Local Government (COVID-19) Splinter (Interim)
Award 2021
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by New South Wales Local Government, Clerical, Administrative, Energy,
Airlines & Utilities Union,
Industrial Organisation of Employees.
(Case No. 106144 of 2022)
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Before Commissioner Sloan
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20 April 2022
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AWARD
PART A
1. Arrangement
Clause No. Subject Matter
Part 1 -
Application and Operation
1. Title
2. Commencement
and Duration
3. Coverage
4. Industrial
Parties
5. Definitions
and Interpretation
6. Relationship
with the Local Government (State) Award
Part 2 - Statement
of Intent
7. Intention
Part 3 - Dispute
Resolution Procedure
8. Grievance
and Dispute Procedure
Part 4 -
Anti-Discrimination
9. Anti-Discrimination
Part 5 -
Conditions of Employment (General)
10. Operational
Flexibility
11. Employees
Working from Home
12. Leave for
COVID-19 Vaccinations
Part 6 - Close
Down
13. Duty to
Explore Suitable Alternative Duties
14. No Useful
Work
15. Savings and
Transitional
16. Leave
Reserved
Schedule A -
Employers covered by this Award
Part 1 - Application and Operation
1. Title
1.1 This Award shall be known as the Local Government (COVID-19)
Splinter (Interim) Award 2022 ("Award").
2. Commencement and Duration
2.1 This Award commences operation on and from 8 April 2022 and
shall remain in force until 7 April 2023 (12 months).
2.2 This Award ceases to operate on 7 April 2023.
3. Coverage
3.1 This Award shall apply to all employers named in Schedule A and
to all their employees, except for employees whose positions are identified as
senior staff positions pursuant to sections 332 and 334 of the Local
Government Act 1993 (NSW).
4. Industrial Parties
4.1 The industrial parties to this Award are:
(a) Local Government NSW ("LGNSW");
(b) Aged and Community Services Australia ("ACSA");
(c) New South Wales Local Government, Clerical, Administrative,
Energy, Airlines and Utilities Union ("USU");
(d) Local Government Engineers’ Association of New South Wales
("LGEA");
(e) Development and Environmental Professionals’ Association
("depa");
(f) Nurses and Midwives’ Association of New South Wales ("NSW
Nurses");
(g) Electrical Trades Union of Australia, New South Wales Branch
("ETU"); and
(h) Health Services Union ("HSU").
5. Definitions and Interpretation
5.1 In this Award, unless the context requires otherwise:
Award means the
Local Government (COVID-19) Splinter (Interim) Award 2022.
COVID-19 means
the coronavirus named "COVID-19" by the World Health Organisation
(previously known as "2019 novel coronavirus") and the disease it
causes.
Job Retention
Allowance means the Job Retention Allowance referred to in clause 13 of
this Award and which is based on the Band 1/Level 2 rate of pay under the Local
Government (State) Award 2020. The allowance
may be a weekly amount or an hourly amount depending on the context. The hourly amount is either 1/35th or 1/38th
of the weekly amount depending on the ordinary hours of work for the relevant
work function at clause 19A of the Local Government (State) Award 2020 for the
employee’s substantive position.
LG (State) Award
means:
(i) the
Broken Hill City Council Consent Award 2018, as varied from time to time, and any
award that succeeds the Broken Hill City Council Consent Award 2018;
(ii) the Entertainment and Broadcasting
Industry - Live Theatre and Concert (State) Award as varied from time to time,
and any award that succeeds the Entertainment and Broadcasting Industry - Live
Theatre and Concert (State) Award;
(iii) the Goldenfields
Water County Council Enterprise Award 2020 as varied from time to time, and any
award that succeeds the Goldenfields Water County
Council Enterprise Award 2020;
(iv) the Local Government (State) Award 2020, as
varied from time to time and any award that succeeds the Local Government
(State) Award 2020;
(v) the Local Government (Electricians) Award,
as varied from time to time, and any award that succeeds the Local Government
(Electricians) Award;
(vi) the Local Government, Aged, Disability and
Home Care (State) Award, as varied from time to time and any award that
succeeds the Local Government, Aged, Disability and Home Care (State) Award;
(vii) the Nurses’ Local Government) Residential
Aged Care Consolidated (State) Award 2021, as varied from time to time and any
award that succeeds the Nurses’ Local Government) Residential Aged Care
Consolidated (State) Award 2021;
(viii) the Riverina Water Council Enterprise Award
2019 as varied from time to time, and any award that succeeds the Riverina
Water Council Enterprise Award 2019;
(ix) the South Sydney City Council Salaried
Officers Award 2017 as varied from time to time, and any award that succeeds
the South Sydney City Council Salaries Officers Award 2017;
(x) the South Sydney City Council Wages Staff
Award 2017 as varied from time to time, and any award that succeeds the South
Sydney City Council Wages Staff Award 2017;
(xi) the City of Sydney Wages/Salary Award 2017
as varied from time to time, and any award that succeeds The City of Sydney
Wages/Salary Award 2017;
(xii) any enterprise agreement
or council agreement made in relation to the abovementioned awards; and/or
(xiii) the Wollongong City
Council Enterprise Agreement 2018 - 2021, and any agreement that succeeds the
Wollongong City Council Enterprise Agreement 2018 - 2021.
Local
Government (State) Award 2020 means the Local Government (State) Award
2020, as varied from time to time, and any award that succeeds the Local Government
(State) Award 2020.
Ordinary pay has the
same meaning as under the LG (State) Award.
Salary system rate
of pay means the rate of pay an employee is entitled to receive under their
employer’s salary system in recognition of the skills the employee is required
to apply on the job.
Senior staff
has the same meaning as under the Local Government Act 1993 (NSW) and includes
the general manager of the Council and the holder of all other positions
identified in the employer’s organisation structure as senior staff positions.
Suitable alternative duties
include:
• duties that are within
the limits of an employee’s skill, competence and
training; and/or
• duties, whether the
same or different, that have a different span of ordinary hours, different
spread of ordinary hours, or different commencement and/or finishing times that
are reasonable and which take into consideration carers or family
responsibilities, provided that employees make genuine
efforts to make themselves available; and/or
• duties that involve
working a different number of hours per day or week; and/or
• training, including
training in areas unrelated to an employee’s substantive role.
Union means any
one or more of the following organisations:
• New South Wales Local Government,
Clerical, Administrative, Energy, Airlines and Utilities Union ("USU");
• Local
Government Engineers’ Association of New South Wales ("LGEA");
• Development and
Environmental Professionals’ Association ("depa");
• Nurses and
Midwives’ Association of New South Wales ("NSW Nurses");
• Electrical Trades
Union of Australia, New South Wales Branch ("ETU"); and
• Health Services
Union ("HSU").
6. Relationship with the Local Government
(State) Award
6.1 This Award is to be read and interpreted in conjunction with
the LG (State) Award.
6.2 Where there is any inconsistency between this Award and the LG
(State) Award, this Award shall prevail to the extent of the inconsistency.
6.3 Where this Award is silent, the LG (State) Award shall apply
(where applicable).
Part 2 -
Statement of Intent
7. Intention
7.1 This Award puts in place
special interim arrangements in response to the COVID-19 pandemic.
7.2 Where this Award provides
an employer with additional rights which, if exercised by the employer, would
result in employees being worse off under this Award than they would be under
the LG (State) Award or another applicable industrial instrument(s), those
rights may only be exercised as a result of an Order
from the State or Commonwealth Government related to COVID-19 responses and for
no other reason.
7.3 Nothing in this Award
prevents changes to working arrangements provided elsewhere under the LG
(State) Award (in accordance with the relevant award provisions), including but
not limited to the following clauses which are currently identified in the
Local Government (State) Award 2020 at subclause 16(x) [Travelling Allowance];
clause 19D [Facilitative Provisions]; clause 23 [Flexibility for Work and
Family Responsibilities]; clause 24 [Phased Retirement]; and clause 28 [Job
Share Employment].
7.4 This Award shall not set
any precedent in relation to award entitlements after its expiry.
Part 3 -
Dispute Resolution Procedure
8. Grievance and Dispute Procedure
8.1 Clause 36 [Grievance and Dispute Procedures] of the Local
Government (State) Award 2020 shall apply.
Part 4 - Anti-Discrimination
9. Anti-Discrimination
9.1 Clause 3
[Anti-Discrimination] of the Local Government (State) Award 2020 shall apply.
Part 5 - Conditions of Employment (General)
10.
Operational Flexibility
10.1 The
employer may, due to COVID-19, direct an employee to carry out suitable
alternative duties, provided that such a direction shall not be unreasonable
having regard to the employee’s personal circumstances including any family and
carer responsibilities.
10.2 Where,
due to COVID-19, an employee is directed to perform
suitable alternative duties, the employee, when performing the suitable
alternative duties:
(a) shall
be paid the salary system rate of pay that recognises the skills the employee
is required to apply to those duties, provided that the employee shall not
suffer a reduction in the salary system rate of pay for their substantive position;
(b) shall
be entitled to allowances, weekend penalties and shift penalties under the LG
(State) Award which are applicable to the suitable alternative duties; and
(c) is
not entitled to allowances, weekend penalties and shift penalties under the LG
(State) Award which are not applicable to the suitable alternative duties.
10.3 An
employer and an employee may agree to the employee taking their accrued annual
leave at half pay through a combination of paid annual leave and leave without
pay. Agreement to a combination of paid
annual leave and leave without pay shall not be unreasonably refused.
10.4 An
employee (other than a casual) with less than five (5) years’ service may, with
the consent of the employer, take long service leave in advance.
11. Employees Working from Home
Spread of Ordinary Hours
11.1 Where working from home under this Award, an
employee shall not be entitled to shift or weekend penalties, unless directed
to work outside their ordinary spread or span of hours.
11.2 Ordinary hours of work shall not exceed
twelve (12) hours in any one day exclusive of unpaid meal breaks.
Home
Internet and Home Computer Related Expenses
11.3 Employees working from home (due to
COVID-19) shall not be entitled to a reimbursement of home
internet and/or home computer related expenses, provided that an employer
shall not unreasonably refuse to reimburse an employee for such expenses where
exceptional circumstances exist and the employee
obtains the employer’s prior approval before incurring the expense.
11.4 Claims for other out-of-pocket expenses (e.g. stationery) shall be processed in accordance with
subclause 16(viii) [Expenses] of the LG (State) Award and applicable policies
of the employer.
11.5 The employer may require proof to justify
payments under this clause.
12. Leave for Covid-19
Vaccinations
12.1 Employees shall be entitled to leave,
without loss of pay, for the time reasonably required to receive a Therapeutic
Goods Administration approved vaccination for COVID-19.
12.2 The employer may require proof to justify
payments under this clause.
Part 6 - Close Down
13.
Duty to Explore Suitable Alternative Duties
13.1 Where,
due to COVID-19, employees are unable to perform their normal duties at their
normal place of work, the employer shall:
(a) explore
opportunities for the affected employees to work from home or from another
location; and/or
(b) provide
the employees with suitable alternative duties where available; and
(c) regularly
review these arrangements.
13.2 Where
an employee can perform their work
duties from home or from another location and/or suitable alternative duties
are available,
and the employee unreasonably refuses to perform such duties, the employee
shall not be entitled to the paid COVID-19 special leave and Job Retention
Allowance provided at clause 14 of this Award. For this subclause to apply, the employee
must have received prior written notice of the consequences of unreasonably
refusing to perform their work duties from home or from another location and/or
from performing suitable alternative duties.
14. No Useful Work
14.1 This
clause applies to permanent full-time employees and permanent part-time
employees only.
14.2 Where,
due to COVID-19, the employer has no useful work for employees, the employer
may temporarily stand down (or partially stand down) the employees, subject to
the following:
Stage 1 - Paid COVID-19 Special Leave, up to
four (4) weeks
14.3 Subject to subclause 14.4, an employee who
is stood down (or partially stood down) under subclause
14.2 shall be entitled to paid COVID-19 special
leave at their salary system rate of pay for four (4) weeks or until the
employer is able to provide the employee with useful work, whichever occurs
first.
14.4 Effective from the operative date of the
Award applying to the employer the amount of paid COVID-19 special leave that
an employee is entitled to receive under subclause 14.3 may be absorbed by up
to two (2) weeks of paid special leave already received by the employee from
the employer in relation to COVID-19 since 8 April 2022.
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Example:
Susan is a
swimming school instructor.
Arising from
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020,
the pool where Susan works was required to close. As a result, Susan’s employer was unable to
provide her with useful work and provided her with two (2) weeks paid special
leave in May 2021 (after 8 April 2021).
No suitable
alternative duties are available, and the employer has now decided to
temporarily stand Susan down.
As Susan has
already received two (2) weeks paid special leave in relation to COVID-19
since 8 April 2021, she is entitled to two (2) weeks paid COVID-19 special
leave (instead of four (4) weeks paid COVID-19 special leave).
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14.5 Paid COVID-19 special leave under subclauses
14.3 and 14.4 may be taken:
(a) in one continuous period; or
(b) two or more separate periods.
14.6 Where an employee is only partially stood
down (i.e. working reduced hours or reduced days) paid
COVID-19 special leave shall be calculated on a pro-rata basis and is only
payable on the hours that the employee is stood down from work.
14.7 Employees may be recalled back to work by
the employer during paid COVID-19 special leave by the giving 24 hours’ notice
or such shorter period of notice as may be agreed.
14.8 Part-time employees shall
be entitled to paid COVID-19 special leave on a pro-rata basis according to the
regular number of hours worked.
14.9 Paid COVID-19 special
leave shall be regarded as service for the purposes of computing entitlements
under the LG (State) Award. Paid
COVID-19 special leave shall also be regarded as ordinary time earnings (OTE)
for the purposes of superannuation guarantee contributions.
Stage 2 -
Job Retention Allowance, up to 13 weeks (3 months)
14.10 An employee who remains stood down (or
partially stood down) under subclause 14.2 and who has exhausted their
entitlement to paid COVID-19 special leave under subclauses 14.3 or 14.4 and
who has accrued annual leave balance not exceeding four (4) weeks, shall be
paid a Job Retention Allowance at the Band 1/Level 2 rate of pay under the
Local Government (State) Award 2020 for thirteen (13) weeks or until the
employer is able to provide the employee with useful work, whichever occurs
first. Provided that where a Junior, Trainee or Apprentice employee’s regular
ordinary rate of pay is less than the Band 1/Level 2 rate of pay under the
Local Government (State) Award 2020, the amount to be paid as the Job Retention
Allowance shall be the employee’s ordinary rate of pay instead of the Band
1/Level 2 rate of pay under the Local Government (State) Award 2020.
14.11 The Job Retention Allowance under subclause
14.10 may be taken:
(a) in one continuous period; or
(b) two or more periods that together are not
more than thirteen (13) weeks in the aggregate.
14.12 Employees may supplement payment of the Job
Retention Allowance under this Award by applying to take accrued annual leave
or long service leave (including long service leave under 10.4 with the consent
of the employer) at the same time.
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Example:
Anthony earns
approximately $2,000/week ($400/day).
Anthony is
entitled to the Job Retention Allowance ($888.50/week as at
8 April 2022) and has accrued annual and long service leave available for
use.
In addition
to receiving the Job Retention Allowance ($888.50/week as at
8 April 2022), Anthony can apply to take 3 days accrued leave per week, which
would bring his weekly earnings to approximately $2,088.50/week.
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14.13 Where an employee is only partially stood down
(i.e. working reduced hours or reduced days) the Job
Retention Allowance shall be calculated on a pro-rata basis and is only payable
on the hours that the employee is stood down from work.
14.14
(a) Employees may be recalled back to work by
the employer during the period that they are receiving the Job Retention
Allowance by the giving of 24 hours’ notice or such
shorter period of notice as may be agreed.
(b) An employee that is temporarily recalled
back to work under this subclause to perform their normal duties shall be paid
in accordance with the LG (State) Award for the time so recalled.
(c) An employee that is temporarily recalled
back to work under this subclause to perform suitable alternative duties shall
be paid in accordance with subclause 10.2 of this Award for the time so
recalled.
14.15 Part-time employees shall receive the Job Retention
Allowance on a pro-rata basis according to the regular number of hours worked.
14.16 An employee who is directed to take excess
accrued annual leave and/or long service leave pursuant to the LG (State) Award
shall not be entitled to the Job Retention Allowance whilst on such directed
leave.
14.17 Subject to subclause 14.18, where an employee
is receiving the Job Retention Allowance and is not working, such period shall
not be regarded as service for the purposes of computing entitlements under the
LG (State) Award.
14.18 Periods of paid annual leave and long service
leave count as service for the purposes of computing leave entitlements under
the LG (State) Award and as ordinary time earnings (OTE) for the purposes of
superannuation guarantee contributions.
14.19 The Job Retention Allowance is not ordinary
time earnings (OTE) for the purposes of superannuation guarantee contributions.
Stage 3 -
Leave without pay
14.20 An employee who remains stood down under
subclause 14.2 and who has exhausted their entitlements to paid COVID-19
special leave under subclauses 14.3 or 14.4 and the Job Retention Allowance
under subclause 14.10 shall be placed on leave without pay until the employer
is able to provide the employee with useful work, provided that if the employee
has accrued annual leave or long service leave available they may take that
leave (including long service leave under subclause 10.4, with the consent of
the employer).
14.21 If an employee is stood down and placed on
leave without pay by an employer as a direct or indirect result of the COVID-19
pandemic:
(a) the service of the employee with the
employer is, despite that break, taken to be continuous service, and
(b) the employee continues to accrue annual
leave and long service leave while stood down without pay.
15.
Savings and Transitional
15.1 Nothing
in this Award limits the employer’s right to direct employees to take accrued
annual leave and/or long service leave in accordance with the provisions of the
LG (State) Award.
15.2 Nothing
in this Award prevents the employer from providing additional benefits to
employees to help mitigate the adverse effects of COVID-19 on employees.
15.3 If, after the commencement of this Award, an
employer receives new or additional State and/or Commonwealth Government
funding in relation to COVID-19, the employer shall take such funding into
consideration when deciding whether to extend the benefits provided by this
Award or to provide additional benefits to mitigate the adverse effects
of COVID-19 on employees.
16. Leave Reserved
16.1 Nothing in this Award limits the employer’s
right to direct employees to take accrued annual leave and/or long service leave
in accordance with the provisions of the LG (State) Award.
16.2 Leave is reserved for the Parties to the
Award to apply to vary this Award and/or access the Industrial Relations
Commission of New South Wales should a State or Commonwealth Government
assistance/funding package related to COVID 19 be provided to Employers and/or
Employees.
Schedule
A-Employers covered by this Award
A.1 The employers listed in Table 1 below are
the employers covered by this Award, as provided by subclause 3.1.
Table 1 - Employers covered by the Award, and operative
date of subclause 14.4
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Column A
(Subclause 14.4
operates on and from 8 April 2022
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Column B
(Subclause 14.4
operates on and from …)
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Column C
(Subclause 14.4
operates on and from …)
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Column D
(Subclause 14.4 operates
on and from …)
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Albury City Council
Armidale
Regional Council
Ballina
Shire Council
Bathurst
Regional Council
Bayside
Council
Bega
Valley Shire Council
Bellingen
Shire Council
Berrigan
Shire Council
Blacktown
City Council
Bland
Shire Council
Blayney
Shire Council
Blue
Mountains City Council
Bogan
Shire Council
Bourke
Shire Council
Brewarrina
Shire Council
Broken
Hill City Council
Burwood
Council
Byron
Shire Council
Cabonne Council
Camden
Council
Campbelltown
City Council
Canada
Bay City Council
Canterbury
Bankstown Council
Carrathool
Shire Council
Castlereagh
Macquarie County Council
Central
Coast Council
Central
Darling Shire Council
Central
Tablelands Water County Council
Cessnock
City Council
City
of Lithgow Council
City
of Parramatta Council
City
of Ryde Council
City
of Sydney Council
Clarence
Valley Council
Cobar
Shire Council
Coffs
Harbour City Council
Coonamble
Shire Council
Cootamundra-Gundagai
Regional Council
Cowra
Shire Council
Cumberland
City Council
Dubbo
Regional Council
Dungog
Shire Council
Edward
River Council
Fairfield
City Council
Federation
Council
Georges
River Council
Gilgandra
Shire Council
Glenn
Innes Severn Council
Goldenfields Water County Council
Greater
Hume Shire Council
Griffith
City Council
Gunnedah
Shire Council
Gwydir
Shire Council
Hawkesbury
City Council
Hawkesbury
River County Council
Hay
Shire Council
Hilltops
Council
Hornsby
Shire Council
Inner
West Council
Inverell
Shire Council
Junee
Shire Council
Kempsey
Shire Council
Ku-ring-gai
Council
Lachlan
Shire Council
Lane
Cove Municipal Council
Leeton
Shire Council
Lismore
City Council
Liverpool
City Council
Liverpool
Plains Shire Council
Lockhart
Shire Council
Maitland
City Council
Mid-Coast
Council
Moree
Plains Shire Council
Mosman
City Council
Murray
River Council
Murrumbidgee
Council
Muswellbrook
Shire Council
Nambucca
Valley Council
Narrabri
Shire Council
Narrandera
Shire Council
Narromine
Shire Council
Newcastle
City Council
North
Sydney Council
Northern
Beaches Council
Oberon
Council
Orange
City Council
Parkes
Shire Council
Penrith
City Council
Port
Macquarie Hastings Council
Port
Stephens Council
Queanbeyan-Palerang Regional Council
Randwick
City Council
Regional
Council
Riverina
Water County Council
Rous
County Council
Shellharbour
City Council
Shoalhaven
City Council
Singleton
Council
Snowy
Monaro Regional Council
Snowy
Valleys Council
Sutherland
Shire Council
Sutherland
Shire Council
Tamworth
Regional Council
Temora
Shire Council
Tenterfield
Shire Council
The
Council of the Municipality of Hunters Hill
The
Council of the Municipality of Kiama
The
Hills Shire Council
Tweed
Shire Council
Upper
Hunter Shire Council
Upper
Lachlan Shire Council
Uralla
Shire Council
Wagga
Wagga City Council
Walcha
Council
Walgett
Shire Council
Warren
Shire Council
Warrumbungle
Shire Council
Waverley
Council
Weddin Shire Council
Wentworth
Shire Council
Willoughby
City Council
Wingecarribee Shire Council
Wollondilly
Shire Council
Wollongong
City Council
Woollahra
Municipal Council
Yass Valley Council
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D. SLOAN, Commissioner
____________________
Printed by the authority
of the Industrial Registrar.