Crown
Employees (Tipstaves to Justices) Award 2007
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 112 of 2012)
Before The Honourable
Mr Justice Staff
|
27 April 2012
|
REVIEWED
AWARD
Arrangement
PART A
Clause No. Subject Matter
1. Title
2. Definitions
3. Salaries
4. Recreation
Leave
5. Purchased
Leave
6. Extended
Leave
7. Sick Leave
8. Public
Holidays
9. Leave for
Special Purposes
9A. Leave for
Matters Arising from Domestic Violence
10. Military
Leave
11. Study Time
12. Parental
Leave
12A. Lactation
Breaks
13. Absence
Whilst on Compensation to Count as Service for Leave Purposes
14. Absences
caused by Adverse Weather Conditions
15. Continuity
of Service
16. Uniforms
17. Grievance
and Dispute Settling Procedures
18. Anti-Discrimination
19. Secure
Employment
20. Leave
Reserved
21. Area,
Incidence and Duration
PART B
MONETARY RATES
Table 1
Appendix A
Appendix B
PART A
1. Title
This award shall be known as Crown Employees (Tipstaves
to Justices) Award 2007.
2. Definitions
2.1 "Association"
means the Public Service Association and Professional Officers’ Association
Amalgamated Union of New South Wales.
2.2 "Employee"
means a person employed as a tipstaff.
2.3 "Department"
means the Department of Attorney General and Justice (Attorney General’s
Division). In this Award, the term
"employer" is used in lieu of "Department" or
"Department Head".
2.4 "Service"
means continuous service both before and after the commencement of this award
as a tipstaff to any Justice of the Supreme Court of New South Wales or the
Industrial Relations Commission of New South Wales, or the Land and Environment
Court of New South Wales, or as a tipstaff to any Judge of the District Court
of New South Wales or the Compensation Court of New South Wales; provided that
future entrants shall be deemed to have the years of service indicated by the
salary at which they enter.
2.5 "Uniform"
means a frock coat for court work as provided.
2.6 "Domestic
Leave" means domestic violence as defined in the Crimes (Domestic and
Personal Violence Act) 2007.
3. Salaries
The rates of pay of employees shall be as set out in
Table 1 of Part B, Monetary Rates.
4. Recreation Leave
4.1 Accrual and
Calculation of Leave -
(a) Recreation leave
accrues at one and two third days per completed month of service, up to a
maximum of 20 days per year. Recreation leave does not accrue in respect of unauthorised
absences or in respect of authorised periods of leave without pay which, when
aggregated, exceed five working days in a leave year unless such leave is taken
during Law Vacation - see clause 4.4 Law Vacation below.
(b) The minimum unit
of leave is a quarter of a day and leave may be taken in multiples of a quarter
day. Recreation leave entitlements
should be balanced at least once per year.
When calculating recreation leave, fractions other than an exact quarter
day should be rounded off to the nearest quarter day or multiple thereof.
(c) When calculating
the proportionate deduction to be made in respect of leave without pay,
fractions other than a quarter day or multiple thereof, should be rounded off
to the next lower quarter day or multiple thereof.
4.2 Taking of Leave
-
(a) Recreation leave
is to be taken in one consecutive period not later than six months after the
completion of each 12 months service, except where the employer and employee
agree otherwise.
(b) An employee may
be required by the employer to take accrued recreation leave at a time
convenient to the employer but, as far as practicable, the wishes of the
employee should be taken into account when fixing the time for the taking of
leave, particularly where employees have special needs due to family
responsibilities. For example, where
employees have school aged children, leave rosters should be arranged in such a
way as to allow each person to take leave at some time during school holidays.
4.3 Conservation of
Leave -
(a) Conservation of
leave up to a maximum of 40 working days may be permitted by the employer in
exceptional circumstances and on the understanding that the leave will be
reduced to an acceptable level as soon as possible.
(b) An employee must
take their recreation leave to reduce all balance below 8 weeks, or its hourly
equivalent, and the employer must cooperate in this process. The employer may direct an employee with
more than 8 weeks to take their recreation leave so that it is reduced to below
8 weeks by school term one 2010.
4.4 Law Vacation -
(a) Where a court or
tribunal or other judicial body is temporarily closed or reduced to a nucleus
for the purposes of annual holidays (law vacation), an employee who has not
accrued sufficient recreation leave to cover the whole period of such closure
or reduction of staff, will be required to take recreation leave to credit
followed by leave without pay for the balance of the period.
(b) Employees who
are required to take leave without pay during law vacation are to be paid for
all public holidays occurring during such leave. This period of leave without pay is also to count for the accrual
of recreation leave in the following year.
4.5 Payment on
Termination of Employment -
(a) On termination
of employment, an employee is entitled to be paid the monetary value of
recreation leave to credit.
(b) For the purposes
of calculation of leave on termination, credit is to be allowed for periods of
employment of less than a month. Leave due
is to be calculated to an exact quarter day.
Where applicable, fractions other than an exact quarter day are to be
taken to the next higher quarter day.
(c) Where an
employee has been granted recreation leave in advance, the employer may deduct
the value of such leave from any remuneration due to the employee on
termination of employment.
4.6 Payment of
Monetary Value of Accrued Recreation Leave On Death -
(a) If an employee
dies, the monetary value of accrued leave for which payment has not already
been made, may be applied towards the payment of funeral expenses or may be
paid to the employee's next of kin or to the Estate.
(b) Where the
funeral expenses have not been paid or have been paid by a person other than
the person making the claim for payment of untaken recreation leave, approval
may be sought from the Minister to direct that the funeral expenses form the
first charge on the monetary value of leave.
Payment may be made directly to the funeral director or to the person
who paid the funeral expenses, subject to production of receipts.
(c) Any balance of
the monetary value of recreation leave should then be paid to the employee's
next of kin or to the Estate as specified in the next clause.
(d) If no claim for
payment of funeral expenses is made, the monetary value of leave is to be paid
in the following order (each class taking to the exclusion of the others):
(1) to the widow or
widower of the employee; or
(2) to the children
of the employee; or
(3) to the dependent
relatives of the employee; or
(4) to the personal
representative of the employee (that is the Estate)
4.7 Recreation Leave
Loading -
(a) Employees are to
be granted a recreation leave loading equivalent to 17.5 per cent of four
weeks' ordinary salary or wages, provided that the loading payable does not, in
any case, exceed the loading calculated in accordance with the foregoing on the
maximum salary applicable from time to time to Grade 12, Clerk under the Public
Sector Employment and Management Act 2002.
(b) There shall be a
leave loading year ending 30 November, in every year. The full entitlement to the loading on recreation leave that the
employee has accrued over the previous leave year is to be paid to the employee
on the first occasion when he or she takes sufficient recreation leave to
enable the employee to be absent from duty for at least two consecutive weeks
after 1 December in any year. The
loading will apply only to leave accrued in the year ending on the preceding 30
November.
(c) Leave and salary
records need to be endorsed to indicate that the leave loading for the previous
leave loading year has been paid.
(d) In the event of
no such absence occurring by 30 November of the following year, the employee is
to be paid the monetary value of the recreation leave loading payable on leave
accrued as at 30 November of the previous leave year, notwithstanding that the
employee has not entered on leave.
Leave and salary records need to be endorsed to indicate that the
payment has been made.
(e) On retirement or
termination of services by the employer for any reason other than misconduct an
employee, who has not already taken a period of recreation leave since the
preceding 1 December and who has not been paid the recreation leave loading in
respect of such leave, is to be paid the recreation leave loading which would
have been payable had such leave been taken.
(f) The recreation
leave loading is not to be paid when an employee is granted recreation leave to
credit or the monetary value of recreation leave to credit on resignation or
dismissal for misconduct.
(g) Broken service
during the year does not attract the recreation leave loading. If an employee resigns and is subsequently
re-employed during the same year, only the service from the date of re-employment
is to be taken into account for annual leave loading purposes.
(h) Rate of Payment
-
(1) The recreation
leave loading is to be calculated on the salary or wage rate paid for the leave
when taken.
(2) If an increase
in the salary or wage rate occurs during a period of leave, retrospective
adjustment of the recreation leave loading is to be made. Where payment is made as at 30 November,
because no period of two weeks' leave has been taken during the year, the
payment is to be calculated at the rate which would have been paid had the
leave been taken at 30 November.
(3) Provided
adequate notice is given, the recreation leave loading is to be paid prior to
entry on leave, generally at the same time as the salary or wages in respect of
the period of leave.
(4) The recreation
leave loading may be calculated in the following manner:
(i) Annual
Salaries; loading on 4 weeks leave; divide the annual salary by 74.54.
(ii) Weekly Rates;
loading on 4 weeks leave; divide the weekly rate by 1.4286.
5. Purchased Leave
5.1 An employee may
apply to enter into an agreement with the employer to purchase either 10 days
(2 weeks) or 20 days (4 weeks) additional leave in a 12 month period.
(a) Each application
will be considered subject to operational requirements and personal needs and
will take into account the employer’s business needs and work demands.
(b) The leave must
be taken in the 12 month period specified in the Purchased Leave Agreement and
will not attract any leave loading.
(c) The leave will
count as service for all purposes.
5.2 The purchased
leave will be funded through the reduction in the employee’s ordinary rate of
pay.
(a) Purchased leave
rate of pay means the rate of pay an employee receives when their ordinary
salary rate has been reduced to cover the cost of purchased leave.
(b) To calculate the
purchased leave rate of pay, the employee’s ordinary salary rate will be reduced by the number of weeks of
purchased leave and then annualised at a pro rata rate over the 12 month period.
5.3 Purchased leave
is subject to the following provisions:
(a) The purchased
leave cannot be accrued and will be refunded where it has not been taken in the
12 month period.
(b) Other leave
taken during the 12 month purchased leave agreement period i.e. sick leave,
recreation leave, extended leave or leave in lieu will be paid at the purchased
leave rate of pay.
(c) Sick leave
cannot be taken during a period of purchased leave.
(d) The purchased
leave rate of pay will be the salary for all purposes including superannuation
and shift loadings.
(e) Overtime and
salary related allowances not paid during periods of recreation leave will be
calculated using the employee’s hourly rate based on the ordinary rate of pay.
(f) Higher Duties
Allowance will not be paid when a period of purchased leave is taken.
5.4 Specific
conditions governing purchased leave may be amended from time to time by the
Director of Public Employee in consultation with the Association. The employer may make adjustments relating
to their salary administration arrangements.
6. Extended Leave
6.1 Employees are
entitled to extended leave in accordance with Schedule 3, Extended Leave Entitlements
for officers and temporary employees in the Public Service, of the Public
Sector Employment and Management Act 2002.
6.2 Employees who
are required to take leave without pay as a result of the law vacation shall
have such periods counted as service for the purposes of extended leave.
7. Sick Leave
7.1 Accrual of Leave
-
(a) Subject to the
conditions set out in this clause, an employee with not less than three months'
continuous service may be granted sick leave up to a maximum of ten working
days in each sick leave year in respect of absence from duty, provided the
employer is satisfied that such absence is due to illness or incapacity not
attributable to the employee's misconduct.
(b) For those who
commenced employment prior to 1 July 1986, a sick leave year shall commence on
the first day of January each year. In the first year of service, however,
where the employee has completed at least three months' of continuous service,
sick leave shall accrue on the following basis:-
(1) Where employment
commenced after 31 December and prior to 1 April: 10 days
(2) Where employment
commenced after 31 March and prior to 1 July: 7.5 days
(3) Where employment
commenced after 30 June and prior to 1 October: 5 days
(4) Where employment
commenced after 30 September and prior to 1 January: 2.5 days
(c) For those who
commenced employment after 1 July, 1986, the following sick leave provisions
apply:
(1) during the first
12 months of employment:
first 3 months of continuous service: no leave
3 to 6 months of continuous service: 5 days
6 to 9 months continuous service: 7.5 days
9 to 12 months of continuous service: 10 days
(2) on completion of
12 months' service; 10 days sick leave will be available per year from the anniversary
of commencement of employment.
(d) Re-employment in
the same leave year - Where an employee is re-employed in the same leave year,
sick leave entitlement in respect of that year is not to exceed ten working
days or the sick leave that the employee would have been entitled to had
employment during the year been continuous from the date of first employment in
that year, whichever is the lesser.
(e) Previous
accumulation - An employee who was employed as such on 1 January 1970 is to be
credited with the sick leave accumulated as at that date. In respect of a partially completed year of
service as at 31 December 1969, accumulation under the said paragraph 6.1(b) is
to be calculated by allowing half a day for each completed month of service.
(f) Accumulation
from 1 January 1970 - Effective from 1 January 1970, all sick leave not
utilised during the leave year, accumulates and may be used during subsequent
service as required in respect of genuine absences due to illness or
incapacity.
(g) Service - Except
as provided in paragraph 7.1(d) above and in the Continuity of Service section
hereunder, previous periods of employment are not to be taken into account for
sick leave purposes.
7.2 Special Leave
for Accepted War-Caused Disabilities - After a continuous period of at least
three months' service as a Ministerial employee, an employee who has had a
period of service with the armed forces of Australia, is eligible to be granted
up to ten days' special sick leave on full pay in any sick leave year in addition
to his or her ordinary sick leave, if he or she is absent as a result of an
accepted war-caused disability. Absences from duty for the following reasons
are also to be debited against the special sick leave:
(a) attending
hospital or medical officer for pension review;
(b) attending
hospital to report or for periodical examination or attention; and;
(c) attending Limb
Factories for supply, renewal and or repair of artificial replacements or
surgical appliances.
7.3 When an employee
exhausts the special sick leave allocation in a leave year, any further
absences in that year on account of war-caused disabilities, are to be charged
against ordinary sick leave to credit.
7.4 Notification of
Absence - If an employee is to be absent from duty because of illness or other
emergency, the employee shall notify or arrange for another person to notify
the supervisor as soon as possible of the employee’s absence and the reason for
the absence.
7.5 Leave Pending
Determination of Claims for Workers Compensation -
(a) Pending the
determination of a claim for workers compensation, an employee may be granted
sick leave to credit. If subsequently, payment of workers' compensation is
approved, any sick leave granted in anticipation of workers' compensation is to
be restored to the employee's credit.
(b) When an employee
who has been absent from duty in excess of 26 weeks, is granted the statutory
rate under workers' compensation, he or she may utilise available sick leave to
make up the difference between the statutory rate and ordinary rate of weekly
salary or wage. On the expiration of available sick leave, weekly compensation
payments only will be payable.
7.6 Leave as a
Charge Against Accrued Recreation Leave, Long Service Leave or Leave Without
Pay.
An employee who has exhausted sick leave to credit and
is still unable to resume duty through illness or incapacity, may elect to
utilise any recreation, long service leave to credit or sick leave without pay,
provided the absence continues to be supported by acceptable medical
certificates.
7.7 Illness whilst
on Recreation or Long Service Leave -
(a) Where an
employee produces a satisfactory medical certificate to the effect that he or
she has been incapacitated for any period whilst on recreation leave or for a
week or more whilst on long service leave, the employee may be granted sick
leave to credit in respect of the period covered by the medical
certificate. Recreation or long service
leave replaced by the grant of sick leave is to be re credited to the employee.
(b) The granting of
sick leave shall not apply in respect of recreation or long service leave being
taken prior to resignation or termination of services.
7.8 Medical
Certificates - An employee absent on account of illness for any period shall
submit a medical certificate showing the nature of the illness, if called upon
by the employer to do so.
8. Public Holidays
8.1 The following
public holidays shall be paid for provided they occur on days which ordinarily
would be working days for the employees concerned: New Year's Day; Australia
Day; Good Friday; Easter Saturday; Easter Monday; Anzac Day; Queen's Birthday;
Labor Day; Christmas Day; Boxing Day and such other holidays as may be
proclaimed as public holidays throughout the State but not proclaimed local
holidays.
8.2 An employee who
is absent from work on the working day before or the working day after a Public
Holiday without reasonable excuse or without the approval of an appropriate
senior person, for example supervisor at the place of employment, shall not be
entitled to payment for such holiday.
When work is not carried on right up to the holiday or resumed
immediately after a holiday, as at Christmas and New Year, payment for the
holiday shall be granted if the employee works up to the time of general
stoppage and resumes when the work recommences.
8.3 If the holiday
falls on a weekend, no additional payment shall be made unless the employee is
required to work on that day.
8.4 When a holiday
occurs during the first month in which an employee is absent through illness,
such an employee is to receive pay for the day at the rate of wages paid
immediately before the absence commenced.
8.5 Where any of the
abovementioned public holidays fall within a period of leave granted to an
employee, such holidays shall not be a charge against such leave except where
leave being taken is long service leave.
8.6 An employee who
is entitled to be paid for public holidays, shall be paid in full for any such
holidays occurring during a period of absence in respect of which workers
compensation payments are being made.
9. Leave for Special
Purposes
9.1 Bereavement
Leave -
(a) An employee
other than a casual employee shall be entitled to up to three days bereavement leave
without deduction of pay on each occasion of the death of a person prescribed
in 9.1(c) below.
(b) The employee
must notify the employer as soon as practicable of the intention to take
bereavement leave and will, if required by the employer, provide to the
satisfaction of the employer proof of death.
(c) Bereavement
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of Personal/Carer’s Leave in 9.11(a)(3) provided
that for the purpose of bereavement leave, the employee need not have been
responsible for the care of the person concerned.
(d) An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which the employee has been granted other leave.
(e) Bereavement
leave may be taken in conjunction with other leave available under subclause
9.11. In determining such a request the
employer will give consideration to the circumstances of the employee and the
reasonable operational requirements of the court.
9.2 Attending
Retirement Preparation Seminars - An employee may be granted one day's special
leave (with pay) for the purpose of attending a retirement preparation seminar
conducted by a recognised Superannuation Fund.
9.3 National
Aborigines Day - Employees who identify as Aborigines may be granted up to one
day's special leave to enable them to participate in the celebrations on the
day appointed each year as the National Aborigines Day.
9.4 Jury Service -
An employee who is called up for jury duty may elect to be granted:
(a) special leave
with pay to cover the time necessarily absent from work, subject to the
employee refunding to the employer any fees, less out-of-pocket expenses, paid
by the Court in respect of attendance for jury duty; or
(b) leave without
pay or as a charge against recreation leave to credit, in which case the
employee is entitled to retain all fees paid by the Court in respect of
attendance for jury duty.
9.5 Firefighting or
Assisting the State Emergency Services -
(a) An employee who
undertakes firefighting duties during declared emergencies is to be granted
special leave on full pay for the time the employee is required to be absent
from duty on such emergency firefighting activities.
(b) An employee who
is a volunteer member of a local Fire Brigade or Rural Fire Service may be
granted special leave on full pay to a maximum of five days per year to cover
necessary absences from duty when called upon to fight fires during normal
working hours.
(c) An employee, who
volunteers to assist the State Emergency Services or Rural Fire Service during
emergency operations and is released by the employer for that purpose, is to be
regarded as being on duty whilst engaged in these activities during normal
working hours and paid as if he or she has been carrying out normal work. Where an employee remains on emergency duty
for several days and, as a result, experiences physical distress, such employee
may be allowed reasonable time for rest before returning to normal duties.
9.6 Absences due to
adverse weather conditions - Employees whose life or property is being
threatened by adverse weather conditions or where they are prevented from
reporting for duty by fire, flood or snow, are eligible to be granted leave to
cover their absence from duty.
9.7 Naturalisation
Ceremonies - An employee who is to be naturalised may be granted time off,
without loss of pay, for the minimum time necessary to enable him or her to
prepare for and attend the ceremony.
9.8 Leave to attend
Trade Union Training Courses - Leave may be granted up to a maximum of 12
working days in any period of two years to employees who are members of the
union to attend short training courses or seminars conducted by or with the
support of the Trade Union Training Australia, subject to the following
conditions:
(a) that the
employer's operating requirements permit the grant of leave and the employee's
absence does not require the employment of relief staff;
(b) leave of absence
will be granted at ordinary pay, that is, payment is not to include shift
allowances, penalty rates or overtime;
(c) leave granted
will count as service for all purposes;
(d) expenses
associated with attendance at such courses or seminars, for example fares,
accommodation, meal costs, will be met by the employee concerned, but subject
to the maximum prescribed above, leave may include travelling time required
during working hours to attend such courses or seminars;
(e) applications for
leave must be accompanied by a statement from the union that it has nominated
the employee concerned for such course or seminar or that it supports his or
her application.
9.9 Leave for
employees holding office in Local Government -
(a) Holders of the
office of Mayor of a Municipality, President of a Shire or Chairman of a County
Council may be granted special leave with pay for the purpose of attending
meetings, conferences or performing other council work which cannot be carried
out outside of ordinary working hours.
(b) Whilst the
quantum of leave to be granted is to be determined by the employer, absences
requiring time off during normal working hours should be kept to a minimum.
(c) Where the
employer is not prepared to grant special leave with pay, the employee may be
granted leave as a charge against available recreation leave or leave without
pay.
9.10 English Language
Tuition Leave -
(a) Employees of
non-English speaking background who are unable to adequately communicate in the
English language, shall be granted time off without loss of pay to attend English
Language Classes conducted by the employer or any other recognised statutory
authority, for example the Adult Migrant English Service.
(b) The type,
duration and extent of courses conducted by the employer shall be developed in
consultation with the Adult Migrant English Service or other recognised
authority.
9.11 Personal/Carer’s
Leave -
(a) Use of Sick
Leave -
(1) An employee,
other than a casual employee, with responsibilities in relation to a class of
person set out in subparagraph 9.11(a)(3) shall be entitled to use, in
accordance with this subclause, any sick leave accruing from 1 January 1998 in
terms of clause 6 Sick Leave, for absences to provide care and support for such
persons when they are ill. Such leave
may be taken for part of a single day.
(2) The employee
shall, if required, establish either by production of a medical certificate or
statutory declaration, the illness of the person concerned.
(3) The entitlement
to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
(A) a spouse of the
employee; or
(B) a de facto
spouse, who, in relation to the employee, is a person of the opposite sex to
the employee who lives with the employee as the husband or wife of the employee
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 or legal guardian),
grandparent, grandchild or sibling of the employee or the 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 purposes of
this subclause:
"relative" means a person related by blood,
marriage, affinity or Aboriginal kinship structures;
"affinity" means a relationship that one
spouse because of marriage has to the relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(b) An 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 the absence.
(c) 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 member of
a class of person set out in subparagraph 9.11(a)(3) of this clause who is ill.
(d) Recreation Leave
-
(1) An employee may
elect, with the consent of the employer, subject to the provisions of clause 4
Recreation Leave, to take recreation leave not exceeding five days in single
day periods or part thereof, in any calendar year at a time or times agreed by
the parties.
(2) Access to
recreation leave, as prescribed in subparagraph 9.11(d)(1) of this subclause,
shall be exclusive of any Law Vacation period provided for elsewhere under this
award.
(3) Where
applicable, an employee and employer may agree to defer payment of recreation
leave loading in respect of single day absences, until at least five consecutive
recreation leave days are taken.
9A. Leave for Matters
Arising from Domestic Violence
9A.1 The definition of
domestic violence is found in subclause 2.5, of clause 2 Definitions of this
award;
9A.2 Leave entitlements
provided for in clause 7 Sick Leave and subclause 9.11, Personal Carers Leave,
may be used by employees experiencing domestic violence;
9A.3 Where the leave
entitlements referred to in subclause 9A.2 are exhausted, the employer shall grant
up to five days Special Leave per calendar year to be used for absences from
the workplace to attend to matters arising from domestic violence situations;
9A.4 The employer will
need to be satisfied, on reasonable grounds, that domestic violence has
occurred and may require proof presented in the form of an agreed document
issued by the Police Force, a Court, a Doctor, a Domestic Violence Support
Service or Lawyer;
9A.5 Personal
information concerning domestic violence will be kept confidential by the
agency;
9A.6 The employer,
where appropriate, may facilitate flexible working arrangements subject to
operational requirements, including changes to working times and changes to
work location, telephone number and email address.
10. Military Leave
10.1 Annual Grant - In
the period of 12 months commencing on 1 July each year, employees who are
part-time members of the Defence Forces' Reserves are entitled to be granted
military leave on the following basis:
(a) Annual Training
for members of the:
Navy Reserve - 13 calendar days on full pay.
Army Reserve - 14 calendar days on full pay.
Air Force Reserve - 16 calendar days on full pay.
(b) Attendance at a
School, Class or Course of Instruction by members of the:
Navy Reserve - 13 calendar days on full pay.
Army Reserve - 14 calendar days on full pay.
Air Force Reserve - 16 calendar days on full pay.
Leave provided for in this subclause also applies to
attendances in a teaching capacity.
(c) Additional Grant
- Where the Commanding Officer certifies in writing that it is obligatory for
the employee to attend training for a period that exceeds the leave normally
available, the employer may grant further military leave not exceeding four
calendar days in any one military leave year. If the additional 4 calendar days
are insufficient to cover the excess, then the employer may grant leave as a
charge against recreation or long service leave to credit or as leave without
pay.
(d) Alternative
Arrangements - Whilst every effort should be made to release an employee from
work at the time requested, military leave may be refused if it is not in the
public interest to grant the leave at the time applied for. In such cases, the
leave is to be granted later in the military leave year to enable the employee
to attend an equivalent annual camp, school, class or course of instruction.
(e) Payment for
Military Leave - Payment of wages in respect of periods of military leave is
additional to any payments that the employee receives from the Defence Force
Reserves.
10.2 Medical
Examinations - Special leave up to a maximum of one day may be granted for the
time necessary to attend a medical examination or tests for acceptance as a
part-time member of the Defence Force Reserves, subject to production of
evidence of attendance.
10.3.1 Casual
Employees - A casual employee required to undertake part-time military training
may be granted leave on the same basis as applies to other employees, provided
the period does not exceed the period in which he or she would normally have
been employed by the current employer.
11. Study Time
11.1 Purpose - Study
time is granted for the following purposes:
(a) attendance at
compulsory lectures, tutorials or residential schools, where these are held
during working hours;
(b) necessary
travelling during working hours to attend lectures or tutorials held during or
outside working hours;
(c) weekly private
study;
(d) to provide a
period of time off prior to or during the examination period for private study
purposes as an alternative to weekly study time.
11.2 Courses Eligible
for Study Time - Courses for which study time is granted must meet at least one
criteria in each of the subclauses below:
(a) lead to a
recognised qualification; or
be a TAFE special course; or
be a bridging or qualifying course; or
be an incidental subject which forms part of a course
for which study time would be available, where the incidental subject is of
relevance to the employer or the public sector.
(b) be administered
by a public institution;
be accredited by the Higher Education Unit of the
Ministry of Education and Youth Affairs; or
lead to membership of a registered professional
organisation.
(c) be able to be
taken on a part-time basis. Study time does not apply to a course that is
organised essentially for full time students or which, in later stages,
requires full-time attendance.
11.3 More Than One
Course Studied at the One Time -
(a) Study time may
be granted for more than one course at the same time, provided that the two
courses together result in a part-time load and the attendance pattern is
convenient to the employer.
(b) Regardless of
the number of courses studied at one time, the maximum grant remains four hours
per week, as outlined in subclause 10.4 below.
11.4 Calculation of
Study Time Grant -
(a) Half an hour is
granted for every hour of class attendance required, up to a maximum grant of
four hours per week and in respect of correspondence courses, by allowing half
an hour for every hour of tutorial or lecture attendance in a corresponding
face to face course.
(b) Where there are
block attendance requirements or field days, the grant is calculated by:
Step 1: totalling the attendance requirement, in hours,
for the semester;
Step 2: dividing this amount by two;
Step 3: dividing this by the number of weeks in the
semester that lectures are held;
Step 4: this amount, or 4 hours, whichever is the
lesser, is the weekly amount granted.
11.5 Additional Leave
-
(a) Where the grant
in subclause 10.4 above is insufficient to cover essential absences, the
necessary extra should be granted.
Additional leave which, together with leave granted under 10.4 above,
totals 4 hours or less does not have to be made up. Leave of more than 4 hours per week must be made up.
(b) Study time
granted in excess of 4 hours may be made up either in advance or in retrospect.
11.6 Study Time in
Excess of Four Hours Per Week - Study time granted in excess of four hours per
week may be made up either in advance or in retrospect but always in accordance
with the arrangement negotiated, in advance, between the employer and employee.
When such an arrangement is being negotiated, the
following factors should be considered:
(a) nature of the
duties;
(b) needs of the
workplace;
(c) whether
additional leave granted can be made up before the next grant; and
(d) use of other
forms of leave to offset the additional study time where making it up is
impractical.
11.7 When Study Time
is Postponed or Not Granted.
(a) Study time is
not to be granted in respect of any classes not attended or when an employee is
absent on any other form of leave.
(b) Study time is an
expendable grant. It is lost if not taken at the nominated time but, if an emergency
situation arises and the employee is asked by the employer to forego their
normal study time, such time may be granted on another day during the same
week.
11.8 Power to Grant or
Refuse - The grant of study time is subject to the relevance of the course and
employer convenience. The employer has the power to grant, and to refuse, study
time and the actual study time arrangement must be negotiated between the
employee and the employer.
11.9 Repeated Subjects
-
(a) Study time is
not available for repeated subjects unless evidence can be provided that
failure to successfully complete the subject at first attempt was caused by
circumstances outside the employee's control.
(b) An employee
attending, during working hours, repeat subjects for which study time has not
been granted, must make up all time taken off in attending those subjects.
11.10 Accumulation -
Subject to employer's convenience:
(a) employees may
choose to accumulate part or all of their study time;
(b) accumulated
study time may be taken in any pattern or at any time.
11.11 Compulsory
Residential Schools - Correspondence students may accumulate their study time
as outlined in subclause 10.10 above in order to cover any compulsory
residential schools.
11.12 Block Grants -
(a) Some courses
require substantial block attendance to allow students to undertake compulsory
practical work experience.
(b) A block grant
may be made, either in addition to or instead of study time accumulating under
10.11 above, if the employer is satisfied that:
(1) block attendance
is compulsory;
(2) the usual study
time grant is inadequate; and
(3) the course is of
significant value and therefore warrants a different kind of grant.
11.13 Maximum Periods of
Block Grants - Block periods of study time may be granted as follows:
(a) up to 10 days
study time may be granted in addition to the grant outlined in subclause 10.5
above;
(b) up to 20 days
study time may be granted instead of the grant outlined in subclause 10.6
above.
11.14 Study Time
Granted for the Whole Course - In some circumstances it may be more appropriate
to grant an amount of study time for the whole course. Such study time can then
be taken according to the needs of the employee and employer's convenience. In
cases of this type, the average yearly study time taken should not be more than
10 days, if taken in accordance with 10.13(a) above or 20 days, if taken in
accordance with 10.13(b) above.
11.15 Courses Involving
Research and Thesis - Block periods of study time may be granted to staff in
relation to the research and thesis component of:
(a) higher degrees;
(b) qualifying
studies to higher degrees; or
(c) Honours studies.
11.16 Grant of Block
Periods in Respect of Courses Involving Research and Thesis - These block
periods may be granted on the following basis:
(a) where a course
at any level involves a thesis or major project as well as coursework, the
usual study time would be granted for the coursework and 10 days study time for
the thesis or major project component;
(b) for qualifying
studies entirely by thesis the grant is 10 days;
(c) for masters
degree studies by research and thesis only, the total grant is 25 days for
courses of 2 years' minimum duration and 35 days for courses of 3 years'
minimum duration.
(d) for doctoral
studies, the total grant for the course is 45 days.
11.17 Monitoring Study
Time - Employers should ensure that:
(a) employees
granted study time have completed their enrolments;
(b) employees are continuing
with the course for which study leave has been granted;
(c) where there is a
choice of times for attendance, the actual attendance pattern is convenient to
the employer as well as the employee; and
(d) additional study
time, in excess of four hours per week, is made up.
11.18 The Application
Process - Employees who wish to apply for study time should formally notify the
employer as soon as possible. Where
study time has been granted, employees should give the employer reasonable
notice of the program for each year or semester and their proposed pattern of
leave. This will allow any negotiations
to be completed before the academic year or semester begins.
11.19 Refusal of Study
Time Applications - Where an employer decides to refuse an application for
study time, he or she should ensure that:
(a) timely advice is
given to the applicant to allow consideration of alternatives;
(b) counselling is
available to applicants to consider alternatives;
(c) reasons for
refusal are clearly and promptly stated, in writing, to the applicant;
(d) an internal
review process or grievance procedure is available should the employee wish a
review of the decision.
If subsequently the decision not to grant study time is
overturned, the employer may grant study time retrospectively.
11.20 Examination Leave
-
(a) Paid leave, up
to a maximum of 5 working days per year, may be granted in respect of
attendance at examinations in approved courses of study. Examination leave is available to both face
to face and correspondence students.
(b) The period
granted is to include time actually involved in the examination and necessary
travelling time. Examination leave is not to be granted in respect of any examinations
conducted within normal class timetable during the term or semester, and where
study time has been granted to the candidate
12. Parental Leave
Parental leave includes maternity, adoption and
"other parent" leave.
12.1 Maternity leave
shall apply to an employee who is pregnant and, subject to this clause the
employee shall be entitled to be granted maternity leave as follows:
(a) For a period up
to 9 weeks prior to the expected date of birth; and
(b) For a further
period of up to 12 months after the actual date of birth.
(c) An employee who
has been granted maternity leave and whose child is stillborn may elect to take
available sick leave instead of maternity leave.
12.2 Adoption leave
shall apply to an employee adopting a child and who will be the primary care
giver, the employee shall be granted adoption leave as follows:
(a) For a period of
up to 12 months if the child has not commenced school at the date of the taking
of custody; or
(b) For such period,
not exceeding 12 months on a full-time basis, as the employer may determine, if
the child has commenced school at the date of the taking of custody.
(c) Special Adoption
Leave - An employee shall be entitled to special adoption leave (without pay)
for up to 2 days to attend interviews or examinations for the purposes of
adoption. Special adoption leave may be
taken as a charge against recreation leave, extended leave, flexitime or family
and community service leave.
12.3 Where maternity
or adoption leave does not apply, "other parent" leave is available
to male and female employees who apply for leave to look after his/her child or
children. Other parent leave applies as
follows:
(a) 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;
(b) Extended other
parent leave - for a period not exceeding 12 months, less any short other
parental leave already taken by the employee as provided for in paragraph (a)
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.
12.4 An employee taking
maternity or adoption leave is entitled to payment at the ordinary rate of pay
for a period of up to 14 weeks, an employee 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 employee:
(a) Applied for
parental leave within the time and in the manner determined set out in
subclause 12.1 of this clause; and
(b) Prior to the
commencement of parental leave, completed not less than 40 weeks' continuous
service.
(1) Continuous
service is defined as full or part-time but not casual service, within the NSW
Public Service or within a State or governmental organisation proclaimed as
such under the Public Sector Employment and Management Act 2002.
(c) Payment for the
maternity, adoption or short other parent leave may be made as follows:
(1) in advance as a
lump sum; or
(2) fortnightly as
normal; or
(3) fortnightly at
half pay; or
(4) a combination of
full-pay and half pay.
12.5 Payment for
parental leave is at the rate applicable when the leave is taken. An employee holding a full time position who
is on part time leave without pay when they start parental leave is paid:
(a) at the full time
rate if they began part time leave 40 weeks or less before starting parental
leave;
(b) at the part time
rate if they began part time leave more than 40 weeks before starting parental
leave and have not changed their part time work arrangements for the 40 weeks;
(c) 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.
12.6 An employee who
commences a subsequent period of maternity or adoption leave for another child
within 24 months of commencing an initial period of maternity or adoption leave
will be paid:
(a) at the rate
(full time or part time) they were paid before commencing the initial leave if
they have not returned to work; or
(b) at a rate based on
the hours worked before the initial leave was taken, where the employee has
returned to work and reduced their hours during the 24 month period; or
(c) at a rate based
on the hours worked prior to the subsequent period of leave where the employee
has not reduced their hours.
12.7 Calculation of
increments and leave credits:
(a) Increments - any
period of paid parental leave (at full or half-pay) shall count as full service
for the purposes of determining incremental progression. However, unpaid parental leave shall not
count as service for determining incremental progression.
(b) Leave credits -
(1) Parental leave
at full pay shall count as full service for the purposes of determining all
forms of leave.
(2) Parental leave
at half pay is paid leave that is being taken at a reduced rate of pay and
shall accrue all other leave at half the rate.
(3) Unpaid parental
leave shall not count as service for determining any form of leave entitlement
except for extended leave in cases where at least 10 years of service has been
completed and the unpaid parental leave does not exceed 6 months.
12.8 Except as
provided in subclauses 12.4, 12.5 and 12.6 of this clause, parental leave shall
be granted without pay.
12.9 Right to request
(a) An employee who
has been granted parental leave in accordance with subclause 12.1, 12.2 or 12.3
may make a request to the employer to:
(1) extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(2) return from a
period of full time parental leave on a part time basis until the child reaches
school age (Note: returning to work from parental leave on a part time basis
includes the option of returning to work on part time leave without pay);
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.
12.10 Notification
Requirements
(a) When the
employer is made aware that an employee or their spouse is pregnant or is
adopting a child, the employer must inform the employee of their entitlements
and their obligations under the Award.
(b) An employee who
wishes to take parental leave must notify the employer in writing at least 8
weeks (or as soon as practicable) before the expected commencement of parental
leave:
(1) that she/he
intends to take parental leave, and
(2) the expected
date of birth or the expected date of placement, and
(3) if she/he is
likely to make a request under subclause 12.9.
(c) At least 4 weeks
before an employee's expected date of commencing parental leave they must
advise:
(1) the date on
which the parental leave is intended to start, and
(2) the period of
leave to be taken.
(d) Employee’s
request and the employer’s decision to be in writing
The employee’s request under 12.9(a)(1) and the
employer’s decision made under 12.9(a)(2) must be recorded in writing.
(e) An employee
intending to request to return from parental leave on a part time basis or seek
an additional period of leave of up to 12 months must notify the employer in
writing as soon as practicable and preferably before beginning 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 employer agrees.
(f) An employee on
maternity leave is to notify her employer of the date on which she gave birth as
soon as she can conveniently do so.
(g) An employee must
notify the employer as soon as practicable of any change in her intentions as a
result of premature delivery or miscarriage.
(h) An employee on
maternity or adoption leave may change the period of leave or arrangement, once
without the consent of the employer and any number of times with the consent of
the employer. In each case she/he must give the employer at least 14 days
notice of the change unless the employer decides otherwise.
12.11 An employee has
the right to her/his former position if she/he has taken approved leave or part
time work in accordance with subclause 12.8, and she/he resumes duty
immediately after the approved leave or work on a part time basis.
12.12 If the position
occupied by the employee immediately prior to the taking of parental leave has
ceased to exist, but there are other positions available that the employee is
qualified for and is capable of performing, the employee shall be appointed to
a position of the same grade and classification as the employee’s former
position.
12.13 If the position
occupied by the employee immediately prior to the taking of parental leave has
been moved as part of a formal relocation of an organisational unit (for
example, the relocation of all or part of an agency from the Central Business
District, or the regionalisation of agency’s functions) the employee has the
right to return to the former position in the new location. If the employee so requests, the employer
should consider the practicability of transferring the employee to a position
at the same classification and grade in the former, or more suitable location.
12.14 An employee does
not have a right to her/his former position during a period of return to work
on a part time basis. If the employer 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.
12.15 An employee who
has returned to full time duty without exhausting their entitlement to 12
months unpaid parental leave is entitled to revert back to such leave. This may
be done once only, and a minimum of 4 weeks notice (or less if acceptable to
the employer) must be given.
12.16 An employee who
is sick during her pregnancy may take available paid sick leave or accrued
recreation or extended leave or sick leave without pay. An employee 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.
12.17 An employee may
elect to take available recreation leave or extended leave within the period of
parental leave provided this does not extend the total period of such leave.
12.18 An employee may
elect to take available recreation leave at half pay in conjunction with
parental leave provided that:
(a) accrued
recreation leave at the date leave commences is exhausted within the period of
parental leave;
(b) the total period
of parental leave, is not extended by the taking of recreation leave at half
pay;
(c) 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.
12.19 If, for any
reason, a pregnant employee is having difficulty in performing her normal
duties or there is a risk to her health or to that of her unborn child, the
employer should, in consultation with the employee, 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.
12.20 If such adjustments
cannot reasonably be made, the employer must grant the employee 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 whichever is the earlier.
12.21 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) of this
subclause.
12.22 Employees
entitled to parental leave shall also have an additional entitlement as set out
in Appendix B.
12A. Lactation Breaks
12A.1 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.
12A.2 A full time
employee or a part time employee working more than 4 hours per day is entitled
to a maximum of two paid lactation breaks of up to 30 minutes each per day.
12A.3 A part time employee
working 4 hours or less on any one day is entitled to only one paid lactation
break of up to 30 minutes on any day so worked.
12A.4 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.
12A.5 The employer shall
provide access to a suitable, private space with comfortable seating for the
purpose of breastfeeding or expressing milk.
12A.6 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 employee will take place to attempt to identify reasonable
alternative arrangements for the employee’s lactation needs.
12A.7 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.
12A.8 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 in accordance with clause 7, Sick Leave of this award,
or access to flexible working hours, where applicable.
13. Absence Whilst on
Compensation to Count as Service for Leave Purposes
Absence due to incapacity caused by an accident for
which compensation is payable is to be regarded as service for the accrual of
all leave.
14. Absences Caused
By Adverse Weather Conditions
Where an employee is stood down without pay because of
an adverse weather condition, such absence is to be regarded as service for
recreation and long service leave purposes.
15. Continuity of
Service
15.1 Periods of
absence not to affect continuity - Continuity of service shall be deemed not to
be broken by periods of absence on recreation, sick or long service leave or
other absences not involving a termination of the contract of employment.
An employee's contract of employment and continuity of
service shall also be deemed not to be broken by termination of services
arising directly or indirectly from an industrial dispute or where the services
have been terminated by the employing authority by reason of slackness of work.
Such break in the contract of employment however is not be taken into account
in calculating the period of service.
15.2 Termination due
to ill health and subsequent re-employment - Where the services of an employee
have been terminated because of ill health but the employee is re-employed
within a period of twelve months, the previous service is to be taken into
account for recreation and sick leave purposes, provided the employee is able
to produce a medical certificate which covers the whole period of absence, that
is, from date of termination to date of re-employment.
15.3 Taking of Leave -
Leave is to be taken, whenever practicable, upon the completion of each 12
months service and not later than six months after accrual.
15.4 General - In all
other respects, the provisions for Recreation Leave under clause 4 apply.
16. Uniforms
One new uniform shall be supplied to each tipstaff upon
appointment as a tipstaff and thereafter upon each twelve months completed
service each tipstaff shall receive a new uniform provided that each tipstaff
shall be responsible for the reasonable upkeep and repair of his or her own
uniform.
17. Grievance and
Dispute Settling Procedures
17.1 All grievances
and disputes relating to the provisions of this award shall initially be dealt
with as close to the source as possible, with graduated steps for further
attempts at resolution at higher levels of authority within the Department, if
required.
17.2 An employee is
required to notify in writing their immediate supervisor, as to the substance
of the grievance, dispute or
difficulty, request a meeting to discuss the matter and if possible, state the
remedy sought.
17.3 Where the
grievance or dispute involves confidential or other sensitive material
(including issues of harassment or discrimination under the Anti Discrimination
Act 1977) that makes it impractical for the employee to advise their immediate
manager the notification may occur to the next appropriate level of management,
including where required, to the Department Head or delegate.
17.4 The immediate
supervisor, or other appropriate officer, shall convene a meeting in order to
resolve the grievance, dispute or difficulty within two (2) working days, or as
soon as practicable, of the matter being brought to attention.
17.5 If the matter
remains unresolved with the immediate supervisor, the employee may request to
meet the appropriate person at the next level of management in order to resolve
the matter. This manager shall respond
within two (2) working days, or as soon as practicable. This sequence of reference to successive
levels of management may be pursued by the employee until the matter is referred
to the Department Head.
17.6 The Department
Head may refer the matter to the Director of Public Employment for
consideration.
17.7 If the matter
remains unresolved, the Department Head shall provide a written response to the
employee and any other party involved in the grievance, dispute or difficulty,
concerning action to be taken, or the reason for not taking action, in relation
to the matter.
17.8 An employee, at
any stage, may request to be represented their union.
17.9 The employee, or
the Association on their behalf, or the Department Head may refer the matter to
the New South Wales Industrial Relations Commission if the matter is unresolved
following the use of these procedures.
17.10 The employee,
Association, department and Director of Public Employment shall agree to be
bound by any order or determination by the New South Wales Industrial Relations
Commission in relation to the dispute.
17.11 Whilst the
procedures outlined in subclauses 16.1 to 16.10 of this clause are being
followed, normal work undertaken prior to notification of the dispute or
difficulty shall continue unless otherwise agreed between the parties, or, in
the case involving occupational health and safety, if practicable, normal work
shall proceed in a manner which avoids any risk to the health and safety of any
employee or member of the public.
18.
Anti-Discrimination
18.1 It is the
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.
18.2 It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award, the parties have an obligation 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.
18.3 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.
18.4 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.
18.5 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.
19. Secure Employment
19.1 Objective of this
Clause
The objective of this clause is for the employer to
take all reasonable steps to provide its employees with secure employment by
maximising the number of permanent positions in the employer’s workforce, in
particular by ensuring that casual employees have an opportunity to elect to
become full-time or part-time employees.
19.2 Casual Conversion
(a) A casual
employee engaged by a particular employer on a regular and systematic basis for
a sequence of periods of employment under this Award during a calendar period
of six months shall thereafter have the right to elect to have his or her
ongoing contract of employment converted to permanent full-time employment or
part-time employment if the employment is to continue beyond the conversion
process prescribed by this subclause.
(b) Every employer of
such a casual employee shall give the employee notice in writing of the
provisions of this sub-clause within four weeks of the employee having attained
such period of six months. However, the employee retains his or her right of
election under this subclause if the employer fails to comply with this notice
requirement.
(c) Any casual
employee who has a right to elect under paragraph 19.2(a), upon receiving
notice under subclause 19.2(b) or after the expiry of the time for giving such
notice, may give four weeks’ notice in writing to the employer that he or she
seeks to elect to convert his or her ongoing contract of employment to
full-time or part-time employment, and within four weeks of receiving such
notice from the employee, the employer shall consent to or refuse the election,
but shall not unreasonably so refuse. Where an employer refuses an election to
convert, the reasons for doing so shall be fully stated and discussed with the
employee concerned, and a genuine attempt shall be made to reach agreement. Any
dispute about a refusal of an election to convert an ongoing contract of
employment shall be dealt with as far as practicable and with expedition
through the disputes settlement procedure.
(d) Any casual
employee who does not, within four weeks of receiving written notice from the
employer, elect to convert his or her ongoing contract of employment to
full-time employment or part-time employment will be deemed to have elected
against any such conversion.
(e) employee or a
part-time employee, the employee may only revert to casual employment by
written agreement with the employer.
(f) If a casual
employee has elected to have his or her contract of employment converted to
full-time or part-time employment in accordance with paragraph 19.2(c), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph 19.2(c), discuss and agree upon:
(1) whether the
employee will convert to full-time or part-time employment; and
(2) if it is agreed
that the employee will become a part-time employee, the number of hours and the
pattern of hours that will be worked either consistent with any other part-time
employment provisions of this award pursuant to a part time work agreement made
under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW);
Provided that an employee who has worked on a full-time
basis throughout the period of casual employment has the right to elect to
convert his or her contract of employment to full-time employment and an
employee who has worked on a part-time basis during the period of casual
employment has the right to elect to convert his or her contract of employment
to part-time employment, on the basis of the same number of hours and times of
work as previously worked, unless other arrangements are agreed between the
employer and the employee.
(g) Following an
agreement being reached pursuant to paragraph 19.2(f), the employee shall
convert to full-time or part-time employment. If there is any dispute about the
arrangements to apply to an employee converting from casual employment to
full-time or part-time employment, it shall be dealt with as far as practicable
and with expedition through the disputes settlement procedure.
(h) An employee must
not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
19.3 Occupational
Health and Safety
(a) For the purposes
of this subclause, the following definitions shall apply:
(1) A "labour
hire business" is a business (whether an organisation, business enterprise,
company, partnership, co-operative, sole trader, family trust or unit trust,
corporation and/or person) which has as its business function, or one of its
business functions, to supply staff employed or engaged by it to another
employer for the purpose of such staff performing work or services for that
other employer.
(2) A "contract
business" is a business (whether an organisation, business enterprise,
company, partnership, co-operative, sole trader, family trust or unit trust,
corporation and/or person) which is contracted by another employer to provide a
specified service or services or to produce a specific outcome or result for
that other employer which might otherwise have been carried out by that other
employer’s own employees.
(b) Any employer
which engages a labour hire business and/or a contract business to perform work
wholly or partially on the employer’s premises shall do the following (either
directly, or through the agency of the labour hire or contract business):
(1) consult with
employees of the labour hire business and/or contract business regarding the workplace occupational health
and safety consultative arrangements;
(2) provide
employees of the labour hire business and/or contract business with appropriate
occupational health and safety induction training including the appropriate
training required for such employees to perform their jobs safely;
(3) provide
employees of the labour hire business and/or contract business with appropriate
personal protective equipment and/or clothing and all safe work method
statements that they would otherwise supply to their own employees; and
(4) ensure employees
of the labour hire business and/or contract business are made aware of any
risks identified in the workplace and the procedures to control those risks.
(c) Nothing in this
subclause 18.3 is intended to affect or detract from any obligation or
responsibility upon a labour hire business arising under the Occupational
Health and Safety Act 2000 or the Workplace Injury Management and Workers
Compensation Act 1998.
19.4 Disputes
Regarding the Application of this Clause
Where a dispute arises as to the application or
implementation of this clause, the matter shall be dealt with pursuant to the
disputes settlement procedure of this award.
19.5 This clause has
no application in respect of organisations which are properly registered as
Group Training Organisations under the Apprenticeship and Traineeship Act 2001
(or equivalent interstate legislation) and are deemed by the relevant State
Training Authority to comply with the national standards for Group Training
Organisations established by the ANTA Ministerial Council.
20. Leave Reserved
In the event that any conditions relating to matters
other than those dealt with by this award are altered, except with the consent
of the Association, liberty to apply is reserved to the Association.
21. Area, Incidence
and Duration
21.1 The changes made
to the award pursuant to the Award Review pursuant to section 19(6) of the
Industrial Relations Act 1996 and Principle 26 of the Principles for Review of
Awards made by the Industrial Relations Commission of New South Wales on 28
April 1999 (310 I.G. 359) take effect on and from 27 April 2012.
21.2 Changes made to
this award subsequent to it first being published on 14 March 2008 have been
incorporated into this award as part of the review.
PART B
MONETARY RATES
The salaries are set in accordance with the Crown
Employees (Public Sector - Salaries 2008) Award and are effective from the first
pay period to commence on or after 1 July 2007
Table 1
Tipstaff
|
Salary Per Annum
|
Salary Per Annum
|
|
Effective 1 July
2007
|
Effective 1 July
2011
|
|
$
|
$
|
1st Year of service
|
43,903
|
43,903
|
2nd Year of service
|
44,745
|
44,745
|
3rd Year of service
|
52,489
|
45,524
|
Tipstaff to the Chief Justice
|
46,320
|
46,320
|
Appendix A
(1) 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 (2) 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 Department
Head 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) A Department
Head 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,
(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, 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.
(2) A family member
for the purposes of paragraph (i)(a) above is:
(a) a spouse of the
employee; or
(b) a de facto
spouse being a person of the opposite sex to the employee who lives with the
employee as her husband or his wife on a bona fide domestic basis although not
legally married to that employee; 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 or legal guardian),
grandparent, grandchild or sibling of the employee or of the 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 a relative of the employee 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.
(3) 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 Department
Head 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) A Department
Head 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.
Appendix B
(1) Refer to the
Industrial Relations Act 1996 (NSW). The following provisions shall also apply
in addition to those set out in the Industrial Relations Act 1996 (NSW).
(2) An employer 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.
(3) Right to request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) 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 3(a) and 3(b) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) 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:
(i) 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
(ii) 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).
C.
G. STAFF J.
____________________
Printed by
the authority of the Industrial Registrar.