Advisers (Diocese of Maitland-Newcastle) (State) Award 2004

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by New South Wales Independent Education Union, Industrial Organisation of Employees.

 

(No. IRC 33 of 2006)

 

 

VARIATION

 

1.          Delete existing clause 9 Catholic Personal/Carer’s Leave of the award published 4 March 2005 (348 I.G. 967) and insert in lieu thereof the following:

 

9.  Catholic Personal/Carer’s Leave

 

9.1        Use of Sick Leave to Provide Care and Support for a Family Member

 

(a)        An adviser other than a casual adviser, with responsibilities in relation to a class of person set out in subparagraph (ii) of paragraph (c) who needs the adviser’s care and support, shall be entitled to use, in any year, in accordance with this subclause, 10 days of current and 30 days of accrued sick leave entitlement provided for at Clause 11 of the 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 adviser 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 adviser.

 

In normal circumstances, an adviser 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 adviser being responsible for the care of the person concerned; and

 

(ii)        the family member being a parent,  step-parent, spouse, grandchild, sibling,  grandparent, child, step-child, foster child, adopted child and foster parent of the adviser or spouse.

 

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 principal shall discuss appropriate arrangements which, as far as practicable, take account of the employer's and principals requirements.

 

Where the parties are unable to reach agreement the disputes procedure at clause 19 should be followed.

 

9.2        Use of Sick Leave for a Pressing Domestic Necessity

 

(a)        Subject to paragraph (c), for the purposes of this clause "pressing domestic necessity" means any reason at the discretion of the employer, provided that such discretion is not unreasonably withheld and is exercised so as not to contravene any applicable provisions of the Anti-Discrimination Act 1997.

 

(b)        A adviser, other than a casual adviser, with sick leave credits may apply to utilise such credits up to five of any current or accrued sick leave entitlement days in any one year of the adviser’s service, for any pressing domestic necessity other than to care for or support a person defined in subparagraph 9.1(c)(ii).

 

(c)        Where a adviser, other than a casual adviser, is not entitled to utilise sick leave credits pursuant to paragraph 9.1(a) he or she may access 10 days current and 30 days accrued sick leave for any pressing domestic necessity where the adviser is responsible for the care or support of a person not referred to in subparagraph 9.1(c)(ii).

 

(d)        The yearly entitlement for the purpose of pressing domestic necessity in paragraph 9.2(b) is non-cumulative.

 

(e)        If required, a adviser shall provide a written statement or other evidence supporting the application for Personal/Carer’s Leave for the purpose of pressing domestic necessity.

 

9.3        Notification of Intention to Take Leave

 

In relation to sub-clauses 9.1 and 9.2, wherever practicable, an adviser shall give the employer notice prior to the absence of the intention to take leave.  The adviser shall also provide the name of the person requiring care, that person’s relationship to the adviser, the nature of any pressing domestic necessity, the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the adviser to give prior notice of absence, the adviser shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

 

9.4        Unpaid Leave for Family Purpose

 

An adviser may elect, with the consent of the employer to take unpaid leave for the purpose of providing care and support to a person referred to in subparagraph 9.1(c)(ii) or paragraph 9.2(c) who is ill or who requires care due to an unexpected emergency.

 

9.5        Entitlement for casual advisers

 

(a)        Subject to the requirements in paragraph 9.3, casual advisers are entitled to not be available to attend work, or to leave work if they need to care for a person prescribed in subclause 9.1 (c) (ii) of this clause who is sick and requires care and support, or who requires care due to an unexpected emergency, or the birth of a child.

 

(b)        The employer and the adviser shall agree on the period for which the adviser will be entitled to not be available to attend work. In the absence of agreement, the adviser is entitled to not be available to attend work for up to 49 hours (i.e. two days) per occasion. The casual adviser is not entitled to any payment for the period of non-attendance.

 

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

 

2.          Insert after subclause 10.4 of clause 10, Parental Leave the following new subclauses 10.5, 10.6 and 10.7:

 

10.5      Casual Advisers

 

An employer must not fail to re-engage a regular casual adviser (see section 53(2) of the Industrial Relations Act 1996 (NSW)) because:

 

(a)        the adviser or adviser's spouse is pregnant; or

 

(b)        the adviser is or has been immediately absent on parental leave.

 

The rights of an employer in relation to engagement and re-engagement of casual advisers are not affected, other than in accordance with this clause.

 

10.6      Right to request

 

(a)        An adviser entitled to parental leave may request the employer to allow the adviser:

 

(i)         to extend the period of simultaneous unpaid parental leave 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 adviser in reconciling work and parental responsibilities.

 

(b)        The employer shall consider the request having regard to the adviser’s circumstances and, provided the request is genuinely based on the adviser’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)        Adviser’s request and the employer’s decision to be in writing

 

The adviser’s request and the employer’s decision made under subparagraphs (a) (ii) and (iii) of this paragraph must be recorded in writing.

 

(d)        Request to return to work part-time

 

Where an adviser wishes to make a request under subparagraph (a) (iii), such a request must be made as soon as possible before the date upon which the employee is due to return to work from parental leave.

 

10.7      Communication during parental leave

 

(a)        Where an adviser 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 adviser held before commencing parental leave; and

 

(ii)        provide an opportunity for the adviser to discuss any significant effect the change will have on the status or responsibility level of the position the adviser held before commencing parental leave.

 

(b)        The adviser shall take reasonable steps to inform the employer about any significant matter that will affect the adviser’s decision regarding the duration of parental leave to be taken, whether the adviser intends to return to work and whether the adviser intends to request to return to work on a part-time basis.

 

(c)        The adviser 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).

 

3.          Insert after paragraph (f) of subclause 13.1 Bereavement Leave of clause 13 Other Leave the following new subclause:

 

(g)        Bereavement entitlement for Casual Advisers

 

(i)         Casual advisers are entitled to not be available to attend work, or to leave work upon the death in Australia of a person prescribed in relation to whom the principal could have utilised Catholic Personal/Carer's Leave in subclause 9.5 provided that for the purpose of this bereavement entitlement, the casual adviser need not have been responsible for the care of the person concerned.  A casual adviser must notify their employer as soon as practicable of their intention to access this entitlement and may be required to provide the employer with satisfactory evidence of such death.

 

(ii)        The employer and the adviser shall agree on the period for which the adviser will be entitled to not be available to attend work. In the absence of agreement, the adviser is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual adviser is not entitled to any payment for the period of non-attendance.

 

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

 

4.          This variation shall take effect from 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.