Electrical, Electronic and
Communications Contracting Industry (State) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Electrical
Trades Union of Australia, New South Wales Branch, Industrial Organisation
of Employees.
(No. IRC 533 of 2006)
Before The Honourable
Justice Wright, President
|
13 February 2006
|
The Honourable Mr Justice Staff
|
|
Mr Deputy President
Sams
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Commissioner Ritchie
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VARIATION
1. Insert after paragraph 8.2.4, of
clause 8, Contract of Employment, of the award published 17 March 2006
(358 I.G. 1), the following new paragraphs:
8.2.5 Bereavement entitlements for casual
employees
8.2.5.1 Subject to evidentiary and notice requirements
in subclause 24.3.2 casual employees are entitled to not be available to attend
work, or to leave work upon the death in Australia of a person prescribed in
subclause 24.4.1.3.2 of clause 24.4 Personal/Carers Leave.
8.2.5.2 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.
8.2.5.3 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.
8.2.6 Personal Carers entitlement for casual
employees
8.2.6.1 Subject to evidentiary and notice
requirement in 24.4.1.2 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 24.4.1.3.2 who are sick and require care and support, or who require
care due to an unexpected emergency, or the birth of a child.
8.2.6.2 The employer and 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.
8.2.6.3 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. Delete clause
24, Other Leave, and insert in lieu thereof the following:
24. Other Leave
24.1 Long Service Leave: For long service leave
provisions see Long Service Leave Act 1955.
24.2 Building and Construction Industry Long
Service Payments: For employees performing building and construction work as
defined by the Building and Construction Industry Long Service Payments Act
1986, see the Building and Construction Industry Long Service Payments Act
1986.
24.3 Bereavement Leave
24.3.1 An employee, other than a casual employee,
shall be entitled to up to two days bereavement leave without deduction of pay
on each occasion of the death of a person prescribed in paragraph 24.3.3 of
this subclause.
24.3.2 The employee must notify the employer as soon
as practicable of the intention to take bereavement leave and will provide to
the satisfaction of the employer proof of death.
24.3.3 Bereavement leave shall be available to the
employee in respect to the death of a person prescribed for the purposes of
personal/carer's leave as set out in subclause 24.4.1.3.2 provided that, for
the purposes of bereavement leave, the employee need not have been responsible
for the care of the person concerned.
24.3.4 An employee shall not be entitled to
bereavement leave under this Clause during any other period in respect of which
the employee has been granted other leave.
24.3.5 Bereavement leave may be taken in conjunction
with other leave available under subclauses 24.4.2, 24.4.3, 24.4.4, 24.4.5 and
24.4.6. In determining such a request the employer will give consideration to
the circumstances of the employee and the reasonable operational requirements
of the business.
24.4 Personal/Carer's Leave
24.4.1 Use Of Sick Leave
24.4.1.1 An employee, other than a casual
employee, with responsibilities in relation to a class of person set out in
subclause 24.4.1.3.2, who needs the employee's care and support, shall be
entitled to use, in accordance with this subclause, any current or accrued sick
leave entitlement, provided for in Clause 22, Sick Leave, 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.
24.4.1.2 The employee shall, if required,
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 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 has taken leave to care
for the same person.
24.4.1.3 The entitlement to use sick leave in
accordance with this subclause is subject to:
24.4.1.3.1 The employee being responsible for the
care of the person concerned; and
24.4.1.3.2 The person concerned being:
24.4.1.3.2.1 A spouse of the employee; or
24.4.1.3.2.2 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
24.4.1.3.2.3 A child or an adult child (including an
adopted child, a step child, a foster child or an ex-nuptial child), parent
(including a foster parent and legal guardian), grandparent, grandchild or
sibling of the employee or spouse or de facto spouse of the employee; or
24.4.1.3.2.4 A same sex partner who lives with the
employee as the de facto partner of that employee on a bona fide domestic
basis; or
24.4.1.3.2.5 A relative of the employee who is a member
of the same household, where for the purposes of this paragraph:
24.4.1.3.2.5.1 "relative" means a person related
by blood, marriage or affinity;
24.4.1.3.2.5.2 "affinity" means a relationship
that one spouse because of marriage has to blood relatives of the other; and
24.4.1.3.2.5.3 "household" means a family group
living in the same domestic dwelling.
24.4.1.3.2.6 An employee shall, wherever practicable,
give the employer notice prior to the absence of the intention to take leave,
the name of the person requiring care and their relationship to the employee,
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.
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 into
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at Clause 31 should be followed.
24.4.2 Unpaid Leave For Family Purpose
24.4.2.1 An employee may elect, with the
consent of the employer, to take unpaid leave for the purpose of providing care
and support to member of a class of person set out in subclause 24.4.1.3.2
above who is ill or who requires care due to an unexpected emergency.
24.4.3 Annual Leave
24.4.3.1 An employee may elect with the
consent of the employer, to take annual leave not exceeding 10 days in single
day periods or part thereof, in any calendar year at a time or times agreed by
the parties.
24.4.3.2 Access to annual leave, as
prescribed in subclause 24.4.3.1 above, shall be exclusive of any shutdown
period provided for elsewhere under this award.
24.4.3.3 An employee and employer 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.
24.4.3.4 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.
24.4.4 Time Off In Lieu Of Payment Of Overtime
24.4.4.1 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 12 months of the said election.
24.4.4.2 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.
24.4.4.3 If having elected to take time as
leave in accordance with paragraph 24.4.4.1 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 12 month period or on termination.
24.4.4.4 Where no election is made in
accordance with said paragraph 24.4.4.1, the employee shall be paid overtime
rates in accordance with the award.
24.4.5 Make-Up Time
24.4.5.1 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.
24.4.5.2 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.
24.4.6 Rostered Days Off
24.4.6.1 An employee may elect, with the
consent of the employer, to take a rostered day off at any time.
24.4.6.2 An employee may elect, with the
consent of the employer, to take rostered days off in part day amounts.
24.4.6.3 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.
24.4.6.4 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.
24.5 Parental Leave
24.5.1 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).
24.5.2 An employer must not fail to re-engage a
regular casual employee (see section 53(2) of the Act) because:
24.5.2.1 The employee or employee’s spouse is
pregnant;
or
24.5.2.2 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.
24.5.3 Right to request
24.5.3.1 An employee entitled to parental
leave may request the employer to allow the employee:
24.5.3.1.1 To extend the period of simultaneous
unpaid parental leave use up to a maximum of eight weeks;
24.5.3.1.2 To extend the period of unpaid parental
leave for a further continuous period of leave not exceeding 12 months; to
assist the employee in reconciling work and parental responsibilities.
24.5.3.1.3 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.
24.5.3.1.4 Employee’s request and the employer’s
decision to be in writing
The
employee’s request and the employer’s decision made under 24.5.3.1.2 must be
recorded in writing.
24.5.3.2 Communication during parental leave
24.5.3.2.1 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:
24.5.3.2.1.1 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;
24.5.3.2.1.2 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.
24.5.3.2.2 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 employer intends to return to work on a part-time basis.
24.5.3.2.3 The employer shall also notify the
employer of changes of address or other contact details which might affect the
employer’s capacity to comply with paragraph 24.5.3.2.1.
3. This
variation shall take effect from the 19 December 2005.
F. L. WRIGHT J,
President.
C. G. Staff J.
P. J. SAMS D.P.
D. W. RITCHIE, Commissioner.
____________________
Printed by the
authority of the Industrial Registrar.