salary as set out in Part B, Schedule 1 ‘Salary Rates’, of this Award, plus the Special Allowance and the Level 1 Private Practice Allowance specified in the Staff Specialists Determination, as varied from time to time.

 

Such payment will include those additional components considered salary for all purposes e.g. Managerial Allowance; Emergency Physician Allowance where payable to the Staff Specialist.

 

(ii)      Staff Specialists Levels 2 and 3

 

Cashing in is at the rate determined by the applicable salary as set out in Part B, Schedule 1 ‘Salary Rates’, of this Award, plus the Special Allowance, and the relevant Level 2 or Level 3 Private Practice Allowance specified in the Staff Specialists Determination, as varied from time to time, but does not include any drawing rights payable pursuant to the rights of private practice provisions of the Staff Specialists Determination.

 

Such payment will include those additional components considered salary for all purposes e.g. Managerial Allowance, where payable to the Staff Specialist.

 

(iii)     Staff Specialists Levels 4 and 5

 

Cashing in is at the rate determined by the applicable salary as set out in Part B Schedule 1 ‘Salary Rates’, of this Award, plus the Special Allowance, as varied from time to time, but does not include any drawing rights payable pursuant to the rights of private practice provisions of the Staff Specialists Determination.

 

Such payment will include those additional components considered salary for all purposes e.g. Managerial Allowance, where payable to the Staff Specialist.

 

18.  Long Service Leave

 

(a)       Entitlement and Accrual

 

(i)        After service for 7 years or more but not more than 10 years, a Staff Specialist is entitled to Long Service Leave, proportionate to his or her length of service, calculated at the rate of 2 months on full pay for 10 years served.

 

(ii)       After service for more than 10 years, a Staff Specialist is entitled to Long Service Leave under subclause (i) above in respect of the first 10 years and additional long service leave, proportionate to his or her length of service, calculated at the rate of 5 months on full pay for each 10 years served after the first 10 years.

 

(b)       Definition of Service

 

(i)        For the purposes of this clause:

 

(1)       service shall mean continuous service with the Employer (as defined by this Award),

 

(2)       continuous service shall have the same meaning as in Schedule 2 of the Government Sector Employment Regulation 2014 as varied from time to time,

 

(3)       prior government service will be recognised in accordance with the provisions outlined in Schedule 2 of the Government Sector Employment Regulation 2014 as varied from time to time.

 

(ii)       Broken periods of service with the Employer in one or more public health organisations shall count as service.

 

(iii)     Service shall not include any period of leave without pay except in the case of Staff Specialists who have completed at least ten years service (any period of absence without pay being excluded there from) in which case service shall include any period of leave without pay not exceeding 6 months taken after 22 August 1972.

 

(c)       Taking Long Service Leave

 

(i)        A staff specialist with an entitlement to long service leave may elect to access such entitlement:

 

(1)       on full pay;

 

(2)       on half pay; or

 

(3)       on double pay.

 

(ii)       When a Staff Specialist takes long service leave, the leave entitlement will be deducted on the following basis:

 

(1)       a period of leave on full pay - the number of days so taken;

 

(2)       a period of leave on half pay - half the number of days so taken; or

 

(3)       a period of leave on double pay - twice the number of days so taken.

 

(iii)     If a public holiday occurs whilst a Staff Specialist is taking long service leave and the Staff Specialist would have otherwise worked on that day but for the public holiday, the amount of long service leave to be deducted is to be reduced by the public holiday.

 

(iv)      Long Service Leave shall be taken at a time mutually arranged between the Employer and the Staff Specialist.

 

(d)       Payment on Termination

 

(i)        On the termination of employment of a Staff Specialist with an entitlement to long service leave, otherwise than by his/her death, the Employer will pay the Staff Specialist the monetary value of all long service leave accrued and not taken at the date of such termination and such monetary value shall be determined according to the salary payable to the Staff Specialist at the date of such termination.

 

(ii)       Where a Staff Specialist who has acquired a right to long service leave, or after 5 years and less than seven years service, dies, the Staff Specialist’s estate shall be entitled to receive the monetary value of the leave not taken or which would have accrued to such Staff Specialist had his/her services been terminated as referred to in subclause (d)(i) of this clause, and such monetary value shall be determined according to the salary payable to the Staff Specialist at the time of his/her death.

 

(iii)     Where the services of a Staff Specialist with at least 5 years service but less than seven years service, are terminated by the Employer for any reason other than the Staff Specialist's serious and wilful misconduct, or by the Staff Specialist on account of illness, incapacity or domestic or other pressing necessity, he/she shall be entitled to be paid a proportionate amount for long service leave on the basis of 2 months long service leave for 10 years service.

 

(e)       Preservation of Rights to Long Service Leave

 

(i)        Rights to long service leave under this clause shall be in replacement of rights to long service leave, if any, which at the commencement of this Award may have accrued or may be accruing to a Staff Specialist and shall apply only to persons in the employ of the Employer on or after the date of commencement of this Award.

 

(ii)       Where a Staff Specialist has been granted long service leave or has been paid its monetary value prior to the date of commencement of this Award, the Employer shall be entitled to debit such leave against any leave to which the Staff Specialist may be entitled pursuant to this clause.

 

(f)       Accrual of other entitlements whilst on long service leave

 

(i)        During a period of long service leave on half pay, a Staff Specialist will continue to accrue at the full-time equivalent rate except for annual leave that will accrue at the rate of 50%.

 

(ii)       During a period of long service leave on double pay, a Staff Specialist will continue to accrue at the full-time equivalent rate including annual leave which will accrue at the single time rate.

 

19.  Sick Leave

 

A full-time Staff Specialist shall be entitled to sick leave on full pay calculated by allowing ten working days for each year of continuous service less any sick leave on full pay already taken, subject to the following conditions;

 

(a)       the Employer may require the sickness to be certified to by a legally qualified medical practitioner approved by the Employer or may require other satisfactory evidence of the sickness.

 

(b)       a Staff Specialist shall not be entitled to sick leave until after 3 months' continuous service.

 

(c)       a Staff Specialist shall not be entitled to sick leave on full pay for any period in respect of which such Staff Specialist is entitled to workers' compensation; provided, however, that the Employer shall pay to a Staff Specialist who has a sick leave entitlement under this clause the difference between the amount received as workers' compensation and full pay. The Staff Specialist's sick leave entitlement under this clause shall, for each week during which such difference is paid, be reduced by that proportion of 1 week which the difference paid bears to full pay.

 

(d)       for the purposes of this clause "service" means service in any of the positions covered by this Award, provided that any person who was employed by the Employer immediately prior to becoming a Staff Specialist in any position covered by this Award shall be entitled to add to his/her service under this Award the service that he/she has had under any other award/agreement covering his/her employment by the Employer provided that Staff Specialists who are employed by the Employer at the date of the commencement of this Award shall retain to their credit until exhausted, any accumulation of sick leave to their credit immediately prior to such date, and provided further that such credit is not less than the entitlement otherwise prescribed by this clause.

 

(e)       The Employer shall not terminate the services of a Staff Specialist, except on the grounds of misconduct, during the currency of any period of paid sick leave unless an agreed independent registered medical practitioner certifies that a Staff Specialist is fit to continue in employment and the Staff Specialist refuses to resume duty.

 

(f)       If a dispute arises as to whether a Staff Specialist is fit to continue in employment, such dispute shall be addressed in accordance with clause 3, Issue Resolution.

 

(g)       An employee who ceases employment in one public health organisation and within two months of the last day of service commences employment in another public health organisation does not lose any accrued but untaken sick leave.

 

20.  Family and Community Services Leave

 

(a)       General

 

(i)        For the purpose of this clause relating to FACS leave:

 

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

 

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

 

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

 

(ii)       The appropriate Chief Executive or authorised delegate may grant FACS leave to a Staff Specialist:

 

(1)       to provide care and/or support for sick members of the Staff Specialist’s relatives or household; or

 

(2)       for reasons related to the family responsibilities of the Staff Specialist (e.g. to arrange and or attend a funeral of a relative; to accompany a relative to a medical appointment where there is an element of emergency; parent/teacher meetings; education week activities; to meet elder-care requirements of a relative); or

 

(3)       for reasons related to the performance of community service by the Staff Specialist (e.g. in matters relating to citizenship; to office holders in local government, other than as a mayor, for attendance at meetings, conferences or other associated duties; representing Australia or the State in major amateur sport other than in Olympic/Commonwealth Games); or

 

(4)       in a case of pressing necessity (e.g. where a Staff Specialist is unable to attend work because of adverse weather conditions which either prevent attendance or threaten life or property; the illness of a relative; where a child carer is unable to look after their charge).

 

(iii)     FACS leave replaces compassionate leave.

 

(iv)      A Staff Specialist is not to be granted FACS leave for attendance at court to answer a criminal charge, unless the Chief Executive or authorised delegate approves the grant of leave in the particular case.

 

Applications for FACS leave to attend court, for reasons other than criminal charges, will be assessed on an individual basis.

 

(b)       Entitlement

 

(i)        The maximum amount of FACS leave on full pay that may be granted to a Staff Specialist is:

 

(1)       3 working days during the first year of service, commencing on and from 1 January 1995, and thereafter 6 working days in any period of 2 years; or

 

(2)       1 working day, on a cumulative basis effective from 1 January 1995, for each year of service after 2 years’ continuous service, minus any period of FACS leave already taken by the Staff Specialist since 1 January 1995,

 

whichever method provides the greater entitlement.

 

(ii)       FACS leave is available to part-time Staff Specialists on a pro rata basis, based on the percentage of the full-time salary the Staff Specialist receives.

 

(c)       Additional FACS leave for bereavement purposes

 

Where FACS leave has been exhausted, additional FACS leave of up to 2 days for bereavement may be granted on a discrete, "per occasion" basis to a Staff Specialist on the death of a relative or member of a household as defined in subclause (a)(i) of this clause.

 

(d)       Use of other leave entitlements

 

The appropriate Chief Executive or authorised delegate may grant a Staff Specialist other leave entitlements for reasons related to family responsibilities or community service of the Staff Specialist.

 

A Staff Specialist may elect, with the consent of the Employer, to take annual leave; long service leave; or leave without pay.

 

20A.  Family Violence Leave

 

(a)       For the purpose of this clause, family violence means domestic violence as defined in the Crimes (Domestic and Personal Violence) Act 2007 as varied from time to time. The violence may have been reported to the police and/or may be the subject of an Apprehended Violence Order.

 

(b)       An employee experiencing family and domestic violence can utilise Award leave entitlements provided for in Sick Leave and Family and Community Services Leave provisions of the Award.

 

(c)       Where leave entitlements to Sick Leave and Family and Community Services Leave are exhausted, the employer will grant up to five days per year of paid special leave to attend legal proceedings, counselling, appointments with a medical or legal practitioner and relocation and safety activities directly associated with alleviating the effects of family and domestic violence. This leave entitlement does not accumulate from year to year.

 

(d)       Upon exhaustion of the paid leave entitlement, an employee may request further periods of unpaid leave, for the same activities for which paid leave would be available.

 

(e)       To access paid and unpaid leave, the employee must provide the employer with evidence, to the employer’s satisfaction, substantiating the purpose of the leave and that the leave is related to alleviating the effects of family violence. The employer may accept a variety of agreed documentation in support of an application for leave. Supporting documentation may be presented in the form of an agreed document issued by the Police Force, a Court, a doctor, a Family Violence Support Service or a lawyer.

 

(f)       Matters related to family violence can be sensitive. Information collected by the employer will be kept confidential. No information relating to the details of the family violence will be kept on an employee’s personnel file without their express permission. However, records about the use of family violence leave will need to be kept.

 

(g)       The employer, where appropriate, may facilitate flexible working arrangements subject to operational requirements. This may include changes to working times and locations, telephone numbers and email addresses.

 

(h)       The employer will co-operate with all legal orders protecting an employee experiencing domestic violence.

 

21.  Personal/Carer’s Leave

 

(a)       Use of sick leave to care for the person concerned - definitions

 

A person who needs the Staff Specialist’s care and support is referred to as the "person concerned" and is:

 

(i)        a spouse of the Staff Specialist; or

 

(ii)       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

 

(iii)     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 Staff Specialist or spouse or de facto spouse of the Staff Specialist; or

 

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

 

(v)       a relative of the Staff Specialist who is a member of the same household, where for the purpose of this clause relating to Personal/Carer’s Leave:

 

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

 

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

 

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

 

(b)       Use of sick leave to care for the person concerned - entitlement

 

(i)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

(1)       the Staff Specialist being responsible for the care and support of the person concerned; and

 

(2)       the person concerned being as defined in subclause (a) of this clause.

 

(ii)       A Staff Specialist with responsibilities in relation to a person who needs their care and support shall be entitled to use the untaken sick leave, from that year’s annual sick leave entitlement, to provide care and support for such persons when they are ill.

 

(iii)     Sick leave accumulates from year to year. In addition to the current year’s grant of sick leave available under paragraph (ii) above, sick leave untaken from the previous 3 years may also be accessed by a Staff Specialist with responsibilities in relation to a person who needs their care and support.

 

(iv)      The Chief Executive or authorised delegate may, in special circumstances, make a grant of additional sick leave. This grant can only be taken from sick leave untaken prior to the period referred to in paragraph (iii) above.

 

(v)       The Staff Specialist shall, if required, establish, either by production of a medical certificate or statutory declaration, that the illness of the person concerned is such as to require care by another person.

 

(vi)      The Staff Specialist has the right to choose the method by which the ground for leave is established, that is, by production of either a medical certificate or statutory declaration.

 

(vii)    The Staff Specialist is not required to state the exact nature of the relevant illness on either a medical certificate or statutory declaration.

 

(viii)   The Staff Specialist shall, wherever practicable, give the Employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that person’s relationship to the Staff Specialist, the reasons for taking such leave and the estimated length of absence. If it is not practicable for the Staff Specialist to give prior notice of absence, the Staff Specialist shall notify the Employer by telephone of such absence at the first opportunity on the day of absence.

 

(ix)      In normal circumstances, the Staff Specialist must not take leave under this part where another person has taken leave to care for the same person.

 

(c)       Use of other leave entitlements

 

A Staff Specialist may elect, with the consent of the Employer, to take:

 

(i)        annual leave, including annual leave not exceeding 10 days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties. A Staff Specialist and the Employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least 5 consecutive annual leave days are taken. A Staff Specialist may elect with the Employer’s agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

(ii)       long service leave; or

 

(iii)     leave without pay for the purpose of providing care and support to the person concerned as defined in subclause (a) of this clause.

 

(d)       Use of make-up time

 

(i)        A Staff Specialist may elect, with the consent of the Employer, to work "make-up time". "Make-up time" is worked when the Staff Specialist takes time off during ordinary hours for family or community service responsibilities, and works those hours at another time, during the spread of normal duties hours defined in clause 4 of this Award, at the ordinary rate of pay.

 

(ii)       A Staff Specialist on shift work may elect, with the consent of the Employer, to work "make-up time" (under which the Staff Specialist takes time off during ordinary hours and works those hours at another time) at the applicable shift work rate which would have been applicable to the hours taken off.

 

22.  Maternity, Adoption and Parental Leave

 

A.        Maternity Leave

 

(a)       Eligibility

 

To be eligible for paid maternity leave a full-time or part-time Staff Specialist must have completed at least 40 weeks continuous service prior to the expected date of birth.

 

A Staff Specialist who has once met the conditions for paid maternity leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid maternity leave, unless-

 

(i)        there has been a break in service where the Staff Specialist has been re-employed or re-appointed after a resignation, medical retirement, or after her services have been otherwise dispensed with: or

 

(ii)      the Staff Specialist has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987 as varied from time to time.

 

(b)       Portability of Service for Paid Maternity Leave

 

Portability of service for paid maternity leave involves the recognition of service in government sector agencies for the purpose of determining a Staff Specialist's eligibility to receive paid maternity leave. For example, where a Staff Specialist moves between a public service department and a public hospital, previous continuous service will be counted towards the service prerequisite for paid maternity leave.

 

When determining a Staff Specialist's eligibility for paid maternity leave, continuous service with an organisation that is part of the government sector as defined in the Government Sector Employment Act 2013, as varied from time to time, will be recognised, provided that:

 

(i)        service was on a full-time or part-time basis:

 

(ii)      cessation of service with the former government sector agency was not by reason of dismissal on any ground, except retrenchment or reduction of work;

 

(iii)     the Staff Specialist commences duty with the Employer within two months of ceasing employment with the former government sector agency. Where there is such a break in service, such break will not be counted as service for the purpose of calculating any prior service prerequisite for paid maternity leave.

 

(c)       Entitlement to Paid Maternity Leave

 

An eligible Staff Specialist is entitled to fourteen weeks at the ordinary rate of pay from the date maternity leave commences. This leave may commence up to fourteen weeks prior to the expected date of birth.

 

It is not compulsory for a Staff Specialist to take this period off work. However, if a Staff Specialist decides to work during the nine weeks prior to the date of birth it is subject to the Staff Specialist being able to satisfactorily perform the full range of normal duties.

 

Paid maternity leave may be paid:

 

on a normal fortnightly basis; or

 

in advance in a lump sum; or

 

at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

 

Annual and/or long service leave credits can be combined with periods of maternity leave on half pay to enable a Staff Specialist to remain on full pay for that period.

 

(d)       Unpaid Maternity Leave

 

(i)        Full-time and part-time Staff Specialists who are entitled to paid maternity leave are entitled to a further period of unpaid maternity leave of not more than 12 months after the actual date of birth.

 

(ii)      Full-time and part-time Staff Specialists who are not eligible for paid maternity leave are entitled to unpaid maternity leave of not more than 12 months.

 

(e)       Applications

 

A Staff Specialist who intends to proceed on maternity leave should formally notify the Employer of such intention as early as possible, so that arrangements associated with her absence can be made.

 

Written notice of not less than eight weeks prior to the commencement of the leave should accordingly be given. This notice must include a medical certificate stating the expected date of birth and should also indicate the period of leave desired.

 

(f)        Variation after Commencement of Leave

 

After commencing maternity leave, a Staff Specialist may vary the period of her maternity leave once only without the consent of the Employer by giving the Employer notice in writing of the extended period at least fourteen days’ before the start of the extended period. The Employer may accept less notice if convenient.

 

A Staff Specialist may extend the period of maternity leave at any time with the agreement of the Employer.

 

The conditions relating to variation of maternity leave are derived from section 64 of the Industrial Relations Act 1996.

 

(g)       Staffing Provisions

 

In accordance with obligations established by the Industrial Relations Act 1996 (Section 69) any person who occupies the position of a Staff Specialist on maternity leave must be informed that the Staff Specialist has the right to return to her former position. Additionally, since a Staff Specialist has the right to vary the period of her maternity leave, offers of temporary employment should be in writing, stating clearly the temporary nature of the contract of employment. The duration of employment should be also set down clearly; to a fixed date or until the Staff Specialist elects to return to duty, whichever occurs first.

 

(h)       Effect of Maternity Leave on Accrual of Leave, Increments etc.

 

When the Staff Specialist has resumed duties, any period of full pay leave is counted in full for the accrual of annual leave, sick leave and long service leave and any period of maternity leave on half pay is taken into account to the extent of one half thereof when determining the accrual of annual leave, sick leave and long service leave.

 

Except in the case of Staff Specialists who have completed ten years' service the period of maternity leave without pay does not count as service for long service leave purposes. Where the Staff Specialist has completed ten years' service the period of maternity leave without pay shall count as service provided such leave does not exceed six months.

 

Maternity leave without pay does not count as service for incremental purposes. Periods of maternity leave at full pay and at half pay are to be regarded as service for incremental progression on a pro-rata basis.

 

Where public holidays occur during the period of paid maternity leave, payment is at the rate of maternity leave received i.e., public holidays occurring in a period of full pay maternity leave are paid at full rate and those occurring during a period of half pay leave are paid at half rate.

 

(i)        Illness Associated with Pregnancy

 

If, because of an illness associated with her pregnancy a Staff Specialist is unable to continue to work then she can elect to use any available paid leave (sick, annual and/or long service leave) or to take sick leave without pay.

 

Where a Staff Specialist is entitled to paid maternity leave, but because of illness, is on sick, annual, long service leave, or sick leave without pay prior to the birth, such leave ceases nine weeks prior to the expected date of birth. The Staff Specialist then commences maternity leave with the normal provisions applying.

 

(j)        Transfer to a More Suitable Position

 

Where, because of an illness or risk associated with her pregnancy, a Staff Specialist cannot carry out the duties of her position, the Employer is obliged, as far as practicable, to provide employment in some other position that she is able to satisfactorily perform. This obligation arises from Section 70 of the Industrial Relations Act 1996. A position to which a Staff Specialist is transferred under these circumstances must be as close as possible in status and salary to her substantive position.

 

(k)       Miscarriages

 

In the event of a miscarriage any absence from work is to be covered by the current sick leave provisions.

 

(l)        Stillbirth

 

In the case of a stillbirth, (as classified by the Registry of Births, Deaths and Marriages) a Staff Specialist may elect to take sick leave, subject to production of a medical certificate, or maternity leave. She may resume duty at any time provided she produces a doctor's certificate as to her fitness.

 

(m)      Effect of Premature Birth on Payment of Maternity Leave

 

A Staff Specialist who gives birth prematurely and prior to proceeding on maternity leave shall be treated as being on maternity leave from the date leave is commenced to have the child. Should a Staff Specialist return to duty during the period of paid maternity leave, such paid leave ceases from the date duties are resumed.

 

(n)       Right to Return to Previous Position

 

In accordance with the obligations set out in Section 66 of the Industrial Relations Act 1996, a Staff Specialist returning from maternity leave has the right to resume her former position.

 

Where this position no longer exists the Staff Specialist is entitled to be placed in a position nearest in status and salary to that of her former position and to which the Staff Specialist is capable or qualified.

 

(o)       Further Pregnancy While on Maternity Leave

 

Where a Staff Specialist becomes pregnant whilst on maternity leave a further period of maternity leave shall be granted. If a Staff Specialist enters on the second period of maternity leave during the currency of the initial period of maternity leave, then any residual maternity leave from the initial entitlement ceases

 

A Staff Specialist who commences a subsequent period of maternity leave while on unpaid maternity leave under subparagraph (d)(i) of subclause A of this clause or subparagraph (a)(ii) of subclause D of this clause is entitled to be paid at their normal rate (i.e. the rate at which they were paid before proceeding on maternity leave).

 

A Staff Specialist who commences a subsequent period of maternity leave during the first 12 months of a return to duty on a part-time basis as provided under subparagraph (a)(iii) of subclause D, of this clause is entitled to be paid at their substantive full-time rate for the subsequent period of maternity leave.

 

A Staff Specialist who commences a subsequent period of maternity leave more than 12 months after returning to duty on a part-time basis under subparagraph (a)(iii) of Part D of this clause, will be entitled to paid maternity leave for the subsequent period of maternity leave at their part-time rate.

 

B.        Adoption Leave

 

(a)       Eligibility

 

All full-time and part-time Staff Specialists who are adopting a child and are to be the primary care giver of the child are eligible for unpaid adoption leave.

 

To be eligible for paid adoption leave a full-time or part-time Staff Specialist must also have completed at least 40 weeks continuous service prior to the date of taking custody of the child.

 

A Staff Specialist who has once met the conditions of paid adoption leave, will not be required to again work the 40 weeks continuous service in order to qualify for further periods of paid adoption leave, unless

 

(i)        there has been a break in service where the Staff Specialist has been re-employed or re-appointed after a resignation, medical retirement, or after their services have been otherwise dispensed with; or

 

(ii)      the Staff Specialist has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Worker's Compensation Act 1987 as varied from time to time.

 

(b)       Portability of Service for Paid Adoption Leave

 

As per maternity leave conditions.

 

(c)       Entitlement

 

(i)        Paid Adoption Leave

 

Eligible Staff Specialists are entitled to paid adoption leave of fourteen weeks at the ordinary rate of pay from and including the date of taking custody of the child.

 

Paid adoption leave may be paid:-

 

on a normal fortnightly basis; or

 

in advance in a lump sum; or

 

at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

 

Annual and/or long service leave credits can be combined with periods of adoption leave at half pay to enable a Staff Specialist to remain on full pay for that period.

 

(ii)      Unpaid Adoption Leave

 

Eligible Staff Specialists are entitled to unpaid adoption leave as follows:

 

where the child is under the age of 12 months - a period of not more than 12 months from the date of taking custody;

 

where the child is over the age of 12 months and under 18 years old - a period of up to 12 months, such period to be agreed upon by both the Staff Specialist and the employer.

 

(d)       Applications

 

Due to the fact that a Staff Specialist may be given little notice of the date of taking custody of a child, Staff Specialists who believe that, in the reasonably near future, they will take custody of a child, should formally notify the employer as early as practicable of the intention to take adoption leave. This will allow arrangements associated with the adoption leave to be made.

 

(e)       Variation after Commencement of Leave

 

After commencing adoption leave, a Staff Specialist may vary the period of leave, once without the consent of the employer and otherwise with the consent of the employer. A minimum of fourteen days’ notice must be given, although the Employer may accept less notice if convenient.

 

(f)        Staffing Provisions

 

As per maternity leave conditions.

 

(g)       Effect of Adoption Leave on Accrual of Leave, Increments, etc.

 

As per maternity leave conditions.

 

(h)       Right to return to Previous Position

 

As per maternity leave conditions.

 

C.        Parental Leave

 

(a)       Eligibility

 

To be eligible for parental leave a full-time or part-time Staff Specialist must have completed at least 40 weeks continuous service prior to the expected date of birth or to the date of taking custody of the child.

 

A Staff Specialist who has once met the conditions for paid parental leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid parental leave, unless-

 

(i)        there has been a break in service where the Staff Specialist has been re-employed or re-appointed after a resignation, medical retirement, or after their services have been otherwise dispensed with: or

 

(ii)      the Staff Specialist has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987 as varied from time to time.

 

(b)       Portability of Service for Paid Parental Leave

 

As per maternity leave conditions.

 

(c)       Entitlements

 

Eligible Staff Specialists whose spouse or partner (including a same sex partner) is pregnant or is taking custody of a child, are entitled to a period of leave not exceeding 52 weeks, which includes one week of paid leave, and may be taken as follows:

 

(i)        an unbroken period of up to one week at the time of the birth of the child, taking custody of the child or other termination of the pregnancy (short parental leave), and

 

(ii)      a further unbroken period in order to be the primary caregiver of the child (extended parental leave).

 

(iii)     The entitlement of one week’s paid leave may be taken at anytime within the 52 week period and shall be paid:

 

at the Staff Specialists ordinary rate of pay for a period not exceeding one week on full pay, or

 

two weeks at half pay or the period of parental leave taken, whichever is the lesser period.

 

(iv)     Extended parental leave cannot be taken at the same time as the Staff Specialist’s spouse or partner is on maternity or adoption leave except as provided for in subparagraph (a)(i) of subclause D, Right to Request of this clause.

 

Annual and/or long service leave credits can be combined with periods of parental leave on half pay to enable a Staff Specialist to remain on full pay for that period.

 

(d)       Applications

 

A Staff Specialist who intends to proceed on parental leave should formally notify their employer of such intention as early as possible, so that arrangements associated with their absence can be made.

 

(i)        In the case of extended parental leave, the Staff Specialist should give written notice of the intention to take the leave.

 

(ii)      The Staff Specialist must, at least four weeks before proceeding on leave, give written notice of the dates on which they propose to start and end the period of leave, although it is recognised in situations of taking custody of a child, little or no notice may be provided to the Staff Specialist. In such an instance, the Staff Specialist should notify the employer as early as practicable.

 

(iii)     The Staff Specialist must, before the start of leave, provide a certificate from a medical practitioner confirming that their spouse or partner is pregnant and the expected date of birth, or in the case of an adoption, an official form or notification on taking custody of the child.

 

(iv)     In the case of extended parental leave, the Staff Specialist must, before the start of leave, provide a statutory declaration by the Staff Specialist stating:

 

(1)       if applicable, the period of any maternity leave sought or taken by his spouse, and

 

(2)       that they are seeking the period of extended parental leave to become the primary care giver of the child.

 

(e)       Variation after Commencement of Leave -

 

After commencing parental leave, a Staff Specialist may vary the period of her/his parental leave, once without the consent of the employer and otherwise with the consent of the employer. A minimum of fourteen days’ notice must be given, although the Employer may accept less notice if convenient.

 

(f)        Effect of Parental Leave on Accrual of Leave, Increments. etc.

 

As per maternity leave conditions.

 

(g)       Right to Return to Previous Position

 

As per maternity leave conditions.

 

D.        Right to Request

 

(a)       A Staff Specialist entitled to maternity, adoption or parental leave may request the Employer to allow the Staff Specialist:

 

(i)        to extend the period of simultaneous maternity, adoption or parental leave use up to a maximum of eight weeks;

 

(ii)      to extend the period of unpaid maternity, adoption or extended parental leave for a further continuous period of leave not exceeding 12 months;

 

(iii)     to return from a period of maternity, adoption or parental leave on a part-time basis until the child reaches school age;

 

to assist the Staff Specialist in reconciling work and parental responsibilities.

 

(b)       The Employer shall consider the request having regard to the Staff Specialist’s circumstances and, provided the request is genuinely based on the Staff Specialist’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)       The Staff Specialist’s request and the Employer’s decision made under subparagraphs (a)(ii) and (iii) must be recorded in writing.

 

(d)       Where a Staff Specialist wishes to make a request under subparagraph (a)(iii):

 

(i)        the Staff Specialist is to make an application for leave without pay to reduce their full-time weekly hours of work

 

(ii)      such application must be made as early as possible to enable the Employer to make suitable staffing arrangements. At least four weeks notice must be given;

 

(iii)     salary and other conditions of employment are to be adjusted on a basis proportionate to the Staff Specialist’s full-time hours of work i.e. for long service leave the period of service is to be converted to the full-time equivalent and credited accordingly.

 

(iv)     Staff Specialists who return from leave under this arrangement remain full-time Staff Specialists.

 

E.        Communication During Leave

 

(a)       Where a Staff Specialist is on maternity, adoption or parental leave and a definite decision has been made to introduce significant change at the workplace, the Employer shall take reasonable steps to:

 

(i)        make information available in relation to any significant effect the change will have on the status or responsibility level of the position the Staff Specialist held before commencing the leave; and

 

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

 

(b)       The Staff Specialist shall take reasonable steps to inform the Employer about any significant matter that will affect the Staff Specialist’s decision regarding the duration of the leave to be taken, whether the Staff Specialist intends to return to work and whether the Staff Specialist intends to request to return to work on a part-time basis.

 

(c)       The Staff Specialist shall also notify the Employer of changes of address or other contact details which might affect the Employer’s capacity to comply with subclause (a).

 

NOTE:

 

(a)       Where a temporary Staff Specialist is entitled to parental leave under the Industrial Relations Act 1996, the following provisions shall also apply in addition to those set out in the Act.

 

The Employer must not fail to re-engage a temporary Staff Specialist because:

 

the Staff Specialist or Staff Specialist’s spouse is pregnant; or

 

the Staff Specialist is or has been immediately absent on parental leave.

 

The rights of the employer in relation to engagement and re-engagement of temporary Staff Specialists are not affected, other than in accordance with this clause.

 

(b)       Liability for Superannuation Contributions

 

During a period of unpaid maternity, adoption or parental leave, the Staff Specialist will not be required to meet the employer's superannuation liability.

 

22A.  Lactation Breaks

 

(a)       This clause applies to employees who are lactating mothers. A lactation break is provided for breastfeeding, expressing milk or other activity necessary to the act of breastfeeding or expressing milk and is in addition to any other rest period and meal break as provided for in this Award.

 

(b)       A full-time employee or a part-time employee working more than four hours per day is entitled to a maximum of two paid lactation breaks of up to 30 minutes each per day or per shift.

 

(c)       A part-time employee working four hours or less on any day or shift is entitled to only one paid lactation break of up to 30 minutes each per day or per shift worked.

 

(d)       A flexible approach to lactation breaks can be taken by mutual agreement between an employee and their manager provided the total lactation break time entitlement is not exceeded. When giving consideration to any such requests for flexibility, a manager needs to balance the operational requirements of the organisation with the lactating needs of the employee.

 

(e)       The employer shall provide access to a suitable, private space with comfortable seating for the purpose of breastfeeding or expressing milk. Other suitable facilities, such as refrigeration and a sink, shall be provided where practicable. Where it is not practicable to provide these facilities, discussions between the manager and the employee will take place to attempt to identify reasonable alternative arrangements for the employee’s lactation needs.

 

(f)       Employees experiencing difficulties in effecting the transition from home based breastfeeding to the workplace will have telephone access in paid time to a free breastfeeding consultative service, such as that provided by the Australian Breastfeeding Association’s Breastfeeding Helpline Service or the Public Health System.

 

(g)       Employees needing to leave the workplace during time normally required for duty to seek support or treatment in relation to breastfeeding and the transition to the workplace may utilise sick leave or other leave in accordance with the award.

 

23.  Telephones

 

A Staff Specialist required by the Employer to have a telephone for the purposes of official duty at his/her home address shall, on presenting an account relating to that telephone be reimbursed -

 

(a)       three-quarters of the cost of the rental of the telephone; and

 

(b)       the cost of all official STD telephone calls or its equivalent.

 

No payment for residential fixed telephone will be made where the Employer has issued a mobile phone to the Staff Specialist (unless the Staff Specialist resides in an area with no mobile phone coverage).

 

24.  Office, Secretarial and Administrative Support

 

Staff Specialists will have access to such office, secretarial and administrative support as may be reasonably necessary to undertake the requirements of the position.

 

25.  Specialist Medical Administrators

 

(a)       Where the Employer determines that Fellowship of the Royal Australian College of Medical Administrators is an essential requirement for appointment to a position, the holder of that position will be appointed as a Staff Specialist in accordance with the arrangements set out below.

 

(b)       Pursuant to clause 5(c) of this Award, Staff Specialists appointed in accordance with this clause will progress to the next incremental step, up to and including Year 5, on the anniversary date of his/her commencement.

 

(c)       Appointment or progression to Senior Staff Specialist grade may occur when the Employer requires the Staff Specialist to have duties and responsibilities:

 

(i)        across a Local Health District/Network; or

 

(ii)       involving management of multiple services, units or department across two (2) or more facilities.

 

(d)       Specialist Medical Administrators paid in accordance with this clause are not entitled to the provisions of clause 11 Managerial Allowance.

 

(e)       Except as otherwise provided, Staff Specialists paid in accordance with this clause are entitled to the terms and conditions of employment applicable to Staff Specialists. Staff Specialists paid in accordance with this clause are not entitled to the terms and conditions of employment applicable to medical superintendents.

 

26.  Labour Flexibility

 

(a)       The Employer may direct a Staff Specialist to carry out such duties as are reasonable, and within the limits of the Staff Specialist's skill, competence and training consistent with his/her classification, grouping and/or career stream provided that such duties are not designed to promote deskilling.

 

(b)       The Employer may direct a Staff Specialist to carry out such duties and use such equipment as may be required provided that the Staff Specialist has been properly trained or has otherwise acquired the necessary skills in the use of and equipment.

 

(c)       Any direction issued by the Employer pursuant to subclauses (a) and (b) shall be consistent with the Employer’s responsibilities to provide a safe and healthy work environment.

 

27.  Anti-Discrimination

 

(a)       It is the intention of the parties bound by this Award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.

 

(b)       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.

 

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

 

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

 

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

 

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

 

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

 

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

 

(e)       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.

 

28.  Underpayment and Overpayment of Salaries

 

The following process will apply once the issue of underpayment or overpayment is substantiated.

 

(a)       Underpayment:

 

(i)        If the amount underpaid is equal to or greater than one day’s gross base pay the underpayment will be rectified within three working days;

 

(ii)       If the amount underpaid is less than one day’s gross base pay it will be rectified by no later than the next normal pay. However if the employee can demonstrate that rectification in this manner would result in undue hardship every effort will be made by the employer to rectify the underpayment within three working days.

 

(b)       Overpayment

 

(i)        In all cases where overpayments have occurred, the employer shall as soon as possible advise the employee concerned of both the circumstances surrounding the overpayment and the amount involved. The employer will also advise the employee of the pay period from which the recovery of the overpayment is to commence.

 

(ii)       One off overpayments will be recovered in the next normal pay, except that where the employee can demonstrate that undue hardship would result, the recovery rate shall be at 10% of an employee's gross fortnightly base pay.

 

(iii)     Unless the employee agrees otherwise, the maximum rate at which cumulative overpayments can be recovered is an amount, calculated on a per fortnight basis, equivalent to 10% of the employee's gross fortnightly base pay.

 

(iv)      The recovery rate of 10% of an employee's gross fortnightly base pay referred to in subclause (b) (iii) above may be reduced by agreement, where the employee can demonstrate that undue hardship would result.

 

(v)       Where an employee's remaining period of service does not permit the full recovery of any overpayment to be achieved on the fortnightly basis prescribed in subclause (b) (iii) above, the employer shall have the right to deduct any balance of such overpayment from monies owing to the employee on the employee's date of termination, resignation or retirement, as the case may be.

 

29.  Monthly Leave Return

 

Each Staff Specialist is required to provide a signed monthly leave return showing any leave taken in the previous month, to be certified by the relevant unit or service manager or the relevant hospital executive director/general manager.

 

30.  Consultation Regarding Change

 

(a)       Where an employer has made a definite decision to introduce changes in organisation, structure, health service delivery, or technology that are likely to have significant effects on employees covered by this Award, the employer shall notify the Union and employees who may be affected by the proposed changes. Discussions shall commence as soon as practicable after such decision has been taken.

 

(b)       "Significant effects" includes:

 

i.          termination of employment;

 

ii.         major changes in the composition, operation or size of the employer’s workforce or in the skills required;

 

iii.       changes in employment and/or promotional opportunities or job tenure for a class or group of employees;

 

iv.        the alteration of hours of work for a class or group of employees; or

 

v.         the need for training or transfer of a class or group of employees to other work or location, and the restructuring of jobs.

 

(c)       The employer shall discuss with the employees affected and the Union, inter alia, the introduction of the changes referred to in paragraph (a) above, the effects the changes are likely to have on employees and any measures proposed by the employer 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.

 

(d)       For the purpose of such discussion, the employer shall provide to the employees concerned and the Union all relevant information about the changes including the nature of the changes proposed and the expected significant effects of the changes on employees. Provided that the employer shall not be required to disclose confidential information, the disclosure of which would adversely affect the employer, the Ministry of Health or the Secretary of the Ministry of Health ; or is an exempt matter under the Government Information (Public Access) Act 2009 (the GIPA Act).

 

(e)       The provision of communication during maternity, adoption or parental leave is in accordance with subclause 22E of this Award.

 

(f)       With respect to occupational health safety matters as referred to in the Work Health and Safety Act 2011, the provisions of that Act apply, and specifically the provisions under section 47, "Duty to consult workers", as varied from time to time.

 

31.  No Extra Claims

 

Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2020 by a party to this Award.

 

32.  Area, Incidence and Duration

 

(a)       This Award takes effect from 1 July 2019 and shall remain in force for a period of one year. The wage rates and allowances as outlined in the tables in Part B, Monetary Rates, will apply from the first full pay period on or after the dates specified.

 

(b)       This Award rescinds and replaces the Staff Specialists (State) Award published 28 March 2019 (384 I. G. 218) and all variations thereof.

 

(c)       This Award shall apply to all Staff Specialists as defined in clause 2, Definitions, of this Award.

 

PART B - MONETARY RATES

 

SCHEDULE 1 - STAFF SPECIALISTS SALARY RATES

 

 

SCHEDULE 2 - ALLOWANCES

 

 

PART C - OTHER MATTERS

 

SCHEDULE 1

 

SECTION A

 

1.         List of individuals

 

The following individuals shall be entitled to the provisions of clauses 6, 7, and 9 of this Award with certain modifications, as set out below

 

Dr Peter Gale

 

Dr David Kirkpatrick

 

Dr Garry Nieuwkamp

 

Dr Martin Pallas

 

Dr Philip Watt

 

Dr David York

 

2.         Election rights

 

(a)       An individual named in paragraph 1 above may elect to access either: -

 

Option 1 - the provisions set out in paragraph 3 below, i.e. a modified form of the provisions of clauses 6, 7, and 9 of this Award; or,

 

Option 2 - on the condition that he/she forfeits the right to his/her existing motor vehicle arrangement, the provisions of clauses 6, 7, and 9 of this Award without modification.

 

(b)       This election may be exercised prior to each salary sacrifice review date.

 

(c)       Subject to:

 

(i)        the conditions outlined in paragraph 3 below; and,

 

(ii)      remaining in his/her current position (as at 22 October 1999); and,

 

(iii)     retaining an entitlement to payment of the abnormal hours or managerial allowance (as the case may be);

 

an individual who elects Option 1 will be able to continue to trade the relevant allowance (abnormal hours or managerial) for the provision of a motor vehicle for full private and business use. This entitlement will not be considered to be part of the salary sacrifice arrangements for the purposes of the calculation of the 50%.

 

(d)       An individual who elects to access Option 2 will have no right of reversion to the existing motor vehicle arrangement The parties agree that such an individual will be deemed to have had his/her name deleted from the list in paragraph 1 above until such time as the Award is varied to reflect that election.

 

3.         Modifications

 

If an individual elects Option 1 in paragraph 2 above he/she may access the provisions of clauses 6, 7 and 9 of the Award subject to an additional contribution being made to the Employer in accordance with the following.

 

Each individual who elects Option 1 in paragraph 2 above shall contribute an amount equivalent to 55% of the average FBT liability for the motor vehicles provided as calculated for those individuals participating in this option. Such calculation is to be based on the assumption that each individual is packaging the maximum permissible FBT exempt amount. This FBT calculation shall be made at the end of each FBT year and shall be applied to contributions for the following year.

 

SECTION B

 

1.         List of individuals

 

The following individuals shall be entitled to the provisions of clauses 6, 7, 8 and 9 of this Award with certain modifications, as set out below.

 

Dr Richard Burstal	Dr Adarsh Gill
Dr William Saul	Dr Ross Kerridge
	Dr Christopher Wake

 

2.         Modifications

 

The individuals listed immediately above shall be entitled to the provisions of clauses 6-9 of the Award. In addition, whilst ever these individuals remain in their current positions (as at 22 October 1999) and retain an entitlement to payment of the abnormal hours allowance or managerial allowance (as the case may be), they shall be entitled to continue the current arrangements approved by the Secretary of the NSW Ministry of Health under which they forego payment of the abnormal hours allowance or managerial allowance (as the case may be), receive a motor vehicle under SES provisions and pay the difference up to the SES motor vehicle contribution rate. This entitlement is subject to payment of the full amount of fringe benefits tax payable by SES officers, i.e. the FBT exemption will not be shared between the Employer and the Staff Specialist. This entitlement will not be considered to be part of the salary sacrifice arrangements for the purposes of the calculation of the 50%.

 

SCHEDULE 2 - RECOGNISED AUSTRALASIAN SPECIALIST COLLEGES

 

Royal Australasian College of Surgeons

 

Royal Australasian College of Physicians

 

•          Adult Medicine Division

 

•          Australasian Chapter of Addiction Medicine

 

•          Australasian Chapter of Palliative Medicine

 

•          Australasian Chapter of Sexual Health Medicine

 

•          Australasian Faculty of Public Health Medicine

 

•          Australasian Faculty of Rehabilitation Medicine

 

•          Australasian Faculty of Occupational and Environmental Medicine

 

•          Paediatrics and Child Health Division

 

•          Chapter of Community Child Health

 

Royal Australasian College of Medical Administrators

 

Royal Australian and New Zealand College of Obstetricians and Gynaecologists

 

Royal Australian and New Zealand College of Ophthalmologists

 

Royal Australian and New Zealand College of Psychiatrists

 

Royal Australian and New Zealand College of Radiologists

 

•          Faculty of Radiation Oncology

 

Royal College of Pathologists of Australasia

 

Australian and New Zealand College of Anaesthetists

 

•           Faculty of Pain Medicine

 

Australasian College of Dermatologists

 

College of Intensive Care Medicine of Australia and New Zealand

 

Australasian College for Emergency Medicine

 

Australasian College of Sports Physicians

 

SCHEDULE 3 - SPECIALTIES OR CATEGORIES OF POSITIONS COVERED BY CLAUSE 4 (D)

 

(i)        Emergency medicine

 

ANNEXURE

 

 

 

 

P. M. KITE, Chief Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.