The Full Bench of the Industrial Relations Commission handed down an Ex Tempore decision in the Family Provisions Case 2005 (IRC matter no. 4201 of 2005) on Monday 19 December. The IRC made a General Order in the terms requested by Unions NSW.
 
The NSW public sector, including State Owned Corporations, was excluded from the General Order, as per the terms of the Memorandum of Understanding (MOU) attached between the NSW Government and Unions NSW. The General Order made by the IRC on 19 December is set out at Annexure A to the MOU.

The MOU was agreed because the NSW Government already provides conditions of employment which are equivalent to or more beneficial than many of the provisions of the Family Provisions Test Case. The NSW Government acknowledged that the Family Provisions Test Case introduced some more beneficial provisions, including:

• access for casuals to unpaid bereavement, personal carers and parental leave;
• increased access to annual leave in single days to fulfil personal/carers responsibilities;
• an obligation for the employer to communicate with an employee on parental leave about their position;
• the right to request up to 2 years unpaid parental leave;
• the right to request up to 8 weeks simultaneous unpaid parental leave
• the right to request return to part time work until the child reaches school age

The more beneficial provisions, details of which are included in the attached MOU, are to be applied administratively across the NSW public sector from the date of the IRC's decision on 19 December 2005.

Relevant individual awards or other instruments including determinations and related policies will need to be individually varied to include reference to the more beneficial provisions. Applications to vary exempted Awards must be filed by 12 noon Monday 30 January 2006, and should be marked to the attention of the President, Justice Wright, and copied to the Public Employment Office.

Applications will be listed for hearing before Justice Wright at 10 am on 3 February 2006. The PEO and Unions NSW will assist public sector agencies and public sector unions to prepare the consent variations if required.

This Memorandum applies to State Owned Corporations in accordance with the terms of the attached MOU.

Morris Iemma MP
Premier and Treasurer

Issued : Employee Relations and Workforce Planning Services (Public Employment Office)
Contact: Dominique Hansen, Manager, Employee Relations Services
EMail: [email protected]
Telephone no: 9228 3575 Facsimile: 9228 3577
File no: PSM/05957
Date: 23/12/2005

'Without Prejudice'

Memorandum of Understanding Between NSW Government

And

Unions NSW in its own right and representing its affiliated members

This Memorandum of Understanding reflects the agreement between Unions NSW and the Government of NSW and sets out the understanding and agreement of the parties in relation to the Family Provisions Case 2005 IRC matter no. 4201 of 2005 (the Memorandum).

This agreement is entered into by the parties in the context of implementing the Family Provisions Case 2005 in the NSW public sector.

1. PARTIES

The parties to this Memorandum are:

Unions NSW (a State Peak Council as defined in the Industrial Relations Act 1996)

The NSW Government

2. CAPACITY OF THE PARTIES

This MOU is entered into by the NSW Government and is intended to apply to NSW Public Sector Services as defined in section 3 of the Public Sector Employment and Management Act 2002 and all Stated Owned Corporations.

Unions NSW signs in its own right and for its member unions.

3. AWARDS AND OTHER INSTRUMENTS AFFECTED BY THIS MEMORANDUM

All New South Wales Public Sector Awards, determinations and related policies which are currently within the NSW state industrial relations jurisdiction.

The NSW public sector for the purposes of this Memorandum of Understanding, comprises NSW Public Sector Services as defined in section 3 of the Public Sector Employment and Management Act 2002 and all Stated Owned Corporations.

4. AGREEMENT

The parties agree that the general exemption granted to New South Wales public sector awards in relation to Personal Carers' Leave will be continued in relation to the Draft General Order prepared by Unions NSW (copy annexed to this MOU and marked A), or, if applicable the wording of any General Order or model clause made by the NSW Industrial Relations Commission in this matter referred to for the purpose of this agreement as 'the Proposed Order'. The exemption is agreed on the basis that the NSW Government already provides conditions of employment which are equivalent to or more beneficial than many of the provisions of the Family Provisions Test Case.

The NSW Government acknowledges that the Family Provisions Test Case (as set out in Annexure A) has introduced some provisions which are more beneficial than existing NSW Public Sector Conditions. The NSW public sector will apply administratively from the date of decision by the Full Bench by issuing a Premier's Memorandum those provisions of the Proposed Order the more beneficial provisions which are set out in clause 5 hereunder.

The relevant individual Public sector awards or other instruments including determinations and related policies will then be varied to incorporate these beneficial provisions on an instrument by instrument basis. In the interests of efficiency the parties commit to filing all applications to vary conditions with the IRC by 30 January 2006.

5. THE PARTIES AGREE THAT THE FOLLOWING PROVISIONS OF THE UNIONS NSW GENERAL ORDER WILL BE IMPLEMENTED BY WAY OF ADMINISTRATIVE ACTION FROM THE DATE OF THE NSWIRC DECISION, PENDING VARIATION OF INDIVIDUAL INSTRUMENTS:

(a) Provisions relating to Casuals

i. The parties agree to vary public sector awards, determinations and policies, which provide for casual employment, by agreement, to insert the provisions of the Proposed Order in relation to clause 1 unpaid bereavement leave and clause 8 personal carers' leave for casual employees.

ii. The parties agree that where an equivalent reference is not already contained in NSW Public Sector Awards, determinations or related policies they will be varied to insert Clause 9 (2) of the Proposed Order (this clause of the Proposed Order refers to the entitlement of eligible casual employees to unpaid parental leave pursuant to the Industrial Relations Act 1996).

(b) Annual leave (provisions to facilitate the taking of annual leave to fulfil personal/carer's responsibilities)

i. The parties agree that it is intended to vary awards, determinations or related policy documents (excluding instruments regulating conditions of employment for school teachers) where these instruments have a cap on the taking of annual leave in single days where that cap is less than the 10 day cap in clause 6 of the Proposed Order.

ii. The parties agree that where a more generous entitlement does not already apply, awards, determinations and related policy documents (excluding instruments regulating conditions of employment for school teachers) will be amended to reflect the provision of clause 7 of the Proposed Order that an employee with personal/carer's responsibilities 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.

iii. The parties agree that further discussions will need to be held about the application of the Proposed Order's provisions relating to annual leave in instruments where annual leave is normally required to be taken at fixed times (for example School Administrative and Support Staff and TAFE Teachers) to ensure total annual leave entitlements are not increased.

(c) Parental leave

i. Communication with employee
The parties agree to amend all awards, determinations and policies, where applicable, by agreement, to insert the obligation to communicate with employees regarding their position while the employee is on parental leave, consistent with clauses 9 and 10 of the Proposed Order.

ii. Right to request up to 2 years unpaid parental leave
Most public sector awards, determinations and policies already have provision for Leave Without Pay and existing parental leave provisions allow for part-time parental leave without pay to the second birthday of the child.

The parties agree to amend all awards, determinations and policies, where applicable, to insert the right to request an additional 12 months unpaid parental leave consistent with clauses 9 and 10 of the Proposed Order.

iii. Right to request 8 weeks simultaneous parental leave
Most public sector awards provide for 1 week's paid parental leave or 2 weeks part time paid parental leave, or 14 weeks paid maternity leave (including adoptions) as result of the settlement of recent pay claims.

The parties agree that while it is intended where applicable to amend all awards, determinations and policies, by agreement to provide a right to request up to 8 weeks simultaneous unpaid parental leave, it is not intended that such an entitlement will result in extension of the period of parental leave for the respective employees as provided for in existing provisions. That is, any currently existing paid leave entitlement after the birth of the child shall count as part of this 8 weeks simultaneous parental leave. It is noted that current entitlements provide for up to 12 months or possibly up to 2 years of unpaid leave (where a request for 2 years leave is approved).

iv. Right to request return to work part time until child reaches school age
The parties agree that it is intended to amend all awards, determinations and related policies, where applicable, by agreement to insert the provisions of clauses 9 and 10 of the Proposed Order in relation to this entitlement.

6. THE PARTIES AGREE THAT THE NSW PUBLIC SECTOR WILL NOT BE REQUIRED TO FLOW-ON THE REMAINING PROVISIONS OF THE UNIONS NSW DRAFT GENERAL ORDER:

(a) Personal Carers' Leave Provisions which relate to non- casual employees

The parties agree that the NSW public sector will not flow-on the provisions of clause 2 and 3 of the Proposed Order concerning Personal Carers' Leave for non-casual employees.

(b) Unpaid leave provisions (excluding unpaid parental leave) for non-casual employees

The parties agree that NSW Public sector Awards will not flow-on the provisions of clause 5 of the Proposed Order relating to unpaid leave entitlements for non-casual employees.

(c) Annual leave

The parties agree that as School Teachers receive vacation leave the Department of Education and Training will be exempted from the provisions related to taking annual leave in single days set out in clause 6 and 7 of the Proposed Order in relation to School Teachers.

The parties agree that it is not intended to vary awards, determinations or related policy documents where these instruments have no cap on the taking of annual leave in single days or where the cap is equivalent to or more generous than the 10 day cap in the Proposed Order.

Note: this MOU has been amended to reflect the numbering of the General Order made on 19 December and attached as Annexure A to this MOU

___________________________________________________________

ANNEXURE A

Exhibit 2 as amended

BEFORE THE INDUSTRIAL RELATIONS COMMISSIONS
OF NEW SOUTH WALES

Industrial Relations Act 1996

Matter No. IRC 4201 of 2005

Family Provisions Case 2005

Before: Wright J, President
Sams DP
Staff J
Ritchie C
19 December 2005

Order

Pursuant to s 50 of the Industrial Relations Act 1996, the Full Bench of the Commission orders, for the purposes of awards under the Act, the adoption, partly and with modifications as contained within this decision, of the principles and provisions having effect under the National Decision in the Family Provisions Case 2005 [PR802005].

Awards shall be varied by general order to give effect to the following standard clauses.

1. Insert in Clause xx – Bereavement Leave, (or Clause yy – dealing with casual entitlements)

(vii) Bereavement entitlements for casual employees

(x) Subject to the evidentiary and notice requirements in xxx and xxx 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 1.1.3 of Clause (xx) Personal/Carers Leave

(x) 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

(x) 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.

(Drafting Note: Where there is a clause in the award setting out casual entitlements this provision may appear in that clause.)

2. Delete Subclause 1.1.1 of Clause xx – Personal Carers Leave and replace with the following:

An employee, other than a casual employee, with responsibilities in relation to a class of person set out in 1.1.3 (ii) 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 at Clause X 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.

3. Delete subclause 1.1.2 in Clause xx – Personal Carers Leave and replace with the following:

1.1.2 The employee 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 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.

4. Insert the following notation at the end of subclause 1.1 Use of Sick Leave of Clause xx – Personal Carers Leave:

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 xx should be followed.

5. Delete subclause 1.2.1 of Clause xx – Personal Carers Leave and replace with the following:

1.2.1 An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care and support to a class of person set out in 1.1.3 (ii) above who is ill or who requires care due to an unexpected emergency.

6. Delete Subclause 1.3.1 of Clause xx – Personal Carers Leave and replace with the following:

1.3.1 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.

7. Insert new subclause 1.3.4 of Clause xx – Personal/Carers Leave, as follows:

1.3.4 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.

8. Insert in Clause xx - Personal/ Carers Leave, (or Clause yy – dealing with casual entitlements) the following:

1.7 Personal Carers Entitlement for casual employees

1.7.1 Subject to the evidentiary and notice requirements in xxx and xxx 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 1.1.3(ii) 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.

1.7.2 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.

1.7.3 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.

(Note: Where there is a clause in the Award setting out Casual entitlements these provisions may appear in that clause

9. In awards that do not contain a Clause for Parental Leave:

(A) Insert Clause xx - Parental Leave, into the Arrangements Clause of the Award.

(B) Insert new Clause xx - Parental Leave as follows:

(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)

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

(3) Right to request

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

(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 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 3(a)(ii) and 3(a)(iii) must be recorded in writing.

(d) Request to return to work part-time

Where an employee wishes to make a request under 3(a)(iii), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the employee is due to return to work from parental leave.

(4) 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:

(a)(i) 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

(a)(ii) 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).

10. In awards that do contain a clause for Parental leave insert new subclauses as follows:

(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).

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

(3) Right to request

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

(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 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 3(a)(ii) and 3(a)(iii) must be recorded in writing.

(d) Request to return to work part-time

Where an employee wishes to make a request under 3(a)(iii), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the employee is due to return to work from parental leave.

(4) 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:

(a)(i) 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

(a)(ii) 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).

11. This order shall take effect on and from 19 December 2005.

_____________________________
Witness