Crown Employees (Health Care
Complaints Commission, Medical Advisers) Award 2009
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1537 of 2008)
16 February 2009
Clause No. Subject Matter
5. Salary Packaging
Arrangements, including Salary Sacrifice to Superannuation
of Union Membership Fees
and Dispute Resolution Procedures
Incidence and Duration
Table 1 - Salaries
This Award shall be known as the Crown Employees (Health
Care Complaints Commission, Medical Advisers) Award 2009.
This award is made between the Director of Public
Employment, the Health Care Complaints Commission and the Australian Salaried
Medical Officers’ Federation (New South Wales).
the Crown Employees (Health Care Complaints Commission, Medical Advisers)
"Department Head" means the Commissioner of the
Office of the Health Care Complaints Commission (HCCC).
"Director of Public Employment" or "DPE"
means the office established under Chapter 6 of the Public Sector Employment
and Management Act 2002.
"Federation" or "union" means the
Australian Salaried Medical Officers’ Federation (New South Wales).
"Medical Adviser" means and includes all persons
employed as a Medical Adviser by the HCCC whether employed on a full time or
part time basis.
"Agency" or "Department" means the
Office of the Health Care Complaints Commission (HCCC).
4. Salaries and
4.1 Hourly rates of
pay for Medical Advisers employed by HCCC are as provided in Table 1 -
Salaries, of Part B, Monetary Rates.
4.2 The hourly rate
is payable for all time worked in accordance with clause 6.
4.3 Payment of
Overtime - additional compensation for overtime and on-call or recall duty is
not payable under this Award.
4.4 Progression to a
higher level is subject to 12 months satisfactory conduct, performance and
attendance and the approval of the Commissioner.
5. Salary Packaging
Arrangements, Including Salary Sacrifice to Superannuation
5.1 The entitlement
to salary package in accordance with this clause is available to:
full-time and part-time employees;
employees, subject to the Department or agency’s convenience; and
employees, subject to the Department or agency’s convenience, and limited to salary
sacrifice to superannuation in accordance with subclause 5.7
5.2 For the purposes
of this clause:
means the salary or rate of pay prescribed for the employee's classification by
clause 4, Salaries and Progression, and outlined in Part B of this Award, and
any other payment that can be salary packaged in accordance with Australian
compulsory deduction salary" means the amount of salary available to be
packaged after payroll deductions required by legislation or order have been
taken into account. Such payroll deductions may include, but are not limited
to, taxes, compulsory superannuation payments, HECS payments, child support
payments, and judgement debtor/garnishee orders.
5.3 By mutual
agreement with the DPE, an employee may elect to package a part or all of their
post compulsory deduction salary in order to obtain:
(a) a benefit or
benefits selected from those approved by the DPE; and
(b) an amount equal
to the difference between the employee’s salary, and the amount specified by
the DPE for the benefit provided to or in respect of the employee in accordance
with such agreement.
5.4 An election to
salary package must be made prior to the commencement of the period of service
to which the earnings relate.
5.5 The agreement
shall be known as a Salary Packaging Agreement.
5.6 Except in
accordance with subclause 5.7, a Salary Packaging Agreement shall be recorded
in writing and shall be for a period of time as mutually agreed between the
employee and the Agency at the time of signing the Salary Packaging Agreement.
5.7 Where an
employee makes an election to sacrifice a part or all of their post compulsory
deduction salary as additional employer superannuation contributions, the
employee may elect to have the amount sacrificed:
(a) paid into the
superannuation fund established under the First State Superannuation Act
(b) where the
employer is making compulsory employer superannuation contributions to another
complying superannuation fund, paid into the same complying fund; or
(c) subject to the
Department or agency’s agreement, paid into another complying superannuation
5.8 Where the
employee makes an election to salary sacrifice, the employer shall pay the amount
of post compulsory deduction salary, the subject of election, to the relevant
5.9 Where the
employee makes an election to salary package and where the employee is a member
of a superannuation scheme established under the:
Regulation (Superannuation) Act 1906;
Authorities Superannuation Act 1987; or
Authorities Non-contributory Superannuation Act 1987,
the employee’s Department or agency must ensure that
the employee’s superable salary for the purposes of the above Acts, as notified
to the SAS Trustee Corporation, is calculated as if the Salary Packaging
Agreement had not been entered into.
5.10 Where the
employee makes an election to salary package, and where the employee is a
member of a superannuation fund other than a fund established under legislation
listed in subclause 5.9 of this clause, the employee’s Department or agency
must continue to base contributions to that fund on the salary payable as if
the Salary Packaging Agreement had not been entered into. This clause applies even though the
superannuation contributions made by the Department or agency may be in excess
of superannuation guarantee requirements after the salary packaging is
5.11 Where the
employee makes an election to salary package:
(a) subject to
Australian taxation law, the amount of salary packaged will reduce the salary
subject to appropriate PAYG taxation deductions by the amount packaged; and
(b) any allowance,
penalty rate, payment for unused leave entitlements, weekly worker’s
compensation or other payment, other than any payments for leave taken in
service, to which an employee is entitled under this Award or any applicable
Award, Act or statute which is expressed to be determined by reference to the
employee’s rate of pay, shall be calculated by reference to the rate of pay
which would have applied to the employee under clause 4, Salaries and
Progression, or Part B of this Award if the Salary Packaging Agreement had not
been entered into.
5.12 The DPE may vary
the range and type of benefits available from time to time following discussion
with the Federation. Such variations
shall apply to any existing or future Salary Packaging Agreement from the date
of such variation.
5.13 The DPE will
determine from time to time the value of the benefits provided following
discussion with the Federation. Such
variations shall apply to any existing or future Salary Packaging Agreement
from the date of such variation. In
this circumstance, the employee may elect to terminate the Salary Packaging
6.1 A standard day
is 7 hours per day.
Medical Advisers may work their agreed hours between the hours of 7.00 am and 6.00
pm Monday to Friday. In exceptions, work may be performed outside these hours,
but will be remunerated at the hourly rate.
Advisers, in agreement with the Commissioner, may nominate the commencing and
concluding times of their agreed hours.
6.4 A lunch break of
at least 30 minutes must be taken after 5 hours continuous work.
6.5 Part-time Work -
The provision for part-time work as prescribed by the Agency’s Flexible Work
Practices Policy will apply to Medical Advisers employed under this award.
6.6 Private Practice
- Medical Advisers may engage in private practice outside their agreed working
hours. For Medical Advisers working full time hours, private practice is to be
considered as second or other employment and the employees are to obtain
permission from their employer pursuant to section 59 of the Public Sector
Employment and Management Act 2002.
6.7 In accordance
with the HCCC’s Code of Conduct, there shall be no conflict or incompatibility
between personal interests and the impartial fulfilment of public or
professional duty. Any private work
with or for any person or body with an interest in a proposed or current
contract with the HCCC must be disclosed to the Commissioner.
7. Leave Arrangements
The leave provisions of the Crown Employees (Public Service
Conditions of Employment) Reviewed Award 2006, as amended from time to time,
apply to Medical Advisers covered by this award.
7.1 Medical Advisers
will be paid for public holidays or leave taken on days specified as their agreed
day of work or a day when they are requested to work.
Medical Advisers accrue recreation leave on a pro rata basis.
7.3 A loading of
1/12th of the hourly rate will apply to payment for additional hours worked in
excess of the normal weekly agreed hours.
The provisions of the Crown Employees (Public Service
Conditions of Employment) Reviewed Award 2006, as amended from time to time,
9. Deduction of Union
9.1 The union shall provide
the employer with a schedule setting out union fortnightly membership fees
payable by members of the union in accordance with the union's rules.
9.2 The union shall
advise the employer of any change to the amount of fortnightly membership fees
made under its rules. Any variation to
the schedule of union fortnightly membership fees payable shall be provided to
the employer at least one month in advance of the variation taking effect.
9.3 Subject to 9.1
and 9.2 above, the employer shall deduct union fortnightly membership fees from
the pay of any employee who is a member of the union in accordance with the
union's rules, provided that the employee has authorised the employer in
writing to make such deductions.
9.4 Monies so
deducted from the employee's pay shall be forwarded regularly to the union
together with all necessary information to enable the union to reconcile and
credit subscriptions to employees' union membership accounts.
9.5 Unless other
arrangements are agreed to by the employer and the union, all union membership
fees shall be deducted on a fortnightly basis.
9.6 Where an
employee has already authorised the deduction of union membership fees from his
or her pay prior to this clause taking effect, nothing in this clause shall be
read as requiring the employee to make a fresh authorisation in order for such
deductions to continue.
10. Grievance and
10.1 All grievances
and disputes relating to the provisions of this award shall initially be dealt
with as close to the source as possible, with graduated steps for further
attempts at resolution at higher levels of authority within the appropriate
department, if required.
10.2 A staff member is
required to notify in writing their immediate manager, as to the substance of
the grievance, dispute or difficulty, request a meeting to discuss the matter,
and if possible, state the remedy sought.
10.3 Where the
grievance or dispute involves confidential or other sensitive material
(including issues of harassment or discrimination under the Anti
Discrimination Act 1977) that makes it impractical for the Medical Adviser
to advise their immediate manager the notification may occur to the next
appropriate level of management, including where required, to the Department
Head or delegate.
10.4 The immediate
manager shall convene a meeting in order to resolve the grievance, dispute or
difficulty within two (2) working days, or as soon as practicable, of the
matter being brought to their attention.
10.5 If the matter
remains unresolved with the immediate manager, the staff member may request to
meet the appropriate person at the next level of management in order to resolve
the matter. This manager shall respond
within two (2) working days, or as soon as practicable. The staff member may pursue the sequence of
reference to successive levels of management until the matter is referred to
the Department Head.
10.6 The Department
Head may refer the matter to the DPE for consideration.
10.7 If the matter
remains unresolved, the Department Head shall provide a written response to the
staff member and any other party involved in the grievance, dispute or
difficulty, concerning action to be taken, or the reason for not taking action,
in relation to the matter.
10.8 A staff member, at
any stage, may request to be represented by their union.
10.9 Any of the
parties may refer the matter to the New South Wales Industrial Relations
Commission if the matter is unresolved following the use of these procedures.
10.10 The staff member,
union, department and DPE shall agree to be bound by any order or determination
by the New South Wales Industrial Relations Commission in relation to the
10.11 Whilst the
procedures outlined in clauses 10.1 to 10.10 of this clause are being followed,
normal work undertaken prior to notification of the dispute or difficulty shall
continue unless otherwise agreed between the parties, or, in the case involving
occupational health and safety, if practicable, normal work shall proceed in a
manner which avoids any risk to the health and safety of any staff member or
member of the public.
11.1 It is the
intention of the parties bound by this award to seek to achieve the object in
section 3(f) of the Industrial Relations Act 1996 to prevent and
eliminate discrimination in the workplace.
This includes discrimination on the grounds of race, sex, marital
status, disability, homosexuality, transgender identity, age and
responsibilities as a carer.
11.2 It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent
with the fulfilment of these obligations for the parties to make application to
vary any provision of the award, which, by its terms or operation, has a direct
or indirect discriminatory effect.
11.3 Under the Anti-Discrimination
Act 1977, it is unlawful to victimise an employee because the employee has
made or may make or has been involved in a complaint of unlawful discrimination
11.4 Nothing in this
clause is to be taken to affect:
(a) any conduct or
act which is specifically exempted from anti-discrimination legislation;
(b) offering or
providing junior rates of pay to persons under 21 years of age;
(c) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to this
award from pursuing matters of unlawful discrimination in any State or federal
11.5 This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by the legislation referred to in this clause.
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d) of
the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
12. Area, Incidence
12.1 This award shall
apply to all classifications contained herein.
12.2 The employees
covered by this award are employed in terms of the Public Sector Employment
& Management Act 2002, and to the extent that this award is silent,
will be covered by the provisions of that Act and associated Regulations and
the Crown Employees (Public Service Conditions of Employment) Reviewed Award
2006 published 10 March 2006 (357 IG 1108) as varied.
12.3 This award is
made following a review under section 19 of the Industrial Relations Act 1996
and rescinds and replaces the Crown Employees (Health Care Complaints
Commission, Medical Advisers) Award 2007 published 31 August 2007 (363 I.G.
628), as varied.
The changes made to the award pursuant to the Award
Review pursuant to section 19(6) of the Industrial Relations Act 1996 and
Principle 26 of the Principles for Review of Awards made by the Industrial
Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take
effect on and from 16 February 2009.
This award remains in force until varied or rescinded,
the period for which it was made having already expired.
1 – Salaries
1 October 2008
1 October 2009
1 October 2010
A. R. BISHOP, Commissioner
the authority of the Industrial Registrar.