Country
Energy Enterprise Award 2007
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Electrical
Trades Union of Australia, New South Wales Branch, Industrial
Organisation of Employees.
(No. IRC 645 of 2008)
Before The Honourable
Mr Deputy President Harrison
|
11 and 19 June 2008
|
VARIATION
1. Insert in
numerical order in the Arrangement of the award published 12 October 2007 (363
I.G. 1367), the following new clause number and subject matter:
5A. Secure
Employment
2. Insert after
clause 5, Definitions the following new clause.
5A. Secure Employment
(a) Objective of
this Clause
The objective of this clause is for the employer to
take all reasonable steps to provide its employees with secure employment by
maximising the number of permanent positions in the employer’s workforce, in
particular by ensuring that casual employees have an opportunity to elect to
become full-time or part-time employees.
(b) Casual
Conversion
(i) A casual
employee engaged by a particular employer on a regular and systematic basis for
a sequence of periods of employment under this Award during a calendar period
of six months shall thereafter have the right to elect to have his or her
ongoing contract of employment converted to permanent full-time employment or
part-time employment if the employment is to continue beyond the conversion
process prescribed by this subclause.
(ii) Every employer
of such a casual employee shall give the employee notice in writing of the
provisions of this sub-clause within four weeks of the employee having attained
such period of six months. However, the employee retains his or her right of
election under this subclause if the employer fails to comply with this notice
requirement.
(iii) Any casual
employee who has a right to elect under paragraph (b)(i), upon receiving notice
under paragraph (b)(ii) or after the expiry of the time for giving such notice,
may give four weeks’ notice in writing to the employer that he or she seeks to
elect to convert his or her ongoing contract of employment to full-time or
part-time employment, and within four weeks of receiving such notice from the
employee, the employer shall consent to or refuse the election, but shall not
unreasonably so refuse. Where an employer refuses an election to convert, the
reasons for doing so shall be fully stated and discussed with the employee
concerned, and a genuine attempt shall be made to reach agreement. Any dispute
about a refusal of an election to convert an ongoing contract of employment shall
be dealt with as far as practicable and with expedition through the disputes
settlement procedure.
(iv) Any casual
employee who does not, within four weeks of receiving written notice from the
employer, elect to convert his or her ongoing contract of employment to
full-time employment or part-time employment will be deemed to have elected
against any such conversion.
(v) Once a casual
employee has elected to become and been converted to a full-time employee or a
part-time employee, the employee may only revert to casual employment by
written agreement with the employer.
(vi) If a casual
employee has elected to have his or her contract of employment converted to
full-time or part-time employment in accordance with paragraph (b)(iii), the
employer and employee shall, in accordance with this paragraph, and subject to
paragraph (b)(iii), discuss and agree upon:
(1) whether the
employee will convert to full-time or part-time employment; and
(2) if it is agreed
that the employee will become a part-time employee, the number of hours and the
pattern of hours that will be worked either consistent with any other part-time
employment provisions of this award or pursuant to a part time work agreement
made under Chapter 2, Part 5 of the Industrial Relations Act 1996 (NSW).
Provided that an employee who has worked on a full-time
basis throughout the period of casual employment has the right to elect to
convert his or her contract of employment to full-time employment and an
employee who has worked on a part-time basis during the period of casual
employment has the right to elect to convert his or her contract of employment
to part-time employment, on the basis of the same number of hours and times of
work as previously worked, unless other arrangements are agreed between the
employer and the employee.
(vii) Following an
agreement being reached pursuant to paragraph (vi), the employee shall convert
to full-time or part-time employment. If there is any dispute about the
arrangements to apply to an employee converting from casual employment to
full-time or part-time employment, it shall be dealt with as far as practicable
and with expedition through the disputes settlement procedure.
(viii) An employee
must not be engaged and re-engaged, dismissed or replaced in order to avoid any
obligation under this subclause.
(c) Occupational
Health and Safety
(i) For the
purposes of this subclause, the following definitions shall apply:
(1) A "labour
hire business" is a business (whether an organisation, business
enterprise, company, partnership, co-operative, sole trader, family trust or
unit trust, corporation and/or person) which has as its business function, or
one of its business functions, to supply staff employed or engaged by it to
another employer for the purpose of such staff performing work or services for
that other employer.
(2) A "contract
business" is a business (whether an organisation, business enterprise,
company, partnership, co-operative, sole trader, family trust or unit trust,
corporation and/or person) which is contracted by another employer to provide a
specified service or services or to produce a specific outcome or result for
that other employer which might otherwise have been carried out by that other
employer’s own employees.
(ii) Any employer
which engages a labour hire business and/or a contract business to perform work
wholly or partially on the employer’s premises shall do the following (either
directly, or through the agency of the labour hire or contract business):
(1) consult with
employees of the labour hire business and/or contract business regarding the workplace occupational health
and safety consultative arrangements;
(2) provide
employees of the labour hire business and/or contract business with appropriate
occupational health and safety induction training including the appropriate
training required for such employees to perform their jobs safely;
(3) provide
employees of the labour hire business and/or contract business with appropriate
personal protective equipment and/or clothing and all safe work method
statements that they would otherwise supply to their own employees; and
(4) ensure employees
of the labour hire business and/or contract business are made aware of any
risks identified in the workplace and the procedures to control those risks.
(iii) Nothing in
this subclause (c) is intended to affect or detract from any obligation or
responsibility upon a labour hire business arising under the Occupational
Health and Safety Act 2000 or the Workplace Injury Management and
Workers Compensation Act 1998.
(d) Disputes
Regarding the Application of this Clause
Where a dispute arises as to the application or
implementation of this clause, the matter shall be dealt with pursuant to the
disputes settlement procedure of this award.
(e) This clause has
no application in respect of organisations which are properly registered as
Group Training Organisations under the Apprenticeship and Traineeship Act 2001
(or equivalent interstate legislation) and are deemed by the relevant State
Training Authority to comply with the national standards for Group Training
Organisations established by the ANTA Ministerial Council.
3. Delete clause
26, Personal Carer's Leave, and insert in lieu thereof the following:
26. Personal/Carer's
Leave
26.1 An employee,
other than an a casual employee, with responsibilities in relation to a class
of person set out in sub-clause 26.3.2, who needs the employee’s care and
support, shall be entitled to use, in accordance with this sub-clause, sick
leave provided for in 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 one day.
Note: In the unlikely event that more than 10 days sick
leave in any one year is to be used for caring purposes the employer and the
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
grievance resolution procedure of the Award should be followed.
26.2 The employee
shall, if required,
26.2.1 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
26.2.2 establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the 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.
26.3 The entitlement
to use sick leave in accordance with this clause is subject to:
26.3.1 the employee being
responsible for the care and support of the person concerned: and,
26.3.2 the person
concerned being:
26.3.2.1 a spouse
of the employee; or
26.3.2.2 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
26.3.2.3 a child
or 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
26.3.2.4 a same
sex partner who lives with the employee as the de facto partner of that
employee on a bona fide domestic basis; or
26.3.2.5 a
relative of the employee who is a member of the same household, where for the
purpose 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; or
3. "household"
means a family group living in the same domestic dwelling.
26.4 An employee
shall, wherever practicable, give the employer reasonable notice prior to the
intention to take leave, the reason for taking such leave and the estimated
length of absence, the employee shall notify the employer by telephone of such
absence at the first opportunity on the day of absence.
26.5 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 subclause 26.3.2
above who is ill or who requires care due to an unexpected emergency.
26.6 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, for the purposes of providing care to a class of
person set out in subclause 26.3.2
26.6.1 An employee may
elect with the employer’s agreement to take annual leave at any time within a
period of 24 months from the date at which it falls due.
26.7 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.
26.8 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.
26.9 If, having
elected to take time as leave, in accordance with subclause 26.7, 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.
26.10 Where no election
is made in accordance with the said subclause 26.7, the employee shall be paid
overtime rates in accordance with the Award.
26.11 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.
26.12 An employee on
shift work may elect, with the consent of the employer, 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.
26.13 An employee may
elect, with consent of the employer, to take a rostered day off at any time.
26.14 Personal Carer’s
Entitlement for casual employees
26.14.1 Subject
to the evidentiary and notice requirements in subclause 26.2 and 26.4, 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 26.3.2 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.
26.14.2 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.
26.14.3 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.
4. Delete clause
29, Parental Leave and insert in lieu thereof the following:
29. Parental Leave
(1) Employees shall
have, in connection with the birth or adoption of a child, maternity, paternity
or adoption leave in accordance with the provisions of the NSW Industrial
Relations Act, 1996.
(2) An employee
shall, subject to the completion of twelve (12) months continuous service with
Country Energy, be entitled to:
(a) maternity leave
with full pay for a period of 14 weeks, or, in the alternative, 28 weeks at half pay and;
(b) adoption leave
with full pay for a period of 14 weeks, or in the alternative, 28 weeks at half
pay and;
(c) Paternity leave
with full pay for a period of 1 week or in the alternative, 2 weeks at half
pay.
(d) Return from
Parental leave on a Part Time basis until the child reaches school age.
(3) An employee
shall be entitled to such additional leave without pay as shall amount in
aggregate to a total period of maternity leave and adoption leave not exceeding
one hundred and four (104) weeks.
(4) In accordance
with this Clause, an employee may utilise the whole or part of any Annual Leave
and/or Long Service Leave or other paid leave provided that the total period of
leave does not exceed one hundred and four (104) weeks.
(5)
(i) 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).
(ii) An employer
must not fail to re-engage a regular casual employee (s.53(2) of the Act)
because:
(a) the employee or
the 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.
(iii) Right of
Request
(A) An employee
entitled to parental leave may request the employer to allow the employee:
(a) to extend the
period of simultaneous unpaid parental leave use 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.
(B) The employer
shall consider the request having regard to the employee’s circumstances and,
provide 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 (iii)(A)(b) and (iii)(a)(c) must be recorded
in writing.
(D) Request to return
to work part-time
Where an employee wishes to make a request under
(iii)(A)(c), 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.
(iv) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change to the workplace, the employer shall take
reasonable steps to:
(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
(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 also 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 work on a part-time basis.
(c) The employee
shall notify the employer of changes of address or other contact details which
might affect the employer’s capacity to comply with paragraph (a).
(6) Paid leave of
absence granted under this Clause shall be counted as service for the purposes
of this Award.
7. Delete clause
30, Bereavement Leave, and insert in lieu thereof the following:
30. Bereavement Leave
(i) Where an
employee’s immediate family member dies, the employee shall be granted
bereavement leave with pay for any unworked part of the ordinary working day or
rostered shift during which the employee was notified of the death and up to a
further two [2] ordinary working days or rostered shifts.
(ii) Immediate
family includes the employee’s spouse (including former spouse, a de facto
spouse and a former de facto spouse), same sex partner, or a child or an adult
child (including an adopted child, a step child or an ex nuptial child),
parent, parent in law, grandparent, aunt or uncle, grandchild or sibling.
(iii)
(a) subject to the
evidentiary and notice requirements in 26(iii) casual employees are entitled to
not be available to attend work, or leave work upon the death in Australia of a
person prescribed in subclause (iv) of Clause 26 Personal Carers Leave.
(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 not otherwise affected.
8. Delete clause
49, Working Away from Home, and insert in lieu thereof the following:
49. Working Away from
Home
Where Country Energy requires employees to travel and work
away from home, it should be at no personal monetary expense nor monetary gain
to the employees.
(i) An employee
required to remain away overnight shall, except as provided for in paragraph
(ii), (iii) and (iv) of this clause, be entitled to:
(a) Have Country
Energy pay for accommodation costs only and the employee to be paid beforehand
for meal and incidental allowances as per Australian Tax Office approved
allowances, or
(b) Have Country
Energy arrange and pay for accommodation costs, meals and incidental expenses;
or
(c) A lump sum
allowance paid beforehand equal to the Australian Tax Office approved schedule.
(ii) For
Apprentices/Cadets/Trainees attending training, directly in relation to their
Training Contract, Country Energy shall provide reasonable Accommodation. All
meals and incidental expenses will be covered as per 49 (i) above.
(iii) Where a
Corporate Card has been issued to an employee the Card shall be used to pay for
overnight accommodation. Meals and Incidentals can be claimed as a lump sum.
Any expenses that cannot be paid for by the card shall be reimbursed on supply
of receipts.
(iv) Claims for
allowances, except incidentals, cannot be made for employees attending internal
training sessions, Inductions, conferences and staff development activities
where Country Energy has provided reasonable accommodation and meals.
(v) Reasonable
accommodation, for the purposes of this clause, will be of at least Three (3)
Star standard, where possible.
9. This variation
shall take effect from 11 June 2008.
R.
W. HARRISON D.P.
____________________
Printed by
the authority of the Industrial Registrar.