HEALTH INDUSTRY STATUS OF EMPLOYMENT (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Health
Services Union, industrial organisation of employees.
(No. IRC 6409 of 2005)
Before The Honourable
Justice Boland
|
16 December 2005
|
AWARD
Arrangement
Clause No. Subject Matter
1. Definitions
2. Principles
3. Loadings
4. Arrangements
for Existing Part-time Workers
5. Process
for Resolving Inconsistencies
6. Dispute
Resolution
7. Anti-Discrimination
8. Area,
Incidence and Duration
1. Definitions
1.1 NSW Health for
the purpose of this award means the New South Wales Health Service as defined
in section 16 of the Health Services Act 1997.
1.2 Employee means
a person who is engaged on either a full time, part time, temporary, exempt or
casual basis under a contract of employment within NSW Health.
1.3 Casual
employee means a person who may be engaged on an hourly basis, for a period
which does not extend beyond one week, to provide services related to the
unexpected absence of temporary, permanent or exempt employees. This provision
may also encompass short-term employment associated with unanticipated peak
demands.
1.4 Temporary
employee means a person who is engaged as an employee for a period not
exceeding 13 weeks, provided that fixed term contracts of employment, whether
for periods greater or lesser than 13 weeks, must not be offered in preference
to ongoing contracts.
1.5 Permanent
employee means a person appointed as such or a person who has worked in the
same position, including a permanent relief position, for a continuous period
of 13 weeks other than as an exempt employee.
Permanency is subject to the outcome of any appeal process.
1.6 Exempt employee
means a person who is engaged for a continuous period and whose employment
involves:
relief for periods in excess of 13 weeks during the
absence of existing employees or;
specific projects which are time limited or;
functions which involve funding for a specific period
and which is not of a recurrent nature or;
forthcoming service reductions which have a
predetermined date.
Exempt employees as defined do not attract casual or
temporary loadings.
1.7 Continuous
period of employment means an uninterrupted period of 13 weeks employment
involving at least one shift per week in that period, but does not refer to
exempt employees as defined.
2. Principles
2.1 Employees who
are engaged in meaningful work on a continuing basis are entitled to an expectation
of permanency of employment subject to the provisions of this award.
2.2 It is the
responsibility of NSW Health to ensure that all employees, upon engagement and
at all appropriate times, are correctly classified as exempt, casual,
temporary, or permanent according to the above definitions.
2.3 Where a person
changes from casual to either temporary or permanent, the employment status of
the person is deemed to have changed automatically.
2.4 During the
period of continuing employment the status of an employee cannot be changed
from permanent to temporary or casual or from temporary to casual, without the
prior written consent of the employee.
2.5 All permanent
employees are required as part of their contract of employment, to use their
best endeavours to provide four weeks notice of their intention to terminate
their employment contract.
2.6 Any position
which would involve the employment of an exempt, temporary or permanent
employee, upon falling vacant, will, where such a position continues to be
required in its current form by the Health Service, be advertised within the
Health Service and/or external to the Health Service. Positions should be filled under the merit principle of
selection.
2.7 A person who,
by definition, is a temporary employee for a period of less than 13 weeks may
be re-engaged by the same Health Service under more than one employment
contract provided the aggregate period of the contracts, where consecutive,
does not exceed 13 weeks.
2.8 Where the
employee is retained beyond a continuous period of 13 weeks in the same
position the employee is deemed to be permanent, subject to the outcome of any
appeal. The application of this sub clause shall not be applied in a manner
which is inconsistent with legislation or Government recruitment and employment
policy, as varied from time to time. This subclause does not apply to an exempt
employee as defined.
3. Loadings
3.1 Casual
Employees - A casual employee will be paid for the number of hours worked each
week at an hourly rate, calculated at the same hourly rate as prescribed for a
full time employee in the same classification and grade plus 10 per cent
loading. A minimum payment of 2 hours at ordinary pay on each occasion the
employee commences a shift will apply.
3.2 Temporary
Employees - A temporary employee shall be paid for the number of hours worked
each week on an hourly rate calculated at the same hourly rate as prescribed
for a full time employee in the same classification plus 10 per cent loading.
The loading shall cease to apply if:
(a) the period of
employment extends beyond 13 weeks
(b) the employer
and the employee agree, during the period of 13 weeks, that the employee will
be employed on a permanent basis.
4. Arrangements for
Existing Part-Time Workers
4.1 Payment of 15%
Allowance - Persons engaged as at 1 January 2000 and who were paid the 15%
loading at that date will continue to receive that loading but only for the
remainder of the existing part time employment contract. Receipt of the
allowance will cease if the contract is completed or where an employee requests
a transfer or is promoted to another position.
4.2 Conditions -
Persons covered by clause 5.1 of this clause will, for the duration of any
existing part-time employment contract and while remaining in their current
position, retain existing part-time provisions. They will not be entitled to pro rata entitlements as outlined
elsewhere within applicable awards.
5. Process for
Resolving Inconsistencies
5.1 The Awards
contained in the attached schedule "A" as varied from time to time,
shall also apply, where appropriate, to persons covered by this award.
5.2 To the extent
that any inconsistency exists between the conditions provided by this award and
that provided by an award contained in the attached schedule "A" this
award will prevail.
6. Dispute Resolution
6.1 Where a
dispute arises in a particular section which cannot be resolved between the
employees or their representative and the supervising staff, it shall be
referred to the Designated Manager of the hospital or service unit or his/her
nominee who will arrange for the matter to be discussed with the employee
concerned and if requested a local representative or representatives of the
Union.
6.2 If the matter
is not resolved within a reasonable time it must be referred by the Designated
Manager to the Chief Executive Officer of the employer (or his or her nominee)
and may be referred by the employee to the Union's Head Office. Discussions at this level must take place
within a reasonable time with a view to resolving the issue in dispute. Failing
settlement of the issue at this level, the matter shall be dealt with in
accordance with sub-clause 7.3 of this clause.
6.3 With a view to
amicable and speedy settlement of all disputes that firstly cannot be settled
by a local management and the Union or its representatives, disputes may be
submitted to a committee consisting of not more than six members with equal
representation of the Health Service and the Union. Such committee shall have
the power to investigate all matters in dispute and to report to the Health
Service and the Union respectively, with such recommendations as it may think
right and in the event of no mutual decision being arrived at by such a
committee and if a dispute still exists the matter in dispute may be referred
to the Industrial Relations Commission in accordance with the provisions of the
Industrial Relations Act 1996 by one of the disputing parties.
6.4 Whilst these
procedures are continuing, no stoppage of work or any form of ban or limitation
of work shall be applied.
6.5 Unless agreed
otherwise by the parties the status quo before the emergence of the issue must
continue whilst these procedures are being followed. For this purpose "status quo" means the work procedures
and practices in place:
(a) immediately
before the issue arose: or
(b) immediately
before any change to those procedures or practices, which caused the issue to
arise, was made
6.6 The Employer
must ensure that all practices applied during the operation of these procedures
are in accordance with safe working practices.
7.
Anti-Discrimination
7.1 It 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.
7.2 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.
7.3 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.
7.4 Nothing in
this clause is to be taken to affect:
(a) any conduct or
act which is specifically exempted from anti-discrimination legislation;
(b) offering or
providing junior rates of pay to persons under 21 years of age;
(c) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to
this award from pursuing matters of unlawful discrimination in any State or
federal jurisdiction.
7.5 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 -
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d)
of the Anti-Discrimination Act 1977 provides:
"Nothing in this 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:.
8. Area, Incidence
and Duration
8.1 This Award
rescinds and replaces the Health Industry Status of Employment Interim (State)
Award published 15 September 2000 (Vol. 318 I.G. 859) and all variations
thereof.
8.2 This Award
shall apply to persons employed in classifications as contained in the awards
identified in Schedule "A", employed in or in connection with the New
South Wales Health Service as defined in section 16 of the Health Services
Act 1997, or their successors, assignees or transmittees, excluding the
County of Yancowinna.
8.3 This Award
takes effect from 1 July 2005, and shall remain in force until 30 June 2008.
SCHEDULE "A"
1. Public
Hospital Professional Engineers’ (Biomedical Engineers) (State) Award
2. Public
Hospital (Career Medical Officers) (State) Award
3. Public
Hospital Dental Staff (State) Award
4. Public
Hospital Dental Therapists (State) Award 1996
5. Public
Hospital Dental Assistants (State) Award
6. Health
Employees Dental Officers (State) Award
7. Health
Employees Dental Technicians (State) Award
8. Scientific
Officers (Public Hospital Dietitians) Award
9. Public
Hospitals Library Staff (State) Award
10. Public
Hospitals (Medical Superintendents) Award
11. Public
Hospital (Medical Officers) Award
12. Public
Hospital Medical Record Librarians Award
13. Public
Hospitals (Professional and Associated Staff) Conditions of Employment (State)
Award
14. Hospital
Scientists (State) Award
15. Public
Hospital Social Workers Award
16. Health Employees
Conditions of Employment (State) Award
17. Royal
Rehabilitation Service - Weemala Unit Residential Care Staff (State) Award
18. Public
Hospital Residential Services Assistant (State) Award
19. Health
Employees Administrative Staff (State) Award
20. Health
Managers (State) Award
21. Health
Employees Pharmacists (State) Award
22. Health
Employees (State) Award
23. Health
Employees General Administrative Staff (State) Award
24. Health
Employees (Engineers) (State) Award
25. Health
Employees Computer Staff (State) Award
26. Health
Employees Technical (State) Award
27. Health
Employees Medical Radiation Scientists (State) Award
28. Health
Employees Interpreters (State) Award
R. P. BOLAND J.
____________________
Printed by the
authority of the Industrial Registrar.