Nurses (Private Sector) Redundancy (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(Case No. 288399 of 2018)
Before Chief Commissioner Kite
|
9 November 2018
|
REVIEWED
AWARD
1. Arrangement
Clause No. Subject
Matter
1. Arrangement
2. Title
3. Application
4. Introduction
of Change
5. Redundancy
6. Termination
of Employment
7. Severance
Pay
8. Grievance
and Dispute Resolution Procedures
9. Savings
Clause
10. Area,
Incidence and Duration
2. Title
This award shall be known as the Nurses (Private Sector)
Redundancy (State) Award.
3. Application
(i) In
respect to employers who employ 15 or more employees immediately prior to the
termination of employment of the employees, in the terms of clause 6,
Termination of Employment.
(ii) Notwithstanding
anything contained elsewhere in this award, this award shall not apply to
employees with less than one year's continuous service and the general
obligation on employers shall be no more than to give such employees
an indication of the impending redundancy at the first reasonable opportunity,
and to take such steps as may be reasonable to facilitate the obtaining by the
employees of suitable alternative employment.
(iii) Notwithstanding
anything contained elsewhere in this award, this award shall not apply where
employment is terminated as a consequence of conduct that justifies instant
dismissal, including malingering, inefficiency or neglect of duty, or in the
case of casual employees or employees engaged for a specific period of time or
for a specified task or tasks or where employment is terminated due to the
ordinary and customary turnover of labour.
4. Introduction of
Change
(i) Employer's
Duty to Notify
(a) Where an
employer has made a definite decision to introduce major changes in production,
programme, organisation, structure or technology that are likely to have significant
effects on employees, the employer shall notify the employees who may be
affected by the proposed changes and the union to which they belong.
(b) "Significant
effects" include termination of employment, major changes in the
composition, operation or size of the employer's workforce or in the skills
required, the elimination or diminution of job opportunities, promotion
opportunities or job tenure, the alteration of hours of work, the need for
retraining or transfer of employees to other work or locations and the
restructuring of jobs.
Provided that, where an award referred to in subclause
(i) of clause 3, Application, makes provision for
alteration of any of the matters referred to herein, an alteration shall be
deemed not to have significant effect.
(ii) Employer's Duty
to Discuss Change
(a) The employer
shall discuss with the employees affected and the union to which they belong,
inter alia, the introduction of the changes referred to in subclause (i) of this clause, the effects the changes are likely to
have on employees and measures to avert or mitigate the adverse effects of such
changes on employees, and shall give prompt consideration to matters raised by
the employees and/or the union in relation to the changes.
(b) The discussion
shall commence as early as practicable after a definite decision has been made
by the employer to make the changes referred to in the said subclause (i).
(c) For the purpose
of such discussion, the employer shall provide to the employees concerned and
the union to which they belong all relevant information about the changes,
including the nature of the changes proposed, the expected effects of the
changes on employees and any other matters likely to affect employees, provided
that any employer shall not be required to disclose confidential information
the disclosure of which would adversely affect the employer.
5. Redundancy
Discussions before Termination
(a) Where an
employer has made a definite decision that the employer no longer wishes the job
the employee has been doing to be done by anyone pursuant to paragraph (a) of
subclause (i) of clause 4, Introduction of Change,
and that decision may lead to the termination of employment, the employer shall
hold discussions with the employees directly affected and with the union to
which they belong.
(b) The discussions
shall take place as soon as is practicable after the employer has made a
definite decision which will invoke the provision of subclause (a) of this
clause and shall cover, inter alia, any reasons for the proposed terminations,
measures to avoid or minimise the terminations and measures to mitigate any
adverse effects of any termination on the employees concerned.
(c) For the
purposes of the discussion the employer shall, as soon as practicable, provide
to the employees concerned and the union to which they belong all relevant
information about the proposed terminations including the reasons for the
proposed terminations, the number and categories of employees likely to be
affected, and the number of employees normally employed and the period over
which the terminations are likely to be carried out. Provided that any employer shall not be
required to disclose confidential information the disclosure of which would
adversely affect the employer.
6. Termination of
Employment
(i) Notice for Changes in Production,
Programme, Organisation or Structure
This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from production,
programme, organisation or structure in accordance with paragraph (a) of
subclause (i) of clause 4, Introduction of Change.
(a) In order to
terminate the employment of an employee the employer shall give to the employee
the following notice:
Period of continuous
service
|
Period of notice
|
Less than 1 year
|
1 week
|
1 year and less than 3 years
|
2 weeks
|
3 years and less than 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
(b) In addition to the
notice above, employees over 45 years of age at the time of the giving of the
notice, with not less than two years' continuous service, shall be entitled to
an additional week's notice.
(c) Payment in lieu
of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be terminated by part of the period of
notice specified and part payment in lieu thereof.
(ii) Notice for
Technological Change
This subclause sets out the notice provisions to be
applied to terminations by the employer for reasons arising from
"technology" in accordance with paragraph (a) of subclause (i) of the said clause 4.
(a) In order to
terminate the employment of an employee, the employer shall give to the
employee three months notice of termination.
(b) Payment in lieu
of the notice above shall be made if the appropriate notice period is not
given. Provided that employment may be
terminated by part of the period of notice specified and part payment in lieu
thereof.
(c) The period of
notice required by this subclause to be given shall be deemed to be service
with the employer for the purposes of the Long
Service Leave Act 1955, the Annual
Holidays Act 1944, or any Act amending or replacing either of these Acts.
(iii) Time Off during
the Notice Period
(a) During the
period of notice of termination given by the employer, an employee shall be
allowed up to one day's time off without loss of pay during each week of
notice, to a maximum of five weeks, for the purpose of seeking other employment.
(b) If the employee
has been allowed paid leave for more than one day during the notice period for
the purpose of seeking other employment, the employee shall, at the request of
the employer, be required to produce proof of attendance at an interview or the
employee shall not receive payment for the time absent.
(iv) Employee
Leaving during the Notice Period
If the employment of an employee is terminated (other
than for misconduct) before the notice period expires, the employee shall be
entitled to the same benefits and payments under this clause had the employee
remained with the employer until the expiry of such notice. Provided that in such
circumstance the employee shall not be entitled to payment in lieu of notice.
(v) Statement of
Employment
The employer shall, upon receipt of a request from an
employee whose employment has been terminated, provide to the employee a
written statement specifying the period of the employee's employment and the
classification of or the type of work performed by the employee.
(vi) Notice
to Centrelink
Where a decision has been made to terminate the
employment of employees, the employer shall notify Centrelink
thereof as soon as possible giving relevant information including the number
and categories of the employees likely to be affected and the period over which
the terminations are intended to be carried out.
(vii) Centrelink Employment Separation Certificate
The employer shall, upon receipt of a request from an
employee whose employment has been terminated, provide to the employee an
"Employment Separation Certificate" in the form required by Centrelink.
(viii) Transfer to
Lower Paid Duties
Where an employee is transferred to lower paid duties
for reasons set out in subclause (i) of the said
clause 4, the employee shall be entitled to the same period of notice of
transfer as the employee would have been entitled to if the employee's
employment had been terminated, and the employer may at the employer's option
make payment in lieu thereof of an amount equal to the difference between the
former ordinary-time rate of pay and the new ordinary-time rate for the number
of weeks notice still owing.
(ix) Notice Required by an Award
The period of notice prescribed by this clause shall be
in substitution for any notice required by an award listed in subclause (i) of clause 10, Area, Incidence and Duration.
7. Severance Pay
(i) Where
the employment of an employee is to be terminated pursuant to clause 6,
Termination of Employment, subject to further order of the Industrial Relations
Commission of New South Wales, the employer shall pay the following severance
pay in respect of a continuous period of service.
(a) If an employee
is under 45 years of age, the employer shall pay in accordance with the
following scale:
Years of Service
|
Entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
4 weeks
|
2 years and less than 3 years
|
7 weeks
|
3 years and less than 4 years
|
10 weeks
|
4 years and less than 5 years
|
12 weeks
|
5 years and less than 6 years
|
14 weeks
|
6 years and over
|
16 weeks
|
(b) Where an
employee is 45 years of age or over, the entitlement shall be in accordance
with the following scale:
Years of Service
|
Entitlement
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
5 weeks
|
2 years and less than 3 years
|
8.75 weeks
|
3 years and less than 4 years
|
12.5 weeks
|
4 years and less than 5 years
|
15 weeks
|
5 years and less than 6 years
|
17.5 weeks
|
6 years and over
|
20 weeks
|
(c) "Week's
pay" means the all-purpose rate of pay for the employee concerned at the
date of termination, and shall include, in addition to the ordinary rate of
pay, over-award payments, shift penalties and allowances specified in paragraph
(d) of this subclause paid in accordance with the award covering the wages and
conditions of the employee.
(d) For the
purposes of this clause, the following allowances in paragraphs (a) and (b) of
subclause (i) of Clause 9 Special Allowances, and
subclauses (i) and (ii) of Clause 11, Climatic and
Isolation Allowance. In the Nursing Homes, &c., Nurses (State) Award
published 27 January 2012 (372 I.G. 621) along with the most recent wage and
allowance variation of IRC Matter No. 2018/00280889.
(e) A "week's
pay" for a particular employee shall be determined according to the
average week's pay received by the employee in the period immediately prior to
their last date of employment equal to the number of weeks of severance pay to which
the employee is entitled under paragraphs (a) and (b) of this subclause.
(iii) Incapacity to
Pay
Subject to an application by the employer and further
order of the Industrial Relations Commission of New South Wales, an employer may
pay a lesser amount (or no amount) of severance pay than that contained in
subclause (i) of this clause.
The Commission shall have regard to such financial and
other resources of the employer concerned as the Commission thinks relevant,
and the probable effect paying the amount of severance pay in the said
subclause (i) will have on the employer.
(iv) Alternative
Employment
Subject to an application by the employer and further
order of the Industrial Relations Commission, an employer may pay a lesser
amount (or no amount) of severance pay than that contained in subclause (i) of this clause if the employer obtains acceptable
alternative employment for an employee.
8. Grievance and
Dispute Resolution Procedures
(i) Procedures
relating to Grievances of Individual Employees
(a) The employee is
required to notify the employer (in writing or otherwise) as to the substance
of the grievance, request a meeting with the employer for bilateral discussions
and state the remedy sought.
(b) A grievance
must initially be dealt with as close to its source as possible, with graduated
steps for further discussion and resolution at higher levels of authority.
(c) Reasonable time
limits must be allowed for discussion at each level of authority.
(d) 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
for not implementing any proposed remedy.
(e) While a
procedure is being followed, normal work must continue.
(f) The employee
may be represented by an industrial organisation of employees.
(ii) Procedures
relating to Disputes, etc., between Employers and their Employees
(a) A question,
dispute or difficulty must initially be dealt with as close to its source as possible,
with graduated steps for further discussion and resolution at higher levels of
authority.
(b) Reasonable time
limits must be allowed for discussion at each level of authority.
(c) While a
procedure is being followed, normal work must continue.
(d) The employer
may be represented by an industrial organisation of employers and the employees
may be represented by an industrial organisation of employees for the purposes
of each procedure.
9. Savings Clause
Nothing in this award shall be construed so as to require
the reduction or alteration of more advantageous benefits or conditions which
an employee may be entitled to under any existing redundancy arrangement, taken
as a whole, between the union and any employer bound by this award.
10. Area, Incidence
and Duration
(i) This
award shall apply to all full-time and part-time employees in classifications
specified in the Nursing Homes, &c., Nurses (State) Award.
(ii) This award is
made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Nurses (Private Sector) Redundancy (State) Award
published 27 January 2012 (372 I.G. 621), as varied.
(iii) 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 November 2018.
(iv) 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.