Independent Commission Against Corruption Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales, Industrial Organisation of Employees.

 

(No. IRC 397 of 2006)

 

 

VARIATION

 

1.          Insert at the end of the Arrangement, of the award published 3 September 2004 (346 I.G. 227), the following:

 

Schedule 3 ICAC Award - Casual Employees’ Entitlements

 

2.          Insert at the end of clause 6, Basis of Employment in the ICAC, the following paragraph:

 

Casual employees shall receive leave entitlements  as referred to in Schedule 3.

 

3.          Delete paragraph 10.3.9 of clause 10, Conditions of Employment, and insert in lieu thereof the following:

 

10.3.9   Parental Leave

 

Parental leave includes maternity, adoption leave and "other parent" leave.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(c)        Where maternity or adoption leave does not apply; "other parent" leave is available to male and female staff who apply for leave to look after his/her child or children. Other parent leave applies as follows:

 

(1)        Short other parent leave --- an unbroken period of up to 8 weeks at the time of the birth of the child or other termination of the spouse's or partner's pregnancy or, in the case of adoption, from the date of taking custody of the child or children;

 

(2)        Extended other parent leave --- for a period not exceeding 12 months, less any short other parental leave already taken by the staff member as provided for in paragraph (1) of this subclause. Extended other parental leave may commence at any time up to 2 years from the date of birth of the child or the taking of custody of the child.

 

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

 

(1)        Applied for parental leave within the time and in the manner determined set out in subclause (j) of this clause; and

 

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

 

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

 

(i)         in advance as a lump sum; or

 

(ii)        fortnightly as normal; or

 

(iii)       fortnightly at half pay; or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(h)       Right to request

 

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

 

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

 

(ii)        return from a period of full time maternity, adoption or other parent leave on a part time basis until the child reaches school age;

 

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

 

(2)        The Commissioner 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.

 

(i)         Notification Requirements

 

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

 

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

 

(i)         that she/he intends to take maternity, adoption or other parent leave, and

 

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

 

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

 

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

 

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

 

(ii)        the period of leave to be taken. 

 

(4)        Employee’s request and the employer’s decision to be in writing

 

(5)        The employee’s request and the Commissioner’s  decision made under 10.3.9 (h)(1)(i) and 10.3.9 (h)(1)(ii) must be recorded in writing.

 

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

 

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

 

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

 

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

 

(j)         A staff member has the right to his/her former position.

 

(1)        if she/he has taken approved leave or part-time work in accordance with subclause (h), and she resumes duty immediately after the approved leave or work on a part-time basis.

 

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

 

(l)         A staff member does not have a right to her/his former position during a period of return to work on a part-time basis. If the Commissioner approves a return to work on a part-time basis then the position occupied is to be at the same classification and grade as the former position.

 

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

 

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

 

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

 

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

 

i.           accrued recreation leave at the date adoption leave commences is exhausted within the period of maternity, adoption or other parent leave,

 

ii.          the total period of maternity, adoption or other parent  leave, is not extended by the taking of recreation leave at half pay

 

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

 

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

 

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

 

(s)        Communication during maternity, adoption or other parent leave

 

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

 

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

 

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

 

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

 

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

 

4.          Insert after Schedule 2, Allowance Rates from 2 July 2004, the following new Schedule:

 

Schedule 3 Casual Employees’ Entitlements

 

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

 

(a)        The Commission must not fail to re-engage a regular casual employee (see section 53(2) of the Act) 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.

 

(ii)        Personal Carers entitlement for casual employees

 

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

 

(b)        The Commissioner and the casual employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(c)        The Commissioner 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.

 

(d)        The casual employee shall, if required,

 

(A)      establish either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person, or

 

(B)       establish by production of documentation acceptable to the  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, a casual employee must not take carer's leave under this subclause where another person had taken leave to care for the same person.

 

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

 

(iii)       A family member for the purposes of (ii) (a) above is:

 

(a)        a spouse of the staff member; or

 

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

 

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

 

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

 

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

 

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

 

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

 

(iv)       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 family member on production of satisfactory evidence (if required by the employer).

 

(b)        The Commissioner and the casual employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

 

(c)        The Commissioner 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.

 

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

 

5.          This variation shall take effect from the 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

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Printed by the authority of the Industrial Registrar.