State Transit Authority Bus Engineering and
Maintenance Enterprise (State) Award 2020
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Secretary, Department of Transport.
(Case No. 275534 of 2021)
|
Before Chief Commissioner Constant
|
6 October 2021
|
VARIATION
1. Insert in Part
VI of the Arrangement, of the award published 22 May 2020 (388 I.G. 561), new
clauses 48, Out of Home Care, 49, Altruistic Surrogacy Leave, 51, Military
Leave and 52, Emergency Leave, and renumber existing clauses as follows:
PART VI - LEAVE AND
PUBLIC HOLIDAYS
42. Annual
Leave
43. Long
Service Leave
44. Personal
Leave
45. Parental
Leave
46. Maternity
Leave
47. Adoption
Leave
48. Out of Home
Care
49. Altruistic
Surrogacy
50. Domestic
Violence Leave
51. Military
Leave
52. Emergency
Leave
53. Jury
Service
54. Blood
Donors Leave
55. Public
Holidays
56. Clearance
of Public Holidays and Picnic Days
PART VII - WAGES AND
RELATED MATTERS
57. Payment of
Wages
58. Wage
Increases
59. Salary
Sacrifice for Superannuation
60. Wage Rates
61. Supported
Wage Systems
62. Allowances
PART VIII - TRAINING
63. Training
64. Training
Costs
65. Learning
and Development Committee
66. Training
for Relief Leading Hands
PART IX - COMMUNICATION/CONSULTATION
67. Consultative
Mechanism and Procedure
68. Communications
and Consultation
69. Consultative
Committee
70. Productivity
Committee
71. Introduction
of Change
72. Delegates
73. Right of
Entry of Union Officials
PART X - GENERAL
74. Drugs and
Alcohol
75. Renegotiation
76. Dispute
Settlement Procedure
77. No Extra
Claims
2. Delete clause
43, Long Service Leave and insert in lieu thereof the following:
43. Long Service Leave
Extended leave (Long Service) for Employees will accrue
and be granted in accordance with section 68Q of the Transport Administration Act 1988, together with Schedule 1 of the Government Sector Employment Regulation 2014 or succeeding Act.
3. Delete
paragraphs (a) and (b) of subclause 45.4 of clause 45, Parental Leave and
insert in lieu thereof the following:
(a) For maternity
and other Parent Leave, an unbroken period of eight weeks at the time of the
birth of the child;
(b) For Adoption Leave,
an unbroken period of up to eight weeks at the time of the placement of the
child.
4. Insert after
subclause 46.5 of clause 46, Maternity Leave, the following new subclauses and
renumber existing subclauses accordingly:
46.6 An employee who
gives birth prematurely is treated, where applicable, as being on maternity
leave from the date they commence leave to give birth to the child, and any
leave arrangements will need to be varied.
46.7 If an employee
miscarries, sick leave provisions cover any absence from work. When an employee
has exhausted sick leave credits, other forms of paid and unpaid leave can be
taken.
46.8 If the birth is a
still birth or the child dies prior to the completion of the paid maternity
leave, the employee continues to be eligible for the balance of their paid
maternity leave.
46.9 When an employee
becomes pregnant while on parental leave, they are entitled to a further period
of parental leave. Any remaining parental leave from the former birth lapses as
soon as the new period of parental leave begins.
5. Insert after
clause 47, Adoption Leave, the following new clauses and renumber existing
clause 48, to read as 50, Domestic Violence Leave:
48. Out of Home Care
Leave
48.1 Employees are entitled to Out of Home Care Leave
when they are the primary carer undertaking the permanent care of a child.
48.2 Eligibility for a period of Out of Home Care
Leave to carers is to be limited to the provision of a guardianship or
permanent placement order for a child or young person.
48.3 Out of Home Care leave will be granted
without pay for a period of up to 12 months to Employees who are the primary
carer undertaking permanent caring arrangements.
48.4 Out of Home Care leave commences at the date
of placement of the child.
48.5 Employees who are granted out of home care
leave also have a right to request extended Parental Leave and Return to Work
on a part-time basis.
49. Altruistic
Surrogacy Leave
49.1 General
49.1.1 Employees are entitled to altruistic surrogacy
leave when they are to be the care giver of either an adopted child or a child
subject to a parentage order made under the Surrogacy Act 2010.
49.1.2 Altruistic Surrogacy Leave commences on the
date that the Employee assumes the role of primary caregiver of the child.
49.2 Paid Altruistic Surrogacy Leave
49.2.1 Employees who have completed at least 40 weeks
continuous service prior to the commencement of altruistic surrogacy leave are
entitled to paid leave at their ordinary rate of pay for:
(i) fourteen weeks, or
(ii) the period of altruistic surrogacy leave
taken, whichever is the lesser period.
49.2.2 Leave may be taken at full pay,
half pay or as a lump sum.
49.3 Unpaid Altruistic Surrogacy Leave
49.3.1 Employees are entitled to altruistic surrogacy
leave for a maximum period of 12 months.
49.3.2 Employees who take altruistic surrogacy leave may
also reach agreement with the Employer to also take leave:
(a) part-time for a period not exceeding two
years; or
(b) partly full-time and partly part-time
over a proportionate period of up to two years.
49.4 Specific evidentiary requirements applicable
to taking altruistic surrogacy leave:
49.4.1 Employees are to notify the Employer at least
four months before the expected birth and provide a copy of the pre-conception
surrogacy agreement, as provided for under the Surrogacy Act 2010 (redacted
as necessary to protect the privacy of non-employees);
49.4.2 At the time the employee assumes the role of
primary carer the employee is to provide a statutory declaration advising that
they are now the primary caregiver of the child and intend to make application
for a parentage order as required under the Surrogacy Act 2010;
49.4.3 A copy of the parentage order application
(redacted as necessary) is provided as soon as practicable after it is lodged;
and
49.4.4 A copy of the parentage order (redacted as
necessary) is provided as soon as practicable after it is granted.
6. Delete clause
50, Domestic Violence Leave and insert in lieu thereof the following:
50. Domestic Violence
Leave
50.1 Employees have access to 10 days paid
domestic and family violence leave per calendar year.
50.2 This leave is non-cumulative and able to be
taken in part-days, single days, or consecutive days.
50.3 Leave is to be available for employees experiencing
domestic and family violence, for purposes including:
i. seeking
safe accommodation;
ii. attending medical, legal, police or
counselling appointments relating to their experience of domestic and family violence;
iii. attending court and other legal
proceedings relating to their experience of domestic and family violence;
iv. organising alternative care or education
arrangements for their children; or
v. other related purposes approved by the
Employer.
50.4 The Employer will need to be satisfied, on
reasonable grounds, that Domestic and Family Violence has occurred and may
require evidence presented in the form of:
i. an
agreed document issued by either Police Force, a Court, a Domestic Violence
Support Service or Lawyer; or
ii. a provisional, interim
or final Apprehended Violence Order (AVO), certificate of conviction or family
law injunction; or
iii. a medical certificate.
50.5 Personal information concerning Domestic and
Family Violence will be kept confidential by the Employer. The Employer will
only disclose information to other parties, such as the Police Force, where
required by law.
50.6 The Employer will consider any request from
an Employee experiencing Domestic and Family Violence for:
i. changes
to their hours of work;
ii. relocation to alternate locations should
suitable work be available;
iii. changes to telephone, email and other
contact details;
iv. changes to duties, should such changes be
practical; and
v. any other reasonable measure to assist
the employee.
The approval
of such requests will be at the Employer’s discretion but will not be
unreasonably refused.
50.7 This leave entitlement can be accessed
without the need to exhaust other existing leave entitlements first.
50.8 The leave entitlement can be accessed by
temporary and part-time employees on a pro-rata basis.
7. Insert after
clause 50, Domestic Violence Leave the following new clauses and renumber
existing clauses accordingly:
51. Military Leave
51.1 A permanent
Employee, who is a current member of the Australian Armed Forces, may apply for
Military Leave to undertake a period of service with the Australian Armed
Forces as a member of the Reserves.
51.2 Unless otherwise
provided, Military Leave attracts the same conditions of other forms of Leave
Without Pay. One exception is that Employees on defence reserve service are not
required to take any accrued leave concurrently with all or part of their
Military Leave.
51.3 In normal circumstances,
if an Employee who is a member of the Reserves wishes to undertake continuous
full time service with the Australian Armed Forces, that is voluntarily undertaken
under subsection 50(3) of the Defence Act 1903, subsection 32A (3) of
the Naval Defence Act 1903 or subsection 4J(3) of the Air
Force Act 1923, the approval of leave is at the discretion of the
Employee’s manager (with appropriate HR delegation).
51.4 An Employee who
undertakes continuous full time service with the
Australian Armed Forces is not entitled to paid Military Leave or Top-Up
Pay from State Transit.
51.5 Permanent
Employees with a minimum of six months continuous service with State Transit
and staff with continuous service with other State Government Departments
and/or instrumentalities, may be entitled to receive up to 19 days Paid
Military Leave for service with the Reserves.
51.6 The entitlement
to paid Military Leave is calculated from 1 July to 30 June on each occasion.
It does not accrue from year to year. The entitlement to Paid Military Leave is
limited to the day(s) on which the Employee would have ordinarily worked,
had it not been for the need for Military Leave.
51.7 Paid Military
Leave is only paid upon:
(a) The
presentation of a Training/Attendance Notice, and a Certificate of Attendance;
and
(b) The
authorisation from the Employee’s manager.
51.8 The rate of pay
is at the Employee’s ordinary rate of pay. No overtime, penalties, allowances or higher duties are paid.
51.9 Paid Military
Leave is also not granted for attendance at military activities which
occur after normal hours of duty or for days on which an Employee would not
normally be on duty.
51.10 Employees not
entitled to payment for Military Leave, who are required to attend military
training and exercises as a member of the Reserves may be granted Military
Leave Without Pay.
“Top-Up”
Pay
51.11 When an employee
entitled to Paid Military Leave has exhausted their entitlements,
they may be eligible for Military Leave Without Pay and a ‘Top-Up’ payment paid
by State Transit. ‘Top-Up Pay’ may be available where the employee received
less money from the Defence Reservists than the net pay they would have
received from State Transit for the same period, and the employee would
ordinarily be required to work that day.
51.12 The following
limitations apply to ‘Top-Up’ pay:
51.12.1 ‘Top-Up’
pay is only available where an employee receives less money from the Defence
Reserve than the ordinary net pay they would have received from State Transit
for the same period but excludes payments for shift loadings, allowances,
penalty payments and overtime had the employee earned would they have worked
for State Transit.
51.12.2 Top-Up
pay is also limited to payment to time the employee would ordinarily have been
required to work for State Transit e.g. a Part Time employee who only works
three days a week for State Transit will only receive `Top-Up’ pay in respect
of the three days they would have worked for State Transit.
51.12.3 Top-Up
pay is capped at a maximum period of 12 months, consecutively or cumulatively,
in any five-year period (any further payments are at the discretion of the
Executive Director, People and Culture).
51.13 In the event an
employee’s ordinary rate of pay is not able to be determined, it shall be at
the average of the employee’s ordinary base rate for the six months immediately
preceding the period of Military Leave.
51.14 If an employee exhausts Paid Military Leave entitlements
(including Top-Up pay), they may be eligible to take Military Leave Without
Pay.
52. Emergency Leave
52.1 Permanent and
temporary Employees are eligible for paid Emergency Leave if they are:
(a) Members of the
State Emergency Services (SES), NSW Rural Fire Service (RFS) or other volunteer
organisations recognised by NSW Government’s Office of Emergency Management
(OEM) to attend:
(i) State
emergencies; or
(ii) Training and
conferences.
(b) Unable to attend
work due to severe weather conditions or other disasters.
52.2 Emergency Leave is available regardless of
length of service.
52.3 Emergency Leave is limited to the time
required to cope with the immediate emergency and may not be accumulated from
year to year.
52.3.1 Employees who are member of the SES / RFS /
other recognised volunteer organisations:
Employees performing duties for
the SES, RFS or other recognised volunteer organisations are entitled to the
following leave:
(a) Unlimited leave to attend State
Emergencies declared in accordance with the relevant legislation or announced
by the Premier,
(b) Up to five (5) days Emergency Leave each year
to attend conferences and training as part of their role.
52.3.2 Other Employees
Employees
involved in a situation where life or property is threatened, or who are
affected by severe weather conditions or other disasters, are entitled to a
maximum of two (2) days Emergency Leave each year. Leave will not be granted if
there is no element of emergency.
52.4 If Employees require additional leave to attend
conferences and training courses relating to roles with the SES, RFS or other
recognised volunteer organisations, or to attend to personal matters relating
to severe weather conditions or other disasters, they may apply for Annual
Leave, Leave without Pay or if applicable long service leave. Emergency leave
counts as service for all purposes.
52.5 The rate of pay is at the Employee’s
ordinary rate of pay. No overtime, penalties, allowances
or higher duties are paid.
52.6 Employees must notify their managers of the
request for State Emergency leave as soon as possible supported by evidence in
writing of the emergency.
8. This
variation will take effect on and from 26 October 2021.
N. CONSTANT, Chief Commissioner
____________________
Printed by
the authority of the Industrial Registrar.