Community Colleges Tutors (State) Award

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by New South Wales Teachers Federation, Industrial Organisation of Employees.

 

(No. IRC 2803 of 2006)

 

 

VARIATION

 

1.          Delete clauses 9 Parental Leave, 10, Bereavement Leave, and clause 11, Personal/Carer's Leave of the award published 18 June 2004  (344 I.G. 955) and insert in lieu thereof the following:

 

9.  Parental Leave

 

9.1        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)

 

9.2        An employer must not fail to re-engage a regular casual tutor (see section 53(2) of the Act) because:

 

(a)        the tutor or tutor's spouse is pregnant; or

 

(b)        the tutor is or has been immediately absent on parental leave.

 

The rights of an employer in relation to engagement and re-engagement of casual tutors are not affected, other than in accordance with this clause.

 

9.3        Right to request

 

9.3.1     A tutor entitled to parental leave may request the employer to allow the tutor:

 

(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 tutor in reconciling work and parental responsibilities.

 

9.3.2     The employer shall consider the request having regard to the tutor’s circumstances and, provided the request is genuinely based on the tutor’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.

 

9.3.3     Tutor’s request and the employer’s decision to be in writing

 

The tutor’s request and the employer’s decision made under 9.3.1(ii) and 9.3.1(iii) must be recorded in writing.

 

9.3.4     Request to return to work part-time

 

Where an tutor wishes to make a request under 9.3.1(iii), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the tutor is due to return to work from parental leave.

 

9.4        Communication during parental leave

 

9.4.1     Where an tutor 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 tutor held before commencing parental leave; and

 

(ii)        provide an opportunity for the tutor to discuss any significant effect the change will have on the status or responsibility level of the position the tutor held before commencing parental leave.

 

9.4.2     The tutor shall take reasonable steps to inform the employer about any significant matter that will affect the tutor’s decision regarding the duration of parental leave to be taken, whether the tutor intends to return to work and whether the tutor intends to request to return to work on a part-time basis.

 

9.4.3     The tutor shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with paragraph 9.4.1.

 

10.  Bereavement Leave

 

10.1      A tutor, other than a casual/sessional tutor, shall be entitled to up to two days bereavement leave without deduction of pay, up to and including the day of the funeral, on each occasion of the death within Australia of a person prescribed in subclause 10.3 occurs, provided that, if such a person dies outside Australia, the tutor shall be entitled to leave of one day without loss of ordinary pay.

 

10.2      The tutor must notify the ACE Provider as soon as practicable of the intention to take bereavement leave and will, if required by the ACE Provider, provide to the satisfaction of the ACE Provider proof of death.

 

10.3      Bereavement leave shall be available to the tutor in respect to the death of a person prescribed for the purposes of personal/carer’s leave as set out in subclause (ii) of clause 11.1.3 of Clause 11 - Personal/Carer’s Leave, provided that, for the purpose of bereavement leave, the tutor need not have been responsible for the care of the person concerned.

 

10.4      A tutor shall not be entitled to bereavement leave under this clause during any period in respect of which the tutor has been granted other leave.

 

10.5      Bereavement leave may be taken in conjunction with other leave available under subclauses 11.2, 11.3, 11.4 and 11.5 of the said Clause 11.  In determining such a request the ACE Provider will give consideration to the circumstances of the tutor and the reasonable operational requirements of the business.

 

10.6      Bereavement entitlements for casual tutors

 

10.6.1   Subject to the evidentiary and notice requirements in 10.2 casual tutors are entitled to not be available to attend work, or to leave work upon the death in Australia of a person prescribed in subclause (ii) of Clause 11.1.3 Personal/Carer’s Leave

 

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

 

10.6.3   An employer must not fail to re-engage a casual tutor because the tutor accessed the entitlements provided for in this clause. The rights of an employer to engage or not engage a casual tutor are otherwise not affected.

 

11.  Personal/Carer’s Leave

 

11.1      Use of Sick Leave

 

11.1.1   A tutor, other than a casual tutor, with responsibilities in relation to a class of person set out in paragraph (ii) of subclause 11.1.3 who needs the tutor’s care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, provided for at Clause 8 of the award, for absences to provide care and support for such persons when they are ill, or who require care due to an unexpected emergency. Such leave may be taken for part of a single day.

 

11.1.2   The tutor 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 tutor.

 

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

 

11.1.3   The entitlement to use sick leave in accordance with this subclause is subject to:

 

(i)         the tutor being responsible for the care and support of the person concerned: and

 

(ii)        the person concerned being:

 

(a)        a spouse of the tutor; or

 

(b)        a de facto spouse, who, in relation to a person, is a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person 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), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the tutor or spouse or de facto spouse of the tutor; or

 

(d)        a same sex partner who lives with the tutor as the de facto partner of that tutor on a bona fide domestic basis; or

 

(e)        a relative of the tutor who is a member of the same household, where for the purposes of this paragraph:

 

(1)        "relative" means a person related by blood, marriage or affinity;

 

(2)        "affinity" means a relationship that one spouse because of marriage has to blood relatives of the other; and

 

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

 

11.1.4   A tutor shall, wherever practicable, give the ACE Provider notice prior to the absence of the intention to take leave, the name of the person requiring care and their relationship to the tutor, the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the tutor to give prior notice of absence, the tutor shall notify the ACE Provider by telephone of such absence at the first opportunity on the day of absence.

 

Note: In the unlikely event that more than 10 days sick leave in any year is to be used for caring purposes the employer and tutor shall discuss appropriate arrangements which, as far as practicable, take account of the employer’s and tutor’s requirements.

 

Where the parties are unable to reach agreement the disputes procedure at Clause 7 should be followed.

 

11.2      Unpaid Leave for Family Purpose

 

An tutor may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in paragraph (ii) of subclause 11.1.3 above who is ill or who requires care due to an unexpected emergency.

 

11.3      Annual Leave

 

11.3.1   An tutor may elect, with the consent of the employer to take annual leave not exceeding ten days in single-day periods, or part thereof, in any calendar year at a time or times agreed by the parties.

 

11.3.2   Access to annual leave, as prescribed in paragraph 11.3.1 above, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

11.3.3   A tutor and ACE Provider may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken.

 

11.3.4   An tutor may elect with the employers agreement to take annual leave at any time within a period of 24 months from the date at which it falls due.

 

11.4      Time Off in Lieu of Payment for Overtime

 

See Clause 5, Overtime.

 

11.5      Make-up Time

 

A tutor may elect, with the consent of the ACE Provider, to work "make-up time", under which the tutor takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

 

11.6      Personal/Carer’s Entitlement for casual tutors

 

11.6.1   Subject to the evidentiary and notice requirements in 11.1.2 and 11.1.4 casual tutors are entitled to not be available to attend work, or to leave work if they need to care for a person prescribed in paragraph (ii) of subclause 11.1.3 of this clause who are sick and require care and support, or who require care due to an unexpected emergency, or the birth of a child.

 

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

 

11.6.3   An employer must not fail to re-engage a casual tutor because the tutor accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual tutor are otherwise not affected.

 

2.          This variation shall take effect on and from 24 July 2006.

 

 

 

M. SCHMIDT J

 

 

 

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Printed by the authority of the Industrial Registrar.