Nurses (Private Sector) Superannuation (State)
Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(Case No. 288610 of 2018)
Before Chief Commissioner Kite
|
9 November 2018
|
REVIEWED
AWARD
1. Arrangement
Clause No. Subject
Matter
1. Arrangement
2. Title
3. Definitions
4. Superannuation
Legislation
5. Contributions
6. Salary
Sacrifice to Superannuation
7. Exemptions
8. Grievance
Procedure
9. Area,
Incidence and Duration
2. Title
This award shall be known as the Nurses’ (Private Sector)
Superannuation (State) Award.
3. Definitions
(i) "Approved
fund" means:
(a) the Health Employees’ Superannuation Trust Australia
(H.E.S.T.A.);
(b) the First State Super;
(c) any superannuation fund as agreed between the Association
and employer(s), provided that the fund is a complying regulated fund and holds
a Certificate of Compliance issued by the Australian Prudential Regulation
Authority. Provided further that the
Association shall not unreasonably withhold agreement unless it establishes
good and proper reasons;
(d) any
superannuation fund operating within a place of employment prior to the
operative date of this award provided that the fund is a complying regulated
fund, holds a Certificate of Compliance issued by the Australian Prudential
Regulation Authority, and the Association agrees to the continued approval of
that fund. Provided that the Association
shall not unreasonably withhold agreement unless it establishes good and proper
reasons;
(e) any
superannuation fund nominated by the employee and approved by the employer in
accordance with section 124 of the Industrial
Relations Act (NSW) 1996 ("the 1996 Act").
(ii) "Complying
regulated fund" means a superannuation fund that is regulated under the Superannuation Industry (Supervision) Act
1993 and has been issued with a Certificate of Compliance by the Australian
Prudential Regulation Authority.
(iii) "Ordinary
time earnings" means remuneration for an employee’s weekly number of hours
of work, excluding overtime hours, calculated at the ordinary-time rate of pay,
including the following:
(a) Monday to
Friday shift premiums for ordinary hours of work;
(b) Weekend shift
premiums for ordinary hours of work;
(c) Public holiday
loadings;
(d) any percentage addition payable to casual employees for
ordinary hours of work;
(e) ordinary time award allowances (not including expense-related
allowances);
(f) over-award payments for ordinary hours of work.
(iv) "Association"
mean the New South Wales Nurses and Midwives’ Association.
(v) "Qualified
employee" means:
(i) A
full-time or part-time employee who has completed at least four weeks' service
in the industry of nursing. Provided
that once this period has elapsed, payments in accordance with clause 5 shall
be made for the entire period of service with the employer;
(ii) A casual
employee who has earned in excess of $2000.00 ordinary-time earnings during
their employment with an employer in the course of any one year (1 July to 30
June). Provided
further that any casual employee who is deemed to be a qualified employee prior
to the operative date of this award will continue to be qualified.
4. Superannuation
Legislation
The subject of superannuation is dealt with extensively by
federal legislation, including the Superannuation
Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act 1993, the Superannuation (Resolution of Complaints)
Act 1993, and section 124 of the Industrial
Relations Act 1996 (NSW). This
legislation, as varied from time to time, shall govern the superannuation
rights and obligations of the parties.
5. Contributions
(i) The
employer shall make, in respect of qualified employees, legislated
superannuation contributions currently set at 9.5% of ordinary-time earnings
into an approved fund. Such
contributions shall be remitted to the approved fund on a monthly basis. With respect to casual employees,
contributions shall be remitted at the time that employees receive their annual
group certificate.
(ii) It is provided
further that an employee may nominate one complying fund to which all award and
statutory superannuation contributions in respect of him/her shall be paid,
subject to employer approval of the fund nominated by the employee. Provided that the employer
shall not unreasonably withhold agreement unless it establishes good and proper
reasons for the withholding of agreement.
(iii) Where no such
nomination is made before any such contributions become payable, the
contribution referred to in subclause (i) of this
clause will be paid to the approved fund for that place of employment.
6. Salary Sacrifice to
Superannuation
(i) Salary
Sacrifice to Superannuation means the option of making additional
superannuation contributions by electing to sacrifice a portion of the gross
earnings (pre tax dollars) under the parent
awards. This will give the effect of
reducing the taxable income by the amount for salary sacrifice.
(ii) Salary
sacrifice to superannuation shall be offered to employees by mutual agreement
between the employee and employer.
(iii) Such election
must be made prior to the commencement of the period of service to which the
earnings relate.
(iv) One
change of a sacrificed amount will be permitted in an employee’s anniversary
year, which is 12 months from the date of commencement of employment, without
incurring an administration charge ($50.00).
Changing from full-time to part-time or part-time to full-time
employment will not be classified as a change for administration charge purposes.
(v) The amount sacrificed
must not exceed any relevant superannuation guarantee contribution limit.
(vi) The
sacrificed portion of salary reduces the salary subject to PAYG taxation
deductions.
(vii) Any allowance,
penalty rate, overtime, payment for unused leave entitlements, other than any
payments for leave taken whilst employed, shall be calculated by reference to
the salary which would have applied to the employee in the absence of any
salary sacrifice to superannuation. Payment
for leave taken whilst employed will be at the post-salary sacrificed amount.
(viii) Salary sacrifice
arrangements can be cancelled by either the employer or employee at any time
provided either party gives one month's notice.
The employer has the right to withdraw from offering salary sacrifice to
employees without notice if there is any alteration to relevant Australian
Taxation legislation.
(ix) Contributions
payable by the employer in relation to the Superannuation Guarantee Legislation
shall be calculated by reference to the salary which would have applied to the
employee under the parent award in the absence of any salary sacrifice.
(x) Employers will
not use any amount that is salary sacrificed by an employee to negate
contributions payable under the Superannuation Guarantee Legislation.
(xi) The employee
shall have the portion of payable salary that is sacrificed paid as additional
employer superannuation contributions into the same superannuation fund that
receives the employer’s SGC contributions.
(xii) Nothing in this
clause shall affect the right of an employer to maintain alternate arrangements
with respect to salary sacrifice for employees.
7. Exemptions
This award shall not apply to employers who are subject to
any of the following:
(i) Private
Hospital and Nursing Home Nurses’ Superannuation (State) Award published 2 July
2004 and Award reprinted 27 January 2012;
(ii) State
Authorities Non-Contributory
Superannuation Act 1987;
(iii) employers of occupational health nurses working in the
retail industry or in the metal trades industry, provided that the parties to
this award may seek the question of the constitution of this exemption be
relisted for consideration by the Industrial Relations Commission on reasonable
notice.
8. Grievance Procedure
Grievances and disputes shall be dealt with in the following
manner:
(i) The
employee is to notify (in writing or otherwise) the employer as to the
substance of the grievance, requesting a meeting with the employer for
discussions and state the remedy sought.
This meeting shall take place within two working days of the issue
arising (weekends and public holidays excepted).
(ii) If agreement is
not reached, the matter shall then be referred by either party to a higher
authority (where this exists) no later than three working days after subclause
(i) above (weekends and public holidays
excepted). At the conclusion of the
discussion, the employer must provide a response to the employee’s grievance if
the matter has not been resolved, including reasons (in writing or otherwise)
for not implementing the proposed remedy.
(iii) If the matter
is still not settled within a reasonable period of time, it may be referred/notified to the Industrial Relations Commission of
New South Wales.
(iv) The
employer may be represented by an industrial organisation of employers and the
employee/s may be represented by an organisation of employees for the purposes
of each step of the procedure.
9. Area, Incidence and
Duration
(i) Subject
to clause 7, Exemptions, this award shall apply to all persons employed as
nurses or in accordance with the profession of nursing in the State of New
South Wales excluding the County of Yancawinna.
(ii) It shall take
effect on and from 9 December 2018 and remain in force for a period of 12
months.
(iii) It shall take
effect in respect of paragraph (c) of subclause (iii) of clause 3, Definitions,
on 1 July 2000.
(iv) Clause
6, Salary Sacrifice to Superannuation, shall take effect on the first pay
period on or after 13 August 2001.
(v) This award is
made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Nurses (Private Sector) Superannuation (State) Award
published 2 July 2004 (345 I.G. 171), and Award
reprinted 27 January 2012 (372 I.G. 584), as varied.
The changes made to the award pursuant to the Award
Review pursuant to section 19(6) of the Industrial
Relations Act 1996 and Principle 26 of the Principles for Review of Awards
made by the Industrial Relations Commission of New South Wales on 28 April 1999
(310 I.G. 359) take effect on and from 9 December 2018.
This award remains in force until varied or rescinded,
the period for which it was made having already expired.
P. M. KITE , Chief Commissioner
____________________
Printed by the authority of the Industrial Registrar.