HEALTH
EMPLOYEES' CONDITIONS OF EMPLOYMENT (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by the Health Administration Corporation.
(No. IRC 2801 of
2000)
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Before the Honourable Justice Schmidt
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22 June 2000
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VARIATION
1. Delete
clause 16, Annual Leave, of the award published 6 November 1998 (307 I.G. 132)
as varied, and insert in lieu thereof the following:
16. Annual Leave
(i) Entitlement
to Annual Leave
(a) All employees:
See Annual Holidays Act 1944.
(b) This paragraph
and its subparagraphs shall apply to full-time employees and permanent
part-time employees except for those employees employed under the Health
Managers (State) Award.
(1) Employees who
are rostered to work and do work on 35 or more ordinary hours shifts occurring
on Sundays and/or public holidays during a qualifying period of employment for
annual leave purposes, shall be entitled to receive one week additional annual
leave.
(2) Employees who
are rostered to work and do work less than 35 ordinary hours shifts occurring
on Sundays and/or public holidays during a qualifying period of employment for
annual leave purposes, shall be entitled to receive a proportion of one week
additional annual leave calculated on the basis of 38 hours of additional
annual leave for 35 such shifts worked.
(3) Employees who
work less than 38 hours per week and who are rostered to work and do work less
than 35 ordinary hours shifts occurring on Sundays and/or public holidays
during a qualifying period of employment for annual leave purposes, shall be
entitled to receive a proportion of one week additional leave calculated on the
basis of the number of ordinary weekly hours of additional annual leave for 35
such shifts worked.
(4) The
calculations referred to in subparagraph (3) above shall be made to the nearest
one-fifth of the ordinary hours worked, half or more than half of one-fifth
being regarded as one-fifth and less than half being disregarded.
(5) Provided that
an employee, entitled to additional annual leave pursuant to subparagraphs (1),
(2) and (3) above, may elect to be paid an amount equivalent to the value of
his or her additional leave entitlement, in lieu of taking the additional
leave. Such election is to be made in writing by the employee at the
commencement of each year of employment and is irrevocable during the currency
of the year of employment.
(ii) On termination of employment, employees
shall be entitled to payment for any untaken annual leave entitlements pursuant
to subclause (i) of this clause and subclause (i) of clause 15, Public
Holidays, together with payment for any untaken leave in respect of an
uncompleted year of employment, calculated in accordance with paragraphs (a)
and (b) of subclause (i) of this clause.
(iii) The employer shall give to each employee
three months' notice where practicable and not less than one month's notice of
the date upon which the employee shall enter upon annual leave.
(iv) Entitlement
to Annual Leave Loading or Shift Allowances and Weekend Penalties
(a) Employees who
become entitled to take and do take annual leave pursuant to paragraph (a) of
subclause (i) of this clause (that is, the annual leave entitlement of four
weeks per annum pursuant to the Annual Holidays Act 1944) shall be paid ordinary
salary plus either:
(1) an annual
leave loading in respect of that entitlement equivalent to 17 ½ % of four weeks
ordinary salary, not exceeding $
(amount equivalent to 17 ½ % of four weeks ordinary salary for maximum
Clerk Grade 12 Public Servant as varied from time to time).
Or;
(2) in the case of
a shiftworker who would have earned ordinary time shift allowances and weekend
penalties in excess of the amount of annual leave loading indicated in
subparagraph (1) above of this paragraph had he/she not taken the annual leave;
those shift allowances and weekend penalties relating to ordinary time the
employee would have earned had he/she not taken the annual leave (provided that shift allowances and weekend
penalties shall not be payable for public holidays which occur during a period
of annual leave).
(b) In respect of
an employee who becomes entitled to take annual leave pursuant to paragraph (a)
of subclause (i) of this clause (that is, the annual leave entitlement of four
weeks per annum pursuant to the Annual Holidays Act 1944), and takes that
annual leave in broken periods; both the annual leave loading and the maximum
amount referred to in subparagraph (1) of paragraph (a) of this subclause are
to be calculated pro rata for the broken period being taken in the same
proportion as the period being taken bears to four weeks. The resultant amount
of annual leave loading calculated for the broken period of annual leave, not
exceeding that maximum amount calculated for the same broken period, is to be
paid to the employee in addition to ordinary salary for the period.
(c) In respect of
a shiftworker, who becomes entitled to take annual leave pursuant to paragraph
(a) of subclause (i) of this clause (that is, the annual leave entitlement of
four weeks per annum pursuant to the Annual Holidays Act 1944), and who takes
that annual leave in broken periods, the entitlement to annual leave loading
and maximum amount are to be calculated in the same way as indicated in
paragraph (b) of this subclause for the period of annual leave being taken and
compared with the ordinary time shift allowances and weekend penalties the
employee would have earned had he/she not taken the annual leave (provided that
shift allowances and weekend penalties shall not be payable for public holidays
which occur during the period of annual leave), and the greater of either the
calculated annual leave loading (not exceeding the calculated maximum amount)
or ordinary time shift allowances and weekend penalties is to be paid to the
employee in addition to ordinary salary for the period.
(d) The
entitlement to annual leave loading or shift allowances and weekend penalties
referred to in paragraphs (a), (b), and (c) of this subclause are to be
calculated and paid at the same time as the annual leave is paid.
(e) Annual leave
loading is to be calculated at the rate of ordinary salary payable when the
annual leave is taken (except as provided for in paragraph (f) below), and
excludes allowances, penalty or disability rates, commission, bonuses,
incentive payments or overtime rates etc. Where the ordinary rate payable
changes effective from a date falling within a period of annual leave, the
changed rate is to be taken into account, and if necessary, adjustments
calculated and corrections to pay made.
(f) No annual
leave loading is payable to an employee who takes annual leave wholly or partly
in advance of becoming entitled to such annual leave, except if his/her
employment continues until the day he/she would have become entitled to take
such annual leave, in which case the loading then becomes payable on that day
(calculated on rates applicable on that day) in respect of the period/s of
annual leave already taken that the loading would have applied to had the
annual leave not been taken wholly or partly in advance. Shiftworkers already
paid ordinary time shift allowances and weekend penalties in respect of annual
leave taken wholly or partly in advance are not eligible to be paid loading
under this paragraph.
(g) No annual
leave loading or shift allowances and weekend penalties are payable to an
employee who is paid the monetary value of annual leave to his/her credit on
resignation (not including retirement), except as provided for in paragraph (i)
below.
(h) Upon the
retirement of an employee or upon the termination by the employer of an
employee for any reason other than misconduct, the employee shall be paid
annual leave loading on that annual leave which he/she had become entitled to
take that the loading would have applied to had the annual leave been taken.
(i) Where an
employee transfers from one hospital to another and commences work at the
latter hospital on the next working day following his/her resignation from the
former hospital, and, his/her present and proposed employers have agreed that
the employee is allowed to retain his/her credit to annual leave in lieu of the
payment of its monetary value, the employee shall be eligible for annual leave
loading for that year on that annual leave that the loading applies to as if he
had not resigned from the former hospital.
(j) In respect of
that additional annual leave accrued by virtue of being rostered to work and
working ordinary hours shifts on Sundays and/or Public Holidays pursuant to
paragraph (b) of subclause (i) of this clause; No annual leave loading is
payable. Shiftworkers are to be paid, in addition to ordinary salary for such
annual leave period/s, the ordinary time shift allowances and weekend penalties
the employee would have earned had he/she not taken the annual leave (provided
that shift allowances and weekend penalties shall not be payable for public
holidays which occur during a period of annual leave).
(k) In respect of
that annual leave elected to be accrued pursuant to the provisions of clause
15, Public Holidays, no annual leave loading or shift allowances and weekend
penalties are payable.
(v) Students and trainees who are employed
for the purpose of completing a training course leading to a qualification
which would allow the employee to be employed in a trained capacity, but who
are then not employed by the hospital at the completion of the training period
in the trained capacity, and medical officers who are not given the opportunity
to renew their contract of employment at the end of the training period or at
the end of the annual appointment, are deemed to have had their services
terminated by the hospital for a reason other than misconduct (unless
transferring pursuant to paragraph (i) of subclause (iv) of this clause) for
the purposes of annual leave loading. In such circumstances the trainee,
student or medical officer is entitled to the payment of the annual leave
loading in the same way as for other employees and in accordance with
subclauses (i)(a), (ii), (iii) and (iv) of this clause, excepting that annual
leave loading is not payable to trainees who are paid by way of allowance and
not by salary or wages.
2. This
variation shall effect from the beginning of
the first pay period to commence on or after 22 June 2000.
M.
SCHMIDT
J.
____________________
Printed by
the authority of the Industrial Registrar.