Public Hospitals (Medical Superintendents) Award 2021
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH
WALES
Application by NSW Ministry of Health.
(Case No. 187597 of 2021)
Before Chief
Commissioner Constant
|
22 July
2021
|
AWARD
PART A
Arrangement
Clause No. Subject
Matter
1. Definitions
2. Salaries
3. Grading Committee
4. Annual Leave
5. Sick Leave
6. Maternity, Adoption and Parental Leave
6A. Lactation Breaks
7. Public Holidays
8. Long Service Leave
9. Higher Grade Duty
10. Payment and Particulars of Salaries
11. Settlement of Disputes
12. Anti-Discrimination
13. Mobility, Excess Fares and Travelling
14. Family and Community Services Leave and
Personal/Carer’s Leave
14A. Family Violence Leave
15. Labour Flexibility
16. Termination of Employment
17. Salary Packaging
18. Reasonable Hours
19. Salary Sacrifice to Superannuation
20. No Extra Claims
21. Area, Incidence and Duration
PART A
1. Definitions
"Award" means
Public Hospitals (Medical Superintendents) Award 2021.
"Secretary"
means the Secretary of the Ministry of Health.
"Employer"
means the Secretary of the Ministry of Health exercising employer functions on
behalf of the Government of New South Wales (and includes a delegate of the
Secretary).
"Health
Service" means a Local Health District constituted under section 8 of the Health Services Act 1997, a Statutory
Health Corporation constituted under section 11 of that Act, and an Affiliated
Health Organisation constituted under section 13 of that Act.
"Higher
Medical Qualification" means such qualification obtained by a medical
practitioner subsequent to graduation and includes:
(a) post-graduate University degrees and
diplomas recognised by the Medical Board of Australia as qualifications; or
(b) membership or fellowship of the Royal
College or Royal Australian College of Physicians or Fellowship of the Royal
College or Royal Australasian College of Surgeons or membership or fellowship
of the Royal College of Obstetricians and Gynaecologists; or Fellowship of the
Australian College of Medical Administrators;
(c) such other post-graduate qualification
recognised by the Medical Board of Australia and acceptable to the Ministry of
Health.
"Hospital"
means a public hospital as defined under s.15 of the Health Services Act 1997.
"Officer"
means a person who is a registered medical practitioner and who is employed as
a Chief Executive Officer, Deputy Chief Executive Officer, Medical
Superintendent, Deputy Medical Superintendent, Assistant Medical Superintendent
or Clinical Superintendent in a position as such by the employer.
"Service"
unless the context otherwise indicates or requires, means service before or
and/or after the commencement of this Award with the employer.
"Union"
means the Health Services Union NSW and the Australian Salaried Medical
Officers' Federation (New South Wales).
"Weekly
rates" will be ascertained by dividing an annual amount by 52.17857 or a
weekly rate can be multiplied by 52.17857 to obtain the annual amount.
2. Salaries
Salaries for
Medical Superintendents shall be as set out in the Health Professional and Medical Salaries (State) Award.
3. Grading Committee
A Committee consisting
of up to three representatives of the employer and up to three representatives
of the Union shall be constituted to consider and recommend to the Industrial
Commission of New South Wales upon application by the Union or the employer:
(i) The grading of any new position or any
variation of grading of a position as a result of any substantial change in
duties and/or responsibilities; and
(ii) the date of the effect of the grading
recommended. Provided that -
(a) an officer shall, whilst the grading of
his/her position is under consideration, be ineligible to be a member of the
Committee;
(b) the Committee shall not, without
sufficient reason, recommend the retrospective operation of any grading or
remuneration; and
(c) where a retrospective date of effect is
recommended such date shall not be earlier than a date six months prior to the
date on which the matter was referred to the Committee.
4. Annual Leave
(i) Annual leave shall accrue at the rate of
five calendar weeks per annum.
(ii) Annual leave shall not accrue beyond ten
calendar weeks without the approval of the employer.
(iii) Such annual leave shall be taken by
officers at mutually convenient times as arranged with the employer.
(iv) The employer shall pay each officer in
advance before the commencement of any period of annual leave his ordinary pay
for the period of the leave.
(v) Where any special or public holiday for which
the officer is entitled to payment under this Award or under any Act or under
his contract of employment occurs during any period of annual leave taken by an
officer, the holiday shall not be reckoned as a deduction from the officer's
annual leave entitlement.
(vi) Annual leave for a period of accrual of
less than twelve months shall accrue on a proportionate basis at the rate of
five calendar weeks per annum.
(vii) Where the employment of an officer who has
become entitled to a period of annual leave is terminated or the officer
resigns, the due period of annual leave shall be deemed to be taken from the
date of termination or resignation and the employer shall forthwith pay to the
officer, in addition to all other amounts due to him, his ordinary pay for the
period of annual leave.
NOTATION: The conditions under when the annual leave
loading shall be paid to officers are the same as generally applied through
circulars issued by the Ministry of Health.
(viii) The provisions of subclause 4(i) above entitle Medical Superintendents to paid annual
leave additional to that available under clause 3(1)(b) of the Annual Holidays Act 1944, which is four
weeks paid leave per annum. A Medical Superintendent entitled to such
additional paid annual leave can elect at any time to be paid an amount
equivalent to the value of accrued additional annual leave in lieu of taking
the additional leave, provided that the amount is a minimum of one weeks’
accrued additional leave and that the salary for the period of additional leave
paid out will be calculated as if the period of leave was actually taken.
5. Sick Leave
An officer shall be
entitled to ten days per year for each year of continuous service less any sick
leave on full pay already taken, subject to the following conditions:
(a) The employer may require the sickness to
be certified to by a legally qualified medical practitioner approved by the
employer or may require other satisfactory evidence thereof.
(b) An officer shall not be entitled to sick
leave until after three months' continuous service.
(c) An officer shall not be entitled to sick
leave on full pay for any period in respect of which such officer is entitled
to accident pay or workers' compensation.
Provided,
however, that where an officer is not in receipt of accident pay, the employer
shall pay to an officer, who has sick leave entitlements under this clause, the
difference between the amount received as workers' compensation and full
pay. The officer's sick leave
entitlements under this clause shall, for each week during which such
difference is paid, be reduced by that proportion of hours which the difference
paid bears to full pay. On the
expiration of available sick leave, weekly compensation payments only shall be
payable.
(d) For the purpose of this clause
"service" means service in any of the positions covered by this Award
provided that any person who was employed by the employer immediately prior to
becoming an officer in any position covered by this Award shall be entitled to
add to his or her service under this Award the service that he or she has had
under any other award or agreement covering his/her employment with the
employer; provided that officers who are employed at the date of commencement
of this Award shall retain to their credit until exhausted, any accumulation of
sick leave to their credit immediately prior to such date; and provided further
that such credit is not less than the entitlement otherwise prescribed by this
clause.
(e) The employer shall not terminate the services
of an employee, except on the grounds of misconduct, during the currency of any
period of paid sick leave unless an agreed independent registered medical
practitioner certifies that an employee is fit to continue in employment and
the employee refuses to resume duty.
If a dispute
arises as to whether an employee is fit to continue in employment, such dispute
shall be referred to a Disputes Committee.
6. Maternity, Adoption and Parental Leave
A. Maternity
Leave
(i) Eligibility for Paid Maternity Leave
To be eligible
for paid maternity leave a full time or permanent part-time employee must have
completed at least 40 weeks continuous service prior to the expected date of
birth.
An employee
who has once met the conditions for paid maternity leave will not be required
to again work the 40 weeks continuous service in order to qualify for a further
period of paid maternity leave, unless -
(a) there has been a break in service where
the employee has been re-employed or re-appointed after a resignation, medical
retirement, or after her services have been otherwise dispensed with: or
(b) the employee has completed a period of
leave without pay of more than 40 weeks.
In this context, leave without pay does not include sick leave without
pay, maternity leave without pay or leave without pay associated with an
illness or injury compensable under the Workers'
Compensation Act (NSW) 1987 as varied from time to time.
(ii) Portability of Service for Paid Maternity
Leave
Portability of
service for paid maternity leave involves the recognition of service in
government sector agencies for the purpose of determining an employee's
eligibility to receive paid maternity leave.
For example, where an employee moves between a public service department
and a public hospital, previous continuous service will be counted towards the
service prerequisite for paid maternity leave.
When
determining an employee's eligibility for paid maternity leave, continuous
service with an organisation that is part of the government sector as defined
in the Government Sector Employment Act
2013, as varied from time to time, will be recognised, provided that:
(a) service was on a full-time or permanent
part-time basis:
(b) cessation of service with the former
employer was not by reason of dismissal on any ground, except retrenchment or
reduction of work;
(c) the employee immediately commences duty
with the new employer. There may be a
break in service of up to two months before commencing duty with the new
employer. However, such a break in
service will not be counted as service for the purpose of calculating any prior
service prerequisite for paid maternity leave.
(iii) Entitlement to Paid Maternity Leave
An eligible employee
is entitled to fourteen weeks at the ordinary rate of pay from the date
maternity leave commences. This leave
may commence up to fourteen weeks prior to the expected date of birth.
It is not
compulsory for an employee to take this period off work. However, if an
employee decides to work during the nine weeks prior to the date of birth it is
subject to the employee being able to satisfactorily perform the full range of
normal duties.
Paid maternity
leave may be paid:
on a normal
fortnightly basis; or
in advance in
a lump sum; or
at the rate of
half pay over a period of twenty-eight weeks on a regular fortnightly basis.
Annual and/or
long service leave credits can be combined with periods of maternity leave on
half pay to enable an employee to remain on full pay for that period.
(iv) Unpaid Maternity Leave
(a) Full time and permanent part time
employees who are entitled to paid maternity leave are entitled to a further
period of unpaid maternity leave of not more than 12 months after the actual
date of birth.
(b) Full time and permanent part time
employees who are not eligible for paid maternity leave are entitled to unpaid
maternity leave of not more than 12 months.
(v) Applications
An employee
who intends to proceed on maternity leave should formally notify her employer
of such intention as early as possible, so that arrangements associated with
her absence can be made.
Written notice
of not less than eight weeks prior to the commencement of the leave should
accordingly be given. This notice must
include a medical certificate stating the expected date of birth and should
also indicate the period of leave desired.
(vi) Variation after Commencement of Leave
After commencing
maternity leave, an employee may vary the period of her maternity leave once
only without the consent of her employer by giving the employer notice in
writing of the extended period at least fourteen days before the start of the
extended period. An employer may accept less notice if convenient.
An employee
may extend the period of maternity leave at any time with the agreement of the
employer.
The conditions
relating to variation of maternity leave are derived from Section 64 of the Industrial Relations Act 1996.
(vii) Staffing Provisions
In accordance
with obligations established by the Industrial
Relations Act 1996 (Section 69) any person who occupies the position of an
employee on maternity leave must be informed that the employee has the right to
return to her former position. Additionally, since an employee has the right to
vary the period of her maternity leave, offers of temporary employment should
be in writing, stating clearly the temporary nature of the contract of
employment. The duration of employment
should be also set down clearly; to a fixed date or until the employee elects
to return to duty, whichever occurs first.
(viii) Effect of Maternity Leave on Accrual of
Leave, Increments etc.
When the
employee has resumed duties, any period of full pay leave is counted in full
for the accrual of annual leave, sick leave and long service leave and any
period of maternity leave on half pay is taken into account to the extent of
one half thereof when determining the accrual of annual leave, sick leave and
long service leave.
Except in the
case of employees who have completed ten years' service the period of maternity
leave without pay does not count as service for long service leave
purposes. Where the employee has
completed ten years' service the period of maternity leave without pay shall
count as service provided such leave does not exceed six months.
Maternity
leave without pay does not count as service for incremental purposes. Periods of maternity leave at full pay and at
half pay are to be regarded as service for incremental progression on a
pro-rata basis.
Where public
holidays occur during the period of paid maternity leave, payment is at the
rate of maternity leave received i.e., public holidays occurring in a period of
full pay maternity leave are paid at full rate and those occurring during a
period of half pay leave are paid at half rate.
(ix) Illness Associated with Pregnancy
If, because of
an illness associated with her pregnancy an employee is unable to continue to
work then she can elect to use any available paid leave (sick, annual and/or
long service leave) or to take sick leave without pay.
Where an
employee is entitled to paid maternity leave, but because of illness, is on
sick, annual, long service leave, or sick leave without pay prior to the birth,
such leave ceases nine weeks prior to the expected date of birth. The employee then commences maternity leave
with the normal provisions applying.
(x) Transfer to a More Suitable Position
Where, because
of an illness or risk associated with her pregnancy, an employee cannot carry
out the duties of her position, an employer is obliged, as far as practicable,
to provide employment in some other position that she is able to satisfactorily
perform. This obligation arises from
Section 70 of the Industrial Relations
Act 1996. A position to which an employee is transferred under these
circumstances must be as close as possible in status and salary to her
substantive position.
(xi) Miscarriages
In the event of
a miscarriage any absence from work is to be covered by the current sick leave
provisions
(xii) Stillbirth
In the case of
a stillbirth, (as classified by the Registry of Births, Deaths and Marriages)
an employee may elect to take sick leave, subject to production of a medical
certificate, or maternity leave. She may
resume duty at any time provided she produces a doctor's certificate as to her
fitness.
(xiii) Effect of Premature Birth on Payment of
Maternity Leave
An employee
who gives birth prematurely and prior to proceeding on maternity leave shall be
treated as being on maternity leave from the date leave is commenced to have
the child. Should an employee return to
duty during the period of paid maternity leave, such paid leave ceases from the
date duties are resumed.
(xiv) Right to Return to Previous Position
In accordance
with the obligations set out in Section 66 of the Industrial Relations Act 1996, an employee returning from maternity
leave has the right to resume her former position.
Where this
position no longer exists the employee is entitled to be placed in a position
nearest in status and salary to that of her former position and to which the
employee is capable or qualified.
(xv) Further Pregnancy While on Maternity Leave
Where an
employee becomes pregnant whilst on maternity leave a further period of
maternity leave shall be granted. If an employee enters on the second period of
maternity leave during the currency of the initial period of maternity leave,
then any residual maternity leave from the initial entitlement ceases.
An employee
who commences a subsequent period of maternity leave while on unpaid maternity
leave under paragraph (iv)(a) of Part A, of this clause or paragraph (i)(b) of Part D of this clause is entitled to be paid at
their normal rate (i.e. the rate at which they were paid before proceeding on
maternity leave).
An employee
who commences a subsequent period of maternity leave during the first 12 months
of a return to duty on a part time basis as provided under paragraph (i)(c) of Part D, of this clause is entitled to be paid at
their substantive full time rate for the subsequent period of maternity leave.
An employee who
commences a subsequent period of maternity leave more than 12 months after
returning to duty on a part time basis under paragraph (i)(c)
of Part D, of this clause, will be entitled to paid maternity leave for the
subsequent period of maternity leave at their part time rate.
B. Adoption
Leave
(i) Eligibility
All full time
and permanent part time employees who are adopting a child and are to be the
primary care giver of the child are eligible for unpaid adoption leave.
To be eligible
for paid adoption leave a full time or permanent part-time employee must also
have completed at least 40 weeks continuous service prior to the date of taking
custody of the child.
An employee
who has once met the conditions of paid adoption leave, will not be required to
again work the 40 weeks continuous service in order to qualify for further
periods of paid adoption leave, unless
(a) there has been a break in service where
the employee has been re-employed or re-appointed after a resignation, medical
retirement, or after their services have been otherwise dispensed with; or
(b) the employee has completed a period of
leave without pay of more than 40 weeks.
In this context, leave without pay does not include sick leave without
pay, maternity leave without pay, or leave without pay associated with an
illness or injury compensable under the Worker's
Compensation Act (NSW) 1987 as varied from time to time.
(ii) Portability of Service for Paid Adoption
Leave
As per
maternity leave conditions.
(iii) Entitlement
(a) Paid Adoption Leave
Eligible
employees are entitled to paid adoption leave of fourteen weeks at the ordinary
rate of pay from and including the date of taking custody of the child.
Paid adoption
leave may be paid:
on a normal fortnightly
basis; or
in advance in
a lump sum; or
at the rate of
half pay over a period of twenty-eight weeks on a regular fortnightly basis.
Annual and/or
long service leave credits can be combined with periods of adoption leave at
half pay to enable an employee to remain on full pay for that period.
(b) Unpaid Adoption Leave
Eligible
employees are entitled to unpaid adoption leave as follows:
where the
child is under the age of 12 months - a period of not more than 12 months from
the date of taking custody;
where the
child is over the age of 12 months and under 18 years old - a period of up to
12 months, such period to be agreed upon by both the employee and the employer.
(iv) Applications
Due to the
fact that an employee may be given little notice of the date of taking custody
of a child, employees who believe that, in the reasonably near future, they
will take custody of a child, should formally notify the employer as early as
practicable of the intention to take adoption leave. This will allow arrangements associated with
the adoption leave to be made.
(v) Variation after Commencement of Leave
After
commencing adoption leave, an employee may vary the period of leave, once
without the consent of the employer and otherwise with the consent of the
employer. A minimum of fourteen days’ notice must be given, although an
employer may accept less notice if convenient.
(vi) Staffing Provisions
As per
maternity leave conditions.
(vii) Effect of Adoption Leave on Accrual of
Leave, Increments, etc
As per
maternity leave conditions.
(viii) Right to Return to Previous Position
As per
maternity leave conditions.
C. Parental
Leave
(i) Eligibility
To be eligible
for parental leave a full time or permanent part-time employee must have
completed at least 40 weeks continuous service prior to the expected date of
birth or to the date of taking custody of the child.
An employee
who has once met the conditions for paid parental leave will not be required to
again work the 40 weeks continuous service in order to qualify for a further
period of paid parental leave, unless -
(a) there has been a break in service where
the employee has been re-employed or re-appointed after a resignation, medical
retirement, or after their services have been otherwise dispensed with; or
(b) the employee has completed a period of
leave without pay of more than 40 weeks.
In this context, leave without pay does not include sick leave without
pay, maternity leave without pay, or leave without pay associated with an
illness or injury compensable under the Workers'
Compensation Act (NSW) 1987 as varied from time to time.
(ii) Portability of Service for Paid Parental
Leave
As per
maternity leave conditions.
(iii) Entitlements
Eligible
employees whose spouse or partner (including a same sex partner) is pregnant or
is taking custody of a child, are entitled to a period of leave not exceeding 52
weeks, which includes one week of paid leave, and may be taken as follows:
(a) an unbroken period of up to one week at
the time of the birth of the child, taking custody of the child or other
termination of the pregnancy (short parental leave), and
(b) a further unbroken period in order to be
the primary caregiver of the child (extended parental leave).
(c) The entitlement of one week’s paid leave
may be taken at anytime within the 52 week period and
shall be paid:
at the
employees ordinary rate of pay for a period not exceeding one week on full pay,
or
two weeks at
half pay or the period of parental leave taken, whichever is the lesser period.
(d) Extended parental leave cannot be taken at
the same time as the employee’s spouse or partner is on maternity or adoption
leave except as provided for in paragraph (i)(a) of
Part D, Right to Request, of this clause.
Annual and/or
long service leave credits can be combined with periods of parental leave on
half pay to enable an employee to remain on full pay for that period.
(iv) Applications
An employee
who intends to proceed on parental leave should formally notify their employer
of such intention as early as possible, so that arrangements associated with
their absence can be made.
(a) In the case of extended parental leave,
the employee should give written notice of the intention to take the
leave.
(b) The employee must, at least four weeks
before proceeding on leave, give written notice of the dates on which they
propose to start and end the period of leave, although it is recognised in
situations of taking custody of a child, little or no notice may be provided to
the employee. In such an instance, the employee should notify the employer as
early as practicable.
(c) The employee must, before the start of
leave, provide a certificate from a medical practitioner confirming that their
spouse or partner is pregnant and the expected date of birth, or in the case of
an adoption, an official form or notification on taking custody of the child.
(d) In the case of extended parental leave,
the employee must, before the start of leave, provide a statutory declaration
by the employee stating:
(1) if applicable, the period of any maternity
leave sought or taken by his spouse, and
(2) that they are seeking the period of
extended parental leave to become the primary care giver of the child.
(v) Variation after Commencement of Leave -
After
commencing parental leave, an employee may vary the period of her/his parental
leave, once without the consent of the employer and otherwise with the consent
of the employer. A minimum of fourteen
days’ notice must be given, although an employer may accept less notice if
convenient.
(vi) Effect of Parental Leave on Accrual of
Leave, Increments etc.
As per
maternity leave conditions.
(vii) Right to Return to Previous Position
As per
maternity leave conditions.
D. Right
to Request
(i) An employee entitled to maternity,
adoption or parental leave may request the employer to allow the employee:
(a) to extend the period of simultaneous
maternity, adoption or parental leave use up to a maximum of eight weeks;
(b) to extend the period of unpaid maternity,
adoption or extended parental leave for a further continuous period of leave
not exceeding 12 months;
(c) to return from a period of maternity, adoption
or parental leave on a part time basis until the child reaches school age;
to assist the
employee in reconciling work and parental responsibilities.
(ii) The employer shall consider the request
having regard to the employee’s circumstances and, provided the request is
genuinely based on the employee’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) The employee’s request and the employer’s
decision made under paragraphs (i)(b) and (c) must be
recorded in writing.
(iv) Where an employee wishes to make a request
under paragraph (i)(c):
(a) the employee is to make an application
for leave without pay to reduce their full time weekly hours of work
(b) such application must be made as early as
possible to enable the employer to make suitable staffing arrangements. At least four weeks' notice must be given;
(c) salary and other conditions of employment
are to be adjusted on a basis proportionate to the employee’s full time hours
of work i.e. for long service leave the period of service is to be converted to
the full time equivalent and credited accordingly.
(d) employees who return from leave under this
arrangement remain full time employees.
Therefore, the payment of any part time allowance to such employees does
not arise.
E. Communication
During Leave
(i) Where an employee is on maternity,
adoption or 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 employee held before commencing the leave; and
(b) provide an opportunity for the employee to
discuss any significant effect the change will have on the status or
responsibility level of the position the employee held before commencing the
leave.
(ii) The employee shall take reasonable steps
to inform the employer about any significant matter that will affect the
employee’s decision regarding the duration of the leave to be taken, whether
the employee intends to return to work and whether the employee intends to
request to return to work on a part time basis.
(iii) The employee shall also notify the employer
of changes of address or other contact details which might affect the
employer’s capacity to comply with subclause (i).
NOTE:
(a) The entitlement to maternity, adoption
and parental leave for part-time employees who receive an adjusted hourly rate,
along with casual employees, are in accordance with the provisions of Part 4,
Parental Leave of the Industrial
Relations Act 1996 and/or Determination under the Health Services Act 1997.
(b) Where a casual employee is entitled to
parental leave under the Industrial
Relations Act 1996, the following provisions shall also apply in addition
to those set out in the Act.
An employer
must not fail to re-engage a casual employee because:
the employee
or employee’s spouse is pregnant; or
the employee
is or has been immediately absent on parental leave.
The rights of
the employer in relation to engagement and re-engagement of casual employees
are not affected, other than in accordance with this clause.
(c) Part time employees who receive an
adjusted hourly rate are also entitled to the provisions of Part D, Right to
Request and Part E, Communication During Leave, of this clause.
(d) Liability for Superannuation Contributions
During a
period of unpaid maternity, adoption or parental leave, the employee will not
be required to meet the employer's superannuation liability.
6A. Lactation Breaks
(i) This clause applies to employees who are
lactating mothers. A lactation break is provided for breastfeeding, expressing
milk or other activity necessary to the act of breastfeeding or expressing milk
and is in addition to any other rest period and meal break as provided for in
this Award.
(ii) A full time employee or a part time
employee working more than four hours per day is entitled to a maximum of two
paid lactation breaks of up to 30 minutes each per day or per shift.
(iii) A part time employee working four hours or less
on any day or shift is entitled to only one paid lactation break of up to 30
minutes each per day or per shift worked.
(iv) A flexible approach to lactation breaks can
be taken by mutual agreement between an employee and their manager provided the
total lactation break time entitlement is not exceeded. When giving
consideration to any such requests for flexibility, a manager needs to balance
the operational requirements of the organisation with the lactating needs of
the employee.
(v) The employer shall provide access to a
suitable, private space with comfortable seating for the purpose of
breastfeeding or expressing milk. Other suitable facilities, such as
refrigeration and a sink, shall be provided where practicable. Where it is not
practicable to provide these facilities, discussions between the manager and
the employee will take place to attempt to identify reasonable alternative
arrangements for the employee’s lactation needs.
(vi) Employees experiencing difficulties in
effecting the transition from home based breastfeeding to the workplace will
have telephone access in paid time to a free breastfeeding consultative
service, such as that provided by the Australian Breastfeeding Association’s
Breastfeeding Helpline Service or the Public Health System.
(vii) Employees needing to leave the workplace
during time normally required for duty to seek support or treatment in relation
to breastfeeding and the transition to the workplace may utilise sick leave or
other leave in accordance with the Award.
7. Public Holidays
No deduction shall
be made from the salary of an officer for any public or statutory holidays on
which he/she is not required to work.
For the purpose of this clause, the following shall be deemed public
holidays: New Year's Day, Australia Day,
Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Eight
Hour Day, Christmas Day, Boxing Day, and such other public holidays as may be
proclaimed throughout the State of New South Wales or for any district therein
which an officer is employed.
8. Long Service Leave
(i)
(a) Each employee shall be entitled to two
months long service leave on full pay after ten years of service; thereafter
additional long service shall accrue on the basis of five months long service
leave on full pay for each ten years' service.
Employees with
at least seven years service and less than 10 years'
service are entitled, proportionate to his or her length of service, to proceed
on a proportionate period of long service leave on the basis of two months'
long service leave for ten years' service on full pay.
(b) Where the services of an employee with at
least five years' service and less than seven years' service are terminated by
the employer for any reason other than the employee's serious and wilful
misconduct, or by the employee, on account of illness, incapacity or domestic
or other pressing necessity, he/she shall be entitled to be paid a
proportionate amount for long service leave on the basis of two months' long
service leave for ten years' service.
Where the
services of an employee with at least seven years are terminated by the
employer or by the employee, he/she shall be entitled to be paid a
proportionate amount for long service leave on the basis of two months' long
service leave for ten years' service. Where the services of an employee with at
least 10 years' service are terminated by the employer or by the employee,
he/she shall be entitled to be paid on the basis of two months' long service
leave for ten years' service and thereafter on the basis of five months long
service leave for each ten years service.
(ii) For the purposes of subclause (i) of this clause:
(a) service shall mean continuous service
with the employer. For the purpose of this
paragraph, continuous service shall be determined in accordance with the
provisions of Section 7 of the NSW Health Policy Directive PD2019_010 Leave
Matters for the NSW Health Service, as amended from time to time.
(b) Broken periods of service in one or more
hospitals shall count as service subject to the following:
(1) where an officer, after ceasing
employment with the employer is re-employed by the employer subsequent to the
1st July 1974, any service of that officer before he/she was so re-employed
shall not be counted for the purpose of determining any long service leave due
to that officer in respect of his/her service after he/she was so re-employed
unless he/she has completed at leave five years' continuous service from the
date of his/her being so re-employed;
(2) an officer employed in a hospital at the
1st July 1974, and who was entitled to count broken service under the
provisions of the Award in force prior thereto shall be entitled to count such
broken service prior to the 1st July 1974.
(c) Service shall not include -
(1) any period of leave without pay except in
the case of employees who have completed at least ten years' service (any
period of absence without pay being excluded there from) in which case service
shall include any period of leave without pay not exceeding six months taken
after 1 July 1974;
(2) any period of part-time service, except
permanent part-time service.
(iii) An employee with an entitlement to long
service leave may elect to access such entitlement:
(a) on full pay;
(b) on half pay; or
(c) on double pay.
(iv) When an employee takes long service leave,
the leave entitlement will be deducted on the following basis:
(a) a period of leave on full pay - the
number of days so taken;
(b) a period of leave on half pay - half the
number of days so taken; or
(c) a period of leave on double pay - twice
the number of days so taken.
(v) When taking long service leave and an employee
would otherwise have had a rostered shift fall on a public holiday during that
period, the amount of long service leave to be deducted is to be reduced by one
day for the public holiday.
(vi) Long Service Leave shall be taken at a time
mutually arranged between the employer and the employee.
(vii)
(a) On the termination of employment of an
employee, otherwise than by his/her death, an employer shall pay to the
employee the monetary value of all long service leave accrued and not taken at
the date of such termination and such monetary value shall be determined
according to the salary payable to the employee at the date of such termination
unless the employee transfers his/her leave entitlement in accordance with
Section 7 of NSW Health Policy Directive PD2019_010 Leave Matters for the NSW
Health Service, as amended from time to time.
(b) Where an employee who has acquired a right
to long service leave, or after having had five years’ service and less than
ten years service dies, the widow or the widower of
such employee, or if there is no such widow or widower, the children of such
employee, or if there is no such widow, widower, or children, such person who,
in the opinion of the employer, was at the time of the death of such employee,
a dependent relative of such employee, shall be entitled to receive the
monetary value of the leave not taken or which would have accrued to such
employee, had his/her services terminated as referred to in paragraph (b) of
subclause (i) of this clause and such monetary value
shall be determined according to the salary payable to the employee at the time
of his/her death.
Where there is
a guardian of any children entitled under this paragraph the payment, to which
such children are entitled, may be made to such guardian for their maintenance,
education and advancement.
Where there is
no person entitled under this paragraph to receive the monetary value of any
leave payable under the foregoing provisions payment in respect thereof shall
be made to the legal personal representative of such employee.
(viii) Rights to long service leave under this
clause shall be in replacement of rights to long service leave, if any, which
at the 1st July 1974, may have accrued or may be accruing to an officer and
shall apply only to persons in the employ of the employer on or after the 1st
July 1974. Where an officer has been
granted long service leave or has been paid its monetary value prior to the 1st
July 1974, the employer shall be entitled to debit such leave against any leave
to which the officer may be entitled pursuant to this clause.
9. Higher Grade Duty
An officer who is
called upon to relieve continuously in a higher classification for five working
days or more and who satisfactorily performs the whole of the duties and assumes
the whole of the responsibilities of the higher classification shall be
entitled to receive the minimum salary of such higher classification for all
such periods of relief.
10. Payment and Particulars of Salary
(i) All salaries and other payments shall be
paid fortnightly.
(ii) Employees shall have their salary paid
into one account with a bank or other financial institution in New South Wales
as nominated by the employee. Salaries shall be deposited by the employer in
sufficient time to ensure that wages are available for withdrawal by employees
by no later than payday, provided that this requirement shall not apply where
employees nominate accounts with non-bank financial institutions which lack the
technological or other facilities to process salary deposits within 24 hours of
the employer making deposits with such financial institutions but in such cases
the employer shall take all reasonable steps to ensure that the wages of such
employees are available for withdrawal by no later than payday.
(iii) Underpayment and overpayment of salaries -
the following process will apply once the issue of underpayment or overpayment
is substantiated.
(a) Underpayment
(1) If the amount underpaid is equal to or
greater than one day’s gross base pay the underpayment will be rectified within
three working days;
(2) If the amount underpaid is less than one
day’s gross base pay it will be rectified by no later than the next normal pay.
However, if the employee can demonstrate that rectification in this manner would
result in undue hardship, every effort will be made by the employer to rectify
the underpayment within three working days.
(b) Overpayment
(1) In all cases where overpayments have
occurred, the employer shall as soon as possible advise the employee concerned
of both the circumstances surrounding the overpayment and the amount
involved. The employer will also advise
the employee of the pay period from which the recovery of the overpayment is to
commence.
(2) One off overpayments will be recovered in
the next normal pay, except that where the employee can demonstrate that undue
hardship would result, the recover rate shall be at
10% of an employee’s gross fortnightly base pay.
(3) Unless the employee agrees otherwise, the
maximum rate at which cumulative overpayments can be recovered is an amount,
calculated on a per fortnight basis, equivalent to 10% of the employee’s gross
fortnightly base pay.
(4) The recovery rate of 10% of an employee’s
gross fortnightly base pay referred to in subparagraph (b)(3) above may be
reduced by agreement, where the employee can demonstrate that undue hardship
would result.
(5) Where an employee’s remaining period of
service does not permit the full recovery of any overpayment to be achieved on
the fortnightly basis prescribed in subparagraph (b)(3) above, the employer
shall have the right to deduct any balance of such overpayment from monies
owing to the employee on the employee’s date of termination, resignation or
retirement, as the case may be.
11. Settlement of Disputes
(i) 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 Chief Executive Officer
of the Health Service or establishment or his/her nominee, who will arrange for
the matter to be discussed with the employees concerned and a local
representative or representatives of the Union.
(ii) Failing settlement of the issue at this
level, the matter shall be referred to the Secretary and the Head Office of the
Union. The dispute will then be dealt with pursuant to subclause (v) of this
clause.
(iii) Whilst these procedures are continuing, no
stoppage of work or any form of ban or limitation of work shall be applied.
(iv) The Union reserves the right to vary this
procedure where it is considered a safety factor is involved.
(v) With a view to an amicable and speedy
settlement, all disputes that firstly cannot be settled in accordance with
subclauses (i) and (ii) of this clause may be
submitted to a committee consisting of not more than six members, with equal
representatives of the Secretary and the Union.
Such committee shall have the power to investigate all matters in
dispute and to report to the Chief Executive Officer of the Health Service and
the Union respectively with such recommendation as it may think right and, in
the event of no mutual decision being arrived at by such committee, the matter
in dispute may be referred to the Public Health Employees (State) Industrial
Committee.
(vi) This clause shall not interfere with the
rights of either party to institute proceedings for the determination of any
matter in accordance with the Industrial
Relations Act 1996.
12. Anti-Discrimination
(i) It is 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
13. Mobility, Excess Fares and Travelling
For the purpose of
this clause accustomed place of work shall mean the location where an employee
is regularly required to commence duty by the employer.
(i) An employee shall be required to proceed
to the accustomed place of work and return home once on each ordinary working
day or shift in the employee's own time and at the employee's own expense.
(ii)
(a) Where an employee is directed to report
for duty to a place of work other than the employee's accustomed place of work
the employee shall travel to and from the alternative place of work in the
employer's time for those periods in excess of time normally taken to travel to
and from the accustomed place of work.
(b) If the excess of travelling time on a
particular day or shift is greater than the prescribed ordinary hours of duty
for the particular category of staff for that day or shift, then the excess of
hours, shall be paid at the ordinary rate of pay to the extent of the excess of
travelling time.
(c) Fares incurred by such employee in excess
of the fares normally incurred in travelling to the employee's accustomed place
of work and returning home from the accustomed place of work, shall be
reimbursed.
(d) Where the employee is required to report
to an alternative place of work and has the prior approval of the employer to
travel by his/her own mode of conveyance, the employee shall be paid a
kilometre allowance for kilometres travelled in excess of the kilometres the
employee normally travels between the accustomed place of work and home. The kilometre allowance will be as prescribed
from time to time by the Crown
Employees (Public Service Conditions of Employment) Award.
(iii)
(a) Where an employer has determined that an
employee or employees should report to a new accustomed place of work on a
permanent basis, the decision must be discussed with the affected employee(s)
and the local branch of the Union prior to notice of changed accustomed place
of work being given.
(b) The employer shall give the employee
reasonable notice of the requirement to report to a new accustomed place of work. For the purpose of this subclause
"reasonable notice" shall be one calendar month prior to the date the
employee is first required to report to the new accustomed place of work.
(c) Where the accustomed place of work is
changed on a permanent basis by the employer, the employee shall report to the
new accustomed place of work on the date specified by the employer.
(d) If there is disagreement about such decision
after such discussion or if a significant number of employees are involved, the
matter should be referred to the Ministry of Health which will discuss the
matter with the Union and will determine the date upon which notice will be
given to employee(s).
(iv)
(a) The provision of this clause shall not
apply to an employee appointed to regularly perform relief duties or to
employees specifically employed to perform duties at more than one place of
work except as provided in (b) hereunder.
(b) If a reliever incurs fares in excess of
*$5 per day in travelling to and from the relief site, the excess shall be
reimbursed.
(c) Where a reliever, with the prior approval
of the employer, travels by his/her own mode of conveyance and incurs
travelling costs in excess of *$5 per day to and from the relief site, such
excess shall be reimbursed. The rate
applicable shall be the kilometre allowance prescribed from time to time by the
Crown Employees (Public Service
Conditions of Employment) Award, less *$5.
This $5 shall
be reviewed annually by the employer.
(v) No payment shall be made under this
clause unless the employer is satisfied that the employee has incurred
additional expenditure in having to report to an alternative place of work, at
the direction of the employer.
(vi) Travel, to an alternative place of work,
either by public transport or own mode of conveyance, shall in all instances be
by the most direct route.
14. Family and Community Services Leave and
Personal/Carers’ Leave
(i) Family and Community Services (FACS)
Leave and Personal/Carer’s Leave are separate, stand alone
entitlements.
(ii) The provisions outlined in Parts A and B
of this clause are available to all employees covered by this Award, other than
casual employees as defined in subclause (iii) below.
(iii) Casual employees as defined in the Health Industry Status of Employment (State)
Award are entitled to the provisions outlined in Part C of this
clause.
A. FACS
Leave
(i) FACS Leave - General
(a) For the purpose of this clause relating
to FACS leave:
"relative"
means a person related by blood, marriage or affinity;
"affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
"household"
means a family group living in the same domestic dwelling.
(b) The employer may grant FACS leave to an
employee:
(1) to provide care and/or support for sick
members of the employee’s relatives or household; or
(2) for reasons related to the family
responsibilities of the employee (e.g. to arrange and or attend a funeral of a
relative; to accompany a relative to a medical appointment where there is an
element of emergency; parent/teacher meetings; education week activities; to
meet elder-care requirements of a relative); or
(3) for reasons related to the performance of
community service by the employee (e.g. in matters relating to citizenship; to
office holders in local government, other than as a mayor, for attendance at
meetings, conferences or other associated duties; representing Australia or the
State in major amateur sport other than in Olympic/Commonwealth Games); or
(4) in a case of pressing necessity (e.g.
where an employee is unable to attend work because of adverse weather
conditions which either prevent attendance or threaten life or property; the
illness of a relative; where a child carer is unable to look after their
charge).
(ii) FACS leave replaces compassionate leave.
(iii) An employee is not to be granted FACS leave
for attendance at court to answer a criminal charge, unless the employer
approves the grant of leave in the particular case.
Applications
for FACS leave to attend court, for reasons other than criminal charges, will
be assessed on an individual basis.
(iv) FACS Leave - entitlement
(a) The maximum amount of FACS leave on full
pay that may be granted to an employee is:
(1) 3 working days during the first year of service,
commencing on and from 1 January 1995, and thereafter 6 working days in any
period of 2 years; or
(2) 1 working day, on a cumulative basis
effective from 1 January 1995, for each year of service after 2 years’
continuous service, minus any period of FACS leave already taken by the
employee since 1 January 1995,
whichever
method provides the greater entitlement.
(b) For the purposes of calculating
entitlements under (iv)(a)(1) and (2) above, a working day for employees
working 38 hours per week shall be deemed to consist of 8 hours, and a working
day for employees working 35 hours per week shall be deemed to consist of 7
hours. The rate at which FACS leave is
paid out and utilised shall be on actual hours absent from a rostered
shift.
Example
A: An employee working 38 hours per week
will have an entitlement, in their first year of employment, to 24 hours of
FACS leave. If the employee take FACS
leave for a full 10 hour shift, the employee would be debited 10 hours of FACS
leave.
Example B: An employee working 35 hours per week will
have an entitlement, in their first year of employment, to 21 hours of FACS
leave. If the employee takes FACS leave
for a full 7 hour shift, the employee would be debited 7 hours of FACS leave.
Example
C: An employee, employed prior to 1
January 1995, applies for FACS leave on 20 February 1997. The employee is entitled to 6 days in any
period of two years. Therefore, to
calculate the employee’s available FACS leave as at 20 February 1997, add all
FACS leave taken from 21 February 1995 to 20 February 1997 and deduct that
amount from the 6 days entitlement.
(c) FACS leave is available to part-time
employees on a pro rata basis, based on the average number of hours worked per
week. A working day shall consist of
one-fifth of the employee’s average weekly hours during the preceding 12 months
or during the employee’s period of employment, whichever is the lesser
period.
Example: An employee working an average of 30 hours
per week will have an entitlement, in his/her first year of employment, of 18
hours of FACS leave. If the employee
takes FACS leave for a full rostered shift e.g., of 4 hours, the employee would
be debited 4 hours of FACS leave. Likewise, if the employee was rostered for 8
hours and was absent for the full 8 hours on FACS leave, he/she would be
debited 8 hours of FACS leave.
(v) Additional FACS leave for bereavement
purposes
Where FACS
leave has been exhausted, additional FACS leave of up to 2 days for bereavement
may be granted on a discrete, "per occasion" basis to an employee on
the death of a relative or member of a household as defined in paragraph (i)(a) of Part A of this clause.
(vi) Use of other leave entitlements
The employer
may grant an employee other leave entitlements for reasons related to family
responsibilities or community service, by the employee.
An employee
may elect, with the consent of the employer, to take annual leave; long service
leave; or leave without pay.
B. Personal/Carer’s
Leave
(i) Use of sick leave to care for the person
concerned - definitions
A person who
needs the employee’s care and support is referred to as the "person
concerned" and is:
(a) a spouse of the employee; or
(b) a de facto spouse, who, in relation to a
person, is 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 that person; or
(c) 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 employee or spouse or de facto spouse of the employee; or
(d) a same sex partner who lives with the
employee as the de facto partner of that employee on a bona fide domestic
basis; or
(e) a relative of the employee who is a
member of the same household, where for the purpose of this clause relating to
Personal/Carer’s Leave:
"relative"
means a person related by blood, marriage or affinity;
"affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
"household"
means a family group living in the same domestic dwelling.
(ii) Use of sick leave to care for the person
concerned - entitlement
(a) The entitlement to use sick leave in
accordance with this subclause is subject to:
(1) the employee being responsible for the care
and support of the person concerned; and
(2) the person concerned being as defined in
subclause (i) of Part B of this clause.
(b) Other than a casual or any other employee
who receives a loading in lieu of sick leave, an employee with responsibilities
in relation to a person who needs their care and support shall be entitled to
use the untaken sick leave, from that year’s annual sick leave entitlement, to
provide care and support for such persons when they are ill.
(c) Sick leave accumulates from year to
year. In addition to the current year’s
grant of sick leave available under (b) above, sick leave untaken from the
previous 3 years may also be accessed by an employee with responsibilities in
relation to a person who needs their care and support.
(d) The employer may, in special
circumstances, make a grant of additional sick leave. This grant can only be taken from sick leave
untaken prior to the period referred to in paragraph (c) above.
(e) The employee shall, if required,
establish either by production of a medical certificate or statutory
declaration that the illness of the person concerned is such as to require care
by another person.
(f) The employee has the right to choose the
method by which the ground for leave is established, that is, by production of
either a medical certificate or statutory declaration.
(g) The employee is not required to state the
exact nature of the relevant illness on either a medical certificate or
statutory declaration.
(h) The employee shall, wherever practicable,
give the employer notice prior to the absence of the intention to take leave,
the name of the person requiring care and that person’s relationship to the
employee, the reasons for taking such leave and the estimated length of
absence. If it is not practicable for
the employee to give prior notice of absence, the employee shall notify the
employer by telephone of such absence at the first opportunity on the day of
absence.
(i) In normal circumstances, the employee
must not take leave under this part where another person has taken leave to
care for the same person.
(iii) Use of other leave entitlements
An employee
may elect, with the consent of the employer, to take:
(a) annual leave, including annual 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.
An employee and employer may agree to defer payment of the annual leave
loading in respect of single day absences, until at least 5 consecutive annual
leave days are taken. An employee may
elect with the employer’s agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
(b) long service leave; or
(c) leave without pay for the purpose of
providing care and support to the person concerned as defined in subclause (i) of Part B. of this clause.
(iv) Use of make-up time
An employee
may elect, with the consent of the employer, to work "make-up time".
"Make-up time" is worked when the employee takes time off during
ordinary hours for family or community service responsibilities and works those
hours at another time.
C. Entitlements
for Casual Employees
(i) Bereavement entitlements for casual
employees
(a) Casual employees are entitled to not be
available to attend work or to leave work upon the death in Australia of a
relative or member of a household as prescribed in paragraph (i)(a) of Part A, of this clause.
(b) The employer and the 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.
(c) An employer must not fail to re-engage a
casual employee because the employee accessed the entitlements provided for in
this part. The rights of an employer to
engage or not engage a casual employee are otherwise not affected.
(ii) Personal carers entitlement for casual
employees
(a) Subject to the evidentiary and notice
requirements in paragraphs (ii)(e) - (h) of Part B of this clause casual
employees are entitled to not be available to attend work, or to leave work if
they need to care for a person prescribed in subclause (i)
of Part B of this clause who are sick and require care and support, or who
require care due to an unexpected emergency, or the birth of a child.
(b) The employer and the 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.
(c) An employer must not fail to re-engage a
casual employee because the employee accessed the entitlements provided for in
this part. The rights of an employer to
engage or not to engage a casual employee are otherwise not affected.
14a. Family Violence Leave
(i) For the purpose of this clause, family
violence means domestic violence as defined in the Crimes (Domestic and Personal Violence) Act 2007 as varied from
time to time. The violence may have been reported to the police and/or may be
the subject of an Apprehended Violence Order.
(ii) An employee experiencing family and
domestic violence can utilise Award leave entitlements provided for in Sick
Leave and Family and Community Services Leave provisions of the Award.
(iii) Where leave entitlements to Sick Leave and
Family and Community Services Leave are exhausted, the employer will grant up
to five days per year of paid special leave to attend legal proceedings,
counselling, appointments with a medical or legal practitioner and relocation
and safety activities directly associated with alleviating the effects of
family and domestic violence. This leave entitlement does not accumulate from
year to year.
(iv) Upon exhaustion of the paid leave
entitlement, an employee may request further periods of unpaid leave, for the
same activities for which paid leave would be available.
(v) To access paid and unpaid leave, the
employee must provide the employer with evidence, to the employer’s
satisfaction, substantiating the purpose of the leave and that the leave is
related to alleviating the effects of family violence. The employer may accept
a variety of agreed documentation in support of an application for leave.
Supporting documentation may be presented in the form of an agreed document
issued by the Police Force, a Court, a doctor, a Family Violence Support
Service or a lawyer.
(vi) Matters related to family violence can be
sensitive. Information collected by the employer will be kept confidential. No
information relating to the details of the family violence will be kept on an
employee’s personnel file without their express permission. However, records about the use of family
violence leave will need to be kept.
(vii) The employer, where appropriate, may
facilitate flexible working arrangements subject to operational requirements.
This may include changes to working times and locations, telephone numbers and
email addresses.
(viii) The employer will co-operate with all legal
orders protecting an employee experiencing domestic violence.
15. Labour Flexibility
(i) The employer may direct an employee to
carry out such duties as are reasonable, and within the limits of the
employee's skill, competence and training consistent with employee's
classification, grouping and/or career stream provided that such duties are not
designed to promote deskilling.
(ii) The employer may direct an employee to
carry out such duties and use such tools and equipment as may be required
provided that the employee has been properly trained or has otherwise acquired
the necessary skills in the use of such tools and equipment.
(iii) Any direction issued by the employer
pursuant to subclause (i) and (ii) shall be
consistent with the employer's responsibilities to provide a safe and healthy
work environment.
(iv) Existing provisions with respect to the
payment of higher duties allowances shall apply in such circumstances.
16. Termination of Employment
Employment may be
terminated only by four weeks' notice given in writing either by the employer or
the officer at any time during the week or by payment or forfeiture of four
weeks' salary as the case may be, provided that the officer and the employer
may agree to a lesser period of notice.
Nothing in this clause shall prevent the summary dismissal of an officer
for misconduct or neglect of duty.
17. Salary Packaging
(i) By agreement with their employer,
employees may elect to package part or all of their salary in accordance with
this clause, to obtain a range of benefits as set out in the NSW Health Policy
Directive PD 2018_044 Salary Packaging,
as amended from time to time. Such election must be made prior to the
commencement of the period of service to which the earnings relate. Where an
employee also elects to salary sacrifice to superannuation under this Award,
the combined amount of salary packaging/sacrificing may be up to 100 per cent
of salary.
Any salary
packaging above the fringe benefit exemption cap will attract fringe benefits
tax as described in paragraph (iv) below.
(ii) Where an employee elects to package an
amount of salary:
(a) Subject to Australian taxation law, the
packaged amount of salary will reduce the salary subject to PAYE taxation
deductions by that packaged amount.
(b) Any allowance, penalty rate, overtime
payment, payment for unused leave entitlements, weekly workers’ compensation,
or other payment other than any payment for leave taken in service, to which an
employee is entitled under this Award or statute which is expressed to be
determined by reference to an employee’s salary, shall be calculated by
reference to the salary which would have applied to the employee under this
Award in the absence of any salary packaging or salary sacrificing made under
this Award.
(c) ‘Salary’ for the purpose of this clause,
for superannuation purposes, and for the calculation of award entitlements,
shall mean the Award salary as specified in clause 2. Salaries, and which shall
include ‘approved employment benefits’ which refer to fringe benefit savings,
administration costs, and the value of packaged benefits.
(iii) Any pre-tax and post-tax payroll deductions
must be taken into account prior to determining the amount of available salary
to be packaged. Such payroll deductions may include but are not limited to
superannuation payments, HECS payments, child support payments, judgement
debtor/garnishee orders, union fees, and private health fund membership fees.
(iv) The salary packaging scheme utilises a
fringe benefit taxation exemption status conferred on public hospitals and local
health districts, which provides for a fringe benefit tax exemption cap of
$17,000 per annum. The maximum amount of fringe benefits-free tax savings that
can be achieved under the scheme is where the value of benefits when
grossed-up, equal the fringe benefits exemption cap of $17,000. Where the
grossed-up value exceeds the cap, the employer is liable to pay fringe benefits
tax on the amount in excess of $17,000 but, will pass this cost on to the
employee. The employer’s share of savings, the combined administration cost,
and the value of the package benefits are deducted from pre-tax dollars.
(v) The parties agree that the application of
the fringe benefits tax exemption status conferred on public hospitals and
local health districts is subject to prevailing Australian taxation laws.
(vi) If an employee wishes to withdraw from the
salary packaging scheme, the employee may only do so in accordance with the
required period of notice as set out in the NSW Health Policy Directive
PD2018_044 Salary Packaging, as
varied from time to time.
(vii) Where an employee ceases to salary package,
arrangements will be made to convert the agreed package amount to salary. Any
costs associated with the conversion will be borne by the employee, and the
employer shall not be liable to make up any salary lost as a consequence of the
employee’s decision to convert to salary.
(viii) Employees accepting the offer to salary
package do so voluntarily. Employees are advised to seek independent financial
advice and counselling to apprise them of the implications of salary packaging
on their individual personal financial situations.
(ix) The employer and the employee shall comply with
the procedures set out in the NSW Health Policy Directive PD 2018_044 Salary Packaging as amended from time to
time.
18. Reasonable Hours
(i) Subject to subclause (ii) the employer
may require an employee to work reasonable overtime at overtime rates unless or
as otherwise provided for under the Award.
(ii) An employee may refuse to work overtime in
circumstances where the working of such overtime would result in the employee
working hours which are unreasonable.
(iii) For the purposes of subclause (ii) what is
unreasonable or otherwise will be determined having regard to:
(a) any risk to employee health and safety.
(b) The employee’s personal circumstances
including any family and carer responsibilities.
(c) The needs of the workplace or enterprise.
(d) The notice (if any) given by the employer
of the overtime and by the employee of his or her intention to refuse it; and
(e) Any other relevant matter.
19. Salary Sacrifice to Superannuation
(i) Notwithstanding
the salaries prescribed in clause 2. Salaries as varied from time to time, an
employee may elect, subject to the agreement of the employee’s employer, to
sacrifice a part or all of the salary payable under the salaries clause to
additional employer superannuation contributions. Such election must be made
prior to the commencement of the period of service to which the earnings
relate. The amount sacrificed together with any salary packaging arrangements
under clause 17, Salary Packaging, of this Award may be made up to one hundred
(100) per cent of the salary payable under the relevant salaries clause, or up
to one hundred (100) per cent of the currently applicable superannuable salary,
whichever is the lesser.
In this
clause, ‘superannuable salary’ means the employee’s salary as notified from
time to time to the New South Wales public sector superannuation trustee
corporations.
(ii) Any pre-tax and post-tax payroll
deductions must be taken into account prior to determining the amount of
available salary to be packaged. Such payroll deductions may include but are
not limited to superannuation payments, HECS payments, child support payments,
judgement debtor/garnishee orders, union fees and private health fund
membership fees.
(iii) Where the employee has elected to sacrifice
a part or all of the available payable salary to additional employer
superannuation contributions:
(a) The employee shall be provided with a
copy of the signed agreement. The salary sacrifice agreement shall be
terminated at any time at the employee’s election and shall cease upon
termination of the employee’s services with the employer.
(b) Subject to Australian taxation law, the
amount of salary sacrificed will reduce the salary subject to appropriate PAYE
taxation deductions by the amount sacrificed; and
(c) Any allowance, penalty rate, overtime,
payment for unused leave entitlements, weekly workers’ compensation, or other
payment, other than any payment for leave taken in service, to which an
employee is entitled under the relevant award or any applicable award, Act, or
statute which is expressed to be determined by reference to an employee’s
salary, shall be calculated by reference to the salary which would have applied
to the employee under the salaries clause of the relevant award in the absence
of any salary sacrifice to superannuation made under this Award.
(iv) The employee may elect to have the
specified amount of payable salary which is sacrificed to additional employer
superannuation contributions:
(a) paid into the superannuation scheme
established under the First State
Superannuation Act 1992 as optional employer contributions; or
(b) subject to the employer’s agreement, paid
into a private sector complying superannuation scheme as employer superannuation
contributions.
(v) Where an employee elects to salary
sacrifice in terms of subclause (iv) above, the employer will pay the
sacrificed amount into the relevant superannuation fund.
(vi) Where the employee is a member of a
superannuation scheme established under:
(a) the Police
Regulation (Superannuation) Act 1906;
(b) the Superannuation
Act 1916;
(c) the State
Authorities Superannuation Act 1987;
(d) the State
Authorities Non-Contributory Superannuation Act 1987; or
(e) the First
State Superannuation Act 1992.
The employee’s
employer must ensure that the amount of any additional employer superannuation
contributions specified in subclause (i) above is
included in the employee’s superannuable salary which is notified to the New
South Wales public sector superannuation trustee corporations.
(vii) Where, prior to electing to sacrifice a part
or all of their salary to superannuation, an employee had entered into an agreement
with their employer to have superannuation contributions made to a
superannuation fund other than a fund established under legislation listed in
subclause (v) above, the employer will continue to base contributions to that
fund on the salary payable under clause 2, Salaries, of the Award to the same
extent as applied before the employee sacrificed that amount of salary to
superannuation. This clause applies even though the superannuation
contributions made by the employer may be in excess of the superannuation
guarantee requirements after the salary sacrifice is implemented.
20. No Extra Claims
Other than as
provided for in the Industrial Relations
Act 1996 and the Industrial
Relations (Public Sector Conditions of Employment) Regulation 2014, there shall be no further
claims/demands or proceedings instituted before the Industrial Relations
Commission of New South Wales for extra or reduced wages, salaries, rates of
pay, allowances or conditions of employment with respect to the employees
covered by the Award that take effect prior to 30 June 2022 by a party to this
Award.
21. Area, Incidence and Duration
(i) This Award takes effect from 1 July 2021
and shall remain in force for a period of one year.
(ii) This Award rescinds and replaces the Public Hospitals (Medical Superintendents)
Award 2019 published 24 January 2020 (386 I.G. 319) and all variations
thereof.
(iii) This Award shall apply to persons employed
in classifications contained herein employed in the New South Wales Health
Service under section 115(1) of the Health
Services Act 1997, or their successors, assignees or transmittees.
N. CONSTANT, Chief Commissioner
____________________
Printed by the authority of the Industrial
Registrar.