Museum
of Contemporary Art Conditions of Employment Award 2009
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1677 of 2008)
Before Commissioner
Ritchie
|
13 August 2009
|
REVIEWED
AWARD
Clause No. Subject Matter
1. Title
2. Parties to
the Award
3. Definitions
4. Hours of
Duty
5. Casual
Employees
6. Preparators
7. Fixed Term
Employment
8. Overtime
and Time in Lieu
9. Payment of
Salaries and Wages
10. Call Back
11. Meal
Allowance
12. Public
Holidays
13. First Aid,
Uniforms, Protective Clothing Allowances
14. Travelling
Compensation
14.1 Excess Travelling Time
14.2 Calculation and Method of Payment
14.3 Meal Allowances on Journeys Not Requiring Temporary Residence
14.4 Accommodation Allowances
14.5 Claims for Payment
14.6 Table of Allowances
14.6.1 Domestic Travelling Allowance Rates for Employees
14.6.2 International Travelling Allowance Rates for Employees
14.6.3 Allowance Review and Adjustment
14.7 Absence on Official Duty
14.8 Use of Private Motor Vehicle
14.9 Compensation for Loss or Damage to Personal Property
15. Leave
15.1 General Provisions
15.2 Maternity Leave
15.3 Parental Leave
15.4 Recreation Leave
15.5 Sick Leave
15.6 Sick Leave - Workers Compensation
15.7 Sick Leave - Other than Workers Compensation
15.8 Sick Leave to Care for a Family Member
15.9 Special Leave
15.10 Long Service Leave
16. Study
Assistance
16.1 Objectives
16.2 Approved Courses and Study Types
16.3 Part Time Course
16.4 Study Time
16.5 Examination Leave
16.6 Study Leave Without Pay
16.7 Refusal of Study Leave
16.8 Employee Development and Training Opportunities
17. Anti-Discrimination
18. Grievance
and Dispute Settling Procedures
19. Deduction
of Union Membership Fees
20. Secure
Employment
21. Area,
Incidence, and Duration
Appendix A - Grievance/Dispute Procedure
Appendix B - State Personal Carer’s Leave Cases 1996 and
1998, Family Provisions Case 2005
1. Title
This Award shall be referred to as the Museum of
Contemporary Art Conditions of Employment Award 2009.
2. Parties to the
Award
The parties to this Award are the Museum of Contemporary Art
Limited and the Public Service Association and Professional Offices’
Association Amalgamated Union of New South Wales.
3. Definitions
"Accident Pay" means a weekly amount equal to the
difference between workers' compensation payments and the employee's normal
rate of pay.
"Approved Course" shall mean a course approved by
the Director.
"Association" or "Union" means the
Public Service Association and Professional Officers’ Association Amalgamated
Union of New South Wales.
"Birth" includes Stillbirth.
"Director" means the Chief Executive Officer of
the Museum holding the title of Director, or such officer of the Museum duly
delegated in writing by the Director in the event of the absence of the
Director from time to time.
"Employee Development and Training" shall mean short
educational and professional training courses, conducted by either the Museum
or an external institution or body recognised by the Director.
"Examination Leave" means time allowed off from
normal duties granted on full pay to employees undertaking examinations in an
approved part time course.
"Expected date of birth" means a date specified by
a Medical Practitioner to be the date on which the Medical Practitioner expects
the employee to give birth as a result of pregnancy, in relation to a female employee
who is pregnant, or, in the case of adoption, to the date that the employee
takes custody of the child concerned
"Full Time Employee" means an employee employed
for normal hours.
"Joint Consultative Committee" means a committee
formed for the purpose of improving and strengthening communication between
management, the Association and employees with reference to industrial issues.
"Museum" means the Museum of Contemporary Art Ltd.
"Normal Hours" means the standard hours worked by
employees in a week to a maximum of 38 hours.
"Ordinary rate of pay" means the sum ascertained
by dividing the basic annual salary by 52.179 then dividing this figure by the
number of ordinary weekly hours specified for that position.
"Overtime" means hours worked in excess of 38
hours per week.
"Part-time Course" shall mean a course undertaken
concurrently with employment and shall include courses involving face to face
or oral instruction and those conducted externally to the institution through
correspondence study.
"Part-time Employee" means an employee employed on
an ongoing basis for 13 hours or more per week.
"Preparators" shall also include the position
title "Art Installers".
"Study Accumulation" shall mean the aggregation of
short periods of study time granted for private study purposes.
"Study Time" shall mean time allowed off from
normal duties granted on full pay to employees who are studying in approved
part-time courses.
"Time-in-Lieu" means paid time taken off work during
ordinary hours, in lieu of payment for overtime worked.
"Week" means Monday to Sunday.
4. Hours of Duty
(a) Except where
otherwise provided in this clause, the normal hours of duty shall be 38 hours
per week to be worked between the hours of 8:30am and 7:30pm on Monday to
Friday. Which five days of the week
employees, including casual employees, shall be required to work shall be
determined taking into account the needs of the MCA and the employee.
(b) A meal break of
not less than 45 minutes and not more than one hour shall be taken where
possible between noon and 2:00 pm provided that not more than five hours shall
elapse between the commencement of work on any one day and the commencement of
the meal break. Where work on any day
continues beyond the period specified in subclause (a) of this clause, a second
meal break shall be taken not less than five hours after the conclusion of the
first meal break.
(c) Notwithstanding
subclause (b) of this clause, casual employees may agree to a meal break of 30
minutes only, if it is mutually suitable to the Museum and the employee.
5. Casual Employees
(a) Casual employees
are engaged from day-to-day.
(b) A casual
employee shall be engaged for a minimum period of four hours provided that this
minimum period may be reduced to two hours for consultation/planning and
training meetings.
(c) The employment
of an employee engaged as a casual may be terminated by either party without
notice, subject to the minimum period set out in subclause (b) of this clause
being worked. The employee shall have
recourse to the dispute settling procedures specified in clause 18, Grievance
and Dispute Settling Procedures.
(d) The hourly rate
for employees engaged on a casual basis is calculated by adding twenty percent
to the ordinary rate of pay of the relevant classification. This loading is in lieu of payment for
recreation leave, sick leave, leave loading, maternity and paternity
leave. The Long Service Leave Act 1955
provides long service leave for casual employees.
(e) Refer also to 7,
9 and 10(b) of Appendix B, State Personal Carer’s Leave Cases 1996 and 1998,
Family Provisions Case 2005, of this award.
6. Preparators
(a) Preparators
shall work any hours between 7:00am and 11:00pm.
(b) Hours worked
between 7.00am to 8:30am and 7.30pm to 11:00pm shall accrue an allowance
calculated at 15% of the normal hourly rate for the time worked.
(c) Overtime shall
be paid beyond 38 hours per week at the rate of:
38 - 45 hours @ time and a half,
45 hours plus @ double time.
(d) Preparators
shall be paid a meal allowance when working weekend days.
(e) Subclauses (a)
and (b) of clause 4, Hours of Duty shall not apply to Preparators, they may be
asked to work any day of the week.
(f) A Preparator who
commences work between 7.00am and 8.30am and works in excess of 10 hours will
also be paid a morning meal allowance.
(g) If a Preparator
works after 7.30pm then they are entitled to an evening meal allowance
regardless of the length of shift.
7. Fixed Term
Employment
An employee may be engaged under the terms of this Award for
a period not to exceed 12 months for specific projects, which is renewable at
the end of that fixed term.
8. Overtime and Time
in Lieu
(a) Subject to
subclause (b) of this clause, the Museum may require an employee to work
reasonable overtime at overtime rates.
(b) An employee may
refuse to work overtime in circumstances where the working of such overtime
would result in the employee working hours which are unreasonable.
(c) For the purposes
of subclause (b) what is unreasonable or otherwise will be determined having
regard to:
(i) any risk to
employee health and safety;
(ii) the employee’s
personal circumstances including any family and carer responsibilities;
(iii) the needs of
the workplace or enterprise;
(iv) the notice (if
any) given by the employer of the overtime and by the employee of his or her
intention to refuse it; and
(v) any other
relevant matter.
(d) Subject to the
exceptions otherwise provided in this clause, all time worked at the direction
of the Museum or in an emergency and which is in excess of the normal hours in
the case of an employee, shall be paid at time and a half for the first two
hours and double time thereafter.
(e) When overtime
work is necessary, it shall wherever reasonably practicable be so arranged that
employees have at least ten consecutive hours off duty between work on
successive days.
(f) An employee who
works so much overtime between the termination of their ordinary work on one
day and the commencement of work on the following day that the employee has not
had at least ten consecutive hours off duty between those times shall be
released after the completion of overtime until they have had ten consecutive
hours off duty without loss of pay for ordinary working time occurring during
such absence.
(g) If, on the
instructions of the Museum, such an employee resumes or continues work without
having had ten consecutive hours off duty, the employee shall be paid at
time-and-a-half until released from duty, then they shall be entitled to be
absent for ten consecutive hours without loss of pay for ordinary working time
occurring during such absence.
(h) Notwithstanding
subclauses (a) and (b) of clause 6, Preparators, overtime shall be calculated
to the nearest quarter of an hour on each occasion overtime is worked and shall
be based upon the ordinary rate of pay the employee is receiving at the time
the overtime is worked.
(i) Time off in
lieu shall be taken at such time mutually convenient to the employee and the
Museum. Time off in lieu shall be
calculated by reference to applicable overtime rates.
(j) When an
employee finishes work after 9:30pm, the Museum shall provide the employee taxi
fare or a Cabcharge docket to the employee's place of residence provided that
such residence is not situated more than 30 kilometres from the Museum
premises. Where the employee's
residence is situated more than 30 kilometres from the Museum premises the Museum
will provide the employee taxi cab fare or a Cabcharge docket to the public
transport station nearest to the Museum premises and a taxi fare or Cabcharge
docket from a public transport station nearest the employee's residence to the
employee's residence.
9. Payment of
Salaries and Wages
Salaries shall be paid weekly or fortnightly or as otherwise
agreed with the written consent of Joint Consultative Committee.
10. Call Back
(a) An employee or
casual employee recalled to work overtime, whether notified before or after
leaving the Museum's premises, shall be paid for a minimum of four hours work.
(b) Notwithstanding subclause (d) of clause 8, Overtime and Time
in Lieu, an employee or casual employee recalled to work emergency duty shall
not be obliged to work the minimum period provided by subclause (a) of this
clause if the work is performed and completed in less time.
11. Meal Allowance
(a) An employee who
is required to work overtime covering a period between the hours of 7:30pm and
8:30am, shall either be supplied with a meal by the Museum or be paid a meal
allowance. Such meal allowance shall be equivalent to the meal allowance which
would by payable in equivalent circumstances under the provisions relating to
meal allowances contained in the then current Crown Employees (Public Service
Conditions of Employment) Award.
(b) If a meal break
is taken, the time involved shall not be regarded as time worked.
12. Public Holidays
(a) Employees shall
be entitled to the following public holidays without loss of pay: New Year's Day, Australia Day, Good Friday,
Easter Sunday, Easter Monday, Labour Day, Anzac Day, Queen's Birthday,
Christmas Day, Boxing Day, Museum Holiday and any other day or days which are
proclaimed as public holidays throughout the State of New South Wales.
For the purpose of this subclause:
(i) Where Christmas
Day falls on a Saturday or a Sunday the following Monday or Tuesday shall be observed as a public holiday.
(ii) Where Boxing
Day falls on a Saturday or Sunday, the following Monday or Tuesday shall be
observed as a public holiday.
(iii) When New
Year's Day falls on a Saturday or on a Sunday, the following Monday shall be
observed as New Year's Day and the said Saturday and/or Sunday shall be deemed
not to be holidays.
(b) 'Museum Holiday'
means a day in place of a Union Picnic Day, taken at a day to be set by the
Museum during one of the working days between Boxing Day and New Year's Day.
(c) Other days may
be added to any of the abovementioned public holidays at the Museum's
discretion, for example where an employee is of another religious denomination
or ethnic background.
(d) An employee who
is required to work on any of the public holidays in subclause (a) of this
clause will be paid for the day at the rate of double time.
13. First Aid, Uniforms,
Protective Clothing Allowances
(a) First Aid
Allowance
Standard First Aid Kits shall be provided and
maintained by the Museum in accordance with the Occupational Health &
Safety Act or Regulation. In the
event of any serious accident happening to any employee or casual employee
whilst at work the Museum, at its own expense, shall provide transport
facilities to the nearest hospital or doctor.
(b) Uniforms
The Museum will provide Museum Employees with MCA
T-shirts, sweatshirts and jackets, where these are required to be worn as part
of a uniform. The Museum will also
provide MCA labels that may be sewn on to any clothing belonging to an employee
that they are required to wear as part of a uniform.
The Museum will provide overalls and steel cap boots
which must be worn at all times for Museum employees working in the
construction of exhibitions or any other activity that is subject to wet or
dusty conditions or chemical conditions.
The cost of any laundering or dry cleaning of such T-shirts or overalls
shall be borne by the Museum if left on the Museum’s premises for cleaning.
14. Travelling
Compensation
The Museum shall consider the convenience of the employee
when such employee is required to travel to a temporary work location.
14.1 Excess Travelling
Time
When an employee, in order to perform official duties,
is required to travel, the employee may, if the employee so desires, apply to
the Museum for compensation. If it is
convenient to the Museum, equivalent time off in lieu or payment shall be
granted for excess time occupied in so travelling, or payment shall be
made. Time off in lieu, or payment,
shall be granted subject to:
(a) where travel is
on a non-working day for the employee concerned, travel was undertaken by
direction of the Museum.
(b) where travel is
on a working day only, and is at the direction of the Museum, the time spent in
travelling before or after the employee's ordinary hours of work shall count.
(c)
(i) There shall be
deducted from an employee's total travelling time on any one day, other than a
non-working day, the time normally taken for the periodic journey from home to
headquarters and return;
(ii) claims of less
than one-quarter of an hour on any one day shall be disregarded;
(iii) travelling time
shall not include any period of travel between 11:00 pm on any one day and 7:30
am on the following day where the employee has travelled overnight and sleeping
facilities have been provided for the employee by the Museum;
(d) compensation for
excess travelling time shall not apply in respect of overseas travel.
14.2 Calculation and
Method of Payment
(a) Payment for
travelling time shall be at the employee's ordinary rate of pay on an hourly
basis calculated as follows:
(i) For employees
employed on a 5 day basis
Annual Salary
|
x
|
1
|
x
|
1
|
1
|
|
52.179
|
|
no of ordinary
hours
|
|
|
|
|
of work per week
|
(b) Employees who
are in receipt of a salary in excess of the rate applicable to the maximum rate
for Grade 5, shall be paid travelling time or waiting time calculated at the
rate applicable to the maximum rate for Grade 5.
(c) Time off in lieu
or payment, as the case may be, for excess travelling time will not be granted
or made for more than eight hours in any period of 24 consecutive hours.
14.3 Meal Allowances
on Journeys Not Requiring Temporary Residence
An employee who makes a journey on official business
and who is not, by reason of that journey, required to reside temporarily at a
place other than the employee's residence, and who must purchase a meal, shall
be paid a meal allowance in accordance with the current Australian Taxation
Reporter.
14.4 Accommodation
Allowances
An employee who performs official duty at or from a
temporary work location; and is thereby compelled to reside temporarily at a
place other than the employee's residence; and is not provided with
accommodation by the Museum shall, subject to this clause, be paid an allowance
for the expenses properly and reasonably incurred during the time actually
spent away from the employee's residence in order to perform that duty.
14.5 Claims for
Payment
(a) Payment in
advance: the Museum may approve applications for advance payments of travelling
and sustenance allowances. Such applications should detail the approximate
expenditure anticipated.
(b) Time for
submitting claims: claims should be
submitted promptly i.e. within one month from the completion of the work or
within such time as the Museum determines.
14.6 Table of
Allowances
Where an employee travels on company business the
allowances set out below represent the maximum refundable expenditure. Any claims must be justified by actual
invoices/receipts on return.
14.6.1 Domestic Travelling
Allowance Rates for Employees
Allowances for employees include components for: (a)
meals; (b) accommodation; and (c) incidentals.
When calculating entitlements each of these components must be included.
Domestic travel allowance rates shall be payable at a
rate in accordance with the current
Australian Taxation Reporter.
14.6.2 International
Travelling Allowance Rates for Employees
Primarily the allowance has two components:
(a) A daily rate for
meals and incidentals. Incidentals
include such items as:
gratuities for personal services
payments to porters for the handling of personal
luggage
laundry and dry cleaning
private telephone calls
newspapers
International travel allowance rates shall be payable at
a rate in accordance with the current Australian Taxation Reporter.
(b) The actual cost
of accommodation
In addition to this allowance, other reasonable
expenses are claimable, for example:
land transport costs
the cost of official telephone calls
charges for inoculations, health examinations, etc
fees for passports and visas
entry and exit fees or other imposts of governments
costs associated with the purchase or conversion of
currency
14.6.3 Allowance Review
and Adjustment
The allowance paid under this clause shall be adjusted
as prescribed and published in the current Australian Taxation Reporter.
For overseas transfers of longer than one month where
an agreement is reached which is to the mutual benefit of the employee and the
Museum the provisions of paragraph 14.6.2 may be negotiated on a case-by-case
basis.
14.7 Absence on
Official Duty
An employee who:
(a) performs
official duty at or from a temporary work location; and
(b) is thereby compelled
to reside temporarily at a place other than the employee's residence shall be
paid such allowances for the expenses incurred during the time actually spent
away from the employee's residence in order to perform that duty as is
prescribed by paragraph 14.6.1 of this Award.
14.8 Use of Private
Motor Vehicle
(a) An employee who,
with the approval of the Museum, uses a private motor vehicle or other means of
conveyance for the conduct of the Museum's business shall be paid a private
motor vehicle allowance. The private
motor vehicle allowance shall be payable at a rate in accordance with the current Australian Taxation Reporter.
(b) An allowance
shall not be paid under this clause in respect of a journey if a Museum fleet
motor vehicle was available for the journey.
(c) Where a Museum
fleet motor vehicle was not available for a journey but public transport was
reasonably available for the journey, the amount of any allowance paid under
this clause shall not exceed the cost of the journey by public transport.
(d) The allowances
payable under this clause shall be adjusted as prescribed and published in the
current Australian Taxation Reporter.
14.9 Compensation for
Loss or Damage to Personal Property
(a) The Museum shall
compensate an employee to the extent of damage sustained to their personal
property (but not theft) where such damage is sustained:
(i) due to the
negligence of the Museum, another employee, or both, in the execution of their
duties; or
(ii) by a defect in
the Museum's material or equipment; or
(iii) where an
employee has protected or attempted to protect the Museum's property from loss
or damage.
(b) For the purpose
of this subclause, personal property means an employee's clothes, spectacles, hearing-aid
or tools of trade which are ordinarily required for the performance of their
duties.
(c) Compensation to
the extent of damage sustained shall be made where, in the course of work,
clothing, spectacles or hearing aids are damaged or destroyed by fire.
15. Leave
15.1 General
Provisions
(a) An application
by an employee for leave under this clause shall be made to and dealt with by
the Museum.
(b) The Museum, in
dealing with any such application, shall have regard to the exigencies of the
Museum, but as far as practical shall deal with the application in accordance
with the wishes of the employee.
15.2 Maternity Leave
(a) For the purposes
of this award, Adoption Leave entitlements shall be identical to those for
Maternity Leave.
(b) A female
employee who is pregnant and has completed not less than forty (40) weeks
continuous service shall, subject to this clause, be entitled to be granted
maternity leave for a period of up to 12 months, including 3 months on full pay
and the remainder without pay. Having
met these conditions once, the employees shall not be required to work the 40
weeks continuous service again to qualify for further periods of Maternity
Leave.
(c) Maternity Leave
may commence up to three (3) months prior to the expected date of birth.
(d) An employee who
has been granted Maternity Leave may, with the permission of the Museum, take
leave after the actual date of birth on a part-time basis over a period not
exceeding two (2) years, or partly full-time and partly part-time over a
proportionate period.
(e) An employee who
has applied for or been granted Maternity Leave shall, as soon as practical
after the termination of her pregnancy (whether by the birth of a living child
or otherwise), notify the Museum of the termination and the date on which it
occurred.
(f) An employee who
has been granted Maternity Leave and who gives birth to a living child shall
not resume duty, on either a full-time or a part-time basis, before the
expiration of six (6) weeks after the birth of the child, unless a medical
practitioner states that she is fit to do so.
(g) An employee who
has been granted Maternity Leave and whose child is stillborn may elect to take
available Sick Leave instead of Maternity Leave.
(h) An employee who resumes
duty immediately on the expiration of Maternity Leave shall -
(i) if the position
occupied by her immediately before the commencement of that leave still exists
be entitled to be placed in that position;
(ii) if the
position so occupied by her has ceased to exist -
be entitled to be appointed (subject to the
availability of other suitable positions) to another position at the same
graded level or be entitled to a redundancy pay as per the Redundancy Policy.
(i) Except as
otherwise provided by paragraph (b) of this subclause, Maternity Leave shall be
granted without pay.
(j) Applications
and Variations
(i) An employee
shall give written notice of not less than eight (8) weeks prior to the
commencement of Maternity Leave, except if the birth is premature. Such notice shall include a Medical
Certificate stating the expected date of the birth.
An employee who has so notified the Museum may vary the
period of Maternity Leave any number of times before she actually commences
that leave. A minimum of four (4) weeks
notice of variation shall be given, although the Museum may accept less notice
if convenient.
(ii) An employee
after commencing Maternity Leave may vary the period of her Maternity Leave,
once without consent of the Museum, or any number of times with the consent of
the Museum. A minimum of four (4) weeks
notice must be given, although the Museum may accept less notice if convenient.
(k) Calculation of
Leave Credits on Return from Full-time Maternity Leave
Paid Maternity Leave shall be counted as service for
the purposes of calculating the Superannuation vestment period or Long Service
Leave, Recreation Leave, Sick Leave, and other forms of leave entitlement.
(l) Payment in
Advance
Taking into account the wishes of the employee, Maternity
Leave, may be paid at the discretion of the Museum:
(i) on a normal
fortnightly basis; or
(ii) in advance in
a lump sum; or
(iii) at the rate of
half pay over a period of 6 months on a regular fortnightly basis.
(m) Transfer to a More
Suitable Position
Where, because of an illness or risk associated with
her pregnancy, an employee cannot carry out the duties of her position, the
Museum shall be obliged, as far as practicable, to provide employment in some
other position that she is able to satisfactorily perform. This obligation arises from section 70,
Transfer to a safe job of the NSW Industrial Relations Act 1996. A position to which an employee is
transferred under these circumstances must be as close as possible in status
and salary to her substantive position.
(n) Refer also to
Appendix B, State Personal Carer’s Leave Cases 1996 and 1998, Family Provisions
Case 2005, of this award.
15.3 Parental Leave
(a) Subject to such
conditions as may from time to time be determined by the Museum, the Museum may
grant Parental Leave for a period not exceeding twelve (12) months to an
employee who becomes a parent but is not entitled to Maternity Leave or
Adoption Leave.
(b) Parental Leave
may commence at any time up to two (2) years from the date of birth or adoption
of the child.
(c) An employee who
has been granted Parental Leave may, with the permission of the Museum, take
such leave:
(i) full-time for a
period not exceeding twelve (12) months; or
(ii) part-time over
a period not exceeding two (2) years, or partly full-time and partly part-time
over a proportionate period.
(d) An employee who
resumes duty immediately on the expiration of Parental Leave shall -
(i) if the position
occupied by him or her immediately before the commencement of that leave still
exists - be entitled to be placed in that position; or
(ii) if the
position so occupied by him or her has ceased to exist - be entitled to be
appointed (subject to the availability of other suitable positions) to another position
for which he or she is qualified or be entitled to a redundancy pay as per the
Redundancy Policy.
(e) Parental Leave
shall be granted without pay.
(f) Refer also to
Appendix B, State Personal Carer’s Leave Cases 1996 and 1998, Family Provisions
Case 2005, of this award.
15.4 Recreation Leave
(a) Recreation Leave
on full pay accrues to employees at the rate of twenty (20) working days per
year.
(b) Recreation Leave
accrues from month to month only, but for the purposes of calculating
Recreation Leave which may be due on cessation of employment, credit shall be
given for periods of service of less than one (1) month.
(c) Recreation Leave
accrued and not taken by an employee owing to exigencies of the Museum or for
any other reason the Museum considers sufficient, accumulates up to a maximum
of forty (40) working days.
(d) The Museum may
direct an employee to take accrued Recreation Leave at such time as is
convenient to the working of the Museum, but as far as is practical the wishes
of the employees concerned are to be taken into consideration in directing the
time for the taking of leave.
(e) If the Museum is
satisfied that an employee is prevented from taking an amount of Recreation
Leave sufficient to reduce the accrued leave below forty (40) working days, the
leave accrued in excess of forty (40) working days shall not be forfeited,
however the Museum reserves the right to direct the employee to take leave.
Recreation Leave shall not be granted for a period of
less than a half day or in other than multiples of a half day.
(f) Recreation
Leave for which an employee is eligible on cessation of employment shall be
calculated to an exact half day, fractions of less than a half day being taken
to the next higher half day.
(g) Recreation Leave
does not accrue to an employee in respect of any period of absence from duty
without pay or without leave.
(h) The
proportionate deduction to be made in respect of the accrual of Recreation
Leave on account of any period of absence referred to in paragraph (g) of this
subclause shall be calculated to an exact half day. Fractions of less than a quarter day shall be disregarded and not
included in the calculation.
(i) Recreation
Leave accrues in respect of -
(i) any period of leave
without pay granted on account of incapacity for which compensation has been
authorised to be paid under the Workers Compensation Act 1987; or
(ii) any period of
sick leave without pay; or
(iii) any other
period of leave without pay, not exceeding five (5) working days in any period
of twelve (12) months.
(j) If an employee
takes Long Service Leave on half pay, the period of that leave shall be taken
into account to the extent of one-half of the leave only in calculating the
accrual of Recreation Leave.
(k) An employee who
resigns or retires or whose services are otherwise terminated (except by death)
shall, on cessation of employment, be entitled to be paid forthwith in lieu of
Recreation Leave accrued and remaining untaken the money value of that leave.
(l) An employee may
elect to take either the whole or part of the Recreation Leave accrued and
remaining untaken at cessation of active duty as Recreation Leave on full pay
instead of taking the money value of that leave.
(m) Where an employee
has acquired a right to Recreation Leave with pay and dies before entering on
it, or after entering on it dies before its termination -
(i) the spouse or
de facto spouse whether same or opposite sex; or
(ii) if there is no
such spouse or de facto spouse, the children of the employee; or
(iii) if there is no
such spouse or de facto spouse or children, the person who, in the opinion of
the Museum was, at the time of the death of the employee, a dependent relative
of the employee, is entitled to receive the money value of the leave not taken.
(n) If there is no
such person entitled under paragraph (m) of this subclause, the payment to
which those children are entitled may be made to that guardian for their
maintenance, education and advancement.
(o) If there is no
person entitled under paragraphs (m) or (n) of this subclause to receive the
money value of any leave not taken or not completed by an employee or which
would have accrued to an employee, the payment shall be made to the personal
representative of the employee.
(p) Where payment of
the money value of leave has been made under this clause no proceeding may be
brought against the Museum of any amount in respect of that leave.
15.5 Sick Leave
(a) Sick Leave on full
pay accrues to an employee at the rate of ten (10) days each calendar year, and
any such accrued leave which is not taken is cumulative to a maximum of forty
(40) days, except as provided in paragraph (g) of this subclause.
(b) Sick Leave on
full pay accrues at the beginning of the calendar year, but if an employee is
appointed during a calendar year, sick leave on full pay accrues on the date
the employee commences duty at the rate of one (1) day for each complete month
before the next 1 January up to a maximum of ten (10) days.
(c) Sick Leave
without pay shall not be counted as service for the accrual of Sick Leave.
(d) For the purposes
of determining the amount of Sick Leave accrued where Sick Leave is granted on
less than full pay, the amount of Sick Leave granted shall be converted to its
full pay equivalent.
(e) If an employee
who is on Recreation Leave or Long Service Leave furnishes to the Museum a
satisfactory Medical Certificate in respect of illness occurring during that
leave, the Museum may, subject to the provisions of this part relating to Sick
Leave, grant Sick leave to the employee for the following period:
(i) in the case of
an employee on Recreation Leave - the period set out in the Medical
Certificate;
(ii) in the case of
an employee on Long Service Leave - the period set out in the Medical
Certificate, except if that period is less than seven (7) calendar days.
(f) Paragraph (e)
of this subclause applies to all employees other than those on leave prior to
resignation or termination of services, unless the resignation or termination
of services amounts to a retirement.
(g) The Museum may,
at its discretion, grant additional (special) Sick Leave as outlined in
paragraph (h) of this subclause to an employee who:
(i) has exhausted the
Sick Leave entitlement which may be granted under paragraphs (a) and (b) of
this subclause;
(ii) has had ten
(10) or more years of service; and
(iii) is absent on
Sick Leave for a period of at least three (3) months duration.
(h) Special Sick
Leave may be granted as follows:
Completed Years of
Service
|
Number of Working
Days (5 Day Week)
|
10
|
22
|
20
|
44
|
30
|
66
|
40
|
88
|
50
|
110
|
15.6 Sick Leave -
Workers Compensation
(a) This clause applies
where an employee is or becomes unable to attend for duty or to continue on
duty in circumstances which may give the employees a right to claim
compensation under the Workers Compensation Act 1987.
(b) If an employee
has made a claim for any such compensation, the employee may, pending the
determination of that claim and subject to the provisions of this clause
relating to Sick Leave, be granted by the Museum Sick Leave on full pay for
which the employee is eligible, and if that claim is accepted the equivalent
period of any Sick Leave shall be restored to the credit of the employee.
(c) An employee who
continues in receipt of compensation after the completion of the period of
twenty six (26) weeks referred to in section 36 of the Workers Compensation
Act 1987 may, subject to the provisions of this clause relating to Sick
Leave, be paid an amount representing the difference between the amount of
compensation payable under that Act and the ordinary rate of pay of the
employee but Sick Leave equivalent to the amount of the difference so paid
shall be debited against the employee.
(d) If an employee
notifies the Museum that he or she does not intend to make a claim for any such
compensation, Sick Leave on full pay may be granted by the Museum.
(e) If an employee,
who is required to submit to a Medical Examination under the Workers
Compensation Act 1987 in relation to a claim for compensation under the
Act, refuses to submit to or in any way obstructs any such examination, the
employee shall not be granted Sick Leave on full pay until that examination has
taken place and a Medical Certificate has been given indicating that the
employee is not fit to resume duty.
(f) If, as a result
of any such Medical Examination, a Certificate is given under the Workers
Compensation Act 1987 setting out the condition and fitness for employment
of the employee or the kind of employment for which the employee is fit, and
the Museum makes available to the employee employment falling within the terms
of that certificate and the employee refuses or fails to resume or perform the
employment so provided, all payments in accordance with this clause shall cease
from the date of that refusal or failure.
(g) Notwithstanding paragraphs
(b) or (c) of this subclause, if there is a commutation of weekly payments of
compensation by the payment of a lump sum pursuant to section 51 of the Workers
Compensation Act 1987, there shall then be no further Sick Leave granted on
full pay.
15.7 Sick Leave -
Other than Workers Compensation
(a) If the
circumstances of an injury to or illness of an employee may give rise to a
claim for damages or to compensation, other than compensation under the Workers
Compensation Act 1987, Sick Leave on full pay may, subject to an in
accordance with this clause, be granted to the employee on completion by the
employee of an undertaking in form approved by the Museum that any such claim
if made will include a claim for the value of any period of Sick Leave on full
pay granted and that, in the event that the employee receives or recovers
damages or compensation pursuant to the claim for loss of salary or wages
during any such period of Sick Leave, the employee will repay the Museum such
money as is paid by the Museum in respect of any such period of Sick Leave.
(b) Sick Leave on
full pay shall not be granted to an employee who refuses or fails to complete
an undertaking referred to in paragraph (a) of this subclause except with the
express approval of the Museum given on the grounds that the refusal or failure
is unavoidable in the circumstances.
(c) On repayment
made to the Museum pursuant to an undertaking given by an employee, Sick Leave
equivalent to that repayment, calculated at the ordinary rate of pay of the
employee, shall be restored to the credit of the employee.
15.8 Sick Leave to
Care for a Family Member
Refer to 1, Use of Sick Leave, in Appendix B, State
Personal Carer’s Leave Cases 1996 and 1998, Family Provisions Case 2005, of
this award.
15.9 Special Leave
Special Leave may be granted to an employee on a paid
or unpaid basis at the discretion of the Museum for the following
purposes: Compassionate Leave, Military
Leave, Jury Service, attendance in court, emergency volunteer activities, trade
union activities, academic study, examination leave, graduation and academic
ceremonies, professional meetings, electoral office activities, first aid
training, blood donation, Olympic and Commonwealth Games participation,
National Aborigines Day celebrations (where an employee identifies as an
Aborigine), or in other cases of pressing necessity.
15.10 Long Service
Leave
(a) Full and
Part-time employees are entitled after service of ten (10) years, to leave for
three (3) months on full pay or six (6) months on half pay, and after ten (10)
years service to an amount of leave on a pro rata basis to three (3) months for
every additional ten (10) years worked.
(b) For the purpose
of calculating the entitlement of an employee to Long Service Leave under this subclause:
(i) service
commences from the date of commencement of employment (as a full time or part
time employee) with the Museum or the date of the commencement of employment
with The University of Sydney if the employee subsequently transferred to the
Museum.
(ii) Long Service
Leave previously taken will be excluded from any calculation of Long Service
Leave due.
(c) If the services
of an employee with at least five (5) years service and less than ten (10)
years service are terminated:
(i) by the Museum
for any reason other than the employee's serious and intentional misconduct; or
(ii) by the
employee on account of illness, incapacity or other exceptional circumstances
subject to the discretion of the Museum,
The employee is entitled:
(iii) for five (5)
years of service, to 1.5 month's leave on full pay; and
(iv) for service
after five (5) years, to a proportionate amount of leave on full pay calculated
on the basis of three (3) month's leave for ten (10) years service.
(d) For purposes of
calculating Long Service Leave "service" does not include any period
of Leave Without Pay.
(e)
(i) an employee who
has acquired a right to Long Service Leave with pay under paragraph (a) of this
subclause is entitled, immediately on the termination of the employee's
services, to be paid instead of that leave the money value of the Long Service
Leave in addition to any payment to which the employee may be otherwise
entitled;
(ii) any pension to
which such employee is entitled under the Superannuation Act 1916
commences from and including the date on which the employee's Long Service
Leave if taken, would have commenced.
(f) If an employee
has acquired a right under this clause to Long Service Leave with pay and dies
before starting it, or after starting it dies, paragraphs (m)-(p) of subclause
15.4, Recreation Leave apply.
(g) Any payment
under this clause is in addition to any payment due under any Act under which
superannuation benefits are paid.
(h) Long Service
Leave should be taken at a mutually agreeable time. All efforts will be taken to grant the applicant’s Long Service
Leave following the giving of reasonable notice. Long Service Leave to be approved no longer than 12 months after
receipt of written application except by mutual agreement between the applicant
and the Museum.
16. Study Assistance
16.1 Objectives
Study assistance is available to develop the skills and
versatility of people working in the Museum.
It should be equitably accessible to all employees and should be used to
promote a highly trained and skilled workforce.
The objectives of study assistance are:
(a) to assist
employees to undertake study which is relevant to the Museum and which improves their ability to perform their duties;
(b) to develop the
skills, versatility and adaptability of people working in the Museum;
(c) to provide an
opportunity for employees who have suffered education disadvantage to bridge
gaps in their educational qualifications;
(d) to encourage
employees to pursue the highest standards in courses of study;
(e) to provide a
tangible expression of the commitment to employee development in a cost
effective way.
16.2 Approved Courses
and Study Types
Courses and other forms of study for which Study Leave
may be granted shall be taken on a part time basis provided that they relate to
the student’s current employment and meet one or more of the following
criteria:
(a) be administered
by a recognised public institution;
(b) lead to a
recognised qualification;
(c) be a
bridging/qualifying course;
(d) lead to
membership of a registered professional organisation;
(e) contribute to
the professional development of the employee;
16.3 Part Time Course
A part time course may be undertaken through correspondence
or may require face to face or oral instruction. Study Leave may be granted for an approved course. More than one course may be undertaken at
the same time, provided that the two or more courses together result in a part
time load.
16.4 Study Time
(a) Full time or
part time employees desiring to undertake study shall make written application
to the Course Approval Committee four or more weeks prior to the commencement
of the proposed course.
(b) A maximum of
four (4) hours per week paid leave may be granted for attendance at lectures
and other appropriate study. Such time
shall be considered hours worked for purposes of calculating Sick Leave,
Recreational Leave, Long Service Leave, etc.
Such time shall include travel to and from the place of study.
(c) Study Leave may,
at the discretion of the Director, be granted in accumulated blocks for the
duration of the course.
(d) Study Leave
shall be granted for under-graduate, graduate and post-graduate study. In special circumstances Study Leave may be
granted for overseas study, including scholarships and fellowships, where
applicant can demonstrate financial need.
(e) Where study time
is refused, the employee shall have recourse to the dispute settling procedures
as specified in clause 18, Grievance and Dispute Settling Procedures.
16.5 Examination Leave
(a) Examination
Leave shall be granted to a maximum of five (5) days per annum, at the normal
rate of pay. Such time shall be
considered hours worked for the purposes of calculating Sick Leave, etc.
(b) Pre Examination
Leave is also available at the discretion of the Museum.
16.6 Study Leave
Without Pay
The Director shall consider requests for Leave Without
Pay for the purposes of study in the following instances:
(a) the applicant is
the recipient of a Fellowship or Scholarship which provides its own form of
financial support.
(b) the applicant's
proposed course of study is not considered to be of immediate relevance to the
applicant's skills for which they are employed by the Museum.
(c) repeat subjects
where evidence can be provided that failure was caused by circumstances beyond
their control, such as sickness, domestic circumstances, etc.
Leave Without Pay shall be granted at the discretion of
the Director and shall not be considered time worked for the purposes of
calculating Sick Leave, etc.
16.7 Refusal of Study
Leave
(a) Sufficient
notice must be given of refusal of Study Leave to enable the applicant to
consider alternatives. Counselling
shall be provided to assist applicants in considering alternatives.
(b) The employee has
recourse to the dispute procedures as specified in clause 18, Grievance and
Dispute Settling Procedures.
16.8 Employee
Development and Training Opportunities
(a) Definition
For the purpose of this part, the following are
regarded as employee development and training 'activities'.
(i) employee
development courses conducted by the
Museum;
(ii) short
educational and training courses conducted by generally recognised public or
private educational bodies; and
(iii) conferences,
conventions, seminars, or similar activities conducted by professional, learned
or other generally recognised societies, including Federal or State Government
bodies.
(b) Types of
Activities
The activities defined above can be grouped into three
types:
(i) Activities
considered by the Museum to be essential for the efficient operation of the
Museum.
Such activities would include the attendance at
selected employee training sessions on the operations of a new office machine
such as a computer which they will be required to use, or attendance at a
course which is indirectly related to the work of the employees and is seen as
essential for the employees to perform their duties adequately.
(ii) Activities
considered to be developmental and of benefit to the museum profession:
These activities which are developmental and serve to
enhance the knowledge and skill of employees, being of clear benefit to the
employees both in their work and in their career development as well as having
a consequential benefit for the Museum or the museum profession. These activities would comprise the majority
of employee development and training courses.
(iii) Activities
considered to be principally of benefit to the person and indirectly of benefit
to the museum profession.
Attendance of employees at conferences or professional
societies, or a series of lectures conducted by an educational institution, are
examples of such activities.
(c) Attendance on
duty
Attendance of employees at activities described in
paragraphs (b) (i) and (b) (ii) of this subclause would be regarded as on
duty. This means that where employees
attended such an activity during normal working hours, they would be regarded
as on duty for the purposes of payment of salary.
(d) Conditions for
activities considered to be essential for the efficient operation of the
Museum. Because the activities
described in paragraph (b) (i) of this subclause are seen as essential it is
clear that employees would be entitled to conditions contained in this award on
the basis that the employees are performing their normal duties. These conditions would include.
(i) recognition
that the employees are performing normal duties during the course;
(ii) adjustment for
the hours so worked under flexible working hours;
(iii) payment of
course fees:
(iv) payment of all
actual necessary expenses or payment of allowances in accordance with this
award, provided that the expenses involved do not form part of the course; and
(v) payment of
overtime where the activity could not be conducted during the employee's normal
hours and the Museum is satisfied that the approval to attend constitutes a
direction to work overtime under clause 8, Overtime and Time in Lieu, of this award.
(e) Conditions for
activities considered to be essential for the efficient operation of the Museum
The conditions to apply to the types of activities
described in paragraph (b) (ii) of this subclause would be restricted to:
(i) recognition of
the employee as being on duty during normal working hours whilst attending the
activity;
(ii) payment of
course fees;
(iii) reimbursement
of any actual necessary expenses incurred by the employee for travel costs,
meals and accommodation, provided that the expenses involved do not for part of
the course fee; and
(iv) such other
conditions as may be considered appropriate by the Museum given the
circumstance of attending at the activity, such as compensatory leave for
excess travel or payment of the expenses allowance provided by clause 8,
Overtime and Time in Lieu, of this award.
(f) Conditions for
activities considered to be principally of benefit to the employee and
indirectly of benefit to the Museum.
The activities described in paragraph (b) (iii) of this
subclause would be attended by an employee through the grant of Special Leave
up to a maximum of ten (10) days in accordance with subclause 15.9 Special
Leave of clause 15, Leave, of this award.
17.
Anti-Discrimination
(a) 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.
(b) It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
(c) 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.
(d) Nothing in this
clause is to be taken to affect:
(i) any conduct or
act which is specifically exempted from anti-discrimination legislation;
(ii) offering or
providing junior rates of pay to persons under 21 years of age;
(iii) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(iv) a party to this
award from pursuing matters of unlawful discrimination in any State or Federal
jurisdiction.
(e) This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by the legislation referred to in this clause.
NOTES:
(i) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(ii) Section 56(d)
of the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects ... any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
18. Grievance and
Dispute Settling Procedures
Grievance and dispute settling procedures are in Appendix A
to this award.
19. Deduction of
Union Membership Fees
(a) The Association
shall provide the Museum with a schedule setting out Association fortnightly
membership fees payable by members of the Association in accordance with the
Association's rules.
(b) The Association
shall advise the Museum of any change to the amount of fortnightly membership
fees made under its rules. Any variation to the schedule of Association
fortnightly membership fees payable shall be provided to the Museum at least
one month in advance of the variation taking effect.
(c) Subject to subclauses
(a) and (b) of this clause, the Museum shall deduct Association fortnightly
membership fees from the pay of any employee who is a member of the Association
in accordance with the Association's rules, provided that the employee has
authorised the Museum to make such deductions.
(d) Monies so
deducted from an employee's pay shall be forwarded regularly to the Association
together with all necessary information to enable the Association to reconcile
and credit subscriptions to employees' Association membership accounts.
(e) Unless other
arrangements are agreed to by the Museum and the Association, all Association
membership fees shall be deducted on a fortnightly basis.
(f) Where an
employee has already authorised the deduction of Association membership fees
from their pay prior to this clause taking effect, nothing in this clause shall
be read as requiring the employee to make a fresh authorisation in order for
such deduction to continue.
20. Secure Employment
(a) 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.
(b) Casual
Conversion
(i) 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.
(ii) Every employer
of such a casual employee shall give the employee notice in writing of the
provisions of this subclause 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.
(iii) Any casual
employee who has a right to elect under paragraph (b)(i), upon receiving notice
under paragraph (b)(ii) 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.
(iv) 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.
(v) Once a casual
employee has elected to become and been converted to a full-time employee or a
part-time employee, the employee may only revert to casual employment by
written agreement with the employer.
(vi) 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 (b)(iii), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph (b)(iii), 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.
(vii) Following an
agreement being reached pursuant to paragraph (vi), 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.
(viii) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
(c) Occupational
Health and Safety
(i) 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.
(ii) 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.
(iii) Nothing in
this subclause (c) 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.
(d) 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.
(e) 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.
(f) The parties
agree to negotiate and implement a Memorandum of Understanding (MOU) about the
implementation of the Secure Employment Test Case within 12 months (which
addresses the concerns raised by the Museum in correspondence of 17 June 2009
to the Association.)
21. Area, Incidence,
and Duration
This award shall apply to all employees of the Museum of
Contemporary Art and employees of any affiliate of the Museum of Contemporary
Art as defined in clause 3, Definitions, of this award.
This award is made following a review under section 19 of
the Industrial Relations Act 1996 and rescinds and replaces the Museum
of Contemporary Art Conditions of Employment Award 2005 published 31 March 2006
(358 I.G. 580) and all variations thereof.
The changes made to the award pursuant to the Award Review
pursuant to section 19(6) of the Industrial Relations Act 1996 and
Principle 26 of the Principles for Review of Awards made by the Industrial
Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take
effect on and from 13 August 2009.
The award remains in force until varied or rescinded, the
period for which it was made having already expired.
APPENDIX A
Grievance/Dispute
Procedure
Grievance resolution
The grievance resolution process
Who is responsible for implementing this Policy?
Principles of grievance resolution
(i) What is a
grievance?
(ii) Why raise and
resolve a grievance?
(iii) Grievance
resolution
(iv) Documentation
(v) Natural justice
(vi) The support/information
role for some grievances
(vii) The mediator
role for some grievances
(viii) The advocate
role for some grievances
Grievance resolution:
All employees are entitled to express a grievance and have
that issue or concern examined and resolved.
The intent of the Museum’s grievance resolution policy is
that grievances are managed effectively and in a timely manner in the local
workplace, consistent with award and legislative requirements.
The grievance resolution process
A grievance occurs in the
|
Is the grievance resolved by
|
Yes
|
workplace
|
discussion in the local workplace?
|
|
|
|
|
|
No
|
|
|
|
|
|
Write to immediate supervisor documenting
|
|
|
|
- the grievance
|
|
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- the remedy sought
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Hold a meeting to discuss the matter (within2
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days)
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Is the matter resolved
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Yes
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No
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The employee or Department Manager/Team
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Leader may refer to General Manager
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As soon as practical, hold a meeting to
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Discuss/investigate the matter
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No
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The General Manager may authorise a
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separate investigation
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Yes
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Is the matter resolved?
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Ensure all relevant
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Parties are informed
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of the outcome;
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document and
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follow up as needed
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The General Manager (or delegate) responds in
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Yes
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writing to the employee, including any reasons for
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Stop
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not implementing any proposed remedy
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Note 1: 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 Director
or delegate.
Note 2: The employee may be represented by the Association
at any stage. The grievance or dispute
may be referred to the NSW Industrial Relations Commission by the Association
or the Museum if the matter is unresolved following the use of these
procedures. The employee, Association
and Museum shall be bound by any order or determination by the NSW Industrial
Relations Commission in relation to the dispute.
Note 3: Whilst the procedures outlined in this clause are
being followed, normal work undertaken prior to notification of the grievance
or dispute 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.
Note 4: This is a general summary only.
Who is responsible for implementing this policy?
All grievances brought to the attention of a Supervisor
or Manager must be investigated.
Resolution is sought which is most satisfactory to all parties concerned
and is consistent with any legislative or Award requirements.
For some grievances it may be essential that additional
corrective action is undertaken. This could include change in policy or systems
to ensure that the grievance does not recur. The management of follow-up, implementation
and corrective actions is essential. This is the responsibility of the relevant
Supervisor or Manager.
Within the confines of law, decisions regarding
workplace conditions, relationships and flow and type of work lie with
management. Management also has a responsibility for effectively managing
grievances.
Principles of grievance resolution
(i) What is a
Grievance?
A grievance is a work related problem, concern or
complaint which could be about issues such as:
distribution of work
work relationships
working conditions
access to opportunities for training, equipment,
promotion or higher duties.
In this policy, the following terms are used:
grievant - the person who has the grievance
respondent - any person against whom a grievance is
brought is referred to as the respondent, for example if the grievance is about
harassment, the alleged harasser is the respondent
supervisor - this includes the immediate manager or
team leader.
(ii) Why raise and
resolve a grievance?
Effective grievance management resolves conflict
quickly and effectively, decreasing distractions and improving morale. Grievances may also help identify if
legislative and Award requirements are not being complied with, for example
grievances related to occupational health and safety.
(iii) Grievance
resolution
Reporting a grievance
If you have a grievance you may choose to handle the
matter in a number of ways. The Museum
encourages its employees to resolve grievances at the local workplace
level.
The first step is to discuss the grievance with your
supervisor, work colleague/s or other relevant employees associated with
grievance. For example, if the grievance is related to work allocation, it is
appropriate to discuss the matter with your supervisor. If the grievance is about your work
relationship with a colleague, it is appropriate to discuss the matter with the
colleague direct.
Discussing the matter with the parties directly
involved may be very effective, particularly if they are unaware of the impact
of their behaviour or your concerns.
You have the right to make a formal written complaint
at any time. This Policy provides that
an employee should first document the grievance and the remedy sought, for
their supervisor. A meeting must be held
within two days to aim to resolve the matter.
The following stages are implemented in the process of
resolving a grievance. The depth and thoroughness of each stage will depend on
the gravity of the situation.
Confidentiality is to be maintained at all times. For most grievances it will be the
supervisor who is most directly involved in this process. If the supervisor is the respondent in the
grievance, the grievant should seek the assistance of the supervisor’s manager.
Supervisors receiving a grievance should:
always take the grievance seriously
ask the grievant what remedy they are seeking
discuss the grievance and help the grievant to decide
if the situation can be resolved at the local workplace level
reassure the grievant that their grievance will remain
confidential and will not be disclosed outside the investigation process
assist the grievant in understanding options and steps
in the grievance process
listening to the grievant’s concern or distress.
In conjunction with these responsibilities, the key
stages in the grievance process include the Supervisor:
clarifying the facts and separating these from opinion
and emotion
assessing the seriousness of the matter and involving
expert advice where appropriate
considering if particular formal policies are relevant
to the matters raised
exploring possible options and considering their likely
consequences
considering if it is necessary to investigate the facts
further by interviewing witnesses gathering evidence etc
agreeing on appropriate actions and who will take them
setting completion and review dates
initiating or recommending actions to prevent the
grievance recurring
ensuring that the grievant is informed of the outcome
of the investigation and decision making process.
Investigating a grievance
Grievances may be investigated within the Museum by a
single officer or a panel. The Director or the General Manager will determine
the membership of a panel. For example, a panel may consist of the Team Leader
responsible for the grievant and an independent employee.
Investigations should be fully completed, including the
sign-off of any reports, as quickly as possible and ideally within five working
days. The level of investigation will relate in part to the seriousness of the
grievance.
In carrying out an investigation, the panel must:
be fair and impartial
discuss the grievance with the grievant and obtain as
much information as possible including a description of the events, times/dates
and the names of any witnesses
advise the respondent (if there is one) that a
grievance has been made, describe the nature of it and also obtain a full
description of the events and the names of any witnesses
explain the investigative process to the grievant and
respondent (if there is one)
establish the facts by interviewing any witnesses or
other relevant parties, (taking written statements as required), referring to
file documentation and/or using other appropriate methods
remind all parties not to discuss the matter and assure
them that confidentiality will be maintained
keep factual notes on all discussions, meetings and
interviews
assess whether or not the grievance is substantiated.
Depending on the nature of the grievance, an investigating officer
or panel should consider whether one or more parties should be given
alternative work arrangements for the duration of the investigation. In most
instances this will not be necessary.
In some cases an independent and external investigation
process may be established by the Museum and/or agencies such as the
Anti-Discrimination Board
The outcome of the investigation process is usually a report
which summarises the key events and issues and recommends a course of action to
resolve the complaint.
Resolving informal grievances
It is often possible to resolve informal grievances at the
local workplace level.
If the grievance is minor and all parties are satisfied with
the outcome, formal documentation on the grievant’s and respondent’s personal
file may not be required.
Resolving formal grievances
The investigating officer or panel asks the grievant to
describe any actions that the respondent and/or the organisation should carry out
before the grievant is satisfied. The panel takes these suggestions into
account when it recommends a course of action for approval and adoption. The
relevant Manager, General Manager or Director makes the final decision on the
recommendation.
In those cases which involve breaches of policy, any
disciplinary action which is recommended should be appropriate to the nature of
the offence - consider whether it is a first or a repeated offence, the
severity of the behaviour and so on.
If the grievance was substantiated, appropriate actions may
include one or a combination of:
a verbal or written apology from the respondent
mediation between the parties
skills development for one or both parties
moving the respondent to other work assignments so that
the respondent no longer works with the grievant
a formal warning
temporary or permanent demotion
termination of employment, in serious instances.
It is essential that the relevant Manager co-ordinates any
follow-up action and to ensure that decisions are fully implemented. Advice to
unions may be necessary.
The formal grievance and its outcome should be documented
with copies placed on the appropriate employees’ files.
Employees who have a grievance may also obtain confidential,
personal counselling through the Museum’s Employee Assistance Program (EAP).
(iv) Documentation
Documentation is to be maintained, including copies of
the grievance (if it is in writing) and response. It should also summarise the actions
taken to resolve the matter and include details such as:
dates
times
location
the names of the relevant parties.
The level of documentation will reflect the gravity of
the grievance. Confidentiality needs to be maintained with all the documentation.
It is usually filed on the personnel files of the grievant and respondent.
(v) Natural Justice
It is sometimes alleged that the respondent behaved in
an unacceptable or inappropriate manner, causing the grievance. It is also
important to protect this person’s rights, for example the respondent needs to
be informed of the alleged grievance and be given a right of reply.
The principles of natural justice and procedural
fairness must be adhered to throughout, requiring that:
an impartial and proper investigation of facts and
circumstances is conducted, taking into account any mitigating circumstances
the respondent is given the opportunity and sufficient
notice to present their response to allegations and/or decisions made
all employees are made aware of their right to use the
Museum’s grievance resolution procedures and/or to seek a union representative
at any stage
any penalties imposed are lawful.
(vi) The
Support/Information role for some grievances
In some grievances, the grievant or respondent may wish
to obtain support or information from a third party on a confidential basis.
This may be the case, for example, in harassment cases if an employee is
harassed by their supervisor and is not sure who they should talk to or the
options available to deal with the issue.
Providers of this support or information may include:
Human resource specialists
Other managers and employees
External providers, such as EAP provider - Davidson
Trehaire
External agencies if relevant (eg. Anti-Discrimination
Board).
People providing support or information in this way
must ensure that they are impartial and do not prejudge any matter.
(vii) The Mediator
role for some grievances
In some cases the resolution of a grievance may require
a mediator who, as an independent third party, can assist the grievant and
respondent to resolve the grievance.
The mediator is someone both the grievant and
respondent agree to. The mediator has an important role in actively resolving the
issue in a fair and equitable manner and cannot dismiss it without clarifying
and evaluating it.
The mediator does not have to take responsibility for
someone else’s issues, rather their role is to support and assist the parties
involved. The role of mediator is impartial and judgments of issues and people
are to be avoided.
Mediators may include:
human resource specialists
other managers or employees
external individuals with experience in this role
their Union
At any stage in the process the grievant, respondent
and supervisor may choose to obtain advice from an external mediator such as an
employee assistance program provider.
(viii) The Advocate
role for some grievances
In some grievances, the grievant or respondent may seek
another person to act as an advocate and support them. Advocates may
participate directly in discussions to try to deal with the grievances.
Employees’ advocates usually include:
union delegates or officials
co-workers.
In practice, most grievances do not require the
participation of advocates, particularly if it is effectively managed to the
satisfaction of all parties in the local workplace.
Advocates are most typically involved if a grievance is
of such a serious matter that it may result in formal disciplinary action or an
industrial dispute.
APPENDIX B
State Personal
Carer’s Leave Cases 1996 and 1998, Family Provisions Case 2005
1. Use of Sick
Leave
(a) An employee, other
than a casual employee, with responsibilities in relation to a class of person
set out in 1(c)(ii) who needs the employee’s care and support, shall be
entitled to use, in accordance with this subclause, any current or accrued sick
leave entitlement, provided for at subclause 15.5, Sick Leave of this award,
for absences to provide care and support for such persons when they are ill, or
who require care due to an unexpected emergency. Such leave may be taken for
part of a single day.
(b) The 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, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
(c) 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 a person, is a person of the opposite sex to the
first mentioned person who lives with the first mentioned person as the husband
or wife of that person 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 stepchild, 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 subparagraph:
(1) "relative"
means a person related by blood, marriage or affinity;
(2) "affinity"
means a relationship that one spouse, because of marriage, has to blood relatives
of the other; and
(3) "household"
means a family group living in the same domestic dwelling.
(d) 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 absence.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
Grievance/Disputes Procedure at Appendix A of this award should be followed.
2. 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 class of person set out in 1(c)(ii) above who is ill or who requires care due
to an unexpected emergency.
3. Annual Leave
(a) An employee may
elect, with the consent of the employer to take annual leave not exceeding ten
days in single-day periods, or part thereof, in any calendar year at a time or
times agreed by the parties.
(b) Access to annual
leave, as prescribed in 3(a) above shall be exclusive of any shutdown period
provided for elsewhere under this award.
(c) An employee may
elect with the employers agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
(d) An employee and
employer may agree to defer payment of the annual leave loading in respect of
single-day absences until at least five consecutive annual leave days are
taken.
4. Time Off in
Lieu of Payment for Overtime
(a) An employee may
elect, with the consent of the employer, to take time off in lieu of payment
for overtime at a time or times agreed with the employer within 12 months of
the said election.
(b) Overtime taken
as time off during ordinary-time hours shall be taken at the ordinary-time rate,
that is, an hour for each hour worked.
(c) If, having
elected to take time as leave in accordance with 4(a) above, the leave is not
taken for whatever reason, payment for time accrued at overtime rates shall be
made at the expiry of the 12-month period or on termination.
(d) Where no
election is made in accordance with the said 4(a), the employee shall be paid
overtime rates in accordance with the award.
5. Make-up Time
(a) An employee may
elect, with the consent of the employer, to work "make-up time",
under which the employee takes time off ordinary hours and works those hours at
a later time, during the spread of ordinary hours provided in the award, at the
ordinary rate of pay.
(b) An employee on
shift work may elect, with the consent of the employer, to work "make-up
time" (under which the employee takes time off ordinary hours and works
those hours at a later time), at the shift work rate which would have been
applicable to the hours taken off.
6 Rostered Days
Off [not applicable to Museum]
7 Personal Carers
Entitlement for casual employees -
(a) Subject to the
evidentiary and notice requirements in 1(b) and 1(d) casual employees are
entitled to not be available to attend work, or to leave work if they need to
care for a person prescribed in 1(c)(ii) who are sick and require care and
support, or who require care due to an unexpected emergency, or the birth of a
child.
(b) The employer and
the 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) An employer 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.
8. Bereavement
Leave
(a) An employee other
than a casual employee shall be entitled to up to two days bereavement leave
without deduction of pay on each occasion of the death of a person prescribed
in 8(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 in 1(c)(ii), 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 2, 3, 4, 5
and 6 above. In determining such a request the employer will give consideration
to the circumstances of the employee and the reasonable operational
requirements of the business.
9. Bereavement
entitlements for casual employees
(a) Subject to the
evidentiary and notice requirements in 1(b) and 1(d), casual employees are
entitled to not be available to attend work, or to leave work upon the death in
Australia of a person prescribed in 1(c)(ii) above.
(b) The employer and
the 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) An employer 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.
10. Parental Leave -
Family Provisions Case 2005
(a) 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)
(b) An employer must
not fail to re-engage a regular casual employee (see section 53(2) of the Act)
because:
(i) the employee or
employee's spouse is pregnant; or
(ii) 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.
(c) Right to request
(i) An employee
entitled to parental leave may request the employer to allow the employee:
(A) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(B) to extend the period
of unpaid parental leave for a further continuous period of leave not exceeding
12 months;
(C) 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.
(ii) 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.
(iii) Employee’s
request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made
under 10(c)(i)(B) and 10(c)(i)(C) must be recorded in writing.
(iv) Request to
return to work part-time
Where an employee wishes to make a request under
10(c)(i)(B), 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.
(d) Communication
during parental leave
(i) 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:
(A) 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
(B) 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.
(ii) 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.
(iii) 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 10(d)(i) above.
D.W.
RITCHIE, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.