Crown Employees (NSW TAFE Commission - Administrative and Support Staff Conditions of Employment) Award 2005

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by NSW Department of Education and Training.

 

(No. IRC 326 of 2006)

 

 

VARIATION

 

1.          Delete clause 1, Arrangement, of the award published 27 January 2006 (356 I.G. 896), and insert in lieu thereof the following:

 

1.  Arrangement

 

Clause No.         Subject Matter

 

1.         Arrangement

2.         Title

3.         Definitions

4.         Entitlements Under Another Industrial Instrument

5.         Work Environment

6.         Dispute Resolution Procedures

7.         Local Arrangements

8.         Working Hours

9.         Casual Employment

10.       Morning and Afternoon Breaks

11.       Meal Breaks

12.       Variation of Hours

13.       Natural Emergencies and Major Transport Disruptions

14.       Assistance with Transport

15.       Notification of Absence from Duty

16.       Public Holidays

17.       Standard Working Hours

18.       Flexible Working Hours

19.       Rostered Days Off for 38 Hour Week Workers

20.       Existing Hours of Work Determinations

21.       Excess Travelling Time

22.       Waiting Time

23.       Travelling Allowances - General

24.       Meal Expenses on One Day Journeys

25.       Travelling Allowances when staying in Non Government Accommodation

26.       Travelling Allowances when Staying in Government Accommodation

27.       Restrictions on Payment of Travelling Allowances

28.       Increase or Reduction in Payment of Travelling Allowances

29.       Production of Receipts

30.       Travelling Distance

31.       Camping Allowances

32.       Camping Equipment Allowance

33.       Allowance Payable for Use of Private Motor Vehicle

34.       Damage to Private Motor Vehicle Used for Work

35.       Allowance for Living in a Remote Area

36.       Assistance to Staff Members Stationed in a Remote Area When Travelling on Recreation Leave

37.       Overseas Travel

38.       Exchanges

39.       Room at Home Used as Office

40.       Semi-official Telephones

41.       On-call Allowance

42.       Uniforms and Protective Clothing

43.       Payment of Laundry Allowance

44.       Compensation for Damage to or Loss of Staff Member’s Private Property

45.       Garage and Carport Allowance

46.       Community Language Allowance Scheme

47.       First Aid Allowance

48.       Review of Allowances Payable in Terms of This Award

49.       Trade Union Activities Regarded as on Duty

50.       Trade Union Activities Regarded as Special Leave

51.       Trade Union Training Courses

52.       Conditions applying to On-Loan Arrangements

53.       Period of Notice for Trade Union Activities

54.       Access To Facilities by Trade Union Delegates

55.       Responsibilities of the Trade Union Delegate

56.       Responsibilities of the Trade Union

57.       Responsibilities of Workplace Management

58.       Right of Entry Provisions

59.       Travelling and Other Costs of Trade Union Delegates

60.       Industrial Action

61.       Consultation

62.       Deduction of Trade Union Membership Fees

63.       Leave - General Provisions

64.       Absence from Work

65.       Applying for Leave

66.       Adoption, Maternity and Parental Leave

67.       Extended and Long Service Leave

68.       Family and Community Service Leave

69.       Leave Without Pay

70.       Military Leave

71.       Observance of Essential Religious or Cultural Obligations

72.       Personal Carers Leave

73.       Recreation Leave

74.       Annual Leave Loading

75.       Sick Leave

76.       Sick Leave - Requirements for Medical Certificate

77.       Deleted

78.       Sick Leave - Workers Compensation

79.       Sick Leave - Claims Other Than Workers Compensation

80.       Special Leave

81.       Study Assistance

82.       Shift Work

83.       Overtime - General 

84.       Overtime Worked by Shift Workers

85.       Overtime Worked by Day Workers

86.       Recall to Duty

87.       On Call (Stand-by)

88.       Overtime Meal Breaks

89.       Overtime Meal Allowances

90.       Rate of Payment for Overtime

91.       Payment for Overtime or Leave in Lieu

92.       Calculation of Overtime

93.       Review of Overtime Meal Allowances

94.       Provision of Transport in Conjunction with Working of Overtime

95.       Higher Duties Allowance

96.       Management of Conduct and Performance

97.       Anti-Discrimination

98.       Leave Reserved

99.       Area, Incidence and Duration

 

PART B

 

MONETARY RATES

 

Table 1 - Allowances

 

Schedule 1 - Classifications Of Administrative And Support Staff Covered By The Award

 

2.          Renumber the clauses in the body of the award to reflect the new Arrangement.

 

3.          Delete subclause (d), of clause 9, Casual Employment, and insert in lieu thereof the following:

 

(d)        Leave

 

(1)        Other than as described under paragraphs (d)(3), (d)(4), (d)(5) and (d)(6) of this clause casual employees are not entitled to any other paid or unpaid leave.

 

(2)        As set out in paragraph (b) (3) of this clause, casual employees will be paid 1/12th in lieu of annual leave.

 

(3)        Casual employees will be entitled to Long Service Leave in accordance with the provisions of the Long Service Leave Act 1955.

 

(4)        Casual employees will be entitled to unpaid parental leave under Chapter 2, Part 4, Division 1, Section 54 Entitlement to Unpaid Parental leave, in accordance with the Industrial Relations Act 1996. The following provisions shall also apply in addition to those set out in the Industrial Relations Act 1996 (NSW).

 

(i)         The Managing Director must not fail to re-engage a regular casual employee (see section 53(2) of the Industrial Relations Act 1996 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 Managing Director in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.

 

(5)        Personal Carers entitlement for casual employees

 

(i)         Casual employees are entitled to not be available to attend work, or to leave work if they need to care for a family member described in paragraph 72(a)(3) of the Award who is sick and requires care and support, or who requires care due to an unexpected emergency, or the birth of a child. This entitlement is subject to the evidentiary requirements set out below in (iv), and the notice requirements set out in (v).

 

(ii)        The Managing Director and the casual 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.

 

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

 

(iv)       The casual employee 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 Managing Director or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

 

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

 

(v)        The casual employee must, as soon as reasonably practicable and during the ordinary hours of the first day or shift of such absence, inform the Managing Director of their inability to attend for duty. If it is not reasonably practicable to inform the Managing Director during the ordinary hours of the first day or shift of such absence, the employee will inform the Managing Director within 24 hours of the absence.

 

(6)        Bereavement entitlements for casual employees

 

(i)         Casual employees are entitled to not be available to attend work, or to leave work upon the death in Australia of a family member (as defined in paragraph 72(a)(3) of this award) on production of satisfactory evidence (if required by the Managing Director).

 

(ii)        The Managing Director and the casual 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.

 

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

 

(iv)       The casual employee must, as soon as reasonably practicable and during the ordinary hours of the first day or shift of such absence, inform the Managing Director of their inability to attend for duty. If it is not reasonably practicable to inform the Managing Director during the ordinary hours of the first day or shift of such absence, the employee will inform the Managing Director within 24 hours of the absence.

 

4.          Delete clause 66, Adoption Leave, and insert in lieu thereof the following:

 

66.  Adoption, Maternity and Parental Leave

 

(a)        Maternity leave shall apply to a staff member who is pregnant and, subject to this clause the staff member shall be entitled to be granted maternity leave as follows:

 

(1)        For a period up to 9 weeks prior to the expected date of birth; and

 

(2)        For a further period of up to 12 months after the actual date of birth.

 

(3)        A staff member who has been granted maternity leave and whose child is stillborn may elect to take available sick leave instead of maternity leave.

 

(b)        Adoption leave shall apply to a staff member adopting a child and who will be the primary care giver, the staff member shall be granted adoption leave as follows:

 

(1)        For a period of up to 12 months if the child has not commenced school at the date of the taking of custody; or

 

(2)        For such period, not exceeding 12 months on a full-time basis, as the Managing Director may determine, if the child has commenced school at the date of the taking of custody.

 

(3)        Special Adoption Leave - A staff member shall be entitled to special adoption leave (without pay) for up to 2 days to attend interviews or examinations for the purposes of adoption. Special adoption leave may be taken as a charge against recreation leave, extended leave, flexitime or family and community service leave.

 

(c)        Parental leave shall apply to male and female staff to look after his/her child or children where maternity or adoption leave does not apply.  Parental leave applies for a period not exceeding 12 months.  Parental leave may commence at the time of the birth of the child or other termination of the spouse’s or partner’s pregnancy or, in the case of adoption, from the date of taking custody of the child or children or at any time up to 2 years from that date.

 

(d)        A staff member taking maternity or adoption leave is entitled to payment at the ordinary rate of pay for a period of 14 weeks, a staff member entitled to parental leave is entitled to payment at the ordinary rate of pay for a period of up to 1 week, provided the staff member:

 

(1)        Applied for maternity, adoption or parental leave within the time and in the manner determined set out in subclause (i) of this clause; and

 

(2)        Prior to the commencement of maternity, adoption or parental leave, completed not less than 40 weeks' continuous service.

 

(3)        Payment for the maternity, adoption or parental leave may be made as follows:

 

(i)         in advance as a lump sum; or

 

(ii)        fortnightly as normal; or

 

(iii)       fortnightly at half pay; or

 

(iv)      a combination of full‑pay and half pay.

 

(e)        Payment for maternity, adoption or parental leave is at the rate applicable when the leave is taken.  A member of staff holding a full time position who is on part time leave without pay when they start leave is paid:

 

(1)        at the full time rate if they began part time leave 40 weeks or less before starting maternity, adoption or parental leave;

 

(2)        at the part time rate if they began part time leave more than 40 weeks before starting maternity, adoption or parental leave and have not changed their part time work arrangements for the 40 weeks;

 

(3)        at the rate based on the average number of weekly hours worked during the 40 week period if they have been on part time leave for more than 40 weeks but have changed their part time work arrangements during that period.

 

(f)         A staff member who has taken no more than 12 months full time maternity, adoption or parental leave or its part time equivalent is entitled to be paid at their normal rate (i.e. the rate at which they were paid before proceeding on maternity, adoption or parental leave) for another period of such leave regardless of whether they resume their normal hours of work before proceeding on leave for another pregnancy or adoption.

 

(g)        Except as provided in subclauses (d), (e) and (f) of this clause, maternity, adoption or parental leave shall be granted without pay.

 

(h)        Right to request

 

(1)        A staff member who has been granted maternity, adoption or parental leave in accordance with subclause (a), (b) or (c) may make a request to the Managing Director to:

 

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

 

(ii)        return from a period of full time maternity, adoption or parental leave on a part time basis until the child reaches school age (note: returning to work from maternity, adoption or parental leave on a part time basis includes the option of returning to work on part time leave without pay);

 

to assist the staff member in reconciling work and parental responsibilities.

 

(2)        The Managing Director shall consider the request having regard to the staff member's circumstances and, provided the request is genuinely based on the staff member's parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the Managing Director’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

 

(i)         Notification Requirements

 

(1)        When the Managing Director is made aware that a staff member or their spouse is pregnant, or a staff member’s spouse is pregnant or is adopting a child, the Managing Director must inform the staff member of their entitlements and their obligations under the Award.

 

(2)        A staff member who wishes to take maternity, adoption or parental leave must notify the Managing Director in writing at least 8 weeks (or as soon as practicable) before the expected commencement of the leave:

 

(a)        that she/he intends to take maternity, adoption or parental leave, and

 

(b)       the expected date of birth or the expected date of placement, and

 

(c)        if she/he is likely to make a request under subclause (h).

 

(3)        At least 4 weeks before a staff member's expected date of commencing maternity, adoption or parental leave they must advise:

 

(i)         the date on which the maternity, adoption or parental leave is intended to start, and

 

(ii)        the period of leave to be taken.

 

(4)        Staff member's request and the Managing Director’s decision to be in writing

 

The staff member's request and the Managing Director’s decision made under subparagraphs 66(h)(1)(i) and 66(h)(1)(ii) must be recorded in writing.

 

(5)        A staff member intending to request to return from maternity, adoption or parental leave on a part-time basis or seek an additional period of leave of up to 12 months must notify the Managing Director in writing as soon as practicable and preferably before beginning maternity, adoption or parental leave. If the notification is not given before commencing such leave, it may be given at any time up to 4 weeks before the proposed return on a part time basis, or later if the Managing Director agrees.

 

(6)        A staff member on maternity leave is to notify the Managing Director of the date on which she gave birth as soon as she can conveniently do so.

 

(7)        A staff member must notify the Managing Director as soon as practicable of any change in her intentions as a result of premature delivery or miscarriage.

 

(8)        A staff member on maternity or adoption leave may change the period of leave or arrangement, once without the consent of the Managing Director and any number of times with the consent of the Managing Director. In each case she/he must give the Managing Director at least 14 days notice of the change unless the Managing Director decides otherwise.

 

(j)         A staff member has the right to his/her former position if she/he has taken approved leave or part-time work in accordance with subclause (h), and he/she resumes duty immediately after the approved leave or work on a part-time basis.

 

(k)        If the position occupied by the staff member immediately prior to the taking of maternity, adoption or parental leave has ceased to exist, but there are other positions available that the staff member is qualified for and is capable of performing, the staff member shall be appointed to a position of the same grade and classification as the staff member’s former position.

 

(l)         A staff member who has returned to full time duty without exhausting their entitlement to 12 months unpaid maternity, adoption or parental leave is entitled to revert back to such leave. This may be done once only, and a minimum of 4 weeks notice (or less if acceptable to the Managing Director) must be given.

 

(m)       A staff member who is sick during her pregnancy may take available paid sick leave or accrued recreation or extended leave or sick leave without pay.  A staff member may apply for accrued recreation leave, extended leave or leave without pay before taking maternity leave. Any leave taken before maternity leave ceases at the end of the working day immediately preceding the day she starts her nominated period of maternity leave or on the working day immediately preceding the date of birth of the child, whichever is sooner.

 

(n)        A staff member may elect to take available recreation leave or extended leave within the period of maternity, adoption or parental leave provided this does not extend the total period of such leave.

 

(o)        A staff member may elect to take available recreation leave at half pay in conjunction with maternity, adoption or parental leave subject to:

 

(1)        accrued recreation leave at the date adoption leave commences is exhausted within the period of maternity, adoption or parental  leave,

 

(2)        the total period of maternity, adoption or parental  leave, is not extended by the taking of recreation leave at half pay

 

(3)        When calculating other leave accruing during the period of recreation leave at half pay, the recreation leave at half pay shall be converted to the full time equivalent and treated as full pay leave for accrual of further recreation, extended and other leave at the full time rate

 

(p)        If, for any reason, a pregnant staff member is having difficulty in performing her normal duties or there is a risk to her health or to that of her unborn child the Managing Director, should, in consultation with the member of staff, take all reasonable measures to arrange for safer alternative duties. This may include, but is not limited to greater flexibility in when and where duties are carried out, a temporary change in duties, retraining, multi-skilling, teleworking and job redesign.

 

(q)        If such adjustments cannot reasonably be made, the Managing Director must grant the staff member maternity leave, or any available sick leave, for as long as it is necessary to avoid exposure to that risk as certified by a medical practitioner, or until the child is born which ever is the earlier.

 

(r)         Communication during maternity, adoption or parental leave

 

(1)        Where a staff member is on maternity, adoption or parental leave and a definite decision has been made to introduce significant change at the workplace, the Managing Director shall take reasonable steps to:

 

(i)         make information available in relation to any significant effect the change will have on the status or responsibility level of the position the staff member held before commencing maternity, adoption or parental leave; and

 

(ii)        provide an opportunity for the staff member to discuss any significant effect the change will have on the status or responsibility level of the position the staff member held before commencing maternity, adoption or parental leave.

 

(2)        The staff member shall take reasonable steps to inform the Managing Director about any significant matter that will affect their decision regarding the duration of maternity, adoption or parental leave to be taken, whether the staff member intends to return to work and whether the staff member intends to request to return to work on a part-time basis.

 

(3)        The staff member shall also notify the Managing Director of changes of address or other contact details which might affect the Managing Director’s capacity to comply with paragraph 66 (r)(1).

 

5.          Delete subclauses (d) and (e), of clause 68, Family and Community Service Leave, and insert in lieu thereof the following:

 

(d)        On the death of a person defined in paragraph (3) of subclause 72(a), Use of Sick Leave to Care for a Family Member, additional paid family and community service leave of up to 2 days may be granted on a discrete, per occasion basis to a staff member.

 

(e)        In cases of illness of a family member for whose care and support the staff member is responsible, paid sick leave in accordance with paragraph (3) of subclause 72(a), Use of Sick Leave to Care for a Family Member shall be granted when paid family and community service leave has been exhausted.

 

6.          Delete clause 70, Maternity Leave, and renumber clauses 71, Military Leave and 72, Observance of Essential Religious Or Cultural Obligations to read as clauses 70 and 71 respectively.

 

7.          Insert after clause 71, Observance of Essential Religious Or Cultural Obligations, the following new clause:

 

72.  Personal Carers Leave

 

(a)        Use of sick leave to care for a Family Member

 

When family and community service leave provided for in clause 68 is exhausted, a staff member with responsibilities in relation to a category of person set out in subclause (3) of this clause who needs the staff member's care and support, may elect to use available paid sick leave, subject to the conditions specified in this clause, to provide such care and support when a family member is ill.

 

(1)        The sick leave shall initially be taken from the current leave year’s entitlement followed, if necessary, by the sick leave accumulated over the previous 3 years. In special circumstances, the Managing Director may grant additional sick leave from the sick leave accumulated during the staff member’s eligible service.

 

(2)        If required by the Managing Director, the staff member must establish by production of a medical certificate or statutory declaration, the illness of the person concerned.

 

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

 

(i)         the staff member being responsible for the care and  support of the person concerned; and

 

(ii)        the person concerned being:-

 

a spouse of the staff member; or

 

a de facto spouse being a person of the opposite sex to the staff member who lives with the staff member as her husband or his wife on a bona fide domestic basis although not legally married to that staff member; or

 

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 staff member or of spouse or of de facto spouse of the staff member; or

 

a same sex partner who lives with the staff member as the de facto partner of that staff member on a bona fide domestic basis; or a relative of the staff member who is a member of the same household, where for the purposes of this definition:-

 

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

 

"affinity" means a relationship that one spouse or partner has to the relatives of the other; and

 

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

 

(b)        Use of recreation leave to care for a family member

 

(1)        A staff member may elect, with the consent of the Managing Director, to take recreation 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.

 

(2)        A staff member may elect, with the consent of the Managing Director, to take recreation leave at any time within a period of 24 months from the date at which it falls due.

 

8.          Delete clause 77, Sick Leave to Care for a Family Member, and insert in lieu thereof the following:

 

77.  Deleted

 

9.          This variation shall take effect from 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.