Teachers (Independent Schools) (State) Award 2004

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

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

 

(No. IRC 32 of 2006)

 

 

VARIATION

 

1.          Delete subclause 10.3, of clause 10, Leave, of the award published 17 June 2005 (351 I.G. 872), and insert in lieu thereof the following:

 

10.3      Carer’s Leave

 

(a)        Use of Sick Leave

 

(i)         A teacher, other than a casual teacher, with responsibilities in relation to a class of person set out in 10.3 (a) (iii) who needs the employee’s care and support, shall be entitled to use, in accordance with this subclause, ten days of his or her current and 30 days of his or her accrued sick leave entitlement, provided for at Clause 10.1 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.

 

(ii)        The teacher shall, if required,

 

(a)        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

 

(b)        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 teacher.

 

In normal circumstances, a teacher must not take carer’s leave under this subclause where another person had taken leave to care for the same person.

 

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

 

(A)       the teacher being responsible for the care of the person concerned; and

 

(B)       the person concerned being: -

 

(1)        a member of the teacher’s immediate family; or

 

(2)        a member of the employee’s household.

 

The term "immediate family" includes:

 

(aa)      a spouse (including former spouse, a de facto spouse and a former de facto spouse) of the teacher.  A de facto spouse, in relation to a person, means 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 the person; and

 

(bb)     a child or adult child (including an adopted child, a step child, a foster child or an ex-nuptial child), a parent (including a foster parent or legal guardian), grandparent, grandchild or sibling of the teacher or spouse of the teacher.

 

(iv)       The teacher shall not be entitled to paid carer’s leave unless he or she notifies the Principal of the school (or a person deputised by the Principal) of the need for carer’s leave and the estimated period of absence at the first available opportunity and, where possible, before the first organised activity at the school on the day of absence.  The teacher will have sick leave credits available to the extent of the leave to be taken.

 

(v)        Notwithstanding clause 10.3 (a), a part-time teacher is only entitled to an amount of carer’s leave in the same proportion the teaching hours of a part-time teacher bears to the teaching hours which a full-time teacher at the school is normally required to teach.

 

(vi)       Any carer’s leave taken in accordance with this clause shall be deducted from the sick leave entitlement of the teacher in accordance with Clause 10.1 Sick Leave.

 

(b)       Unpaid Leave for Family Purpose

 

A teacher may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a member of a class of person set out in 10.3 (a) (iii) above who is ill or who requires care due to an unexpected emergency.

 

(c)        Personal Carers entitlement for casual teachers

 

(i)         Subject to the evidentiary and notice requirements in subparagraphs (ii) and (iv) of paragraph (a) of this subclause, casual teachers are entitled to not be available to attend work, or to leave work if they need to care for a person prescribed in subclause (iii) of paragraph (a) 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.

 

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

 

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

 

2.          Insert after paragraph 10.4 (c), of the said clause 10, the following new paragraphs:

 

(d)        Casual Teachers

 

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

 

(i)         the teacher or teacher's spouse is pregnant; or

 

(ii)        the teacher is or has been immediately absent on parental leave.

 

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

 

(e)        Right to request

 

(i)         A teacher entitled to parental leave may request the employer to allow the teacher:

 

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

 

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

 

The teacher’s request and the employer’s decision made under subparagraphs (i) (B) and (C) of this paragraph must be recorded in writing.

 

(iv)      Request to return to work part-time

 

Where a teacher wishes to make a request under subparagraph (i) (C), 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.

 

(f)         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 teacher held before commencing parental leave; and

 

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

 

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

 

(iii)       The teacher shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with subparagraph (i).

 

3.          Insert at the end of subclause 10.7, of the said clause 10, the following:

 

Subject to the evidentiary and notice requirements in this subclause, casual teachers are entitled to not be available to attend work, or to leave work upon the death in Australia of a person prescribed in subclause 10.3 Carer’s Leave

 

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

 

An employer must not fail to re-engage a casual teacher because the teacher accessed the entitlements provided for in this clause.  The rights of an employer to engage or not engage a casual teacher 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.