Crown
Employees (Tipstaves to Justices) Award 2007
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1698 of 2007)
Before Commissioner
Ritchie
|
18 December 2007
|
REVIEWED AWARD
Arrangement
PART A
Clause No. Subject Matter
1. Title
2. Definitions
3. Salaries
4. Recreation
Leave
5. Long
Service Leave
6. Sick
Leave
7. Public
Holidays
8. Leave for
Special Purposes
9. Military
Leave
10. Study Time
11. Parental
Leave
12. Absence
Whilst on Compensation to Count as Service for
Leave Purposes
13. Absences
caused by Adverse Weather Conditions
14. Continuity
of Service
15. Uniforms
16. Grievance
and Dispute Settling Procedures
17. Anti-Discrimination
18. Secure
Employment
19. Leave
Reserved
20. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1
Appendix A
Appendix B
PART A
1. Title
This award shall be known as Crown Employees (Tipstaves to
Justices) Award 2007.
2. Definitions
2.1 “Association”
means the Public Service Association and Professional Officers’ Association
Amalgamated Union of New South Wales.
2.2 "Employee"
means a person employed as a tipstaff.
2.3 "Department"
means the Attorney General’s Department
2.4 "Service"
means continuous service both before and after the commencement of this award
as a tipstaff to any Justice of the Supreme Court of New South Wales or the
Industrial Relations Commission of New South Wales, or the Land and Environment
Court of New South Wales, or as a tipstaff to any Judge of the District Court
of New South Wales or the Compensation Court of New South Wales; provided that
future entrants shall be deemed to have the years of service indicated by the
salary at which they enter.
2.5 "Uniform"
means a frock coat for court work as provided.
3. Salaries
The rates of pay of employees shall be as set out in Table 1
of Part B, Monetary Rates.
4. Recreation Leave
4.1 Accrual and
Calculation of Leave -
(a) Recreation
leave accrues at one and two third days per completed month of service, up to a
maximum of 20 days per year. Recreation leave does not accrue in respect of
unauthorised absences or in respect of authorised periods of leave without pay
which, when aggregated, exceed five working days in a leave year unless such
leave is taken during Law Vacation - see clause 4.4 Law Vacation below.
(b) The minimum
unit of leave is a quarter of a day and leave may be taken in multiples of a
quarter day. Recreation leave
entitlements should be balanced at least once per year. When calculating recreation leave, fractions
other than an exact quarter day should be rounded off to the nearest quarter
day or multiple thereof.
(c) When
calculating the proportionate deduction to be made in respect of leave without
pay, fractions other than a quarter day or multiple thereof, should be rounded
off to the next lower quarter day or multiple thereof.
4.2 Taking of
Leave -
(a) Recreation
leave is to be taken in one consecutive period not later than six months after
the completion of each 12 months service, except where the employer and
employee agree otherwise.
(a) An employee
may be required by the employer to take accrued recreation leave at a time
convenient to the employer but, as far as practicable, the wishes of the
employee should be taken into account when fixing the time for the taking of
leave, particularly where employees have special needs due to family
responsibilities. For example, where
employees have school aged children, leave rosters should be arranged in such a
way as to allow each person to take leave at some time during school holidays.
4.3 Conservation
of Leave - Conservation of leave up to a maximum of 40 working days may be
permitted by the employer in exceptional circumstances and on the understanding
that the leave will be reduced to an acceptable level as soon as possible.
4.4 Law Vacation -
(a) Where a court
or tribunal or other judicial body is temporarily closed or reduced to a
nucleus for the purposes of annual holidays (law vacation), an employee who has
not accrued sufficient recreation leave to cover the whole period of such
closure or reduction of staff, will be required to take recreation leave to
credit followed by leave without pay for the balance of the period.
(b) Employees who
are required to take leave without pay during law vacation are to be paid for
all public holidays occurring during such leave. This period of leave without pay is also to count for the accrual
of recreation leave in the following year.
4.5 Payment on
Termination of Employment -
(a) On termination
of employment, an employee is entitled to be paid the monetary value of
recreation leave to credit.
(b) For the
purposes of calculation of leave on termination, credit is to be allowed for
periods of employment of less than a month.
Leave due is to be calculated to an exact quarter day. Where applicable, fractions other than an
exact quarter day are to be taken to the next higher quarter day.
(c) Where an
employee has been granted recreation leave in advance, the employer may deduct
the value of such leave from any remuneration due to the employee on
termination of employment.
4.6 Payment of
Monetary Value of Accrued Recreation Leave On Death -
(a) If an employee
dies, the monetary value of accrued leave for which payment has not already
been made, may be applied towards the payment of funeral expenses or may be
paid to the employee's next of kin or to the Estate.
(b) Where the
funeral expenses have not been paid or have been paid by a person other than
the person making the claim for payment of untaken recreation leave, approval
may be sought from the Minister to direct that the funeral expenses form the
first charge on the monetary value of leave.
Payment may be made directly to the funeral director or to the person
who paid the funeral expenses, subject to production of receipts.
(c) Any balance of
the monetary value of recreation leave should then be paid to the employee's
next of kin or to the Estate as specified in the next clause.
(d) If no claim
for payment of funeral expenses is made, the monetary value of leave is to be
paid in the following order (each class taking to the exclusion of the others):
(1) to the widow
or widower of the employee; or
(2) to the
children of the employee; or
(3) to the
dependent relatives of the employee; or
(4) to the
personal representative of the employee (that is the Estate)
4.7 Recreation
Leave Loading -
(a) Employees are
to be granted a recreation leave loading equivalent to 17.5 per cent of four
weeks' ordinary salary or wages, provided that the loading payable does not, in
any case, exceed the loading calculated in accordance with the foregoing on the
maximum salary applicable from time to time to Grade 12, Clerk under the Public
Sector Employment and Management Act 2002.
(b) There shall be
a leave loading year ending 30 November, in every year. The full entitlement to the loading on
recreation leave that the employee has accrued over the previous leave year is
to be paid to the employee on the first occasion when he or she takes
sufficient recreation leave to enable the employee to be absent from duty for
at least two consecutive weeks after 1 December in any year. The loading will apply only to leave accrued
in the year ending on the preceding 30 November.
(c) Leave and
salary records need to be endorsed to indicate that the leave loading for the
previous leave loading year has been paid.
(d) In the event
of no such absence occurring by 30 November of the following year, the employee
is to be paid the monetary value of the recreation leave loading payable on
leave accrued as at 30 November of the previous leave year, notwithstanding
that the employee has not entered on leave.
Leave and salary records need to be endorsed to indicate that the
payment has been made.
(e) On retirement
or termination of services by the employer for any reason other than misconduct
an employee, who has not already taken a period of recreation leave since the
preceding 1 December and who has not been paid the recreation leave loading in
respect of such leave, is to be paid the recreation leave loading which would
have been payable had such leave been taken.
(f) The
recreation leave loading is not to be paid when an employee is granted
recreation leave to credit or the monetary value of recreation leave to credit
on resignation or dismissal for misconduct.
(g) Broken service
during the year does not attract the recreation leave loading. If an employee resigns and is
subsequently re-employed during the same year, only the service from the date
of re-employment is to be taken into account for annual leave loading purposes.
(h) Rate of
Payment -
(1) The recreation
leave loading is to be calculated on the salary or wage rate paid for the leave
when taken.
(2) If an increase
in the salary or wage rate occurs during a period of leave, retrospective
adjustment of the recreation leave loading is to be made. Where payment is made as at 30 November,
because no period of two weeks' leave has been taken during the year, the
payment is to be calculated at the rate which would have been paid had the
leave been taken at 30 November.
(3) Provided
adequate notice is given, the recreation leave loading is to be paid prior to
entry on leave, generally at the same time as the salary or wages in respect of
the period of leave.
(4) The recreation
leave loading may be calculated in the following manner:
(i) Annual
Salaries; loading on 4 weeks leave; divide the annual salary by 74.54.
(ii) Weekly
Rates; loading on 4 weeks leave; divide the weekly rate by 1.4286.
5. Long Service Leave
5.1 Accrual and
Calculation of Leave -
(a) Long service
leave for employees accrues and is granted on a working day and not a calendar
day basis. All public holidays
occurring during the period of long service leave are to continue to be counted
as part of long service leave.
(b) For the
purposes of accrual of long service leave:
one month of long service leave equals 22 working days;
each completed year of service between 5 and 10 years
of service, accrues 0.0843 days per week or 0.0169 of a day per day of service;
each completed year of service after 10 years, accrues
0.2108 days per week or 0.0422 of a day per day of service;
10 years of service will accrue 44 working days;
20 years of service will accrue 154 working days;
30 years of service will accrue 264 working days;
40 years of service will accrue 374 working days;
50 years of service will accrue 484 working days;
(c) Accrued long
service leave may be taken at full or half pay.
(d) The decision
as to whether leave will be taken at full or half pay, rests with the
employee. Whilst every effort should be
made to grant long service leave at a time requested by the employee, the
ultimate decision as to when leave will be taken rests with the employer.
(e) The minimum
leave that may be granted is a quarter of a day.
(f) Where the
services of an employee who has had at least five years' service but less than
ten years' service are terminated by the employer for any reason other than the
employee's serious and intentional misconduct or by the employee on account of
illness, incapacity or domestic or other pressing necessity, the employee is
entitled to receive payment for proportionate long service leave, calculated in
accordance with paragraphs 5.1(a) to 5.1(e) above.
5.2 Service -
(a) Service with
any "State Authority" or any "Governmental Service" within
the meaning of the Transferred Officers Extended Leave Act 1961, as
amended and upon the terms and conditions prescribed in the Act, shall be regarded
as service for the purposes of computing long service leave.
(b) Service with
the Civil Construction Corps established under the National Security Act 1939,
or in the naval, military or air forces of the Commonwealth shall be regarded
as service with the authority by whom the employee was employed immediately
before commencing service with one of the abovementioned.
(c) In respect of
employees employed on or after 1 January 1970, such service shall be recognised
for long service leave purposes according to the terms and conditions laid down
in the Transferred Officers Extended Leave Act 1961.
(d) Absence due to
incapacity caused by accidents for which compensation is payable shall be
regarded as service for the purpose of accrual of long service leave.
(e) Periods of
leave without pay do not count as service for long service leave purposes
except in the case of employees who:
(1) have completed
at least ten years' service, in which case any period without pay not exceeding
six months taken after 13 December 1963 shall count for the accrual of long
service leave;
(2) are required
to take leave without pay as a result of the law vacation.
(f) All broken periods of service, service
being defined as in 5.2(a) above, shall count for long service leave purposes.
(g) In respect of employees employed on or
after 1 January 2006 such service shall be recognised for long service leave
purposes according to the terms and conditions laid down in Schedule 3A of the Public
Sector Employment and Management Act 2002.
5.3 Monetary Value
of Accrued Long Service Leave -
(a) On termination
of services, an employee who has acquired a right to long service leave, shall
be paid, as a gratuity, the monetary value of long service leave to credit.
(b) When an
employee applies for long service leave during the term of his or her
employment, and elects to be paid for such leave in advance, payment may be
made in a lump sum (but not as a gratuity) for leave to the employee's credit
as at the date immediately prior to the first day of long service leave.
(c) Where an
employee has acquired a right to long service leave and dies before entering
upon it or after entering upon it dies before its completion, the monetary
value of long service leave to credit is to be paid in the following order
(each class taking to the exclusion of the others):
(1) to the widow
or widower of the employee; or
(2) to the
children of the employee. Where there
is a guardian of any children who are entitled to the monetary value of long
service leave, the monetary value of long service leave is to be paid to the
guardian for the children's maintenance, education and advancement; or
(3) to the
dependent relatives of the employee; or
(4) to the
personal representative of the employee (that is, the Estate)
(d) The money
value of untaken leave is to be calculated at the rate of pay the employee was
entitled to receive at the time of death.
(1) Where an
employee with at least five years' service but less than ten years service
dies, the monetary value of proportionate long service leave is to be paid in
the same manner as stated in subclause 5.3(b) above.
(2) Where payment
of the money value of long service leave has been made under this section, no
action may be brought against the employing authority for payment of any amount
in respect of such leave.
(e) Offset of Long
Service Leave already granted - Long service leave already granted to an
employee in respect of service with any Authority shall be offset against any
leave for which the employee may be eligible under these conditions.
(f) Accrual of
Recreation Leave during Long Service Leave - Recreation leave shall accrue in
respect of any period during which an employee has been absent from duty on
long service leave. Where long service leave is taken at half pay, recreation
leave in respect of such period shall accrue at half the normal accrual rate.
(g) Where the
monetary value of long service leave is paid in lieu of leave, no recreation
leave shall accrue in respect of the period covered by the payment.
6. Sick Leave
6.1 Accrual of
Leave -
(a) Subject to the
conditions set out in this clause, an employee with not less than three months'
continuous service may be granted sick leave up to a maximum of ten working
days in each sick leave year in respect of absence from duty, provided the
employer is satisfied that such absence is due to illness or incapacity not
attributable to the employee's misconduct.
(b) For those who
commenced employment prior to 1 July 1986, a sick leave year shall commence on
the first day of January each year. In the first year of service, however,
where the employee has completed at least three months' of continuous service,
sick leave shall accrue on the following basis:-
(1) Where
employment commenced after 31 December and prior to 1 April: 10 days
(2) Where
employment commenced after 31 March and prior to 1 July: 7.5 days
(3) Where
employment commenced after 30 June and prior to 1 October: 5 days
(4) Where
employment commenced after 30 September and prior to 1 January: 2.5 days
(c) For those who
commenced employment after 1 July, 1986, the following sick leave provisions
apply:
(1) during the
first 12 months of employment:
first 3 months of continuous service:
no leave
3 to 6 months of continuous service: 5
days
6 to 9 months continuous service: 7.5 days
9 to 12 months of continuous service:
10 days
(2) on completion
of 12 months' service; 10 days sick leave will be available per year from the
anniversary of commencement of employment.
(d) Re-employment
in the same leave year - Where an employee is re-employed in the same leave
year, sick leave entitlement in respect of that year is not to exceed ten
working days or the sick leave that the employee would have been entitled to
had employment during the year been continuous from the date of first
employment in that year, whichever is the lesser.
(e) Previous
accumulation - An employee who was employed as such on 1 January 1970 is to be
credited with the sick leave accumulated as at that date. In respect of a partially completed year of
service as at 31 December 1969, accumulation under the said paragraph 6.1(b) is
to be calculated by allowing half a day for each completed month of service.
(f) Accumulation
from 1 January 1970 - Effective from 1 January 1970, all sick leave not
utilised during the leave year, accumulates and may be used during subsequent
service as required in respect of genuine absences due to illness or
incapacity.
(g) Service -
Except as provided in paragraph 6.1(d) above and in the Continuity of Service
section hereunder, previous periods of employment are not to be taken into
account for sick leave purposes.
6.2 Special Leave
for Accepted War-Caused Disabilities - After a continuous period of at least
three months' service as a Ministerial employee, an employee who has had a
period of service with the armed forces of Australia, is eligible to be granted
up to ten days' special sick leave on full pay in any sick leave year in
addition to his or her ordinary sick leave, if he or she is absent as a result
of an accepted war-caused disability. Absences from duty for the following
reasons are also to be debited against the special sick leave:
(a) attending
hospital or medical officer for pension review;
(b) attending
hospital to report or for periodical examination or attention; and;
(c) attending Limb
Factories for supply, renewal and or repair of artificial replacements or
surgical appliances.
6.3 When an
employee exhausts the special sick leave allocation in a leave year, any further
absences in that year on account of war-caused disabilities, are to be charged
against ordinary sick leave to credit.
6.4 Notification
of Absence - If an employee is to be absent from duty because of illness or
other emergency, the employee shall notify or arrange for another person to
notify the supervisor as soon as possible of the employee’s absence and the
reason for the absence.
6.5 Leave Pending
Determination of Claims for Workers Compensation -
(a) Pending the
determination of a claim for workers compensation, an employee may be granted
sick leave to credit. If subsequently, payment of workers' compensation is
approved, any sick leave granted in anticipation of workers' compensation is to
be restored to the employee's credit.
(b) When an
employee who has been absent from duty in excess of 26 weeks, is granted the
statutory rate under workers' compensation, he or she may utilise available
sick leave to make up the difference between the statutory rate and ordinary
rate of weekly salary or wage. On the expiration of available sick leave,
weekly compensation payments only will be payable.
6.6 Leave as a
Charge Against Accrued Recreation Leave, Long Service Leave or Leave Without
Pay.
An employee who has exhausted sick leave to credit and
is still unable to resume duty through illness or incapacity, may elect to
utilise any recreation, long service leave to credit or sick leave without pay,
provided the absence continues to be supported by acceptable medical
certificates.
6.7 Illness whilst
on Recreation or Long Service Leave -
(a) Where an
employee produces a satisfactory medical certificate to the effect that he or
she has been incapacitated for any period whilst on recreation leave or for a
week or more whilst on long service leave, the employee may be granted sick
leave to credit in respect of the period covered by the medical
certificate. Recreation or long service
leave replaced by the grant of sick leave is to be re credited to the employee.
(b) The granting
of sick leave shall not apply in respect of recreation or long service leave
being taken prior to resignation or termination of services.
6.8 Medical
Certificates - An employee absent on account of illness for any period shall
submit a medical certificate showing the nature of the illness, if called upon
by the employer to do so.
7. Public Holidays
7.1 The following
public holidays shall be paid for provided they occur on days which ordinarily
would be working days for the employees concerned: New Year's Day; Australia
Day; Good Friday; Easter Saturday; Easter Monday; Anzac Day; Queen's Birthday;
Labor Day; Christmas Day; Boxing Day and such other holidays as may be
proclaimed as public holidays throughout the State but not proclaimed local
holidays.
7.2 An employee
who is absent from work on the working day before or the working day after a
Public Holiday without reasonable excuse or without the approval of an
appropriate senior person, for example supervisor at the place of employment,
shall not be entitled to payment for such holiday. When work is not carried on right up to the holiday or resumed
immediately after a holiday, as at Christmas and New Year, payment for the
holiday shall be granted if the employee works up to the time of general stoppage
and resumes when the work recommences.
7.3 If the holiday
falls on a weekend, no additional payment shall be made unless the employee is
required to work on that day.
7.4 When a holiday
occurs during the first month in which an employee is absent through illness,
such an employee is to receive pay for the day at the rate of wages paid
immediately before the absence commenced.
7.5 Where any of
the abovementioned public holidays fall within a period of leave granted to an
employee, such holidays shall not be a charge against such leave except where
leave being taken is long service leave.
7.6 An employee
who is entitled to be paid for public holidays, shall be paid in full for any
such holidays occurring during a period of absence in respect of which workers
compensation payments are being made.
8. Leave for Special
Purposes
8.1 Bereavement
Leave -
(a) An employee
other than a casual employee shall be entitled to up to three days bereavement
leave without deduction of pay on each occasion of the death of a person
prescribed in 8.1(c) below.
(b) The employee
must notify the employer as soon as practicable of the intention to take
bereavement leave and will, if required by the employer, provide to the
satisfaction of the employer proof of death.
(c) Bereavement
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of Personal/Carer’s Leave in 8.11(a)(3) provided
that for the purpose of bereavement leave, the employee need not have been
responsible for the care of the person concerned.
(d) An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which the employee has been granted other leave.
(e) Bereavement
leave may be taken in conjunction with other leave available under subclause
8.11. In determining such a request the
employer will give consideration to the circumstances of the employee and the
reasonable operational requirements of the court.
8.2 Attending
Retirement Preparation Seminars - An employee may be granted one day's special
leave (with pay) for the purpose of attending a retirement preparation seminar
conducted by a recognised Superannuation Fund.
8.3 National
Aborigines Day - Employees who identify as Aborigines may be granted up to one
day's special leave to enable them to participate in the celebrations on the
day appointed each year as the National Aborigines Day.
8.4 Jury Service -
An employee who is called up for jury duty may elect to be granted:
(a) special leave
with pay to cover the time necessarily absent from work, subject to the
employee refunding to the employer any fees, less out-of-pocket expenses, paid
by the Court in respect of attendance for jury duty; or
(b) leave without
pay or as a charge against recreation leave to credit, in which case the
employee is entitled to retain all fees paid by the Court in respect of
attendance for jury duty.
8.5 Firefighting
or Assisting the State Emergency Services -
(a) An employee
who undertakes firefighting duties during declared emergencies is to be granted
special leave on full pay for the time the employee is required to be absent
from duty on such emergency firefighting activities.
(b) An employee
who is a volunteer member of a local Fire Brigade or Rural Fire Service may be
granted special leave on full pay to a maximum of five days per year to cover
necessary absences from duty when called upon to fight fires during normal
working hours.
(c) An employee,
who volunteers to assist the State Emergency Services or Rural Fire Service
during emergency operations and is released by the employer for that purpose,
is to be regarded as being on duty whilst engaged in these activities during
normal working hours and paid as if he or she has been carrying out normal
work. Where an employee remains on
emergency duty for several days and, as a result, experiences physical
distress, such employee may be allowed reasonable time for rest before
returning to normal duties.
8.6 Absences due
to adverse weather conditions - Employees whose life or property is being
threatened by adverse weather conditions or where they are prevented from
reporting for duty by fire, flood or snow, are eligible to be granted leave to
cover their absence from duty.
8.7 Naturalisation
Ceremonies - An employee who is to be naturalised may be granted time off,
without loss of pay, for the minimum time necessary to enable him or her to
prepare for and attend the ceremony.
8.8 Leave to
attend Trade Union Training Courses - Leave may be granted up to a maximum of
12 working days in any period of two years to employees who are members of the
union to attend short training courses or seminars conducted by or with the
support of the Trade Union Training Australia, subject to the following
conditions:
(a) that the
employer's operating requirements permit the grant of leave and the employee's
absence does not require the employment of relief staff;
(b) leave of
absence will be granted at ordinary pay, that is, payment is not to include
shift allowances, penalty rates or overtime;
(c) leave granted
will count as service for all purposes;
(d) expenses
associated with attendance at such courses or seminars, for example fares,
accommodation, meal costs, will be met by the employee concerned, but subject
to the maximum prescribed above, leave may include travelling time required
during working hours to attend such courses or seminars;
(e) applications
for leave must be accompanied by a statement from the union that it has
nominated the employee concerned for such course or seminar or that it supports
his or her application.
8.9 Leave for
employees holding office in Local Government -
(a) Holders of the
office of Mayor of a Municipality, President of a Shire or Chairman of a County
Council may be granted special leave with pay for the purpose of attending
meetings, conferences or performing other council work which cannot be carried
out outside of ordinary working hours.
(b) Whilst the
quantum of leave to be granted is to be determined by the employer, absences
requiring time off during normal working hours should be kept to a minimum.
(c) Where the
employer is not prepared to grant special leave with pay, the employee may be
granted leave as a charge against available recreation leave or leave without
pay.
8.10 English
Language Tuition Leave -
(a) Employees
of non-English speaking background who are unable to adequately communicate in
the English language, shall be granted time off without loss of pay to attend
English Language Classes conducted by the employer or any other recognised
statutory authority, for example the Adult Migrant English Service.
(b) The
type, duration and extent of courses conducted by the employer shall be
developed in consultation with the Adult Migrant English Service or other
recognised authority.
8.11 Personal/Carer’s
Leave -
(a) Use of Sick
Leave -
(1) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph 8.11(a)(3) shall be entitled to use, in
accordance with this subclause, any sick leave accruing from 1 January 1998 in
terms of clause 6 Sick Leave, for absences to provide care and support for
such persons when they are ill. Such
leave may be taken for part of a single day.
(2) The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned.
(3) The
entitlement to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
(A) a spouse of the
employee; or
(B) a de facto
spouse, who, in relation to the employee, is a person of the opposite sex to
the employee who lives with the employee as the husband or wife of the employee
on a bona fide domestic basis although not legally married to that person; or
(C) a child or an
adult child (including an adopted child, a step child, a foster child or an ex
nuptial child), parent (including a foster parent or legal guardian),
grandparent, grandchild or sibling of the employee or the spouse or de facto
spouse of the employee; or
(D) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(E) a relative of
the employee who is a member of the same household, where for the purposes of
this subclause:
"relative" means a person related by blood,
marriage, affinity or Aboriginal kinship structures;
"affinity" means a relationship that one
spouse because of marriage has to the relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(b) An employee
shall, wherever practicable, give the employer notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person’s relationship to the employee, the reasons for taking such leave and
the estimated length of absence. If it
is not practicable for the employee to give prior notice of absence, the
employee shall notify the employer by telephone of such absence at the first
opportunity on the day of the absence.
(c) Unpaid Leave
for Family Purpose - An employee may elect, with the consent of the employer,
to take unpaid leave for the purpose of providing care and support to a member
of a class of person set out in subparagraph 8.11(a)(3) of this clause who is
ill.
(d) Recreation
Leave -
(1) An employee
may elect, with the consent of the employer, subject to the provisions of
clause 4 Recreation Leave, to take recreation leave not exceeding five days in
single day periods or part thereof, in any calendar year at a time or times
agreed by the parties.
(2) Access to
recreation leave, as prescribed in subparagraph 8.11(d)(1) of this subclause,
shall be exclusive of any Law Vacation period provided for elsewhere under this
award.
(3) Where
applicable, an employee and employer may agree to defer payment of recreation
leave loading in respect of single day absences, until at least five
consecutive recreation leave days are taken.
9. Military Leave
9.1 Annual Grant -
In the period of 12 months commencing on 1 July each year, employees who are
part-time members of the Defence Forces' Reserves are entitled to be granted
military leave on the following basis:
(a) Annual
Training for members of the:
Navy Reserve - 13 calendar days on full pay.
Army Reserve - 14 calendar days on full pay.
Air Force Reserve - 16 calendar days on full pay.
(b) Attendance at
a School, Class or Course of Instruction by members of the:
Navy Reserve - 13 calendar days on full pay.
Army Reserve - 14 calendar days on full pay.
Air Force Reserve - 16 calendar days on full pay.
Leave provided for in this subclause also applies to
attendances in a teaching capacity.
(c) Additional
Grant - Where the Commanding Officer certifies in writing that it is obligatory
for the employee to attend training for a period that exceeds the leave
normally available, the employer may grant further military leave not exceeding
four calendar days in any one military leave year. If the additional 4 calendar
days are insufficient to cover the excess, then the employer may grant leave as
a charge against recreation or long service leave to credit or as leave without
pay.
(d) Alternative
Arrangements - Whilst every effort should be made to release an employee from
work at the time requested, military leave may be refused if it is not in the
public interest to grant the leave at the time applied for. In such cases, the
leave is to be granted later in the military leave year to enable the employee
to attend an equivalent annual camp, school, class or course of instruction.
(e) Payment for
Military Leave - Payment of wages in respect of periods of military leave is
additional to any payments that the employee receives from the Defence Force
Reserves.
9.2 Medical
Examinations - Special leave up to a maximum of one day may be granted for the
time necessary to attend a medical examination or tests for acceptance as a
part-time member of the Defence Force Reserves, subject to production of
evidence of attendance.
9.3
Casual Employees - A casual employee required to undertake
part-time military training may be granted leave on the same basis as applies
to other employees, provided the period does not exceed the period in which he
or she would normally have been employed by the current employer.
10. Study Time
10.1 Purpose - Study
time is granted for the following purposes:
(a) attendance at
compulsory lectures, tutorials or residential schools, where these are held
during working hours;
(b) necessary
travelling during working hours to attend lectures or tutorials held during or
outside working hours;
(c) weekly private
study;
(d) to provide a
period of time off prior to or during the examination period for private study
purposes as an alternative to weekly study time.
10.2 Courses
Eligible for Study Time - Courses for which study time is granted must meet at
least one criteria in each of the subclauses below:
(a) lead to a
recognised qualification; or
be a TAFE special course; or
be a bridging or qualifying course; or
be an incidental subject which forms
part of a course for which study time would be available, where the incidental
subject is of relevance to the employer or the public sector.
(b) be
administered by a public institution;
be accredited by the Higher Education
Unit of the Ministry of Education and Youth Affairs; or
lead to membership of a registered
professional organisation.
(c) be able to be
taken on a part-time basis. Study time does not apply to a course that is
organised essentially for full time students or which, in later stages,
requires full-time attendance.
10.3 More Than One
Course Studied at the One Time -
(a) Study time may
be granted for more than one course at the same time, provided that the two
courses together result in a part-time load and the attendance pattern is
convenient to the employer.
(b) Regardless of
the number of courses studied at one time, the maximum grant remains four hours
per week, as outlined in subclause 10.4 below.
10.4 Calculation of
Study Time Grant -
(a) Half an hour
is granted for every hour of class attendance required, up to a maximum grant
of four hours per week and in respect of correspondence courses, by allowing
half an hour for every hour of tutorial or lecture attendance in a
corresponding face to face course.
(b) Where there
are block attendance requirements or field days, the grant is calculated by:
Step 1: totalling the attendance requirement, in hours,
for the semester;
Step 2: dividing this amount by two;
Step 3: dividing this by the number of weeks in the
semester that lectures are held;
Step 4: this amount, or 4 hours, whichever is the
lesser, is the weekly amount granted.
10.5 Additional
Leave -
(a) Where the
grant in subclause 10.4 above is insufficient to cover essential absences, the
necessary extra should be granted.
Additional leave which, together with leave granted under 10.4 above,
totals 4 hours or less does not have to be made up. Leave of more than 4 hours per week must be made up.
(b) Study time
granted in excess of 4 hours may be made up either in advance or in retrospect.
10.6 Study Time in
Excess of Four Hours Per Week - Study time granted in excess of four hours per
week may be made up either in advance or in retrospect but always in accordance
with the arrangement negotiated, in advance, between the employer and employee.
When such an arrangement is being negotiated, the
following factors should be considered:
(a) nature of the
duties;
(b) needs of the
workplace;
(c) whether
additional leave granted can be made up before the next grant; and
(d) use of other
forms of leave to offset the additional study time where making it up is
impractical.
10.7 When Study Time
is Postponed or Not Granted.
(a) Study time is
not to be granted in respect of any classes not attended or when an employee is
absent on any other form of leave.
(b) Study time is
an expendable grant. It is lost if not taken at the nominated time but, if an
emergency situation arises and the employee is asked by the employer to forego
their normal study time, such time may be granted on another day during the
same week.
10.8 Power to Grant
or Refuse - The grant of study time is subject to the relevance of the course
and employer convenience. The employer has the power to grant, and to refuse,
study time and the actual study time arrangement must be negotiated between the
employee and the employer.
10.9 Repeated
Subjects -
(a) Study time is
not available for repeated subjects unless evidence can be provided that
failure to successfully complete the subject at first attempt was caused by
circumstances outside the employee's control.
(b) An employee
attending, during working hours, repeat subjects for which study time has not
been granted, must make up all time taken off in attending those subjects.
10.10 Accumulation -
Subject to employer's convenience:
(a) employees may
choose to accumulate part or all of their study time;
(b) accumulated
study time may be taken in any pattern or at any time.
10.11 Compulsory
Residential Schools - Correspondence students may accumulate their study time
as outlined in subclause 10.10 above in order to cover any compulsory
residential schools.
10.12 Block Grants -
(a) Some courses
require substantial block attendance to allow students to undertake compulsory
practical work experience.
(b) A block grant
may be made, either in addition to or instead of study time accumulating under
10.11 above, if the employer is satisfied that:
(1) block
attendance is compulsory;
(2) the usual
study time grant is inadequate; and
(3) the course is
of significant value and therefore warrants a different kind of grant.
10.13 Maximum Periods
of Block Grants - Block periods of study time may be granted as follows:
(a) up to 10 days
study time may be granted in addition to the grant outlined in subclause 10.5
above;
(b) up to 20 days
study time may be granted instead of the grant outlined in subclause 10.6
above.
10.14 Study Time
Granted for the Whole Course - In some circumstances it may be more appropriate
to grant an amount of study time for the whole course. Such study time can then
be taken according to the needs of the employee and employer's convenience. In
cases of this type, the average yearly study time taken should not be more than
10 days, if taken in accordance with 10.13(a) above or 20 days, if taken in
accordance with 10.13(b) above.
10.15 Courses
Involving Research and Thesis - Block periods of study time may be granted to
staff in relation to the research and thesis component of:
(a) higher
degrees;
(b) qualifying
studies to higher degrees; or
(c) Honours
studies.
10.16 Grant of Block
Periods in Respect of Courses Involving Research and Thesis - These block
periods may be granted on the following basis:
(a) where a course
at any level involves a thesis or major project as well as coursework, the
usual study time would be granted for the coursework and 10 days study time for
the thesis or major project component;
(b) for qualifying
studies entirely by thesis the grant is 10 days;
(c) for masters
degree studies by research and thesis only, the total grant is 25 days for
courses of 2 years' minimum duration and 35 days for courses of 3 years'
minimum duration.
(d) for doctoral
studies, the total grant for the course is 45 days.
10.17 Monitoring Study
Time - Employers should ensure that:
(a) employees
granted study time have completed their enrolments;
(b) employees are
continuing with the course for which study leave has been granted;
(c) where there is
a choice of times for attendance, the actual attendance pattern is convenient
to the employer as well as the employee; and
(d) additional
study time, in excess of four hours per week, is made up.
10.18 The Application
Process - Employees who wish to apply for study time should formally notify the
employer as soon as possible. Where
study time has been granted, employees should give the employer reasonable
notice of the program for each year or semester and their proposed pattern of
leave. This will allow any negotiations
to be completed before the academic year or semester begins.
10.19 Refusal of Study
Time Applications - Where an employer decides to refuse an application for
study time, he or she should ensure that:
(a) timely advice
is given to the applicant to allow consideration of alternatives;
(b) counselling is
available to applicants to consider alternatives;
(c) reasons for
refusal are clearly and promptly stated, in writing, to the applicant;
(d) an internal
review process or grievance procedure is available should the employee wish a
review of the decision.
If subsequently the decision not to
grant study time is overturned, the employer may grant study time
retrospectively.
10.20 Examination
Leave -
(a) Paid leave, up
to a maximum of 5 working days per year, may be granted in respect of
attendance at examinations in approved courses of study. Examination leave is available to both face
to face and correspondence students.
(b) The period
granted is to include time actually involved in the examination and necessary
travelling time. Examination leave is not to be granted in respect of any
examinations conducted within normal class timetable during the term or
semester, and where study time has been granted to the candidate
11. Parental Leave
Parental leave includes maternity, adoption leave and
"other parent" leave.
11.1 Maternity leave
shall apply to an employee who is pregnant and, subject to this clause the
employee shall be entitled to be granted maternity leave as follows:
(a) For a period
up to 9 weeks prior to the expected date of birth; and
(b) For a further
period of up to 12 months after the actual date of birth.
(c) An employee
who has been granted maternity leave and whose child is stillborn may elect to
take available sick leave instead of maternity leave.
11.2 Adoption leave
shall apply to an employee adopting a child and who will be the primary care
giver, the employee shall be granted adoption leave as follows:
(a) For a period
of up to 12 months if the child has not commenced school at the date of the
taking of custody; or
(b) For such
period, not exceeding 12 months on a full-time basis, as the Department Head
may determine, if the child has commenced school at the date of the taking of
custody.
(c) Special
Adoption Leave - An employee shall be entitled to special adoption leave
(without pay) for up to 2 days to attend interviews or examinations for the
purposes of adoption. Special adoption
leave may be taken as a charge against recreation leave, extended leave,
flexitime or family and community service leave.
11.3 Where maternity
or adoption leave does not apply; "other parent" leave is available
to male and female staff who apply for leave to look after his/her child or
children. Other parent leave applies as
follows:
(a) Short other
parent leave - an unbroken period of up to 8 weeks at the time of the birth of
the child or other termination of the spouse's or partner's pregnancy or, in
the case of adoption, from the date of taking custody of the child or children;
(b) Extended other
parent leave - for a period not exceeding 12 months, less any short other
parental leave already taken by the employee as provided for in paragraph (1)
of this subclause. Extended other
parental leave may commence at any time up to 2 years from the date of birth of
the child or the taking of custody of the child.
11.4 An employee
taking maternity or adoption leave is entitled to payment at the ordinary rate
of pay for a period of 14 weeks, an employee entitled to short other parent
leave is entitled to payment at the ordinary rate of pay for a period of up to
1 week, provided the employee:
(a) Applied for
parental leave within the time and in the manner determined set out in
subclause 11.1 of this clause; and
(b) Prior to the
commencement of parental leave, completed not less than 40 weeks' continuous
service.
(1) Continuous service is defined as full or
part-time but not casual service, within the NSW Public Service or within a
State or governmental organisation proclaimed as such under the Public
Sector Employment and Management Act 2002.
(c) Payment for
the maternity, adoption or short other parent leave may be made as follows:
(1) in advance as
a lump sum; or
(2) fortnightly as
normal; or
(3) fortnightly at
half pay; or
(4) a combination
of full-pay and half pay.
11.5 Payment for
parental leave is at the rate applicable when the leave is taken. An employee holding a full time position who
is on part time leave without pay when they start parental leave is paid:
(a) at the full
time rate if they began part time leave 40 weeks or less before starting parental
leave;
(b) at the part
time rate if they began part time leave more than 40 weeks before starting
parental leave and have not changed their part time work arrangements for the
40 weeks;
(c) at the rate
based on the average number of weekly hours worked during the 40 week period if
they have been on part time leave for more than 40 weeks but have changed their
part time work arrangements during that period.
11.6 An employee who
has taken no more than 12 months full time parental leave or its part time
equivalent is entitled to be paid at their normal rate (i.e. the rate at which
they were paid before proceeding on parental leave) for another period of such
leave regardless of whether they resume their normal hours of work before
proceeding on leave for another pregnancy or adoption.
11.7 Calculation
of increments and leave credits:
(a)
(b)
Increments – any period of paid parental leave (at full or
half-pay) shall count as full service for the purposes of determining
incremental progression. However,
unpaid parental leave shall not count as service for determining incremental
progression.
(c)
Leave credits –
(1) Parental leave at full pay shall count
as full service for the purposes of determining all forms of leave.
(2) Parental leave at half pay is paid leave
that is being taken at a reduced rate of pay and shall accrue all other leave
at half the rate.
(3) Unpaid parental leave shall not count as
service for determining any form of leave entitlement except for long service
leave in cases where at least 10 years of service has been completed and the
unpaid maternity leave does not exceed 6 months.
11.8 Except as
provided in subclauses 11.4, 11.5 and 11.6 of this clause, parental leave shall
be granted without pay.
11.9 Right to
request
(a) An employee
who has been granted parental leave in accordance with subclause 11.1, 11.2 or
11.3 may make a request to the Department Head to:
(1) extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(2) return from a
period of full time parental leave on a part time basis until the child reaches
school age (Note: returning to work from parental leave on a part time basis
includes the option of returning to work on part time leave without pay);
to assist the employee in reconciling work and parental
responsibilities.
(b) The Department
Head shall consider the request having regard to the employee’s circumstances
and, provided the request is genuinely based on the employee’s parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the Department Head’s business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
11.10 Notification Requirements
(a) When
a Department is made aware that a employee or their spouse is pregnant, or a
employee’s spouse is pregnant or is adopting a child, the Department must
inform the employee of their entitlements and their obligations under the
Award.
(b) An
employee who wishes to take parental leave must notify the department head in
writing at least 8 weeks (or as soon as practicable) before the expected
commencement of parental leave:
(1) that she/he intends to take parental leave, and
(2) the expected date of birth or the expected date of placement,
and
(3) if she/he is likely to make a request under subclause 11.9.
(c) At
least 4 weeks before a employee's expected date of commencing parental leave
they must advise:
(1) the date on which the parental leave is intended to start,
and
(2) the period of leave to be taken.
(d) Employee’s request and the Department
Head’s decision to be in writing
The employee’s request under
11.9(a)(1) and the Department Head’s decision made under 11.9(a)(2) must be recorded in writing.
(e) An
employee intending to request to return from parental leave on a part time
basis or seek an additional period of leave of up to 12 months must notify the
Department Head in writing as soon as practicable and preferably before beginning
parental leave. If the notification is not given before commencing such leave,
it may be given at any time up to 4 weeks before the proposed return on a part
time basis, or later if the Department Head agrees.
(f) An
employee on maternity leave is to notify her department of the date on which
she gave birth as soon as she can conveniently do so.
(g) An
employee must notify the department as soon as practicable of any change in her
intentions as a result of premature delivery or miscarriage.
(h) An
employee on maternity or adoption leave may change the period of leave or
arrangement, once without the consent of the department and any number of times
with the consent of the department. In each case she/he must give the
department at least 14 days notice of the change unless the department head
decides otherwise.
11.11 An employee has
the right to her/his former position if she/he has taken approved leave or part
time work in accordance with subclause 11.8, and she/he resumes duty
immediately after the approved leave or work on a part time basis.
11.12 If the position
occupied by the employee immediately prior to the taking of parental leave has
ceased to exist, but there are other positions available that the employee is
qualified for and is capable of performing, the employee shall be appointed to
a position of the same grade and classification as the employee’s former
position.
11.13 If the position occupied by the employee
immediately prior to the taking of parental leave has been moved as part of a
formal relocation of an organisational unit (for example, the relocation of all
or part of an agency from the Central Business District, or the regionalisation
of agency’s functions) the employee has the right to return to the former
position in the new location. If the
employee so requests, the employer should consider the practicability of
transferring the employee to a position at the same classification and grade in
the former, or more suitable location.
11.14 An employee does
not have a right to her/his former position during a period of return to work
on a part time basis. If the Department Head approves a return to work on a
part time basis then the position occupied is to be at the same classification
and grade as the former position.
11.15 A employee who
has returned to full time duty without exhausting their entitlement to 12
months unpaid parental leave is entitled to revert back to such leave. This may
be done once only, and a minimum of 4 weeks notice (or less if acceptable to
the department) must be given.
11.16 An employee who
is sick during her pregnancy may take available paid sick leave or accrued
recreation or extended leave or sick leave without pay. An employee may apply
for accrued recreation leave, extended leave or leave without pay before taking
maternity leave. Any leave taken before maternity leave ceases at the end of
the working day immediately preceding the day she starts her nominated period
of maternity leave or on the working day immediately preceding the date of birth
of the child, whichever is sooner.
11.17 An employee may
elect to take available recreation leave or extended leave within the period of
parental leave provided this does not extend the total period of such leave.
11.18 An employee may
elect to take available recreation leave at half pay in conjunction with
parental leave subject to:
(a) accrued
recreation leave at the date leave commences is exhausted within the period of
parental leave
(b) the total
period of parental leave, is not extended by the taking of recreation leave at
half pay
(c) When
calculating other leave accruing during the period of recreation leave at half
pay, the recreation leave at half pay shall be converted to the full time
equivalent and treated as full pay leave for accrual of further recreation,
extended and other leave at the full time rate
11.19 If, for any
reason, a pregnant employee is having difficulty in performing her normal
duties or there is a risk to her health or to that of her unborn child the
Department Head, should, in consultation with the member of staff, take all
reasonable measures to arrange for safer alternative duties. This may include,
but is not limited to greater flexibility in when and where duties are carried
out, a temporary change in duties, retraining, multi-skilling, teleworking and
job redesign.
11.20 If such
adjustments cannot reasonably be made, the Department Head must grant the
employee maternity leave, or any available sick leave, for as long as it is
necessary to avoid exposure to that risk as certified by a medical
practitioner, or until the child is born which ever is the earlier.
11.21 Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the Department shall take
reasonable steps to:
(1) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(2) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the Department Head about any significant
matter that will affect the employee’s decision regarding the duration of
parental leave to be taken, whether the employee intends to return to work and
whether the employee intends to request to return to work on a part time basis.
(c) The employee
shall also notify the Department Head of changes of address or other contact
details which might affect the Department’s capacity to comply with paragraph
(a) of this subclause.
11.22 Employees
entitled to parental leave shall also have an additional entitlement as set out
in Appendix B.
12. Absence Whilst on
Compensation to Count as Service for Leave Purposes
Absence due to incapacity caused by an accident for which
compensation is payable is to be regarded as service for the accrual of all
leave.
13. Absences Caused
By Adverse Weather Conditions
Where an employee is stood down without pay because of an
adverse weather condition, such absence is to be regarded as service for
recreation and long service leave purposes.
14. Continuity of
Service
14.1 Periods of
absence not to affect continuity - Continuity of service shall be deemed not to
be broken by periods of absence on recreation, sick or long service leave or
other absences not involving a termination of the contract of employment.
An employee's contract of employment and continuity of
service shall also be deemed not to be broken by termination of services
arising directly or indirectly from an industrial dispute or where the services
have been terminated by the employing authority by reason of slackness of work.
Such break in the contract of employment however is not be taken into account
in calculating the period of service.
14.2 Termination due
to ill health and subsequent re-employment - Where the services of an employee
have been terminated because of ill health but the employee is re-employed
within a period of twelve months, the previous service is to be taken into
account for recreation and sick leave purposes, provided the employee is able
to produce a medical certificate which covers the whole period of absence, that
is, from date of termination to date of re-employment.
14.3 Taking of Leave
- Leave is to be taken, whenever practicable, upon the completion of each
12 months service and not later than six months after accrual.
14.4 General - In
all other respects, the provisions for Recreation Leave under clause 4 apply.
15. Uniforms
One new uniform shall be supplied to each tipstaff upon
appointment as a tipstaff and thereafter upon each twelve months completed
service each tipstaff shall receive a new uniform provided that each tipstaff
shall be responsible for the reasonable upkeep and repair of his or her own
uniform.
16. Grievance and
Dispute Settling Procedures
16.1 All grievances
and disputes relating to the provisions of this award shall initially be dealt
with as close to the source as possible, with graduated steps for further
attempts at resolution at higher levels of authority within the Department, if
required.
16.2 An employee is
required to notify in writing their immediate supervisor, as to the substance
of the grievance, dispute or
difficulty, request a meeting to discuss the matter and if possible, state the
remedy sought.
16.3 Where the
grievance or dispute involves confidential or other sensitive material
(including issues of harassment or discrimination under the Anti
Discrimination Act 1977) that makes it impractical for the employee to
advise their immediate manager the notification may occur to the next appropriate
level of management, including where required, to the Department Head or
delegate.
16.4 The immediate
supervisor, or other appropriate officer, shall convene a meeting in order to
resolve the grievance, dispute or difficulty within two (2) working days, or as
soon as practicable, of the matter being brought to attention.
16.5 If the matter
remains unresolved with the immediate supervisor, the employee may request to
meet the appropriate person at the next level of management in order to resolve
the matter. This manager shall respond
within two (2) working days, or as soon as practicable. This sequence of reference to successive
levels of management may be pursued by the employee until the matter is
referred to the Department Head.
16.6 The Department
Head may refer the matter to the Director of Public Employment for
consideration.
16.7 If the matter
remains unresolved, the Department Head shall provide a written response to the
employee and any other party involved in the grievance, dispute or difficulty,
concerning action to be taken, or the reason for not taking action, in relation
to the matter.
16.8 An employee, at
any stage, may request to be represented their union.
16.9 The employee,
or the Association on their behalf, or the Department Head may refer the matter
to the New South Wales Industrial Relations Commission if the matter is
unresolved following the use of these procedures.
16.10 The employee,
Association, department and Director of Public Employment shall agree to be
bound by any order or determination by the New South Wales Industrial Relations
Commission in relation to the dispute.
16.11 Whilst the
procedures outlined in subclauses 16.1 to 16.10 of this clause are being
followed, normal work undertaken prior to notification of the dispute or
difficulty shall continue unless otherwise agreed between the parties, or, in
the case involving occupational health and safety, if practicable, normal work
shall proceed in a manner which avoids any risk to the health and safety of any
employee or member of the public.
17.
Anti-Discrimination
17.1 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.
17.2 It follows that
in fulfilling their obligations under the dispute resolution procedure prescribed
by this award, the parties have an obligation 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.
17.3 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.
17.4 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;
(c) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to this
award from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
17.5 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.
18. Secure Employment
18.1 Objective of
this Clause
The objective of this clause is for the employer to
take all reasonable steps to provide its employees with secure employment by
maximising the number of permanent positions in the employer’s workforce, in
particular by ensuring that casual employees have an opportunity to elect to
become full-time or part-time employees.
18.2 Casual
Conversion
(a) A casual employee engaged by a particular
employer on a regular and systematic basis for a sequence of periods of
employment under this Award during a calendar period of six months shall
thereafter have the right to elect to have his or her ongoing contract of
employment converted to permanent full-time employment or part-time employment
if the employment is to continue beyond the conversion process prescribed by
this subclause.
(b) Every employer of such a casual
employee shall give the employee notice in writing of the provisions of this
sub-clause within four weeks of the employee having attained such period of six
months. However, the employee retains his or her right of election under this
subclause if the employer fails to comply with this notice requirement.
(c) Any casual employee who has a right to
elect under paragraph 18.2(a), upon receiving notice under subclause 18.2(b) or
after the expiry of the time for giving such notice, may give four weeks’
notice in writing to the employer that he or she seeks to elect to convert his
or her ongoing contract of employment to full-time or part-time employment, and
within four weeks of receiving such notice from the employee, the employer
shall consent to or refuse the election, but shall not unreasonably so refuse.
Where an employer refuses an election to convert, the reasons for doing so
shall be fully stated and discussed with the employee concerned, and a genuine
attempt shall be made to reach agreement. Any dispute about a refusal of an
election to convert an ongoing contract of employment shall be dealt with as
far as practicable and with expedition through the disputes settlement
procedure.
(d) Any casual employee who does not, within
four weeks of receiving written notice from the employer, elect to convert his
or her ongoing contract of employment to full-time employment or part-time
employment will be deemed to have elected against any such conversion.
(e) employee or a part-time employee, the employee may only revert
to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have
his or her contract of employment converted to full-time or part-time
employment in accordance with paragraph 18.2(c), the employer and employee
shall, in accordance with this paragraph, and subject to paragraph 18.2(c),
discuss and agree upon:
(1) whether the employee will convert to full-time
or part-time employment; and
(2) if it is agreed that the employee will
become a part-time employee, the number of hours and the pattern of hours that
will be worked either consistent with any other part-time employment provisions
of this award pursuant to a part time work agreement made under Chapter 2, Part
5 of the Industrial Relations Act 1996 (NSW);
Provided that an employee
who has worked on a full-time basis throughout the period of casual employment
has the right to elect to convert his or her contract of employment to
full-time employment and an employee who has worked on a part-time basis during
the period of casual employment has the right to elect to convert his or her
contract of employment to part-time employment, on the basis of the same number
of hours and times of work as previously worked, unless other arrangements are
agreed between the employer and the employee.
(g) Following an
agreement being reached pursuant to paragraph 18.2(f), the employee shall
convert to full-time or part-time employment. If there is any dispute about the
arrangements to apply to an employee converting from casual employment to
full-time or part-time employment, it shall be dealt with as far as practicable
and with expedition through the disputes settlement procedure.
(h) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
18.3 Occupational
Health and Safety
(a) For the
purposes of this subclause, the following definitions shall apply:
(1) A "labour hire business" is a
business (whether an organisation, business enterprise, company, partnership,
co-operative, sole trader, family trust or unit trust, corporation and/or
person) which has as its business function, or one of its business functions,
to supply staff employed or engaged by it to another employer for the purpose
of such staff performing work or services for that other employer.
(2) A "contract business" is a
business (whether an organisation, business enterprise, company, partnership,
co-operative, sole trader, family trust or unit trust, corporation and/or
person) which is contracted by another employer to provide a specified service
or services or to produce a specific outcome or result for that other employer
which might otherwise have been carried out by that other employer’s own
employees.
(b) Any employer
which engages a labour hire business and/or a contract business to perform work
wholly or partially on the employer’s premises shall do the following (either
directly, or through the agency of the labour hire or contract business):
(1) consult with employees of the labour
hire business and/or contract business
regarding the workplace occupational health and safety consultative
arrangements;
(2) provide employees of the labour hire
business and/or contract business with appropriate occupational health and
safety induction training including the appropriate training required for such
employees to perform their jobs safely;
(3) provide employees of the labour hire
business and/or contract business with appropriate personal protective
equipment and/or clothing and all safe work method statements that they would
otherwise supply to their own employees; and
(4) ensure employees of the labour hire
business and/or contract business are made aware of any risks identified in the
workplace and the procedures to control those risks.
(c) Nothing in
this subclause 18.3 is intended to affect or detract from any obligation or
responsibility upon a labour hire business arising under the Occupational
Health and Safety Act 2000 or the Workplace Injury Management and
Workers Compensation Act 1998.
18.4 Disputes
Regarding the Application of this Clause
Where a dispute arises as to the application or
implementation of this clause, the matter shall be dealt with pursuant to the
disputes settlement procedure of this award.
18.5 This clause has no application in respect
of organisations which are properly registered as Group Training Organisations
under the Apprenticeship and Traineeship Act 2001 (or equivalent
interstate legislation) and are deemed by the relevant State Training Authority
to comply with the national standards for Group Training Organisations
established by the ANTA Ministerial Council.
19. Leave Reserved
In the event that any conditions relating to matters other
than those dealt with by this award are altered, except with the consent of the
Association, liberty to apply is reserved to the Association.
20. Area, Incidence
and Duration
20.1 This award
shall apply to tipstaves to any Justice of the Supreme Court of New South
Wales, the Industrial Relations Commission of New South Wales and the Land and
Environment Court of New South Wales and to tipstaves to any Judge of the
District Court of New South Wales and the Compensation Court of New South
Wales.
20.2 This award is
made following a review under section 19 of the Industrial Relations Act
1996 and replaces the Crown Employees (Tipstaves to Justices) Award published
on 3 December 2004 (347 IG 574) and all variations thereof.
20.3 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 IG 359) take effect on and from 5 December 2007.
20.4 This award
remains in force until varied or rescinded, the period for which it was made
having already expired.
PART B
MONETARY RATES
The salaries are set
in accordance with the Crown Employees (Public Sector – Salaries 2007) Award
and are effective from the first pay period to commence on or after 1 July 2007
Table 1
Tipstaff
|
Salary Per Annum
|
|
$
|
1st Year of service
|
43,903
|
2nd Year of service
|
44,745
|
3rd Year of service
|
45,524
|
Tipstaff to the Chief Justice
|
46,320
|
Appendix A
(1) Personal
Carers entitlement for casual employees
(a) Casual
employees are entitled to not be available to attend work, or to leave work if
they need to care for a family member described in (2) below who is sick and
requires care and support, or who requires care due to an unexpected emergency,
or the birth of a child. This entitlement is subject to the evidentiary
requirements set out below in (d), and the notice requirements set out in (e).
(b) The Department
Head and the casual employee shall agree on the period for which the employee
will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be
available to attend work for up to 48 hours (i.e. two days) per occasion. The
casual employee is not entitled to any payment for the period of
non-attendance.
(c) A Department
Head must not fail to re-engage a casual employee because the employee accessed
the entitlements provided for in this clause. The rights of an employer to
engage or not to engage a casual employee are otherwise not affected.
(d) The casual
employee shall, if required,
(i) establish
either by production of a medical certificate or statutory declaration, the
illness of the person concerned and that the illness is such as to require care
by another person, or
(ii) establish by
production of documentation acceptable to the
employer or a statutory declaration, the nature of the emergency and
that such emergency resulted in the person concerned requiring care by the
employee.
In normal circumstances, a casual employee must not
take carer's leave under this subclause where another person had taken leave to
care for the same person.
(e) The casual
employee must, as soon as reasonably practicable and during the ordinary hours
of the first day or shift of such absence, inform the employer of their
inability to attend for duty. If it is not reasonably practicable to inform the
employer during the ordinary hours of the first day or shift of such absence,
the employee will inform the employer within 24 hours of the absence.
(2) A family
member for the purposes of paragraph (i)(a) above is:
(a) a spouse of
the employee; or
(b) a de facto
spouse being a person of the opposite sex to the employee who lives with the
employee as her husband or his wife on a bona fide domestic basis although not
legally married to that employee; or
(c) a child or an
adult child (including an adopted child, a step child, a foster child or an
ex-nuptial child), parent (including a foster parent or legal guardian),
grandparent, grandchild or sibling of the employee or of the spouse or de facto
spouse of the employee; or
(d) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or a relative of the employee who is a member of
the same household, where for the purposes of this definition:-
"relative" means a person related by blood,
marriage, affinity or Aboriginal kinship structures;
"affinity" means a relationship that one
spouse or partner has to the relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(3) Bereavement
entitlements for casual employees
(a) Casual
employees are entitled to not be available to attend work, or to leave work
upon the death in Australia of a family member on production of satisfactory
evidence (if required by the employer).
(b) The Department
Head and the casual employee shall agree on the period for which the employee
will be entitled to not be available to attend work. In the absence of
agreement, the employee is entitled to not be available to attend work for up
to 48 hours (i.e. two days) per occasion. The casual employee is not entitled
to any payment for the period of non-attendance.
(c) A Department
Head must not fail to re-engage a casual employee because the employee accessed
the entitlements provided for in this clause. The rights of an employer to
engage or not engage a casual employee are otherwise not affected.
(d) The casual
employee must, as soon as reasonably practicable and during the ordinary hours
of the first day or shift of such absence, inform the employer of their
inability to attend for duty. If it is not reasonably practicable to inform the
employer during the ordinary hours of the first day or shift of such absence,
the employee will inform the employer within 24 hours of the absence.
Appendix B
(1) Refer to the Industrial
Relations Act 1996 (NSW). The following provisions shall also apply in
addition to those set out in the Industrial Relations Act 1996 (NSW).
(2) An employer
must not fail to re-engage a regular casual employee (see section 53(2) of the
Act) because:
(a) the employee
or employee's spouse is pregnant; or
(b) the employee
is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to
request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) to return
from a period of parental leave on a part-time basis until the child reaches
school age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee’s circumstances and,
provided the request is genuinely based on the employee’s parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer’s business. Such grounds might
include cost, lack of adequate replacement staff, loss of efficiency and the
impact on customer service.
(c) Employee’s
request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made
under 3(a) and 3(b) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take reasonable
steps to:
(i) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(ii) provide an
opportunity for the employee to discuss any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee's decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return to work on a part-time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer's capacity to comply with paragraph (a).
D. W. RITCHIE, Commissioner.
____________________