Health Industry Status of Employment (State) Award
2022
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Ministry of Health.
(Case No. 192155 of 2022)
Before Chief Commissioner Constant
|
7 July 2022
|
AWARD
Arrangement
Clause No. Subject Matter
1. Definitions
2. Principles
3. Loadings
4. Arrangements
for Existing Part-time Workers
5. Process
for Resolving Inconsistencies
6. Dispute
Resolution
7. Anti-Discrimination
8. No Extra
Claims
9. Area, Incidence
and Duration
1. Definitions
1.1 Employer means
the Secretary of the Ministry of Health exercising employer functions on behalf
of the Government of New South Wales.
1.2 Employee means a
person who is engaged on either a full time, part time, temporary, exempt or casual basis under a contract of employment in the
NSW Health Service under s115(1) of the Health
Services Act 1997, as amended or varied from time to time.
1.3 Casual employee
means a person who may be engaged on an hourly basis, for a period which does
not extend beyond one week, to provide services related to the unexpected
absence of temporary, permanent or exempt employees.
This provision may also encompass short-term employment associated with
unanticipated peak demands.
1.4 Temporary
employee means a person who is engaged as an employee for a period not
exceeding 13 weeks, provided that fixed term contracts of employment, whether
for periods greater or lesser than 13 weeks, must not be offered in preference
to ongoing contracts.
1.5 Permanent
employee means a person appointed as
such or a person who has worked in the same position, including a permanent
relief position, for a continuous period of 13 weeks other than as an exempt
employee. Permanency is subject to the
outcome of any appeal process.
1,6 Exempt employee
means a person who is engaged for a continuous period and whose employment
involves:
- relief for periods in excess of 13 weeks during the
absence of existing employees or;
- specific projects which are time limited or;
- functions which involve funding for a specific period and which is not of a recurrent nature or;
- forthcoming service reductions which have a
predetermined date.
Exempt employees as defined do not attract casual or
temporary loadings.
1.7 Continuous
period of employment means an uninterrupted period of 13 weeks employment
involving at least one shift per week in that period but does not refer to
exempt employees as defined.
1.8 Health Service
means a Local Health District constituted under section 8 of the Health Services Act 1997, a Statutory
Health Corporation constituted under section 11 of that Act, an Affiliated
Health Organisation constituted under section 13 of that Act and the Public
Health System Support Division of the NSW Health Service.
1.9 Secretary means
the Secretary of the Ministry of Health.
1.10 Union means the
Health Services Union NSW
2. Principles
2.1 Employees who
are engaged in meaningful work on a continuing basis are entitled to an
expectation of permanency of employment subject to the provisions of this
award.
2.2 It is the
responsibility of the employer to ensure that all employees, upon engagement
and at all appropriate times, are correctly classified as exempt, casual,
temporary, or permanent according to the above definitions.
2.3 Where a person
changes from casual to either temporary or permanent, the employment status of the
person is deemed to have changed automatically.
2.4 During the
period of continuing employment the status of an employee cannot be changed
from permanent to temporary or casual or from temporary to casual, without the
prior written consent of the employee.
2.5 All permanent
employees are required as part of their contract of employment, to use their
best endeavours to provide four weeks’ notice of their intention to terminate
their employment contract.
2.6 Any position
which would involve the employment of an exempt, temporary or permanent
employee, upon falling vacant, will, where such a position continues to be
required in its current form by the Health Service, be advertised within the
Health Service and/or external to the Health Service. Positions should be filled under the merit
principle of selection.
2.7 A person who, by
definition, is a temporary employee for a period of less than 13 weeks may be
re-engaged by the same Health Service under more than one employment contract
provided the aggregate period of the contracts, where consecutive, does not
exceed 13 weeks.
2.8 Where the
employee is retained beyond a continuous period of 13 weeks in the same position the employee is deemed to be permanent, subject to the outcome of any appeal.
The application of this sub clause shall not be applied in a manner which is
inconsistent with legislation or Government recruitment and employment policy,
as varied from time to time. This subclause does not apply to an exempt employee as defined.
3. Loadings
3.1 Casual Employees
- A casual employee will be paid for the number of hours worked each week at an
hourly rate, calculated at the same hourly rate as prescribed for a full time employee in the same classification and grade plus
10 per cent loading. A minimum payment of 2 hours at ordinary pay on each
occasion the employee commences a shift will apply.
3.2 Temporary
Employees - A temporary employee shall be paid for the number of hours worked
each week on an hourly rate calculated at the same hourly rate as prescribed
for a full time employee in the same classification
plus 10 per cent loading. The loading shall cease to apply if:
(a) the period of
employment extends beyond 13 weeks
(b) the employer and
the employee agree, during the period of 13 weeks, that the employee will be
employed on a permanent basis.
4. Arrangements for
Existing Part-Time Workers
4.1 Payment of 15%
Allowance - Persons engaged as at 1 January 2000 and
who were paid the 15% loading at that date will continue to receive that loading
but only for the remainder of the existing part time employment contract.
Receipt of the allowance will cease if the contract is completed or where an
employee requests a transfer or is promoted to another position.
4.2 Conditions - Persons
covered by clause 4.1 of this clause will, for the duration of any existing
part-time employment contract and while remaining in their current position,
retain existing part-time provisions.
They will not be entitled to pro rata entitlements as outlined elsewhere
within applicable awards.
5. Process for Resolving Inconsistencies
5.1 The Awards
contained in the attached schedule "A”, as varied or replaced from time to
time, shall also apply, where appropriate, to persons covered by this award.
5.2 To the extent
that any inconsistency exists between the conditions provided by this award and
that provided by an award contained in the attached schedule "A" this
award will prevail.
6. Dispute Resolution
6.1 Where a dispute
arises in a particular section which cannot be resolved between the employees
or their representative and the supervising staff, it shall be referred to the
Designated Manager of the hospital or service unit or their nominee who will
arrange for the matter to be discussed with the employee concerned and if
requested a local representative or representatives of the Union.
6.2 If the matter is
not resolved within a reasonable time it must be
referred by the Designated Manager to the Chief Executive Officer of the Health
Service (or their nominee) and may be referred by the employee to the Union's
Head Office. Discussions at this level
must take place within a reasonable time with a view to resolving the issue in
dispute. Failing settlement of the issue at this level, the matter shall be
dealt with in accordance with sub-clause 6.3 of this clause.
6.3 With a view to
amicable and speedy settlement of all disputes that firstly cannot be settled
by local management and the Union or its representatives, disputes may be
submitted to a committee consisting of not more than six members with equal
representation of the Secretary and the Union. Such committee shall have the
power to investigate all matters in dispute and to report to the Chief
Executive of the Health Service and the Union respectively, with such
recommendations as it may think right and in the event of no mutual decision
being arrived at by such a committee and if a dispute still exists the matter
in dispute may be referred to the Industrial Relations Commission in accordance
with the provisions of the Industrial
Relations Act 1996 by one of the disputing parties.
6.4 Whilst these
procedures are continuing, no stoppage of work or any form of ban or limitation
of work shall be applied.
6.5 Unless agreed
otherwise by the parties the status quo before the emergence of the issue must
continue whilst these procedures are being followed. For this purpose
"status quo" means the work procedures and practices in place:
(a) immediately
before the issue arose: or
(b) immediately before
any change to those procedures or practices, which caused the issue to arise,
was made
6.6 The Employer
must ensure that all practices applied during the operation of these procedures
are in accordance with safe working practices.
7. Anti-Discrimination
7.1 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.
7.2 It follows that in fulfilling their
obligations under the dispute resolution procedure prescribed by this Award the
parties have obligations to take all reasonable steps to ensure that the
operation of the provisions of this Award are not directly or indirectly
discriminatory in their effects. It will
be consistent with the fulfilment of these obligations for the parties to make
application to vary any provision of the Award which, by its terms or
operation, has a direct or indirect discriminatory effect.
7.3 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.
7.4 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;
(a) any act or practice of a
body established to propagate religion which is exempted under section 56(d) of
the Anti-Discrimination Act 1977;
(b) a party to this award
from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
7.5 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.
NOTES -
(a) Employers and employees
may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d) of
the Anti-Discrimination Act 1977 provides:
“Nothing in this Act affects … any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.
8. No Extra Claims
Other than as
provided for in the Industrial Relations
Act 1996 and the Industrial Relations
(Public Sector Conditions of Employment) Regulation 2014(or its successor however described), there shall be no further claims/demands or
proceedings instituted before the Industrial Relations Commission of New South
Wales for extra or reduced wages, salaries, rates of pay, allowances or
conditions of employment with respect to the employees covered by the Award
that take effect prior to 30 June 2023 by a party to this Award.
9. Area, Incidence and
Duration
9.1 This Award
rescinds and replaces the Health Industry
Status of Employment (State) Award 2021 published 11 March 2022 (391 I.G. 642) and all variations thereof.
9.2 This Award shall
apply to persons employed in classifications as contained in the awards
identified in Schedule “A”, as varied or replaced from time to time, employed
in the New South Wales Health Service under s115(1) of the Health Services Act
1997, or their successors, assignees or transmittees,
excluding the County of Yancowinna.
9.3 This award
incorporates changes under s 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 NSW on 4 December 2018.
SCHEDULE "A"
1. Public
Hospitals Professional Engineers (Biomedical Engineers) (State) Award 2021
2. Public Hospital
Career Medical Officers (State) Award 2021
3. Health
Employees Oral Health Therapists (State) Award 2021
4. Public
Hospitals Dental Assistants (State) Award 2021
5. Health
Employees Dental Officers (State) Award 2021
6. Public
Hospitals Library Staff (State) Award 2021
7. Public
Hospitals Medical Superintendents (State) Award 2021
8. Public Hospital
Medical Officers (State) Award 2021
9. Public
Hospitals Medical Record Librarians (State) Award 2021
10. Public Hospitals
(Professional and Associated Staff) Conditions of Employment (State) Award 2021
11. Hospital
Scientists (State) Award 2021
12. Health Employees
Conditions of Employment (State) Award 2021
13. Health Employees
Administrative Staff (State) Award 2021
14. Health Managers
(State) Award 2021
15. Health Employees
Pharmacists (State) Award 2021
16. Health Employees
(State) Award 2021
17. Health Employees
General Administrative Staff (State) Award 2021
18. Health Employees
Engineers (State) Award 2021
19. Health Employees
Computer Staff (State) Award 2021
20. Health Employees
Technical (State) Award 2021
21. Health Employees
Medical Radiation Scientists (State) Award 2021
22. Health Employees
Interpreters (State) Award 2021
23. NSW Health
Service Health Professionals (State) Award 2021
24. Health Employees
Dental Prosthetists and Dental Technicians (State) Award 2021
N. CONSTANT, Chief Commissioner
____________________
Printed by
the authority of the Industrial Registrar.