Public Health Service Employees Skilled Trades (State) Award (Incorporating the Ambulance Service of NSW Skilled Trades)

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Health Administration Corporation.

 

(No. IRC 389 of 2006)

 

 

VARIATION

 

1.          Insert in alphabetical order in clause 1, Index, of the award published 21 June 2002 (334 I.G. 557), the following new clause numbers and subject matter:

 

31A.    Family and Community Services Leave and Personal/Carer’s Leave

31B.     Maternity, Adoption and Parental Leave

 

2.          Delete clause 31, Miscellaneous Leave Conditions, and insert in lieu thereof the following new clauses 31, 31A, and 31B:

 

31.  Miscellaneous Leave Conditions

 

(i)         Employees shall be granted Repatriation Leave in accordance with Health Department Circular No. 1732 of 1968, as it is amended or superseded from time to time, provided that such amendments or successors will not have force under this Award if they have the effect of providing a set of entitlements on this subject which are overall less beneficial than any relevant ‘test case’ decision as defined.

 

(ii)        Employees shall be granted Study Leave in accordance with Health Department Circular 98/102, as it is amended or superseded from time to time, provided that such amendments or successors will not have force under this Award if they have the effect of providing a set of entitlements on this subject which are overall less beneficial than any relevant ‘test case’ decision as defined.

 

(iii)       Employees shall be granted Military Leave in accordance with Health Department Circular No. 1512 of 1965, as it is amended or superseded from time to time, provided that such amendments or successors will not have force under this Award if they have the effect of providing a set of entitlements on this subject which are overall less beneficial than any relevant ‘test case’ decision as defined.

 

(iv)       Employees shall be granted severance pay in accordance with the Health Department Circular 98/47, as it is amended or superseded from time to time, provided that such amendments or successors will not have force under this Award if they have the effect of providing a set of entitlements on this subject which are overall less beneficial than any relevant ‘test case’ decision as defined.

 

31A.  Family and Community Service Leave and Personal/Carers Leave

 

(i)         Family and community services (FACS) leave and personal/carer’s leave are separate, stand alone entitlements.

 

(ii)        The provisions outlined in Parts A and B of this clause are available to all employees covered by this Award, other than casual employees.

 

(iii)       Casual employees are entitled to the provisions outlined in Part C of this clause. 

 

A.        FACS Leave

 

(i)         FACS Leave - General

 

(a)        For the purpose of this clause relating to FACS leave:

 

"relative" means a person related by blood, marriage or affinity;

 

"affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

"household" means a family group living in the same domestic dwelling.

 

(b)       The appropriate Chief Executive or authorised delegate may grant FACS leave to an employee:

 

(1)        to provide care and/or support for sick members of the employee’s relatives or household; or

 

(2)        for reasons related to the family responsibilities of the employee (e.g. to arrange and or attend a funeral of a relative; to accompany a relative to a medical appointment where there is an element of emergency; parent/teacher meetings; education week activities; to meet elder-care requirements of a relative); or

 

(3)        for reasons related to the performance of community service by the employee (e.g. in matters relating to citizenship; to office holders in local government, other than as a mayor, for attendance at meetings, conferences or other associated duties; representing Australia or the State in major amateur sport other than in Olympic/Commonwealth Games); or

 

(4)        in a case of pressing necessity (e.g. where an employee is unable to attend work because of adverse weather conditions which either prevent attendance or threaten life or property; the illness of a relative; where a child carer is unable to look after their charge).

 

(ii)        FACS leave replaces compassionate leave.

 

(iii)       An employee is not to be granted FACS leave for attendance at court to answer a criminal charge, unless the Chief Executive or authorised delegate approves the grant of leave in the particular case.

 

Applications for FACS leave to attend court, for reasons other than criminal charges, will be assessed on an individual basis.

 

(iv)       FACS Leave - entitlement

 

(a)        The maximum amount of FACS leave on full pay that may be granted to an employee is:

 

(1)        3 working days during the first year of service, commencing on and from 1 January 1995, and thereafter 6 working days in any period of 2 years; or

 

(2)        1 working day, on a cumulative basis effective from 1 January 1995, for each year of service after 2 years’ continuous service, minus any period of FACS leave already taken by the employee since 1 January 1995,

 

whichever method provides the greater entitlement.

 

(b)       For the purposes of calculating entitlements under (vi)(a)(1) and (2) above, a working day for employees working 38 hours per week shall be deemed to consist of 8 hours.  The rate at which FACS leave is paid out and utilised shall be on actual hours absent from a rostered shift. 

 

Example A:  An employee working 38 hours per week will have an entitlement, in their first year of employment, to 24 hours of FACS leave.  If the employee take FACS leave for a full 8 hour shift, the employee would be debited 10 hours of FACS leave.

 

Example B:  An employee, employed prior to 1 January 1995, applies for FACS leave on 20 February 1997.  The employee is entitled to 6 days in any period of two years.  Therefore, to calculate the employee’s available FACS leave as at 20 February 1997, add all FACS leave taken from 21 February 1995 to 20 February 1997 and deduct that amount from the 6 days entitlement. 

 

(c)        FACS leave is available to part-time employees on a pro rata basis, based on the average number of hours worked per week.  A working day shall consist of one-fifth of the employee’s average weekly hours during the preceding 12 months or during the employee’s period of employment, whichever is the lesser period. 

 

Example:  An employee working an average of 30 hours per week will have an entitlement, in his/her first year of employment, of 18 hours of FACS leave.  If the employee takes FACS leave for a full rostered shift eg of 4 hours, the employee would be debited 4 hours of FACS leave. Likewise, if the employee was rostered for 8 hours and was absent for the full 8 hours on FACS leave, he/she would be debited 8 hours of FACS leave.

 

(v)        Additional FACS leave for bereavement purposes

 

Where FACS leave has been exhausted, additional FACS leave of up to 2 days for bereavement may be granted on a discrete, "per occasion" basis to an employee on the death of a relative or member of a household as defined in subclause (i) (a) of Part A of this clause.

 

(vi)       Use of other leave entitlements

 

The appropriate Chief Executive or authorised delegate may grant an employee other leave entitlements for reasons related to family responsibilities or community service, by the employee. 

 

An employee may elect, with the consent of the employer, to take annual leave; long service leave; or leave without pay.

 

B.         Personal/Carer’s Leave

 

(i)         Use of sick leave to care for the person concerned - definitions

 

A person who needs the employee’s care and support is referred to as the "person concerned" and is:

 

(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 step child, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or 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 purpose of this clause relating to Personal/Carer’s Leave:

 

"relative" means a person related by blood, marriage or affinity;

 

"affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

"household" means a family group living in the same domestic dwelling.

 

(ii)        Use of sick leave to care for the person concerned - entitlement

 

(a)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

(1)        the employee being responsible for the care and support of the person concerned; and

 

(2)        the person concerned being as defined in subclause (i) of Part B of this clause.

 

(b)       Other than a casual or any other employee who receives a loading in lieu of sick leave, an employee with responsibilities in relation to a person who needs their care and support shall be entitled to use the untaken sick leave, from that year’s annual sick leave entitlement, to provide care and support for such persons when they are ill.

 

(c)        Sick leave accumulates from year to year.  In addition to the current year’s grant of sick leave available under (b) above, sick leave untaken from the previous 3 years may also be accessed by an employee with responsibilities in relation to a person who needs their care and support.

 

(d)       The Chief Executive or authorised delegate may, in special circumstances, make a grant of additional sick leave.  This grant can only be taken from sick leave untaken prior to the period referred to in subclause (c) above.

 

(e)        The employee shall, if required, establish either by production of a medical certificate or statutory declaration, that the illness of the person concerned is such as to require care by another person.

 

(f)        The employee has the right to choose the method by which the ground for leave is established, that is, by production of either a medical certificate or statutory declaration.

 

(g)       The employee is not required to state the exact nature of the relevant illness on either a medical certificate or statutory declaration.

 

(h)       The 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.

 

(i)         In normal circumstances, the employee must not take leave under this part where another person has taken leave to care for the same person.

 

(iii)       Use of other leave entitlements

 

An employee may elect, with the consent of the employer, to take:

 

(a)        annual leave, including annual leave not exceeding 10 days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.  An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least 5 consecutive annual leave days are taken.  An employee may elect with the employer’s agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

(b)       long service leave; or

 

(c)        leave without pay for the purpose of providing care and support to the person concerned as defined in subclause (i) of Part B of this clause.

 

(iv)       Time off in lieu of payment of overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment of 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 shall be taken at the ordinary time rate, that is, one hour off for each hour of overtime worked.

 

(c)        If, having elected to take time as leave in accordance with (iv)(a) above and the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve 12 month period from the date the overtime was worked, or earlier by agreement, or on termination.

 

(d)       Where no election is made in accordance with paragraph (iv)(a) above, the employee shall be paid overtime rates in accordance with the provisions of clause 5, Overtime.

 

(v)        Use of make-up time

 

(a)        An employee may elect, with the consent of the employer, to work "make-up time". "Make-up time" is worked when the employee takes time off during ordinary hours for family or community service responsibilities, and works those hours at another time, during the spread of ordinary hours provided for in clause 4 of this 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 during ordinary hours and works those hours at another time) at the applicable shift work rate which would have been applicable to the hours taken off. 

 

C.         Entitlements for Casual Employees

 

(i)         Bereavement entitlements for casual employees

 

(a)        Casual employees are entitled to not be available to attend work or to leave work upon the death in Australia of a relative or member of a household as prescribed in subclause (i)(a) of Part A of this clause.

 

(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 part.  The rights of an employer to engage or not engage a casual employee are otherwise not affected. 

 

(ii)        Personal carers entitlement for casual employees

 

(a)        Subject to the evidentiary and notice requirements in subclauses (ii)(e) - (h) of Part B of this clause 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 subclause (i) of Part B of this clause 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 part.  The rights of an employer to engage or not to engage a casual employee are otherwise not affected.

 

31B.  Maternity, Adoption and Parental Leave

 

A.        Maternity Leave

 

(i)         Eligibility for Paid Maternity Leave

 

To be eligible for paid maternity leave a full time or part-time employee must have completed at least 40 weeks continuous service prior to the expected date of birth.

 

An employee who has once met the conditions for paid maternity leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid maternity leave, unless -

 

(a)        there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after her services have been otherwise dispensed with: or

 

(b)       the employee has completed a period of leave without pay of more than 40 weeks.  In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987.

 

(ii)        Portability of Service for Paid Maternity Leave

 

Portability of service for paid maternity leave involves the recognition of service in public sector organisations for the purpose of determining an employee's eligibility to receive paid maternity leave.  For example, where an employee moves between a Public Sector Department and a public hospital, previous continuous service will be counted towards the service prerequisite for paid maternity leave.

 

When determining an employee's eligibility for paid maternity leave, continuous service with an organisation that is part of the public sector service as defined in the Public Sector Employment and Management Act 2002 will be recognised, provided that:

 

(a)        service was on a full-time or permanent part-time basis:

 

(b)       cessation of service with the former employer was not by reason of dismissal on any ground, except retrenchment or reduction of work;

 

(c)        the employee commences duty with the new employer on the next working day after ceasing employment with the former employer (there may be a break in service of up to two months before commencing duty with the new employer provided that the new position was secured before ceasing duty with the former employer.  However, such a break in service will not be counted as service for the purpose of calculating any prior service prerequisite for paid maternity leave.)

 

(iii)       Entitlement to Paid Maternity Leave

 

An eligible employee is entitled to fourteen weeks at the ordinary rate of pay from the date maternity leave commences.  This leave may commence up to fourteen weeks prior to the expected date of birth.

 

It is not compulsory for an employee to take this period off work. However, if an employee decides to work during the nine weeks prior to the date of birth it is subject to the employee being able to satisfactorily perform the full range of normal duties.

 

Paid maternity leave may be paid:

 

on a normal fortnightly basis; or

 

in advance in a lump sum; or

 

at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

 

Annual and/or long service leave credits can be combined with periods of maternity leave on half pay to enable an employee to remain on full pay for that period.

 

(iv)       Unpaid Maternity Leave

 

(a)        Full time and part time employees who are entitled to paid maternity leave are entitled to a further period of unpaid maternity leave of not more than 12 months after the actual date of birth.

 

(b)       Full time and part time employees who are not eligible for paid maternity leave are entitled to unpaid maternity leave of not more than 12 months. 

 

(v)        Applications

 

An employee who intends to proceed on maternity leave should formally notify her employer of such intention as early as possible, so that arrangements associated with her absence can be made.

 

Written notice of not less than eight weeks prior to the commencement of the leave should accordingly be given.  This notice should indicate the period of leave desired and must include a medical certificate stating the expected date of birth.

 

(vi)       Variation after Commencement of Leave

 

After commencing maternity leave, an employee may vary the period of her maternity leave once only without the consent of her employer by giving the employer notice in writing of the extended period at least fourteen days’ before the start of the extended period. An employer may accept less notice if convenient.

 

An employee may extend the period of maternity leave at any time with the agreement of the employer.

 

The conditions relating to variation of maternity leave are derived from Section 64 of the Industrial Relations Act 1996.

 

(vii)      Staffing Provisions

 

In accordance with obligations established by the Industrial Relations Act 1996 (Section 69) any person who occupies the position of an employee on maternity leave must be informed that the employee has the right to return to her former position. Additionally, since an employee has the right to vary the period of her maternity leave, offers of temporary employment should be in writing, stating clearly the temporary nature of the contract of employment.  The duration of employment should be also set down clearly; to a fixed date or until the employee elects to return to duty, whichever occurs first.

 

(viii)     Effect of Maternity Leave on Accrual of Leave, Increments etc.

 

When the employee has resumed duties, any period of full pay leave is counted in full for the accrual of annual, sick and long service leave and any period of maternity leave on half pay is taken into account to the extent of one half thereof when determining the accrual of annual, sick and long service leave.

 

Except in the case of employees who have completed ten years' service the period of maternity leave without pay does not count as service for long service leave purposes.  Where the employee has completed ten years' service the period of maternity leave without pay shall count as service provided such leave does not exceed six months.

 

Maternity leave without pay does not count as service for incremental purposes.  Periods of maternity leave at full pay and at half pay are to be regarded as service for incremental progression on a pro-rata basis.

 

Where public holidays occur during the period of paid maternity leave, payment is at the rate of maternity leave received i.e., public holidays occurring in a period of full pay maternity leave are paid at full rate and those occurring during a period of half pay leave are paid at half rate.

 

(ix)       Illness Associated with Pregnancy

 

If, because of an illness associated with her pregnancy an employee is unable to continue to work then she can elect to use any available paid leave (sick, annual and/or long service leave) or to take sick leave without pay.

 

Where an employee is entitled to paid maternity leave, but because of illness, is on sick, annual, long service leave, or sick leave without pay prior to the birth, such leave ceases nine weeks prior to the expected date of birth.  The employee then commences maternity leave with the normal provisions applying.

 

(x)        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, an employer is 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 of the 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.

 

(xi)       Miscarriages

 

In the event of a miscarriage any absence from work is to be covered by the current sick leave provisions

 

(xii)      Stillbirth

 

In the case of a stillbirth, (as classified by the Registry of Births, Deaths and Marriages) an employee may elect to take sick leave, subject to production of a medical certificate, or maternity leave.  She may resume duty at any time provided she produces a doctor's certificate as to her fitness.

 

(xiii)     Effect of Premature Birth on Payment of Maternity Leave

 

An employee who gives birth prematurely and prior to proceeding on maternity leave shall be treated as being on maternity leave from the date leave is commenced to have the child.  Should an employee return to duty during the period of paid maternity leave, such paid leave ceases from the date duties are resumed.

 

(xiv)     Right to return to Previous Position

 

In accordance with the obligations set out in Section 66 of the Industrial Relations Act 1996, an employee returning from maternity leave has the right to resume her former position.

 

Where this position no longer exists the employee is entitled to be placed in a position nearest in status and salary to that of her former position and to which the employee is capable or qualified.

 

(xv)      Further Pregnancy While on Maternity Leave

 

Where an employee becomes pregnant whilst on maternity leave, a further period of maternity leave may be granted. Should this second period of maternity leave commence during the currency of the existing period of maternity leave, then any residual maternity leave from the existing entitlement lapses.

 

An employee who has taken no more than 12 months full time equivalent maternity leave is entitled to be paid at their normal rate (i.e. the rate at which they were paid before proceeding on maternity leave) for another period of such leave regardless of whether they resume their normal hours of work before proceeding on the second period of maternity leave. 

 

B.         Adoption Leave

 

(i)         Eligibility

 

All full time and part time employees who are adopting a child and are to be the primary care giver of the child are eligible for unpaid adoption leave.

 

To be eligible for paid adoption leave a full time or part-time employee must also have completed at least 40 weeks continuous service prior to the date of taking custody of the child.

 

An employee who has once met the conditions of paid adoption leave, will not be required to again work the 40 weeks continuous service in order to qualify for further periods of paid adoption leave, unless

 

(a)        there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after their services have been otherwise dispensed with; or

 

(b)       the employee has completed a period of leave without pay of more than 40 weeks.  In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Worker's Compensation Act 1987.

 

(ii)        Portability of Service for Paid Adoption Leave

 

As per maternity leave conditions.

 

(iii)       Entitlement

 

(a)        Paid Adoption Leave

 

Eligible employees are entitled to paid adoption leave of fourteen weeks at the ordinary rate of pay from and including the date of taking custody of the child.

 

Paid adoption leave may be paid:-

 

on a normal fortnightly basis; or

 

in advance in a lump sum; or

 

at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

 

Annual and/or long service leave credits can be combined with periods of adoption leave at half pay to enable an employee to remain on full pay for that period.

 

(b)       Unpaid Adoption Leave

 

Eligible employees are entitled to unpaid adoption leave as follows: -

 

where the child is under the age of 12 months - a period of not more than 12 months from the date of taking custody;

 

where the child is over the age of 12 months and under 18 years old - a period of up to 12 months, such period to be agreed upon by both the employee and the employer.

 

(iv)       Applications

 

Due to the fact that an employee may be given little notice of the date of taking custody of a child, employees who believe that, in the reasonably near future, they will take custody of a child, should formally notify the employer as early as practicable of the intention to take adoption leave.  This will allow arrangements associated with the adoption leave to be made.

 

(v)        Variation after Commencement of Leave

 

After commencing adoption leave, an employee may vary the period of leave, once without the consent of the employer and otherwise with the consent of the employer. A minimum of fourteen days’ notice must be given, although an employer may accept less notice if convenient.

 

(vi)       Staffing Provisions

 

As per maternity leave conditions.

 

(vii)      Effect of Adoption Leave on Accrual of Leave, Increments, etc

 

As per maternity leave conditions.

 

(viii)     Right to Return to Previous Position

 

As per maternity leave conditions.

 

C.         Parental Leave

 

(i)         Eligibility

 

To be eligible for parental leave a full time or part-time employee must have completed at least 40 weeks continuous service prior to the expected date of birth or to the date of taking custody of the child.

 

An employee who has once met the conditions for paid parental leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid parental leave, unless-

 

(a)        there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after their services have been otherwise dispensed with: or

 

(b)        the employee has completed a period of leave without pay of more than 40 weeks.  In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987.

 

(ii)        Portability of Service for Paid Parental Leave

 

As per maternity leave conditions.

 

(iii)       Entitlements

 

Eligible employees whose spouse or partner (including a same sex partner) is pregnant or is taking custody of a child, are entitled to a period of leave not exceeding 52 weeks, which includes one week of paid leave, and may be taken as follows:

 

(a)        an unbroken period of up to one week at the time of the birth of the child, taking custody of the child or other termination of the pregnancy (short parental leave), and

 

(b)       a further unbroken period in order to be the primary caregiver of the child (extended parental leave).

 

(c)        The entitlement of one week’s paid leave may be taken at anytime within the 52 week period and shall be paid:

 

at the employees ordinary rate of pay for a period not exceeding one week on full pay, or

 

two weeks at half pay or the period of parental leave taken, whichever is the lesser period.

 

(d)       Extended parental leave cannot be taken at the same time as the employee’s spouse or partner is on maternity or adoption leave except as provided for in subclause (i)(a) of Part D Right to Request of this clause.

 

Annual and/or long service leave credits can be combined with periods of parental leave on half pay to enable an employee to remain on full pay for that period.

 

(iv)       Applications

 

An employee who intends to proceed on parental leave should formally notify their employer of such intention as early as possible, so that arrangements associated with their absence can be made.

 

(a)        In the case of extended parental leave, the employee should give written notice of the intention to take the leave. 

 

(b)       The employee must, at least four weeks before proceeding on leave, give written notice of the dates on which they propose to start and end the period of leave, although it is recognised in situations of taking custody of a child, little or no notice may be provided to the employee. In such an instance, the employee should notify the employer as early as practicable.

 

(c)        The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that their spouse or partner is pregnant and the expected date of birth, or in the case of an adoption, an official form or notification on taking custody of the child.

 

(d)       In the case of extended parental leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:

 

(1)        if applicable, the period of any maternity leave sought or taken by his spouse, and

 

(2)        that they are seeking the period of extended parental leave to become the primary care giver of the child.

 

(v)        Variation after Commencement of Leave -

 

After commencing parental leave, an employee may vary the period of her/his parental leave, once without the consent of the employer and otherwise with the consent of the employer.  A minimum of fourteen days’ notice must be given, although an employer may accept less notice if convenient.

 

(vi)       Effect of Parental Leave on Accrual of Leave, Increments etc.

 

As per maternity leave conditions.

 

(vii)      Right to Return to Previous Position

 

As per maternity leave conditions.

 

D.         Right to Request

 

(i)         An employee entitled to maternity, adoption or parental leave may request the employer to allow the employee:

 

(a)        to extend the period of simultaneous maternity, adoption or parental leave use up to a maximum of eight weeks;

 

(b)       to extend the period of unpaid maternity, adoption or parental leave for a further continuous period of leave not exceeding 12 months;

 

(c)        to return from a period of maternity, adoption or 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)       The employee’s request and the employer’s decision made under subclauses (i)(b) and (c) must be recorded in writing.

 

(iv)       Where an employee wishes to make a request under subclause (i)(c):

 

(a)        the employee is to make an application for leave without pay to reduce their full time weekly hours of work

 

(b)       such application must be made as early as possible to enable the employer to make suitable staffing arrangements.  At least four weeks notice must be given;

 

(c)        salary and other conditions of employment are to be adjusted on a basis proportionate to the employee’s full time hours of work i.e. for long service leave the period of service is to be converted to the full time equivalent and credited accordingly.

 

E.         Communication During Leave

 

(i)         Where an employee is on maternity, adoption or 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 the 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 the 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 the 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 subclause (i). 

 

F.         Casual Employees

 

(i)         Casual employees are entitled to parental leave in accordance with the provisions of Part 4, Parental Leave, of 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).

 

(ii)        An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Act) because:

 

(a)        the employee or employee’s spouse is pregnant; or

 

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

 

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

 

3.          This variation shall take effect on and from 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

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Printed by the authority of the Industrial Registrar.