Public
Health System Nurses' & Midwives'
(State)
Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by New South
Wales Nurses' Association, Industrial Organisation of Employees.
(No. IRC 1220 of 2006)
Before The Honourable
Justice Wright, President
|
5 April 2006
|
VARIATION
1. Insert in
alphabetical order the following new clause and subject matter into clause 1,
Arrangement of the award published 24 February 2006 (357 I.G. 345), and renumber
existing clause numbers 57, and 58 to read as 58 and 59 respectively:
57. Occupational Health and Safety for Employees of Contractors
and Labour Hire Businesses
2. Delete Part
II, Casual Employees of clause 29, Part-Time, Casual and Temporary Employees,
and insert in lieu thereof the following:
PART II - CASUAL EMPLOYEES
A. General
Provisions
(i) A casual
employee is one engaged on an hourly basis otherwise than as a permanent
part-time or full-time employee.
(ii) A casual employee
shall be paid an hourly rate calculated on the basis of one thirty-eighth of
the appropriate rate, prescribed by clause 9, Salaries, plus 10 per centum
thereof, with a minimum payment of 2 hours for each start, and one
thirty-eighth of the appropriate allowances prescribed by clause 19, Uniform
and Laundry Allowances.
(iii) With respect
to a casual employee the provisions of clause 41, Deputy Directors of Nursing,
Assistant Directors of Nursing; clause 7, Hours of Work and Free time of
Directors of Nursing and Area Managers, Nurse Education; clause 25, Overtime;
clause 30, Annual Leave; clause 16, Fares and Expenses; clause 20, Mobility,
Excess Fares and Travelling, Clause 55, Learning and Development Leave and
sub-clause (vii) of clause 38, Accommodation and Board, shall not apply.
Further, casual employees shall not be entitled to an
additional day off or part thereof as prescribed by subclauses (iii) and (v) of
clause 4, Hours of Work and Free Time of Employees Other Than Directors of
Nursing and Area Managers, Nurse Education.
(iv) For the
entitlement to payment in respect of annual leave, see Annual Holidays Act,
1944.
(v) A casual
employee who is required to and does work on a public holiday as defined in
sub-clauses (iii) and (iv) of clause 30, Annual Leave, shall be paid for the
time actually worked at the rate of double time and one-half such payment being
in lieu of weekend or shift allowances which would otherwise be payable had the
day not been a public holiday; provided that a casual employee shall not be
entitled to be paid in addition the allowance of 10 per centum prescribed in
subclause (ii) of Part III in respect of such work.
(vi) Where a casual
employee has been notified by an employer of a time to commence an engagement
and that engagement is subsequently cancelled by the employer with less than 2
hours notice the casual employee must be paid a minimum payment of 2 hours
calculated at the rate which would have applied had the cancellation not
occurred.
(vii) A casual
employee must not be required to work more than 12 consecutive hours unless the
casual employee consents to do so.
B. Casual
Conversion
(i) The objective
of this subclause B, Casual Conversion, 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. These provisions arise from the Secure Employment Test
Case 2006.
(ii) 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.
(iii) Every
employer of such a casual employee shall give the employee notice in writing of
the provisions of this sub-clause within four weeks of the employee having
attained such period of six months. However, the employee retains his or her
right of election under this subclause if the employer fails to comply with
this notice requirement.
(iv) Any casual
employee who has a right to elect under paragraph (ii), upon receiving notice
under paragraph (iii) 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.
(v) 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.
(vi) 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.
(vii) 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 (iv), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph (iv), discuss and agree upon:
(a) whether the
employee will convert to full-time or part-time employment; and
(b) 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 or 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.
(viii) Following an
agreement being reached pursuant to paragraph (vii), 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.
(ix) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
3. Insert after
clause 56, Career Break Scheme, the following new clause and renumber the
existing clauses 57, Reviews and Commitments during term of this Award and 58,
Area, Incidence and Duration, to read as clause 58 and 59 respectively:
57. Occupational
Health and Safety for Employees of Contractors and Labour Hire Businesses
(i) This clause arises
from the Secure Employment Test Case 2006.
For the purposes of this subclause, the following definitions shall
apply:
(a) 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.
(b) 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):
(a) consult with
employees of the labour hire business and/or contract business regarding the
workplace occupational health and safety consultative arrangements;
(b) 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;
(c) 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
(d) 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 clause 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.
(iv) 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.
(v) 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.
4. This
variation shall take effect from 5 April 2006.
F.
L. WRIGHT J , President
____________________
Printed by
the authority of the Industrial Registrar.