Maintenance and Outdoor Staff
(Catholic Schools) (State) Award 2005
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by New South
Wales Independent Education Union, Industrial Organisation of Employees.
(No. IRC 33 of 2006)
Before The Honourable
Justice Wright, President
|
3 February 2006
|
VARIATION
1. Delete clause
18 Catholic Personal/Carer’s Leave of the award published 17 February 2006 (357
I.G. 1) and insert in lieu thereof the following:
18. Catholic
Personal/Carer’s Leave
18.1 Use of Sick
Leave to Provide Care and Support for a Family Member
(a) An employee
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) of paragraph (c) who needs the employee’s
care and support, shall be entitled to use, in any year, in accordance with
this subclause, any current or accrued sick leave entitlement provided for at
Clause 17 of the award, for absences to provide care and support for such persons
when they are ill, or who require care due to an unexpected emergency. Such
leave may be taken for part of a single day.
(b) The employee
shall, if required,
(i) 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
(ii) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
(c) The entitlement
to use sick leave in accordance with this subclause is subject to:
(1) the employee
being responsible for the care of the person concerned; and
(2) the family
member being a parent, step-parent, spouse, grandchild, sibling, grandparent, child, step-child, foster
child, adopted child and foster parent of the employee or spouse.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at Clause 29, Disputes Avoidance and Grievance Procedure
should be followed.
18.2 Use of Sick
Leave for a Pressing Domestic Necessity
(a) Subject to
paragraph (c), for the purposes of this clause "pressing domestic
necessity" means any reason at the discretion of the employer, provided
that such discretion is not unreasonably withheld and is exercised so as not to
contravene any applicable provisions of the Anti-Discrimination Act
1997.
(b) An employee,
other than a casual employee, with sick leave credits may apply to utilise such
credits up to five of any current or accrued sick leave entitlement days in any
one year of the employee’s service, for any pressing domestic necessity other
than to care for or support a person defined in subparagraph 18 (i)(c)(2).
(c) Where an
employee, other than a casual employee, is not entitled to utilise sick leave
credits pursuant to paragraph 18 (i)(a) he or she may access any current or
accrued sick leave for any pressing domestic necessity where the employee is
responsible for the care or support of a person not referred to in subparagraph
18 (i)(c)(2).
(d) The yearly
entitlement for the purpose of pressing domestic necessity in paragraph
18(ii)(b) is non-cumulative.
(e) If required,
an employee shall provide a written statement or other evidence supporting the application
for Personal/Carer’s Leave for the purpose of pressing domestic necessity.
18.3 Notification of
Intention to Take Leave
In relation to sub-clauses 18.1 and 18.2, wherever
practicable, an employee shall give the employer notice prior to the absence of
the intention to take leave. The
employee shall also provide the name of the person requiring care, that
person’s relationship to the employee, the nature of any pressing domestic
necessity, 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.
18.4 Unpaid Leave
for Family Purpose
An employee may elect, with the consent of the employer
to take unpaid leave for the purpose of providing care and support to a person
referred to in subparagraph 18 .1 or paragraph 18 2(c) who is ill or who
requires care due to an unexpected emergency.
18.5 Annual Leave
(a) An employee
may elect with the consent of the employer to take annual leave not exceeding
ten days in single day periods or part thereof, in any calendar year at a time
or times agreed by the parties.
(b) Access to
annual leave, as prescribed in paragraph (a) of this subclause, shall be
exclusive of any shutdown period provided for elsewhere under this award.
(c) An employee
may agree to defer payment of the annual leave loading in respect of single day
absences, until at least five consecutive annual leave days are taken.
(d) An employee
may elect with the employers agreement to take annual leave at any time within
a period of 24 months from the date at which it falls due
18.6 Time Off in
Lieu of Payment for Overtime
(a) An employee
may elect, with the consent of the employer, to take time off in lieu of
payment for overtime at a time or times agreed with the employer within twelve
(12) months of the said election.
(b) Overtime taken
as time off during ordinary time hours shall be taken at the ordinary time
rate, that is an hour for each hour worked.
(c) If, having
elected to take time as leave in accordance with paragraph (a) of this
subclause, the leave is not taken for whatever reason, payment for time accrued
at overtime rates shall be made at the expiry of the twelve (12) month period
or on termination.
(d) Where no
election is made in accordance with paragraph (a) of this subclause, the
employee shall be paid overtime rates in accordance with the award.
18.7 Make-Up Time
(a) An employee
may elect, with the consent of the employer, to work "make-up time"
under which the employee takes time off ordinary hours, and works those hours
at a later time, during the spread of ordinary hours provided in the award, at
the ordinary rate of pay.
(b) An employee on
shift work may elect, with the consent of the employer, to work "make-up
time" (under which the employee takes time off ordinary hours and works
those hours at a later time), at the shift work rate which would have been
applicable to the hours taken off."
18.8 Rostered Days
Off
(a) An employee
may elect, with the consent of the employer, to take a rostered day off at any
time.
(b) An employee
may elect, with the consent of the employer, to take rostered days off in part
day amounts.
(c) An employee
may elect, with the consent of the employer, to accrue some or all rostered
days off for the purpose of creating a bank to be drawn upon at a time mutually
agreed between the employer and employee, or subject to reasonable notice by
the employee or the employer.
This subclause is subject to the employer informing
each union which is both party to the award and which has members employed at
the particular enterprise of its intention to introduce an enterprise system of
RDO flexibility, and providing a reasonable opportunity for the union(s) to
participate in negotiations.
18.9 Entitlement for
casual employees
(a) Subject to the
requirements in subclause (iii) 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 18.1 (c) (2) of this clause who is sick and
requires care and support, or who requires care due to an unexpected emergency,
or the birth of a child.
(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 clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
2. Insert after
subclause 19.3 of clause 19, Parental Leave - Catholic Diocesan Employers the
following new subclauses 19.4, 19.5 and 19.6:
19.4 Casual
Employees
An employer must not fail to re-engage a regular casual
employee (see section 53(2) of the Industrial Relations Act 1996 (NSW))
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 an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
19.5 Right to
request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(1) to extend the
period of simultaneous unpaid parental leave up to a maximum of eight weeks;
(2) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(3) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the employee in reconciling work and parental
responsibilities.
(b) 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.
(c) Employee’s
request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made
under subparagraphs (a) (2) and (3) of this subclause must be recorded in
writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
subparagraph (a) (3), such a request must be made as soon as possible before
the date upon which the employee is due to return to work from parental leave.
19.6 Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(1) 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 parental leave; and
(2) 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 parental leave.
(b) 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 parental
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.
(c) 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 paragraph (a).
3. Insert after
subclause 19A.3, of clause 19A, Parental Leave Schedule A Schools the following
new subclauses 19A.4, 19A.5 and 19A.6:
19A.4 Casual Employees
An employer must not fail to re-engage a regular casual
employee (see section 53(2) of the Industrial Relations Act 1996 (NSW))
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 an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
19A.5 Right to Request
(a) An employee entitled
to parental leave may request the employer to allow the employee:
(1) to extend the
period of simultaneous unpaid parental leave up to a maximum of eight weeks;
(2) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(3) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the employee in reconciling work and parental
responsibilities.
(b) 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.
(c) Employee’s
request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made
under subparagraphs (a) (2) and (3) of this subclause must be recorded in
writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
subparagraph (a) (3), such a request must be made as soon as possible before
the date upon which the employee is due to return to work from parental leave.
19A.6 Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(1) 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 parental leave; and
(2) 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 parental leave.
(b) 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 parental
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.
(c) 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 paragraph (a).
4. Insert after
subclause 19B.(c) of clause 19B, Parental Leave Schedule B Schools the
following new subclauses (d), (e) and (f):
19B(d) Casual Employees
An employer must not fail to re-engage a regular casual
employee (see section 53(2) of the Industrial Relations Act 1996 (NSW))
because:
(i) the employee
or employee's spouse is pregnant; or
(ii) the employee
is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
19B(e) Right to request
(i) An employee
entitled to parental leave may request the employer to allow the employee:
(A) to extend the
period of simultaneous unpaid parental leave up to a maximum of eight weeks;
(B) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(C) to return from
a period of parental leave on a part-time basis until the child reaches school
age;
to assist the 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) Employee’s
request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made
under subparagraphs (i) (B) and (C) of this subclause must be recorded in
writing.
(iv) Request to
return to work part-time
Where an employee wishes to make a request under
subparagraph (a) (3), such a request must be made as soon as possible before
the date upon which the employee is due to return to work from parental leave.
19B(f) Communication
during parental leave
(i) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(A) make information
available in relation to any significant effect the change will have on the
status or responsibility level of the position the employee held before
commencing parental 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 parental 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 parental
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 paragraph (i).
5. Insert after
subclause (iv) of clause 22 Bereavement Leave, the following new clause:
(v) Casual
Employees
(a) Casual
employees are entitled to not be available to attend work, or to leave work
upon the death in Australia in relation to whom the employee could have
utilised Catholic Personal/Carer's Leave in subclause 18.9, provided that for
the purpose of this bereavement entitlement, the casual employee need not have
been responsible for the care of the person concerned. A casual employee must notify their employer
as soon as practicable of their intention to access this entitlement and may be
required to provide the employer with satisfactory evidence of such death.
(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 clause. The rights of an employer to engage
or not engage a casual employee are otherwise not affected.
6. This variation
shall take effect from 19 December 2005.
F.
L. WRIGHT J
, President
____________________
Printed by
the authority of the Industrial Registrar.