Local Government (State) Award 2020

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Local Government and Shires Association of New South Wales, Industrial Organisation of Employers.

 

(Case No. 244396 of 2020)

 

 

VARIATION

 

1.         Delete subclause C(viii) of clause 20, Overtime, of the Local Government (State) Award 2020 published 3 July 2020 (388 I.G. 1038) and insert in lieu thereof the following:

 

(viii)   Unless otherwise provided, the overtime paid to an employee that is required to return to work whilst on-call shall not be less than thirty (30) minutes per day on which they are called out inclusive of paid travel time.

 

2.         Insert after subclause C(viii) of clause 20, Overtime, the following new subclause:

 

(ix)     On call employees are not subject to the minimum payment provisions of a public holiday. For each public holiday an employee is required to be on-call, the employee shall be granted one-half day’s leave to be taken at an agreed time, provided that where there is prior agreement the employer may pay the employee an additional one-half day’s pay in lieu of the one-half day’s leave.

 

3.         Delete subclause J(v), of clause 22, Leave Provisions, and insert in lieu thereof the following:

 

(v)       Bereavement Entitlements for Casual Employees

 

(a)       Subject to providing satisfactory evidence to the employer, casual employees are entitled to not be available to attend work, or to leave work upon the death of a person as provided in subclauses (i) to (iv) of this subclause 22J, Bereavement Leave.

 

(b)       The casual employee is not entitled to any payment for the period of non-attendance.

 

(c)       The employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of the employer to engage or not engage a casual employee are otherwise not affected.

 

3.         Delete clause 27, Casual Employment, and insert in lieu thereof the following:

 

27.  Casual Employment

 

(i)        A casual employee shall mean an employee engaged on a day to day basis.

 

(ii)

 

(a)       A casual employee shall not:

 

(1)       replace an employee of the employer on a permanent basis; or

 

(2)       be engaged by the employer on a permanent basis.

 

(b)       An employee engaged under this clause for a period in excess of 12 months may request that the employer review the nature of their engagement.

 

(1)       A review under paragraph (ii)(b) shall examine whether or not the position is more appropriately filled by a permanent employee. In undertaking this review the employer shall have regard to the following matters:

 

•     the genuine operational reasons that align with the nature of the role;

 

•     the service requirements of the position;

 

•     the seasonal nature of the role;

 

•     if the position is contingent upon external funding; and

 

•     any other relevant matter.

 

(2)       As a result of a review conducted under paragraph (ii)(b) an employee may be invited to apply for a permanent position with the employer.

 

(iii)     A casual employee shall be paid the hourly rate for ordinary hours worked in accordance with clause 19, Hours of Work.

 

(iv)     Casual employees who work on Saturday and/or Sunday are entitled to penalty rates prescribed by subclause 19B. The penalties are calculated on the ordinary hourly rate.

 

(v)       Casual employees who work outside the relevant spread of hours identified at subclause 19C(i), (ii) and (iii) are entitled to a shift penalty. The penalty is calculated on the ordinary hourly rate.

 

(vi)     Subject to subclause 20A(viii), a casual employee will not be offered to work overtime in a position held by a permanent employee of the employer, if such permanent employee is available to work that overtime. Overtime shall be paid where a casual employee works outside the ordinary hours for that position. In cases where there are no ordinary hours for the position, overtime shall be paid for the hours worked in excess of those prescribed in Clause 19, Hours of Work.

 

(vii)    In addition to the amounts prescribed by subclause (iii) of this clause, a twenty-five percent loading, calculated on the ordinary hourly rate, shall be paid. This loading shall not attract any penalty. This loading shall be paid in lieu of all leave (including but not limited to annual leave, long service leave and sick leave) and severance pay, except for paid parental leave prescribed by the Award. Casual loading is not payable on overtime.

 

(viii)   Casual employees engaged on a regular and systematic basis shall:

 

(a)       Have access to annual assessment under the employer’s salary system.

 

(b)       Have their service as a casual counted as service for the purpose of calculating long service leave where the service as a casual employee is continuous with their appointment to a permanent position on employer's structure. In calculating the long service leave entitlement in such cases there shall be a deduction of the long service leave accrued whilst the employee was employed as a casual.

 

(ix)     A casual employee shall not replace an employee of the employer on a permanent basis.

 

(x)       Carer’s entitlements shall be available for casual employees as set out in subclause B(viii) of clause 22, Leave Provisions, of this Award.

 

(xi)     Bereavement entitlements shall be available for casual employees as set out in subclause 22J(v) of this Award."

 

4.         Delete paragraph (i) of subclause (i) of clause 35, Term Contracts, and insert in lieu thereof the following:

 

(i)        to perform seasonal work (also see subclause 22E(xii) of this Award).

 

5.         Delete paragraph (b)of subclause (iii) of clause 41, Workplace Change, and insert in lieu thereof the following:

 

(b)       Notice of proposed workplace change under paragraph (iii)(a) shall include:

 

(1)       the nature of the proposed change;

 

(2)       the reasons for the proposed change;

 

(3)       the positions likely to be affected; and

 

(4)       such other information as is reasonable in the circumstances.

 

6.         Delete subclause (ii) of clause 44, Savings and Transitional, and insert in lieu thereof the following:

 

(ii)

 

(a)       No employee shall receive a reduction in pay as a result of the implementation of this Award or transfer to a salary system.

 

(b)       Unless otherwise agreed, employees, including seasonal workers, who are in regular receipt of penalty rates and/or shift penalties, aggregate rates of pay or other arrangements that compensate for hours of work shall either continue to receive such benefits or the payments prescribed by clause 19, whichever is the higher.

 

(c)       The provisions in paragraph (b) shall apply where council and enterprise agreements are terminated.

 

(d)       The provisions in paragraph (b) shall apply in addition to the Award increases prescribed by clause 46.

 

7.         This variation shall take effect on and from 2 September 2020.

 

 

 

N. CONSTANT, Chief Commissioner

 

 

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Printed by the authority of the Industrial Registrar.