New South Wales Lotteries Corporation (Salaries,  Allowances and Conditions of Employment) 2004 Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by NSW Lotteries Corporation.

 

(No. IRC 323 of 2006)

 

 

VARIATION

 

1.          Insert after paragraph 9.4 (f), of clause 9, Categories of Employment, of the award published 23 December 2005 (355 I.G. 636), the following new paragraphs:

 

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

 

(i)         The Corporation 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.

 

(h)        Personal Carers Entitlements for casual employees

 

(i)         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 clause 20.14(b) of the Award 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 (iv), and the notice requirements set out in (v).

 

(ii)        The Corporation and the casual employee shall agree on the period for which the employee is 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.

 

(iii)       The Corporation 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.

 

(iv)      The casual employee shall, if required:

 

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

 

(b)        establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

 

In normal circumstances, a casual employee must not take carer’s leave under this subclause where another person had taken leave to care for the same person.

 

(v)       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.

 

(i)         Bereavement entitlements for casual employees

 

(i)         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),

 

(ii)        The Corporation and the casual employee shall agree on the period for which the employee is 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.

 

(iii)       The Corporation 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.

 

(iv)      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.          Delete the words "adoption leave;" appearing in paragraph 20.1 (d), of clause 20, Leave, and insert in lieu thereof the following:

 

adoption leave, full-pay and half-pay;

 

3.          Delete the words "short paid parental leave;" appearing in paragraph 20.1 (d), of the said clause 20, and insert in lieu thereof the following:

 

short paid other parent leave

 

4.          Delete the words "short paid parental leave at full pay;" appearing in paragraph 20.1 (e), of the said clause 20, and insert in lieu thereof the following:

 

short paid other parent leave at full-pay;

 

5.          Delete the words "short paid parental leave at half pay, which accrues all leave at half the rate;" appearing in paragraph 20.1 (e), of the said clause 20, and insert in lieu thereof the following:

 

short paid other parent leave at half-pay, which accrues all leave at half the rate;

 

6.          Delete the words "unpaid parental leave does not count as service for determining any leave entitlement, except for extended (long service) leave when at least ten yeas of service has been completed and unpaid maternity leave does not exceed six months;" appearing in paragraph 20.1 (e), of the said clause 20, and insert in lieu thereof the following:

 

unpaid other parent leave does not count as service for determining any leave entitlement, except for extended (long service) leave when at least ten years of service has been completed and unpaid maternity leave does not exceed six months;

 

7.          Delete subclauses 20.2, Maternity Leave, 20.3, Adoption Leave and 20.4, Parental Leave, of the said clause 20, and insert in lieu thereof the following:

 

20.2      Parental Leave

 

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

 

(a)        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:

 

(i)         for a period of up to nine weeks prior to the expected date of birth; and

 

(ii)        for a further period of up to twelve months after the actual date of birth.

 

(iii)       an employee who has been granted maternity leave and whose child is stillborn may elect to take available sick leave instead of maternity leave.

 

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

 

(i)         for a period of up to twelve months if the child has not commenced school at the date of the taking custody, or

 

(ii)        for such period, not exceeding twelve months on a full-time basis, as the Corporation may determine, if the child has commenced school at the date of the taking of custody.

 

(iii)       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 charges against recreation leave, extended leave, flex time, rostered time off or family and community services leave.

 

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

 

(i)         Short other parent leave - an unbroken period of up to eight 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;

 

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

 

(d)       An employee taking maternity or adoption leave is entitled to payment at the ordinary rate of pay for a period of 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:

 

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

 

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

 

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

 

a.          in advance as a lump sum; or

 

b.         fortnightly as normal; or

 

c.          fortnightly at half pay; or

 

d.         a combination of full pay and half pay.

 

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

 

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

 

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

 

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

 

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

 

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

 

(h)       Right to request

 

(i)         An employee who has been granted maternity, adoption or other parent leave in accordance with subclauses (a), (b) or (c) may make a request to the Corporation to:

 

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

 

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

 

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

 

(ii)        The Corporation shall consider the request having regard to the employee’s circumstances and, provided the request is genuinely based on the employee’s parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

 

(i)         Notification Requirements

 

(i)         An employee who wishes to take parental leave must notify the Corporation in writing at least eight weeks (or as soon as practicable) before the expected commencement of parental leave;

 

a.          that he/she intends to take maternity, adoption or other parent leave, and

 

b.         the expected date of birth or the expected date of placement, and

 

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

 

(ii)        At least four weeks before an employee’s expected date of commencing maternity, adoption or other parent leave they must advise:

 

a.          the date on which the maternity, adoption or other parent leave is intended to start, and

 

b.         the period of leave to be taken.

 

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

 

The employee’s request and the Corporation’s decision made under subclause 20.2(h)(i) and 20.2h(ii) must be recorded in writing.

 

(iv)       An employee intending to request to return from maternity, adoption or other parent leave on a part time basis or seek an additional period of leave of up to 12 months, must notify the Corporation in writing as soon as practicable and preferably before beginning maternity, adoption or other parent 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 Corporation agrees.

 

(v)        An employee on maternity leave is to notify the Corporation of the date on which she gave birth, within two weeks of the date of birth.

 

(vi)       An employee must notify the Corporation within two weeks of any change in their intentions as a result of premature delivery or miscarriage.

 

(vii)      An employee on maternity or adoption leave may change the period of leave or arrangement, once without the consent of the Corporation, and any number of times with the consent of the Corporation. In each case she/he must give the Corporation at least 14 days notice of the change unless the Corporation decides otherwise.

 

(j)         An employee has the right to his/her former position if she/he has taken approved leave or part time work in accordance with subclause (h), and resumes duty immediately after the approved leave or work on a part time basis.

 

(k)        If the position occupied by the employee immediately prior to the taking of maternity, adoption or other parent 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 or pay range as the employee’s former position.

 

(l)         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 Corporation approves a return to work on a part time basis then the position occupied is to be at the same grade or pay range as the former position.

 

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

 

(n)       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, 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 the sooner.

 

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

 

(p)       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 Corporation, should, in consultation with the member of staff, take all reasonable measures to arrange for safer alternative duties.

 

(q)       If such adjustments cannot reasonably be made, the Corporation 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, which ever is the earlier.

 

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

 

(i)         Where an employee is on maternity, adoption or other parent leave and a definite decision has been made to introduce significant change at the workplace, the Corporation shall take reasonable steps to:

 

a.          make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing maternity, adoption or other parent leave; and

 

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

 

(ii)        The employee shall take reasonable steps to inform the Corporation about any significant matter that will affect his/her decision regarding the duration of maternity, adoption or other parent leave to be taken, whether the employee intends to return to work and whether he/she intends to request a return to work on a part time basis.

 

(iii)       The employee shall also notify the Corporation of changes of address or other contact details, which might affect the Corporation’s capacity to comply with paragraph (i).

 

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

 

 

 

F. L. WRIGHT J , President

 

 

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Printed by the authority of the Industrial Registrar.