Health Industry Status of Employment (State) Award 2021
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH
WALES
Application by NSW Ministry of Health.
(Case No. 186340 of 2021)
Before Chief
Commissioner Constant
|
22 July 2021
|
AWARD
Arrangement
Clause No. Subject
Matter
1. Definitions
2. Principles
3. Loadings
4. Arrangements for Existing Part-time
Workers
5. Process for Resolving Inconsistencies
6. Dispute Resolution
7. Anti-Discrimination
8. No Extra Claims
9. Area, Incidence and Duration
1. Definitions
1.1 Employer means the Secretary of the
Ministry of Health exercising employer functions on behalf of the Government of
New South Wales.
1.2 Employee means a person who is engaged on
either a full time, part time, temporary, exempt or casual basis under a
contract of employment in the NSW Health Service under s115(1) of the Health Services Act 1997, as amended or
varied from time to time.
1.3 Casual employee means a person who may be
engaged on an hourly basis, for a period which does not extend beyond one week,
to provide services related to the unexpected absence of temporary, permanent
or exempt employees. This provision may also encompass short-term employment
associated with unanticipated peak demands.
1.4 Temporary employee means a person who is
engaged as an employee for a period not exceeding 13 weeks, provided that fixed
term contracts of employment, whether for periods greater or lesser than 13
weeks, must not be offered in preference to ongoing contracts.
1.5 Permanent employee means a person appointed as such or a person who has worked in the
same position, including a permanent relief position, for a continuous period of
13 weeks other than as an exempt employee.
Permanency is subject to the outcome of any appeal process.
1.6 Exempt employee means a person who is
engaged for a continuous period and whose employment involves:
·
relief for periods in excess of 13 weeks during
the absence of existing employees or;
·
specific projects which are time limited or;
·
functions which involve funding for a specific
period and which is not of a recurrent nature or;
·
forthcoming service reductions which have a
predetermined date.
Exempt
employees as defined do not attract casual or temporary loadings.
1.7 Continuous period of employment means an
uninterrupted period of 13 weeks employment involving at least one shift per
week in that period but does not refer to exempt employees as defined.
1.8 Health Service means a Local Health
District constituted under section 8 of the Health
Services Act 1997, a Statutory Health Corporation constituted under section
11 of that Act, an Affiliated Health Organisation constituted under section 13
of that Act and the Public Health System Support Division of the NSW Health
Service.
1.9 Secretary means the Secretary of the
Ministry of Health.
1.10 Union means the Health Services Union NSW
2. Principles
2.1 Employees who are engaged in meaningful
work on a continuing basis are entitled to an expectation of permanency of
employment subject to the provisions of this award.
2.2 It is the responsibility of the employer to
ensure that all employees, upon engagement and at all appropriate times, are
correctly classified as exempt, casual, temporary, or permanent according to
the above definitions.
2.3 Where a person changes from casual to
either temporary or permanent, the employment status of the person is deemed to
have changed automatically.
2.4 During the period of continuing employment
the status of an employee cannot be changed from permanent to temporary or
casual or from temporary to casual, without the prior written consent of the
employee.
2.5 All permanent employees are required as
part of their contract of employment, to use their best endeavours to provide
four weeks’ notice of their intention to terminate their employment contract.
2.6 Any position which would involve the
employment of an exempt, temporary or permanent employee, upon falling vacant,
will, where such a position continues to be required in its current form by the
Health Service, be advertised within the Health Service and/or external to the
Health Service. Positions should be
filled under the merit principle of selection.
2.7 A person who, by definition, is a
temporary employee for a period of less than 13 weeks may be re-engaged by the
same Health Service under more than one employment contract provided the
aggregate period of the contracts, where consecutive, does not exceed 13
weeks.
2.8 Where the employee is retained beyond a
continuous period of 13 weeks in the
same position the employee is deemed to be permanent, subject to the outcome of any appeal. The application of this sub
clause shall not be applied in a manner which is inconsistent with legislation
or Government recruitment and employment policy, as varied from time to time.
This subclause does not apply to an
exempt employee as defined.
3. Loadings
3.1 Casual Employees - A casual employee will
be paid for the number of hours worked each week at an hourly rate, calculated
at the same hourly rate as prescribed for a full time employee in the same
classification and grade plus 10 per cent loading. A minimum payment of 2 hours
at ordinary pay on each occasion the employee commences a shift will apply.
3.2 Temporary Employees - A temporary employee
shall be paid for the number of hours worked each week on an hourly rate
calculated at the same hourly rate as prescribed for a full time employee in
the same classification plus 10 per cent loading. The loading shall cease to
apply if:
(a) the period of employment extends beyond
13 weeks
(b) he employer and the employee agree, during
the period of 13 weeks, that the employee will be employed on a permanent
basis.
4. Arrangements for Existing Part-Time Workers
4.1 Payment of 15% Allowance - Persons engaged
as at 1 January 2000 and who were paid the 15% loading at that date will continue
to receive that loading but only for the remainder of the existing part time
employment contract. Receipt of the allowance will cease if the contract is
completed or where an employee requests a transfer or is promoted to another
position.
4.2 Conditions - Persons covered by subclause
4.1 of this clause will, for the duration of any existing part-time employment
contract and while remaining in their current position, retain existing
part-time provisions. They will not be
entitled to pro rata entitlements as outlined elsewhere within applicable
awards.
5. Process for Resolving Inconsistencies
5.1 The Awards contained in the attached
schedule "A”, as varied or replaced from time to time, shall also apply,
where appropriate, to persons covered by this award.
5.2 To the extent that any inconsistency
exists between the conditions provided by this award and that provided by an
award contained in the attached schedule "A" this award will prevail.
6. Dispute Resolution
6.1 Where a dispute arises in a particular
section which cannot be resolved between the employees or their representative
and the supervising staff, it shall be referred to the Designated Manager of
the hospital or service unit or their nominee who will arrange for the matter
to be discussed with the employee concerned and if requested a local
representative or representatives of the Union.
6.2 If the matter is not resolved within a
reasonable time it must be referred by the Designated Manager to the Chief
Executive Officer of the Health Service (or their nominee) and may be referred
by the employee to the Union's Head Office.
Discussions at this level must take place within a reasonable time with
a view to resolving the issue in dispute. Failing settlement of the issue at
this level, the matter shall be dealt with in accordance with sub-clause 6.3 of
this clause.
6.3 With a view to amicable and speedy
settlement of all disputes that firstly cannot be settled by local management
and the Union or its representatives, disputes may be submitted to a committee
consisting of not more than six members with equal representation of the
Secretary and the Union. Such committee shall have the power to investigate all
matters in dispute and to report to the Chief Executive of the Health Service and
the Union respectively, with such recommendations as it may think right and in
the event of no mutual decision being arrived at by such a committee and if a
dispute still exists the matter in dispute may be referred to the Industrial
Relations Commission in accordance with the provisions of the Industrial Relations Act 1996 by one of
the disputing parties.
6.4 Whilst these procedures are continuing, no
stoppage of work or any form of ban or limitation of work shall be
applied.
6.5 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 practices in place:
(a) immediately before the issue arose: or
(b) immediately before any change to those
procedures or practices, which caused the issue to arise, was made
6.6 The Employer must ensure that all practices
applied during the operation of these procedures are in accordance with safe
working practices.
7. Anti-Discrimination
7.1 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.
7.2 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.
7.3 Under
the Anti-Discrimination Act 1977, it
is unlawful to victimise an employee because the
employee has made or may make or has been involved in a complaint of unlawful
discrimination or harassment.
7.4 Nothing
in this clause is to be taken to affect:
(a) any conduct or act which is specifically
exempted from anti-discrimination legislation;
(b) offering
or providing junior rates of pay to persons under 21 years of age;
(a) any
act or practice of a body established to propagate religion which is exempted
under section 56(d) of the Anti-Discrimination Act 1977;
(b) a
party to this award from pursuing matters of unlawful discrimination in any
State or federal jurisdiction.
7.5 This
clause does not create legal rights or obligations in addition to those imposed
upon the parties by the legislation referred to in this clause.
NOTES -
(a) Employers and employees may also be subject
to Commonwealth anti-discrimination legislation.
(b) Section 56(d) of the Anti-Discrimination Act 1977 provides:
“Nothing in
this Act affects … any other act or practice of a body established to propagate
religion that conforms to the doctrines of that religion or is necessary to
avoid injury to the religious susceptibilities of the adherents of that
religion.
8. 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 2022 by a
party to this Award.
9. Area, Incidence and Duration
9.1 This
Award takes effect from 1 July 2021 and shall remain in force for a period of
one year. This award remains in force until varied or rescinded, the period for
which it was made already having expired.
9.2 This
Award rescinds and replaces the Health
Industry Status of Employment (State) Award 2019 published 6 March 2020
(386
I.G. 1116) and all variations thereof.
9.3 This
Award shall apply to persons employed in classifications as contained in the
awards identified in Schedule “A”, as varied or replaced from time to time,
employed in the New South Wales Health Service under s115(1) of the Health
Services Act 1997, or their successors, assignees or transmittees,
excluding the County of Yancowinna.
9.4 This
award incorporates changes under s 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 NSW on 4
December 2018.
SCHEDULE
"A"
1. Public Hospitals Professional Engineers
(Biomedical Engineers) (State) Award 2021
2. Public Hospital Career Medical Officers
(State) Award 2021
3. Health Employees Oral Health Therapists
(State) Award 2021
4. Public Hospitals Dental Assistants
(State) Award 2021
5. Health Employees Dental Officers (State)
Award 2021
6. Public Hospitals Library Staff (State)
Award 2021
7. Public Hospitals Medical Superintendents
(State) Award 2021
8. Public Hospital Medical Officers (State)
Award 2021
9. Public Hospitals Medical Record
Librarians (State) Award 2021
10. Public
Hospitals (Professional and Associated Staff) Conditions of Employment (State)
Award 2021
11. Hospital Scientists (State) Award 2021
12. Health Employees Conditions of Employment
(State) Award 2021
13. Public Hospital Residential Services
Assistant (State) Award 2021
14. Health Employees Administrative Staff
(State) Award 2021
15. Health Managers (State) Award 2021
16. Health Employees Pharmacists (State) Award
2021
17. Health Employees (State) Award 2021
18. Health Employees General Administrative
Staff (State) Award 2021
19. Health Employees Engineers (State) Award
2021
20. Health Employees Computer Staff (State)
Award 2021
21. Health Employees Technical (State) Award
2021
22. Health Employees Medical Radiation
Scientists (State) Award 2021
23. Health Employees Interpreters (State)
Award 2021
24. NSW Health Service Health Professionals
(State) Award 2021
25. Health Employees Dental Prosthetists and
Dental Technicians (State) Award 2021
N. CONSTANT, Chief Commissioner
____________________
Printed by the authority of the
Industrial Registrar.