School Support Staff (Catholic Independent Schools) (State) Award 2005

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by New South Wales Independent Education Union, Industrial Organisation of Employees.

 

(No. IRC 33 of 2006)

 

 

VARIATION

 

1.          Delete clause 18 Catholic Personal/Carer’s Leave of the award published 13 January 2006 (356 I.G. 196) and insert in lieu thereof the following:

 

18.  Catholic Personal/Carer’s Leave

 

18.1      Use of Sick Leave to Provide Care and Support for a Family Member

 

(a)        An employee other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (ii) of paragraph (c) who needs the employee’s care and support, shall be entitled to use, in any year, in accordance with this subclause, any current or accrued sick leave entitlement provided for at Clause 17 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.

 

(b)        The 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, an employee must not take carer's leave under this subclause where another person had taken leave to care for the same person.

 

(c)        The entitlement to use sick leave in accordance with this subclause is subject to:

 

(1)        the employee being responsible for the care of the person concerned; and

 

(2)        the family member being a parent, step-parent, spouse, grandchild, sibling, grandparent, child, step-child, foster child, adopted child and foster parent of the employee or spouse.

 

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 employee shall discuss appropriate arrangements which, as far as practicable, take account of the employer’s and employee’s requirements.

 

Where the parties are unable to reach agreement the disputes procedure at Clause 28, Disputes Avoidance and Grievance Procedure should be followed.

 

18.2      Use of Sick Leave for a Pressing Domestic Necessity

 

(a)        Subject to paragraph (c), for the purposes of this clause "pressing domestic necessity" means any reason at the discretion of the employer, provided that such discretion is not unreasonably withheld and is exercised so as not to contravene any applicable provisions of the Anti-Discrimination Act 1997.

 

(b)        An employee, other than a casual employee, with sick leave credits may apply to utilise such credits up to five of any current or accrued sick leave entitlement days in any one year of the employee’s service, for any pressing domestic necessity other than to care for or support a person defined in subparagraph 18 (i)(c)(2).

 

(c)        Where an employee, other than a casual employee, is not entitled to utilise sick leave credits pursuant to paragraph 18 (i)(a) he or she may access any current or accrued sick leave for any pressing domestic necessity where the employee is responsible for the care or support of a person not referred to in subparagraph 18 (i)(c)(2).

 

(d)        The yearly entitlement for the purpose of pressing domestic necessity in paragraph 18(ii)(b) is non-cumulative.

 

(e)        If required, an employee shall provide a written statement or other evidence supporting the application for Personal/Carer’s Leave for the purpose of pressing domestic necessity.

 

18.3      Notification of Intention to Take Leave

 

In relation to sub-clauses 18.1 and 18.2, wherever practicable, an employee shall give the employer notice prior to the absence of the intention to take leave.  The employee shall also provide the name of the person requiring care, that person’s relationship to the employee, the nature of any pressing domestic necessity, 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 absence.

 

18.4      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 person referred to in subparagraph 18 .1 or paragraph 18 2(c) who is ill or who requires care due to an unexpected emergency.

 

18.5      Annual Leave

 

(a)        An employee 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.

 

(b)        Access to annual leave, as prescribed in paragraph (a) of this subclause, shall be exclusive of any shutdown period provided for elsewhere under this award.

 

(c)        An employee 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.

 

(d)        An employee 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

 

18.6      Time Off in Lieu of Payment for Overtime

 

(a)        An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within twelve (12) months of the said election.

 

(b)        Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

 

(c)        If, having elected to take time as leave in accordance with paragraph (a) of this subclause, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve (12) month period or on termination.

 

(d)        Where no election is made in accordance with paragraph (a) of this subclause, the employee shall be paid overtime rates in accordance with the award.

 

18.7      Make-Up Time

 

(a)        An employee may elect, with the consent of the employer, to work "make-up time" under which the employee takes time off 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.

 

(b)        An employee on shift work may elect, with the consent of the employer, to work "make-up time" (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate which would have been applicable to the hours taken off."

 

18.8      Rostered Days Off

 

(a)        An employee may elect, with the consent of the employer, to take a rostered day off at any time.

 

(b)        An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

 

(c)        An employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon at a time mutually agreed between the employer and employee, or subject to reasonable notice by the employee or the employer.

 

This subclause is subject to the employer informing each union which is both party to the award and which has members employed at the particular enterprise of its intention to introduce an enterprise system of RDO flexibility, and providing a reasonable opportunity for the union(s) to participate in negotiations.

 

18.9      Entitlement for casual employees

 

(a)        Subject to the requirements in subclause (iii) of this clause, casual employees are entitled to not be available to attend work, or to leave work if they need to care for a person prescribed in subclause 18.1 (c) (2) of this clause who is sick and requires care and support, or who requires care due to an unexpected emergency, or the birth of a child.

 

(b)        The employer and the 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)        An employer 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.

 

2.          Insert after subclause 19.3 of clause 19, Parental Leave- Schedule A Schools the following new subclauses 19.4, 19.5 and 19.6:

 

19.4      Casual Employees

 

An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Industrial Relations Act 1996 (NSW)) 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.

 

19.5      Right to request

 

(a)        An employee entitled to parental leave may request the employer to allow the employee:

 

(1)        to extend the period of simultaneous unpaid parental leave up to a maximum of eight weeks;

 

(2)        to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months;

 

(3)        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 subparagraphs (a) (2) and (3) of this paragraph must be recorded in writing.

 

(d)        Request to return to work part-time

 

Where an employee wishes to make a request under subparagraph (a) (3), such a request must be made as soon as possible before the date upon which the employee is due to return to work from parental leave.

 

19.6      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).

 

3.          Insert after subclause (c) of clause 20, Parental Leave- Schedule B Schools the following new subclauses (d), (e) and (f):

 

(d)        Casual Employees

 

An employer must not fail to re-engage a regular casual employee (see section 53(2) of the Industrial Relations Act 1996 (NSW)) because:

 

(i)         the employee or employee's spouse is pregnant; or

 

(ii)        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.

 

(e)        Right to request

 

(i)         An employee entitled to parental leave may request the employer to allow the employee:

 

(A)      to extend the period of simultaneous unpaid parental leave up to a maximum of eight weeks;

 

(B)       to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months;

 

(C)       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.

 

(ii)        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.

 

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

 

The employee’s request and the employer’s decision made under subparagraphs (i) (B) and (C) of this paragraph must be recorded in writing.

 

(iv)       Request to return to work part-time

 

Where an employee wishes to make a request under subparagraph (a) (3), such a request must be made as soon as possible before the date upon which the employee is due to return to work from parental leave.

 

(f)         Communication during parental leave

 

(i)         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:

 

(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 parental 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 the employee held before commencing parental leave.

 

(ii)        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.

 

(iii)       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 (i).

 

4.          Insert after subclause (vii) of clause 22 - Bereavement Leave, the following new subclause:

 

(viii)     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 person in relation to whom the employee could have utilised Catholic Personal/Carer's Leave in subclause 18.9, provided that for the purpose of this bereavement entitlement, the casual employee need not have been responsible for the care of the person concerned.  A causal employee must notify the employer as soon as practicable of the intention to access this entitlement and may be required to provide the employer with satisfactory evidence of such death.

 

(b)        The employer and the 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)        An employer 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.

 

5.          This variation shall take effect from 19 December 2005.

 

 

 

F. L. WRIGHT J , President

 

 

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Printed by the authority of the Industrial Registrar.