On 30 August 1996 the Full Bench of the Industrial Relations Commission (IRC) of New South Wales handed down the judgment in the State Personal/Carer's Leave Case (referred to previously as the State Family Leave Case).

The Commission expressed its concern about the slow introduction of the family leave provisions and approved a standard personal/carer's leave clause for insertion into NSW awards. The NSW public sector was exempted on the basis that public sector instruments will imminently be varied to include improved personal/carer's leave provisions.

PEO Bulletin No. 4 of 1995 confirmed that, with effect from 12 May 1995, available paid family and community service leave was to continue to be granted as and when required. As well, where family and community service leave was exhausted, access to paid sick leave, annual leave, time off in lieu of payment for overtime and "make-up" time was also to be available.

A determination is currently being prepared for the public service in consultation with Labor Council. In the interim, the provisions of the standard clause (copy attached) with sick leave available from 12 May 1995, together with family and community service leave provisions, apply to public service departments.

Entitlement to carer's leave is subject to:

• the employee being responsible for the care of the person concerned;
• the employee, if required, establishing 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. Privacy considerations allow the employee the right to choose the method by which the ground for leave is established. It should also be noted that the clause does not require that a medical certificate or statutory declaration must state the exact nature of the illness.
• a review of the operation of the standard clause in 12 months' time.

The facilitative provisions in the standard clause are available to assist employees to reconcile work and family responsibilities by providing access to annual leave, time off in lieu of payment of overtime and "make up" time.

NSW statutory bodies outside the public service and State Owned Corporations should provide access to personal/carer's leave until such time as a variation of industrial instruments is made. Where family and community service leave can already be accessed it should continue to be available.

Personal/carer's leave does not apply to casual employees who receive a loading in lieu of sick leave.

In view of the IRC's intention to review the operation of the standard clause, a comprehensive review of the implementation of personal/carer's leave in the public sector is to be undertaken. The cooperation of agencies with appropriate systems in place to collect the relevant data is sought. The project plan currently provides for early consultation with participating agencies and it is anticipated that the review will focus particularly on the extent to which sick leave is accessed by public sector employees for the purpose of caring for a sick person.

All NSW public employers are invited to participate in this review. John Garbutt is available for further advice and may be contacted on (02) 9228 3163. If you would like to nominate your agency as a participant in this project please telephone him or write to Workforce Policy, Level 30, Governor Macquarie Tower, 1 Farrer Place, Sydney, 2000 by Friday 22 November 1996.

All agencies are encouraged to put mechanisms in place for at least the next 12 months to capture data relating to sick leave taken for the purpose of caring for a sick person. Employees will need to indicate on leave application forms when sick leave is used for personal/carer's leave. This information can then be entered on a computerised human resources information system to provide useful feedback on access to current and accrued sick leave for the purposes of caring for a sick family member.

C. Gellatly
Director General

Issued: 7 November 1996
Contact: Sue Barr
Telephone: 9228 5744

Appendix 2

STATE PERSONAL/CARER'S LEAVE CASE - AUGUST 1996 STANDARD CLAUSE

1.1 Use of Sick Leave

1.1.1 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. Such leave may be taken for part of a single day.

1.1.2 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. 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.

1.1.3 The entitlement to use sick leave in accordance with this subclause is subject to:

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

(ii) the person concerned being:

(a) a spouse of the employee; or

(b) 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

(c) 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

(d) a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or

(e) a relative of the employee who is a member of the same household, where for the purposes of this paragraph:

1. 'relative' means a person related by blood, marriage or affinity;

2. 'affinity' means a relationship that one spouse because of marriage has to blood relatives of the other; and

3. 'household' means a family group living in the same domestic dwelling.

1.1.4 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 that person's 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.

1.2 Unpaid Leave for Family Purpose

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 member of a class of person set out in 1.1.3 (ii) above who is ill.

1.3 Annual Leave

1.3.1 An employee may elect with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual leave not exceeding five days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties.

1.3.2 Access to annual leave, as prescribed in paragraph 1.3.1 above shall be exclusive of any shutdown period provided for elsewhere under this award.

1.3.3 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.

1.4 Time Off in Lieu of Payment for Overtime

1.4.1 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 twelve (12) months of the said election.

1.4.2 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.

1.4.3 If, having elected to take time as leave in accordance with paragraph 1.4.1 above, 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.

1.4.4 Where no election is made in accordance with paragraph 1.4.1, the employee shall be paid overtime rates in accordance with the award.

Time Off in Lieu of Payment for Overtime

(Alternative 1.4.1 where time off in lieu of overtime provisions at overtime rates are provided in an industrial instrument)

1.4.1 For the purpose only of providing care and support for a person in accordance with clause 1.1 above, and despite the provisions of [insert clause number referring to general time off in lieu arrangements] the following provisions shall apply.

Hereinafter insert the provisions of 1.4 in the general standard clause above, appropriately renumbered.

1.5 Make-up Time

1.5.1 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.

1.5.2 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.

1.6 Rostered Days Off

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

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

1.6.3 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.

1.6.4 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.

[Note: To be inserted only if: (a) the award presently contains provisions concerning rostered days off; or (b) the award subsequently is varied to introduce provisions concerning rostered days off.]