Public Hospital Career Medical Officers (State) Award 2023

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by NSW Ministry of Health.

 

(Case No. 215160 of 2023)

 

 

AWARD

 

1.  Arrangement

 

PART A

 

Clause No.        Subject Matter

 

1.        Arrangement

2.        Definitions

3.        Salaries

4.        Senior Career Medical Officer

5.        Salary increases and work value

6.        In-Charge Allowance

7.        Hours of Work

7A.      Multiple Assignments

8.        Penalty Rates

9.        Time Worked

10.      Overtime

11.      On-Call and Call-Back

12.      Annual Leave

13.      Public Holidays

14.      Sick Leave

15.      Family and Community Services Leave and Personal/Carer’s Leave

15A.    Family Violence Leave

16.      Uniform and Laundry Allowance

17.      Continuing Medical Education

18.      Settlement of Disputes

19.      Travelling Allowances

20.      Long Service Leave

21.      Maternity, Adoption and Parental Leave

21A.    Lactation Breaks

22.      Trade Union Leave

23.      Labour Flexibility

24.      Anti-Discrimination

25.      Salary Sacrifice to Superannuation

26.      Salary Packaging

27.      Reasonable Hours

28.      Higher Duties Allowance

29.      Underpayment and Overpayment of Salaries

30.      No Extra Claims

31.      Area, Incidence and Duration

 

PART B

 

Table 1 - Allowances

 

PART A

 

2.  Definitions

 

"Association" means the Australian Salaried Medical Officers' Federation (New South Wales) or the Health Services Union NSW.

 

"Award" means the Public Hospital Career Medical Officers (State) Award 2023.

 

"Career Medical Officer" means a medical practitioner who is registered with the Medical Board of Australia and is not employed under the classifications set out in the Public Hospital Medical Officers (State) Award.

 

"Day Worker" means a worker who works ordinary hours from Monday to Friday inclusive and who commences work on such days at or after 6.00am and before 10.00am otherwise than as part of a shift system.

 

"Employer" means the Secretary of the Ministry of Health exercising employer functions on behalf of the Government of NSW.

 

"Hospital" means a public hospital as defined under section 15 of the Health Services Act 1997.

 

"Ministry" means the NSW Ministry of Health.

 

"Public Health Organisation" means an organisation defined in section 7 of the Health Services Act 1997 as follows:

 

(a)       a Local Health District; or

 

(b)       a statutory health organisation; or

 

(c)       an affiliated health organisation in respect of its recognised establishments and recognised services.

 

"Secretary" means the Secretary of the Ministry of Health.

 

“Shift Worker" means a worker who is not a day worker as defined.

 

3.  Salaries

 

Part A -

 

Full time Career Medical Officers shall be paid the salaries as set out in the Health Professional and Medical Salaries (State) Award.

 

Career Medical Officers with less than five years postgraduate experience shall be appointed to Grade 1.

 

Career Medical Officers with five years postgraduate experience or more shall be appointed to Grade 2.

 

Progression within Grades 1 and 2 shall occur on the anniversary of appointment. Provided that nothing in this clause precludes the employer, at the employer’s sole discretion, from:

 

(i)       initially appointing a Career Medical Officer to a higher step within the relevant grade; or

 

(ii)      accelerating a Career Medical Officer through the steps within the relevant grade irrespective of length of service.

 

Provided that an employee employed on the Transitional Grade as at the commencement date of this Award shall remain on that scale. Progression within the Transitional Grade shall be in accordance with the provisions of this Award.

 

Individual Career Medical Officers employed as at 26 May 2005 in receipt of a salary higher than that of Senior Registrar as set out in the Health Professional and Medical Salaries (State) Award may reach written agreement with the employer that overtime payment will be calculated on the salary ascribed to Senior Registrar, as varied from time to time. Any such agreement will require further written agreement on an annual basis.

 

Part B -

 

(a)       For the purpose of calculation of payments to employees pursuant to the provisions of this Award, one hour's pay shall be calculated in accordance with the following formula:

 

Annual Salary	x	1
52.17857		38

 

and one day's pay shall be calculated by multiplying "one hour's pay" (as calculated in accordance with the above formula) by 7.6.

 

(b)       Employees shall be eligible to progress to the next higher step in the scale on the anniversary of the date on which they were appointed.

 

Part C - Permanent Part-Time Career Medical Officers

 

(i)       A permanent part-time employee is one who is permanently appointed to work a specified number of hours which are less than those prescribed for a full-time employee.

 

(ii)      Employees engaged under Part C of this clause shall be paid an hourly rate calculated on the basis of one thirty-eighth of the appropriate rate prescribed by Part A, with a minimum payment of two hours for each start and one thirty-eighth of the appropriate allowances prescribed by clause 16, Uniform and Laundry Allowances, if applicable but shall not be entitled to an additional day off or part thereof as prescribed by clause 7, Hours of Work.

 

(iii)     Employees engaged under Part C of this clause shall be entitled to all other benefits of this Award not otherwise expressly provided for herein in the same proportion as their ordinary hours of work bear to full-time hours.

 

(iv)     Employees engaged under Part C of this clause are entitled to contribute to the appropriate superannuation scheme subject to the requirements of relevant legislation.

 

(v)       A permanent part-time employee will progress to the next incremental step every 12 months from the date of commencement of employment, provided the work performed by the employee outside the scope of the part-time agreement is commensurate with the experience of a full-time employee and is acceptable to the employer. This subclause does not preclude accelerated progression.

 

4.  Senior Career Medical Officer

 

(i)       A grading committee consisting of two nominees of the Ministry and two representatives of the Association(s) shall be constituted to consider and make recommendations to the employer in relation to appointment to the Senior Career Medical Officer grade. The committee shall meet to consider an application for progression to this grade by a Career Medical Officer within 28 days of an application being submitted to the employer.

 

(ii)      The grading committee shall not recommend appointment to the Senior Career Medical Officer grade unless the individual:

 

(a)       has at least seven years postgraduate clinical experience; and

 

(b)      has a demonstrated capacity to perform clinical duties and responsibilities at a senior level with minimal clinical supervision in one or more areas of medical speciality; and

 

(c)       is required by the employer to perform clinical duties and responsibilities at a senior level with minimal clinical supervision in one or more areas of medical speciality as required by the employer.

 

(iii)     If a grading committee does not recommend progression by a Career Medical Officer to Senior Career Medical Officer then the committee must provide written reasons to why progression was not recommended, which should provide guidance in respect of any future applications. Such written reasons must be provided to the Career Medical Officer within 21 days of the date of the meeting held to consider the application for regrading.

 

(iv)     A Career Medical Officer shall not make more than one application for progression to Senior Career Medical Officer in any 12 month period.

 

(v)       Subject to subclause (vi) of this clause, a Senior Career Medical Officer will progress to the second step of the Senior Career Medical Officer grade on the anniversary of his or her commencement on that grade.

 

(vi)     A Career Medical Officer appointed to the Transitional Grade shall be entitled to apply to be appointed to the Senior Career Medical Officer grade in accordance with the provisions of this clause. Provided that a Career Medical Officer who has been employed on the top step of the Transitional Grade for at least 12 months and who is appointed as a Senior Career Medical Officer shall be entitled to progress to the second step of the Senior Career Medical Officer grade after six months.

 

5.  Work Value

 

The employer and the Associations agree that the salary rates provided under this Award recognise and cover all work value change and productivity gains for the period up to 1 July 2007 and extinguish all work value, special case or other claims prior to that date for Career Medical Officers.

 

6.  In-Charge Allowance

 

An allowance as set out in Item 1 of Table 1 - Allowances shall be paid to employees for each twelve hours of duty or part thereof of continuous in-charge duty for responsibility for after hours medical services. This allowance shall be varied in accordance with increases in salary rates under this Award.

 

7.  Hours of Work

 

(i)       The ordinary hours of work shall not exceed an average of 38 hours per week. This shall be achieved by rostering employees for duty over either forty hours in any period of seven consecutive days or eighty hours in any period of fourteen consecutive days and, in addition, then granting employees roster leave additional to that prescribed in subclause (ii) of this clause to the extent of one additional day per calendar month. Such additional roster leave may accumulate to a maximum of three days and shall be granted in multiples of one day. Upon termination of employment an employee shall be paid the monetary value of any untaken additional roster leave, calculated at the employee’s ordinary time rate of pay as prescribed by clause 3, Salaries.

 

(ii)      Employees shall be free from ordinary hours of duty for not less than two days in each week or where this is not practicable, four days in each fortnight. Where practicable, days off shall be consecutive and where possible additional rostered days off shall be combined with other rostered time off.

 

(iii)     No shift shall be less than eight hours in length on a weekday or less than four hours in length on a Saturday, Sunday or public holiday.

 

(iv)     No broken or split shifts shall be worked.

 

(v)       All time worked in excess of ten hours in any one shift shall be paid as overtime.

 

(vi)     Where in any pay period, an employee is not employed for the whole of the pay period, the ordinary hours of work for the purpose of calculating salary for that pay period (i.e., 38 or 76 hours) will be adjusted by the following factor, rounded to the nearest whole number -

 

Number of calendar days employed

 

Number of calendar days in pay period

 

(vii)    Employees shall be given at least two weeks' notice of rosters to be worked in relation to ordinary hours of work and also where practicable, in relation to additional (overtime) rostered hours of work, provided that the employer may change the rosters without notice to meet any emergent situation. This subclause shall not apply in respect of the granting by the employer of additional roster leave pursuant to this clause.

 

(viii)   In the interests of patient care and the health and welfare of medical staff, employees shall have a break from duty for the purpose of taking a meal. There shall be a uniform meal break of 30 minutes except where locally agreed arrangements for a longer period are made (which shall not exceed one hour).

 

(ix)     If employees are required to work during their meal breaks they shall be paid for the time worked. Unless the employee is permitted to finish duty early on the same shift then overtime becomes payable once the total ordinary work time of the shift has elapsed.

 

(x)       Medical administrators are to establish simple and effective procedures in consultation with employees to record when staff are required to work through their meal breaks and to ensure that payment is made.

 

Clause 7A.  Multiple Assignments

 

(i)       Multiple assignments under this Award exist when an employee has more than one position under this Award within the NSW Health Service. Each of these positions are referred to in this clause as "assignments".

 

(ii)      An employee can only enter into a multiple assignment arrangement within this Award.

 

(iii)     Where an employee has multiple assignments, the employee will progress in accordance with clause 3 and clause 4.

 

(iv)     With the exception of subclause (iii) above, this clause does not apply to employees who have multiple casual assignments only.  The Award provisions are to apply separately to each casual assignment.

 

Multiple Assignments within a single Public Health Organisation

 

(v)       The following provisions apply to employees with two or more assignments within a single Public Health Organisation.

 

(a)       The work performed in each of an employee’s assignments shall be aggregated for the purposes of determining all of the employee’s entitlements under this Award. 

 

Hours, Additional Days Off and Overtime

 

(b)      The combined total number of ordinary hours worked under an employee’s multiple assignments shall not exceed the hours of work as set out in subclause 7 (i), Hours of Work.

 

(c)       Where the combined total number of ordinary hours worked under an employee’s multiple assignments is equivalent to those set out in subclause 7 (i), Hours of Work, they will be considered as a full time employee for the purposes of the Award and:

 

1.        that employee is entitled to additional days off in accordance with subclause (ii) of clause 7, Hours of Work

 

2.        Subclause 7 (v) shall apply for the purposes of overtime.

 

(d)      Where the combined total number of ordinary hours worked under an employee’s multiple assignments is less than those set out in paragraph (b) of this subclause, the Provisions of Part C - Permanent Part Time Career Medical Officers, of clause 3, Salaries shall apply.

 

(e)       Employees who are in full time or part time assignments cannot be engaged on a second or further assignment as a casual employee under the Award.  Any additional hours worked by such employees are to be remunerated in accordance with paragraphs (c) or (d) of this subclause.

 

Leave

 

(f)       All ordinary hours worked by an employee in multiple assignments shall count towards determining the employee’s leave entitlements. 

 

(g)      Employees with multiple assignments shall be entitled to take all forms of leave in any of their assignments.  That is, leave accrued by an employee through work performed in one assignment, can be taken by that employee in their other assignment/s. Service in all assignments will be recognised for the purposes of paragraph (b) in subclause (i) of clause 14, Sick Leave. 

 

(h)      Where an employee’s combined total number of ordinary hours worked in their multiple assignments is equivalent to those set out in subclause (c) of this subclause, the additional leave shall accrue from both assignments in accordance with subclause (ii) of clause 12, Annual Leave. 

 

(i)       Service in all assignments will be recognised for the purposes of entitlements under clause 21, Maternity, Adoption and Parental Leave.

 

(j)       Where an employee’s assignment is terminated but the employee remains employed under another full time or part time assignment, all leave credits will be transferred to the remaining assignments. The employee shall not be paid out the monetary value of the annual leave or long service leave accrued in the terminated assignment.

 

Disclosures, Notifications and Approvals

 

(k)      Employees must, at the time they apply for any second or further assignment, disclose in writing that they are already employed by NSW Health and provide details of that assignment including:

 

1.        the position/s currently held

 

2.        the facility in which the existing position/s are worked

 

3.        the classification/s under which they are engaged in each position

 

4.        the number of ordinary hours worked in each position

 

5.        any regular additional hours or overtime that is worked in each position

 

6.        whether the position/s is worked according to a set roster and if so, the details of that roster arrangement; and

 

(l)       Prior to accepting an offer for a second or further assignment, employees must provide to their current manager details of that proposed assignment including:

 

1.        the position they have applied for

 

2.        the facility in which the proposed new assignment is to be worked

 

3.        the classification under which they would be engaged in the new assignment

 

4.        the number of ordinary hours to be worked in the proposed assignment

 

5.        whether the position is to be worked according to a set roster and if so, the details of that roster arrangement.

 

(m)     A Public Health Organisation may elect on reasonable grounds to withhold the approval of a second or further assignment to employees who are already employed in another assignment.

 

(n)      Before accepting any change in roster or undertaking additional hours or overtime that will impact on another assignment, employees who hold multiple assignments must notify their current manager of the details of their next shift in either assignment. Managers must not change rosters or require employees to work additional hours or overtime where these will impact on the employee’s roster in the other assignment (for example by generating overtime) without first consulting the manager of the other assignment/s. (By way of example, if an employee is requested by Manager 1 in Assignment 1 to undertake additional hours in Assignment 1 that may impact on the roster in Assignment 2, the employee must notify Manager 1 of the impact.  Manager 1 must not change rosters/hours that impact on Assignment 2 without first consulting Manager 2.)

 

Multiple Assignments Across Different Public Health Organisations

 

(vi)     Assignments in different Public Health Organisations will be regarded as entirely separate for all purposes under the Award, including the accrual and taking of leave. The only exceptions are the provisions of subclause (iii) of this clause (regarding incremental progression) and:

 

(a)       At the time an employee commences an assignment in another Public Health Organisation the employee’s accrued leave will be apportioned across their assignments (for example, a 0.6 full time equivalent Career Medical Officer who commences another 0.4 full time equivalent assignment in another Public Health Organisation will have 60% of their leave accruals allocated to the former assignment and 40% to the latter assignment) unless prior to commencing the new assignment the employee elects that this apportioning does not occur.  After this apportioning, leave accrues separately in each assignment, based on the hours worked in each assignment.  The employer will notify the employee of their right to make this election prior to the apportioning taking place.

 

(b)      Employees who have multiple assignments across different Public Health Organisations at the time this clause was inserted into this Award may elect to apportion their accrued leave across their assignments.

 

(c)       Service in all assignments will be aggregated for the purposes of calculating long service leave entitlements under the Award.

 

(d)      Service in all assignments will be recognised for the purposes of entitlements under clause 21, Maternity, Adoption and Parental Leave.

 

(e)       Service in all assignments will be recognised for the purposes of entitlements of Family and Community Services Leave and Personal/Carer’s Leave as provided in clause 15.

 

(f)       Service in all assignments will be recognised for the purposes of entitlements of Continuing Medical Education as provided in clause 17.

 

(g)      Where an employee terminates an assignment, any leave credits that are held against that assignment will be transferred to the remaining assignment/s.

 

(h)      If prior to the introduction of this clause and/or the StaffLink payroll system an employee received additional days off and/or overtime in accordance with clause 7, Hours of Work that employee shall continue to receive those benefits until one of the assignments is terminated.

 

(i)       Where an employee has three or more assignments, one or more of which are in different Public Health Organisations, subclause (m) of this clause shall apply to those assignments which are within a single Public Health Organisation.

 

Changes to the composition of Public Health Organisations

 

(vii)    The employer and the Association agree to review this clause in the event that the boundaries of any Public Health Organisation change.

 

(viii)   Where any change to the boundaries of any Public Health Organisation causes an employee’s multiple assignments to which subclause (iv) of this clause previously applied to then be subject to subclause (v) of this clause, subclause (iv) of this clause shall continue to apply (to the exclusion of subclause (v) of this clause) to those assignments until one of them is terminated.

 

8.  Penalty Rates

 

Any ordinary hours worked between the following hours shall be paid at ordinary time plus the appropriate penalty rate:

 

(i)       Hours worked between 6.00 pm and midnight, Monday to Friday - 12.5%.

 

(ii)      Midnight and 8.00 am, midnight Sunday to midnight Friday - 25%.

 

(iii)     Midnight Friday and midnight Saturday - 50%.

 

(iv)     Midnight Saturday and midnight Sunday - 75%.

 

9.  Time Worked

 

Time worked means the time during which an employee is required by the employer to be in attendance at a hospital for the purpose of carrying out such functions as the employer may call on him/her to perform, and it shall include times when the employee, in waiting to carry out some active functions, is studying or resting or sleeping or engaged in any other activity.

 

Provided that time worked does not include uninterrupted breaks allowed and actually taken for meals.

 

Provided further that where an employee attends of his/her own volition outside of hours rostered on duty, or where an employee remains in attendance when formally released from the obligation to perform professional duties, the employer shall not be liable to make any payment for such attendance.

 

10.  Overtime

 

(i)       All time worked by employees in excess of the ordinary hours specified in clause 7, Hours of Work, shall be paid at the rate of time and one half for the first two hours, and double time for the remaining hours worked, provided that all overtime performed on a Sunday shall be at double time.

 

(ii)      All time worked by employees employed pursuant to Part C, Permanent Part-Time Career Medical Officers, of clause 3, Salaries, in excess of the rostered daily ordinary hours of work prescribed for the majority of full-time employees employed on that shift shall be paid at the appropriate overtime rate prescribed herein. Time worked up to the rostered daily ordinary hours of work prescribed for a majority of the full-time employees employed on the shift concerned shall not be regarded as overtime but an extension of the contract hours for that day and shall be paid at the ordinary rate of pay.

 

(iii)     An employee who works authorised overtime and was not notified on or prior to his/her previous shift of the requirement to work such overtime shall be paid in addition to payment for such overtime the meal allowance as determined by the Industrial Relations Secretary from time to time:

 

(a)       for breakfast when commencing such overtime work at or before 6.00 am;

 

(b)      for an evening meal when such overtime is worked for at least one hour immediately following his/her normal ceasing time, exclusive of any meal break and extends beyond or is worked wholly after 7.00 pm;

 

(c)       for luncheon when such overtime extends beyond 2.00 pm on Saturdays, Sundays or holidays;

 

or shall be provided with adequate meals in lieu of such payments.

 

(iv)     Provided however that an employee employed in a community health facility shall be granted time in lieu of overtime payments. Such time in lieu shall be taken within three months of accrual and at ordinary time. If such accrued time in lieu is unable to be taken within the three month period, it is to be paid out at the end of the three month period in accordance with subclause (i) above at the current rates of pay then applying.

 

11.  On-Call and Call-Back

 

(i)       An "on-call period" is a period during which an employee is required by the employer to be on-call. No employee shall be required to remain on call while on leave.

 

(ii)      For the purposes of calculation of payment of on-call allowances and for call-back duty, an on-call period shall not exceed 24 hours.

 

(iii)     An employee shall be paid for each on-call period which coincides with a day rostered on duty an allowance as set out in Item 2 of Table 1 - Allowances and for each on-call period coinciding with a rostered day off an allowance as set in the said Item 2 with a maximum payment as set out in the said Item 2 per week. These allowances shall be varied in accordance with increases in salary rates under this Award.

 

(iv)     Subject to subclause (v) below, an employee who is called back for duty shall be paid for all time worked at the appropriate overtime rate, with a minimum of four hours at such rates. If an employee is called back on more than one occasion during the call back period for which he or she is paid, the employee will not be entitled to further payment until the expiration of the four hour payment period.

 

(v)       Employees required to work overtime after leaving the employer’s premises to provide a technology support resolution or clinical appraisal remotely without onsite presence, shall be paid for such work at the appropriate overtime rate, with a minimum of one hour at such rates.

 

(vi)     The amounts specified in subclause (iii) shall be taken to include expenses incurred in taking telephone calls at one's own residence and other expenses incurred being available for emergency duty.

 

12.  Annual Leave

 

(i)       All employees shall be allowed four calendar weeks leave of absence on full pay in respect of each twelve months service as defined in this Award plus one day on full pay in respect of each public holiday occurring within the period of such leave.

 

(ii)      Employees who are required to work on Sundays and/or public holidays during a qualifying period of employment for annual leave purposes shall be entitled to receive additional annual leave in respect of each complete period of eight hours so worked as follows:

 

(a)       if 35 or more such periods on such days have been worked - one week;

 

(b)      if less than 35 such periods on such days have been worked - leave proportionately calculated on the basis of 38 hours leave for 35 such periods worked;

 

(c)       work performed by reason of call-backs pursuant to clause 10, Overtime, shall be disregarded when assessing an employee’s entitlement under this subclause.

 

(d)      The calculations referred to in paragraphs (a) and (b) of this subclause shall be made to the nearest one-fifth of the ordinary hours worked, half or more than half of one-fifth being regarded as one-fifth and less than half being disregarded.

 

(e)       An employee, with accrued additional annual leave pursuant to this subclause (ii), can elect at any time to be paid an amount equivalent to the value of accrued additional leave in lieu of taking additional leave, provided that the amount is a minimum of one weeks’ accrued additional leave and that the salary for the period of additional leave paid out will be calculated as if the period of leave was actually taken.

 

(iii)     Annual leave shall be given and shall be taken within a period of six months after the date when the right to annual leave accrued; provided that the giving and taking of the whole or any separate period of such annual leave may, by mutual agreement between the employer and the employee, be postponed for a further period not exceeding six months.

 

(iv)     If the employee and the employer so agree, the annual leave or any such separate periods may be taken wholly or partly in advance before the employee has become entitled to that leave, but where leave is taken in such circumstances a further period of annual leave shall not commence to accrue until the expiration of the twelve months in respect of which the annual leave or part thereof has been so taken.

 

(v)       Except as provided by this clause, payment shall not be made to an employee in lieu of any annual leave or part thereof nor shall any such payment be accepted by the employee.

 

(vi)     The employee shall be given at least two months notice of the date from which his/her annual leave is to be taken.

 

(vii)    Each employee shall be paid before entering upon annual leave his/her ordinary rate of salary for the period of leave.

 

(viii)   Where the employment of an employee is terminated, the employee shall be entitled to receive proportionate payment for each completed month of service, together with such additional annual leave entitlements due under subclause (ii). All payments are to be made at the rate of salary to which such employee is entitled under this Award.

 

(ix)     Where the annual leave under this clause or any part thereof has been taken in advance by an employee pursuant to subclause (iv), of this clause; and

 

(a)       the employment of the employee is terminated before he/she has completed the year of employment in respect of which such annual leave or part thereof was taken; and

 

(b)      the sum paid to the employee as ordinary pay for the annual leave or part so taken in advance exceeds the sum which the employer is required to pay to the employee under sub clause (viii) of this clause,

 

the employer shall not be liable to make any payment to the employee under the said sub clause (viii); and shall be entitled to deduct the amount of such excess from any remuneration payable to the employee upon the termination of the employment.

 

(x)       Any annual leave which had accrued to an employee employed immediately prior to the operative date of this Award under the provisions then in force and who continues in employment under this Award shall remain to his/her credit and such leave may be allowed as provided in this clause in addition to any other leave which has accrued to an employee under the provisions of this clause.

 

(NOTATION: The conditions under which the annual leave loading shall be paid to employees are the same as generally applied through policy directives issued by the Ministry).

 

13.  Public Holidays

 

(i)       Public Holidays shall be allowed to employees on full pay.

 

(ii)      Where an employee is required to and does work on any of the public holidays, as set out in this clause, the employee shall have one day added to the period of his/her annual leave for each public holiday so worked unless time off in respect of time worked on any such public holiday has already been granted to the employee. The provisions of this subclause shall also apply to employees where a public holiday falls on a rostered day off.

 

(iii)     Provided that an employee who has accrued additional annual leave referred to in paragraph (ii) of this subclause can elect at any time to be paid an amount equivalent to the value of accrued additional leave in lieu of taking additional leave, provided that the amount is a minimum of one weeks’ accrued additional leave and that the salary for the period of additional leave paid out will be calculated as if the period of leave was actually taken.

 

(iv)     For the purpose of this clause, the following shall be deemed to be public holidays: New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day, Boxing Day, or in lieu of any such day any holiday proclaimed in lieu thereof, together with any other day duly proclaimed as a special day and observed as a public holiday within the area in which the hospital in which the employee is employed is situated.

 

(v)       All hours worked on public holidays shall be paid at the rate of time and one half.

 

14.  Sick Leave

 

(i)       An employee shall be allowed sick leave on full pay calculated by allowing 76 rostered ordinary hours of work for each year of continuous service less any sick leave on full pay already taken subject to the following conditions:

 

(a)       The employer may require the sickness to be certified to by the medical superintendent or by a legally qualified medical practitioner, approved by the employer, or may require other satisfactory evidence thereof. This requirement shall be dispensed with where the absence does not exceed two consecutive days.

 

(b)      An employee shall not be entitled to sick leave until the expiration of three months' continuous service.

 

(c)       Each employee shall take all reasonably practicable steps to inform the employer of his or her inability to attend for duty and as far as possible state the estimated duration of the absence. Where practicable such notice shall be given within twenty-four hours of the commencement of such absence.

 

(d)      An employee shall not be entitled to sick leave on full pay for any period in respect of which such employee is entitled to workers' compensation; provided, however, an employer shall pay to an employee who has sick leave entitlements under this clause, the difference between the amount received as workers' compensation and full pay, if the employee elects such payment. The employee’s sick leave entitlements under this clause shall, for each week during which such difference is paid, be reduced by that proportion of hours which the difference paid bears to full pay. On the expiration of available sick leave, weekly compensation payments only shall be payable.

 

(e)       An employee not eligible for sick leave during periods when he/she would have normally been rostered on overtime shifts.

 

(ii)      Continuous service for the purpose of this clause shall be calculated in the same manner as provided for in paragraph (a) of subclause (ii) of clause 20, Long Service Leave.

 

(iii)     Full pay for the purpose of this clause shall include the uniform allowance where payable under clause 16, Uniform and Laundry Allowance.

 

(iv)     Sick leave as defined shall accrue and be transferable between hospitals, at the rate of 76 rostered ordinary hours of work per year of continuous service, minus leave taken.

 

(v)       Any sick leave which had accrued to an employee employed immediately prior to the operative date of this Award, under the provisions then in force and who continues in employment under this Award shall remain to his/her credit and such leave may be allowed as provided in this clause in addition to any other leave which has accrued to an employee under the provisions of this clause.

 

(vi)     Subject to the provision of a satisfactory medical certificate and sick leave being due, annual or long service leave shall be re-credited where an illness of at least a week’s duration occurs during the period of annual or long service leave, provided that the period of leave does not occur prior to retirement, resignation or termination of service.

 

15.  Family and Community Services Leave and Personal/Carer’s Leave

 

(i)       Family and Community Services (FACS) Leave and Personal/Carer’s Leave are separate, stand alone entitlements.

 

(ii)      The provisions outlined in Parts A and B of this clause are available to all employees covered by this Award, other than casual employees as defined in subclause (iii) below.

 

(iii)     Casual employees as defined in the Health Industry Status of Employment (State) Award are entitled to the provisions outlined in Part C of this clause.

 

A.        FACS Leave

 

(i)       FACS Leave - General

 

(a)       For the purpose of this clause relating to FACS leave:

 

"relative" means a person related by blood, marriage or affinity;

 

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

 

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

 

(b)       The employer may grant FACS leave to an employee:

 

(1)       to provide care and/or support for sick members of the employee’s relatives or household; or

 

(2)       for reasons related to the family responsibilities of the employee (e.g. to arrange and or attend a funeral of a relative; to accompany a relative to a medical appointment where there is an element of emergency; parent/teacher meetings; education week activities; to meet elder-care requirements of a relative); or

 

(3)       for reasons related to the performance of community service by the employee (e.g. in matters relating to citizenship; to office holders in local government, other than as a mayor, for attendance at meetings, conferences or other associated duties; representing Australia or the State in major amateur sport other than in Olympic/Commonwealth Games); or

 

(4)       in a case of pressing necessity (e.g. where an employee is unable to attend work because of adverse weather conditions which either prevent attendance or threaten life or property; the illness of a relative; where a child carer is unable to look after their charge).

 

(ii)      FACS leave replaces compassionate leave.

 

(iii)     An employee is not to be granted FACS leave for attendance at court to answer a criminal charge, unless the employer approves the grant of leave in the particular case.

Applications for FACS leave to attend court, for reasons other than criminal charges, will be assessed on an individual basis.

 

(iv)     FACS Leave - entitlement

 

(a)       The maximum amount of FACS leave on full pay that may be granted to an employee is:

 

(1)       3 working days during the first year of service, commencing on and from 1 January 1995, and thereafter 6 working days in any period of 2 years; or

 

(2)       1 working day, on a cumulative basis effective from 1 January 1995, for each year of service after 2 years’ continuous service, minus any period of FACS leave already taken by the employee since 1 January 1995,

 

whichever method provides the greater entitlement.

 

(b)       For the purposes of calculating entitlements under (vi)(a)(1) and (2) above, a working day for employees working 38 hours per week shall be deemed to consist of 8 hours, and a working day for employees working 35 hours per week shall be deemed to consist of 7 hours. The rate at which FACS leave is paid out and utilised shall be on actual hours absent from a rostered shift.

 

Example A: An employee working 38 hours per week will have an entitlement, in their first year of employment, to 24 hours of FACS leave. If the employee take FACS leave for a full 10 hour shift, the employee would be debited 10 hours of FACS leave.

 

Example B: An employee working 35 hours per week will have an entitlement, in their first year of employment, to 21 hours of FACS leave. If the employee takes FACS leave for a full 7 hour shift, the employee would be debited 7 hours of FACS leave.

 

Example C: An employee, employed prior to 1 January 1995, applies for FACS leave on 20 February 1997. The employee is entitled to 6 days in any period of two years. Therefore, to calculate the employee’s available FACS leave as at 20 February 1997, add all FACS leave taken from 21 February 1995 to 20 February 1997 and deduct that amount from the 6 days entitlement.

 

(c)       FACS leave is available to part-time employees on a pro rata basis, based on the average number of hours worked per week. A working day shall consist of one-fifth of the employee’s average weekly hours during the preceding 12 months or during the employee’s period of employment, whichever is the lesser period.

 

Example: An employee working an average of 30 hours per week will have an entitlement, in his/her first year of employment, of 18 hours of FACS leave. If the employee takes FACS leave for a full rostered shift e.g. of 4 hours, the employee would be debited 4 hours of FACS leave. Likewise, if the employee was rostered for 8 hours and was absent for the full 8 hours on FACS leave, he/she would be debited 8 hours of FACS leave.

 

(v)      Additional FACS leave for bereavement purposes

 

Where FACS leave has been exhausted, additional FACS leave of up to 2 days for bereavement may be granted on a discrete, "per occasion" basis to an employee on the death of a relative or member of a household as defined in subclause (i) (a) of Part A of this clause.

 

(vi)     Use of other leave entitlements

 

The employer may grant an employee other leave entitlements for reasons related to family responsibilities or community service, by the employee.

 

An employee may elect, with the consent of the employer, to take annual leave; long service leave; or leave without pay.

 

B.        Personal/Carer’s Leave

 

(i)       Use of sick leave to care for the person concerned - definitions

 

A person who needs the employee’s care and support is referred to as the "person concerned" and is:

 

(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 purpose of this clause relating to Personal/Carer’s Leave:

 

"relative" means a person related by blood, marriage or affinity;

 

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

 

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

 

(ii)      Use of sick leave to care for the person concerned - entitlement

 

(a)       The entitlement to use sick leave in accordance with this subclause is subject to:

 

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

 

(2)       the person concerned being as defined in paragraph (i) of Part B, Personal/Carer’s Leave, of this clause.

 

(b)       Other than a casual or any other employee who receives a loading in lieu of sick leave, an employee with responsibilities in relation to a person who needs their care and support shall be entitled to use the untaken sick leave, from that year’s annual sick leave entitlement, to provide care and support for such persons when they are ill.

 

(c)       Sick leave accumulates from year to year. In addition to the current year’s grant of sick leave available under (b) above, sick leave untaken from the previous 3 years may also be accessed by an employee with responsibilities in relation to a person who needs their care and support.

 

(d)       The employer may, in special circumstances, make a grant of additional sick leave. This grant can only be taken from sick leave untaken prior to the period referred to in subparagraph (c) above.

 

(e)       The employee shall, if required, establish either by production of a medical certificate or statutory declaration, that the illness of the person concerned is such as to require care by another person.

 

(f)       The employee has the right to choose the method by which the ground for leave is established, that is, by production of either a medical certificate or statutory declaration.

 

(g)       The employee is not required to state the exact nature of the relevant illness on either a medical certificate or statutory declaration.

 

(h)       The 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.

 

(i)       In normal circumstances, the employee must not take leave under this part where another person has taken leave to care for the same person.

 

(iii)     Use of other leave entitlements

 

An employee may elect, with the consent of the employer, to take:

 

(a)       annual leave, including 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. An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least 5 consecutive annual leave days are taken. 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.

 

(b)       long service leave; or

 

(c)       leave without pay for the purpose of providing care and support to the person concerned as defined in paragraph (i) of Part B of this clause.

 

(iv)     Time off in lieu of payment of overtime

 

(a)       An employee may elect, with the consent of the employer, to take time off in lieu of payment of overtime at a time or times agreed with the employer within 12 months of the said election

 

(b)       Overtime taken as time off during ordinary time shall be taken at the ordinary time rate, that is, one hour off for each hour of overtime worked.

 

(c)       If, having elected to take time as leave in accordance with (iv)(a) above and 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 from the date the overtime was worked, or earlier by agreement, or on termination.

 

(d)       Where no election is made in accordance with subparagraph (iv)(a) above, the employee shall be paid overtime rates in accordance with the provisions of clause 9, Overtime.

 

(v)      Use of make-up time

 

(a)       An employee may elect, with the consent of the employer, to work "make-up time". "Make-up time" is worked when the employee takes time off during ordinary hours for family or community service responsibilities, and works those hours at another time, during the spread of ordinary hours provided for in clause 6 of this Award, at the ordinary rate of pay.

 

(b)       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 during ordinary hours and works those hours at another time) at the applicable shift work rate which would have been applicable to the hours taken off.

 

C.        Entitlements for Casual Employees

 

(i)       Bereavement entitlements for casual employees

 

(a)       Casual employees are entitled to not be available to attend work or to leave work upon the death in Australia of a relative or member of a household as prescribed in subparagraph (i)(a) of Part A of this clause.

 

(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 part. The rights of an employer to engage or not engage a casual employee are otherwise not affected.

 

(ii)      Personal carers entitlement for casual employees

 

(a)       Subject to the evidentiary and notice requirements in subparagraphs (ii)(e) - (h) of Part B of this clause 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 (i) of Part B 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.

 

(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 part. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.

 

15A.  Family Violence Leave

 

(i)       For the purpose of this clause, family violence means domestic violence as defined in the Crimes (Domestic and Personal Violence) Act 2007 as varied from time to time. The violence may have been reported to the police and/or may be the subject of an Apprehended Violence Order.

 

(ii)      An employee experiencing family and domestic violence can utilise Award leave entitlements provided for in Sick Leave and Family and Community Services Leave provisions of the Award.

 

(iii)     Where leave entitlements to Sick Leave and Family and Community Services Leave are exhausted, the employer will grant up to five days per year of paid special leave to attend legal proceedings, counselling, appointments with a medical or legal practitioner and relocation and safety activities directly associated with alleviating the effects of family and domestic violence. This leave entitlement does not accumulate from year to year.

 

(iv)     Upon exhaustion of the paid leave entitlement, an employee may request further periods of unpaid leave, for the same activities for which paid leave would be available.

 

(v)       To access paid and unpaid leave, the employee must provide the employer with evidence, to the employer’s satisfaction, substantiating the purpose of the leave and that the leave is related to alleviating the effects of family violence. The employer may accept a variety of agreed documentation in support of an application for leave. Supporting documentation may be presented in the form of an agreed document issued by the Police Force, a Court, a doctor, a Family Violence Support Service or a lawyer.

 

(vi)     Matters related to family violence can be sensitive. Information collected by the employer will be kept confidential. No information relating to the details of the family violence will be kept on an employee’s personnel file without their express permission. However, records about the use of family violence leave will need to be kept.

 

(vii)    The employer, where appropriate, may facilitate flexible working arrangements subject to operational requirements. This may include changes to working times and locations, telephone numbers and email addresses.

 

(viii)   The employer will co-operate with all legal orders protecting an employee experiencing domestic violence.

 

16.  Uniform and Laundry Allowances

 

(i)       Sufficient suitable and serviceable uniforms shall be provided for each employee required to wear a uniform and such uniforms shall be laundered at the expense of the employer.

 

(ii)      Where an employer requires a uniform to be worn but does not provide such uniform, the following allowances shall be paid:

 

(a)       where a full uniform, including special shoes, is required, an amount per week as set in Item 3 of Table 1 - Allowances;

 

(b)      in other cases, an amount as also set in Item 3 of Table 1.

 

17.  Continuing Medical Education

 

(i)       After 12 months employment, an employee shall be entitled to 7 days of paid leave per annum for the purposes of Continuing Medical Education and professional development. This entitlement can accrue to a maximum of 21 days. The value of such leave is not payable on termination.

 

(ii)      The approval of the employer is required for such leave, which must not interfere with the maintenance of essential services and patient care. Approval shall not be unreasonably withheld.

 

(iii)     The Continuing Medical Education or professional development activities undertaken during such paid leave must be relevant to the position occupied by the employee.

 

(iv)     Expenses associated with such leave are to be reimbursed by the employer, provided that no expenses or allowances shall be payable in respect of travel or accommodation outside Australia, except in respect of courses run under the auspices of a recognised Australasian Specialist College in New Zealand. The provisions of the Ministry of Health Policy Directive PD2016_010, Official Travel, as amended from time to time, shall apply to any travel under this clause.

 

(v)       Expenses shall be reimbursed where the approved Continuing Medical Education or professional development activity falls on days that would not otherwise be working days.

 

18.  Settlement of Disputes

 

(i)       Where a dispute arises in a particular section which cannot be resolved between the employees or their representative and the supervising staff, it shall be referred to the Chief Executive Officer of the Public Health Organisation or his/her nominee, who will arrange for the matter to be discussed with the employees concerned and a local representative or representatives of the Association.

 

(ii)      Failing settlement of the issue at this level, the matter shall be referred to the Secretary and the Head Office of the Association(s). The dispute will then be dealt with pursuant to subclause (v) of this clause.

 

(iii)     While these procedures are continuing, no stoppage of work or any form of ban or limitation of work shall be applied. Unless agreed otherwise by the parties the status quo before the emergence of the issue must continue while these procedures are being followed. For this purpose "status quo" means the work procedures and practice in place:

 

(a)       immediately before the issue arose; or,

 

(b)      immediately before any change to those procedures or practices, which caused the issue to arise, was made.

 

(iv)     The Association(s) reserve(s) the right to vary this procedure where it is considered a safety factor is involved.

 

(v)       With a view to an amicable and speedy settlement, all disputes that firstly cannot be settled in accordance with subclauses (i) and (ii) of this clause may be submitted to a committee consisting of not more than six members with equal representatives of the Secretary and the Association(s). Such committee shall have the power to investigate all matters in dispute and to report to the Chief Executive Officer and the Association(s) respectively with such recommendation as it may think right and in the event of no mutual decision being arrived at by such committee, the matter in dispute may be referred to the industrial committee.

 

(vi)     This clause shall not interfere with the rights of either party to institute proceedings for the determination of any matter in accordance with the Industrial Relations Act 1996.

 

19.  Travelling Allowances

 

(i)       An employee seconded to another hospital may be granted a daily travel allowance at the rate of the difference between the cost of travel by public transport to his/her normal place of employment and travel by public transport to the seconding hospital. Provided that where an employee drives his/her own vehicle, he/she shall, in lieu, be eligible for an allowance equivalent to the transport allowance rate payable to members of the New South Wales Health Service as determined under the Health Services Act 1997 from time to time, for the difference between the distance to his/her normal place of employment and the distance to the seconding hospital.

 

(ii)      An employee who, with the approval of the chief executive officer, uses on official business, a motor vehicle maintained primarily for other than official business, shall be paid the abovementioned allowance from time to time effective. However, where it is estimated that an employee will, with the approval of the chief executive officer, be required to use his/her private vehicle on official business on at least 50 days during any period of 12 months and during that period aggregate at least 805 kilometres of official running, he/she shall be paid at the official business rate payable to members of the New South Wales Public Service as determined by clause 36 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 from time to time.

 

(iii)     For the purpose of subclause (ii) travel on official business:

 

(a)       occurs when an employee is required by the employer as part of his/her duty to use his/her motor vehicle to attend away from his/her normal place of employment or seconding hospital to another clinic, annexe or hospital. Where an employee travels on official business direct from his/her place of residence to a clinic, annexe or hospital, other than his/her normal place of employment he/she shall be paid for the difference between the distance to his/her normal place of employment or seconding hospital and that other annexe, clinic or hospital;

 

(b)      does not include "call backs";

 

(iv)     Nothing in this clause shall make the employer liable for the cost of the employee’s daily travel to his/her usual and normal place of employment.

 

NOTATION: -

 

(i)       For conditions relating to secondments see relevant Ministry of Health policy directives.

 

(ii)      Travelling compensation applies to staff required to work at centres other than their headquarters.

 

20.  Long Service Leave

 

(i)

 

(a)       Each employee shall be entitled to two months long service leave on full pay after ten years of service; thereafter additional long service shall accrue on the basis of five months long service leave on full pay for each ten years service.

 

Employees with at least seven years service and less than 10 years service are entitled, proportionate to his or her length of service, to proceed on a proportionate period of long service leave on the basis of two months' long service leave for ten years' service on full pay.

 

(b)      Where the services of an employee with at least five years service and less than seven years service are terminated by the employer for any reason other than the employee's serious and wilful misconduct, or by the employee, on account of illness, incapacity or domestic or other pressing necessity, he/she shall be entitled to be paid a proportionate amount for long service leave on the basis of two months' long service leave for ten years' service.

 

Where the services of an employee with at least seven years are terminated by the employer or by the employee, he/she shall be entitled to be paid a proportionate amount for long service leave on the basis of two months' long service leave for ten years' service. Where the services of an employee with at least 10 years service are terminated by the employer or by the employee, he/she shall be entitled to be paid on the basis of two months' long service leave for ten years' service and thereafter on the basis of five months long service leave for each ten years service.

 

(ii)      For the purposes of subclause (i) of this clause:

 

(a)       service shall mean continuous service with the employer. For the purpose of this paragraph, continuous service will be determined in accordance with the provisions of Section 7 of the Ministry of Health Policy Directive PD2019_010 Leave Matters for the NSW Health Service, as amended from time to time.

 

(b)      Broken periods of service with the employer in one or more hospitals shall count as service subject to the condition that where an employee, after ceasing employment with the employer is re-employed subsequent to the 1st July 1974, any service of that employee before he/she was so re-employed shall not be counted for the purpose of determining any long service leave due to that employee in respect of his/her service after he/she was so re-employed unless he/she has completed at leave five years' continuous service from the date of his/her being so re-employed.

 

(c)       Service shall not include -

 

(1)       any period of leave without pay except in the case of employees who have completed at least ten years service (any period of absence without pay being excluded there from) in which case service shall include any period of leave without pay not exceeding six months taken after 1 July 1974;

 

(2)       any period of part-time service, except permanent part-time service.

 

(iii)     An employee with an entitlement to long service leave may elect to access such entitlement:

 

(a)       on full pay;

 

(b)      on half pay; or

 

(c)       on double pay.

 

(iv)     When an employee takes long service leave, the leave entitlement will be deducted on the following basis:

 

(a)       a period of leave on full pay - the number of days so taken;

 

(b)      a period of leave on half pay - half the number of days so taken; or

 

(c)       a period of leave on double pay - twice the number of days so taken.

 

(v)       When taking long service leave and an employee would otherwise have had a rostered shift fall on a public holiday during that period, the amount of long service leave to be deducted is to be reduced by one day for the public holiday.

 

(vi)     Long service leave shall be taken at a time mutually arranged between the employer and the employee.

 

(vii)

 

(a)       On the termination of employment of an employee, otherwise than by his/her death, an employer shall pay to the employee the monetary value of all long service leave accrued and not taken at the date of such termination and such monetary value shall be determined according to the salary payable to the employee at the date of such termination unless the employee transfers his or her leave entitlement in accordance with Section 7 of the NSW Health Policy Directive PD2019_010 Leave Mattes for the NSW Health Service, as amended from time to time.

 

(b)      Where an employee who has acquired a right to long service leave, or after having had five years service and less than ten years service dies, the widow or the widower of such employee, or if there is no such widow or widower, the children of such employee, or if there is no such widow, widower, or children, such person who, in the opinion of the employer, was at the time of the death of such employee, a dependent relative of such employee, shall be entitled to receive the monetary value of the leave not taken or which would have accrued to such employee, had his/her services terminated as referred to in paragraph (b) of subclause (i) of this clause and such monetary value shall be determined according to the salary payable to the employee at the time of his/her death.

 

Where there is a guardian of any children entitled under this paragraph the payment, to which such children are entitled, may be made to such guardian for their maintenance, education and advancement.

 

Where there is no person entitled under this paragraph to receive the monetary value of any leave payable under the foregoing provisions payment in respect thereof shall be made to the legal personal representative of such employee.

 

(viii)   Rights to long service leave under this clause shall be in replacement of rights to long service leave, if any, which at the 1st July 1974, may have accrued or may be accruing to an employee and shall apply only to persons in the employ of the employer on or after the 1st July 1974. Where an employee has been granted long service leave or has been paid its monetary value prior to the 1st July 1974, the employer shall be entitled to debit such leave against any leave to which the employee may be entitled pursuant to this clause.

 

21.  Maternity, Adoption and Parental Leave

 

A.        Maternity Leave

 

(i)       Eligibility for Paid Maternity Leave

 

To be eligible for paid maternity leave a full-time or permanent part-time employee must have completed at least 40 weeks continuous service prior to the expected date of birth.

An employee who has once met the conditions for paid maternity leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid maternity leave, unless-

 

(a)       there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after her services have been otherwise dispensed with: or

 

(b)       the employee has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987 as varied from time to time.

 

(ii)      Portability of Service for Paid Maternity Leave

 

Portability of service for paid maternity leave involves the recognition of service in government sector agencies for the purpose of determining an employee's eligibility to receive paid maternity leave. For example, where an employee moves between a public service department and a public hospital, previous continuous service will be counted towards the service prerequisite for paid maternity leave.

 

When determining an employee's eligibility for paid maternity leave, continuous service with an organisation that is part of the government sector as defined in the Government Sector Employment Act 2013 as varied from time to time will be recognised, provided that:

 

(a)       service was on a full-time or permanent part-time basis:

 

(b)      cessation of service with the former employer was not by reason of dismissal on any ground, except retrenchment or reduction of work;

 

(c)       the employee immediately commences duty with the new employer. There may be a break in service of up to two months before commencing duty with the new employer. However, such a break in service will not be counted as service for the purpose of calculating any prior service prerequisite for paid maternity leave.

 

(iii)     Entitlement to Paid Maternity Leave

 

An eligible employee is entitled to fourteen weeks at the ordinary rate of pay from the date maternity leave commences. This leave may commence up to fourteen weeks prior to the expected date of birth.

 

It is not compulsory for an employee to take this period off work. However, if an employee decides to work during the nine weeks prior to the date of birth it is subject to the employee being able to satisfactorily perform the full range of normal duties.

 

Paid maternity leave may be paid:

 

on a normal fortnightly basis; or

 

in advance in a lump sum; or

 

at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

 

Annual and/or long service leave credits can be combined with periods of maternity leave on half pay to enable an employee to remain on full pay for that period.

 

(iv)     Unpaid Maternity Leave

 

(a)       Full-time and permanent part-time employees who are entitled to paid maternity leave are entitled to a further period of unpaid maternity leave of not more than 12 months after the actual date of birth.

 

(b)      Full-time and permanent part-time employees who are not eligible for paid maternity leave are entitled to unpaid maternity leave of not more than 12 months.

 

(v)       Applications

 

An employee who intends to proceed on maternity leave should formally notify her employer of such intention as early as possible, so that arrangements associated with her absence can be made.

 

Written notice of not less than eight weeks prior to the commencement of the leave should accordingly be given. This notice must include a medical certificate stating the expected date of birth and should also indicate the period of leave desired.

 

(vi)     Variation after Commencement of Leave

 

After commencing maternity leave, an employee may vary the period of her maternity leave once only without the consent of her employer by giving the employer notice in writing of the extended period at least fourteen days’ before the start of the extended period. An employer may accept less notice if convenient.

 

An employee may extend the period of maternity leave at any time with the agreement of the employer.

 

The conditions relating to variation of maternity leave are derived from Section 64 of the Industrial Relations Act 1996.

 

(vii)    Staffing Provisions

 

In accordance with obligations established by the Industrial Relations Act 1996 (Section 69) any person who occupies the position of an employee on maternity leave must be informed that the employee has the right to return to her former position. Additionally, since an employee has the right to vary the period of her maternity leave, offers of temporary employment should be in writing, stating clearly the temporary nature of the contract of employment. The duration of employment should be also set down clearly; to a fixed date or until the employee elects to return to duty, whichever occurs first.

 

(viii)   Effect of Maternity Leave on Accrual of Leave, Increments etc.

 

When the employee has resumed duties, any period of full pay leave is counted in full for the accrual of annual leave, sick leave and long service leave and any period of maternity leave on half pay is taken into account to the extent of one half thereof when determining the accrual of annual leave, sick leave and long service leave.

 

Except in the case of employees who have completed ten years' service the period of maternity leave without pay does not count as service for long service leave purposes. Where the employee has completed ten years' service the period of maternity leave without pay shall count as service provided such leave does not exceed six months.

 

Maternity leave without pay does not count as service for incremental purposes. Periods of maternity leave at full pay and at half pay are to be regarded as service for incremental progression on a pro-rata basis.

 

Where public holidays occur during the period of paid maternity leave, payment is at the rate of maternity leave received i.e., public holidays occurring in a period of full pay maternity leave are paid at full rate and those occurring during a period of half pay leave are paid at half rate.

 

(ix)     Illness Associated with Pregnancy

 

If, because of an illness associated with her pregnancy an employee is unable to continue to work then she can elect to use any available paid leave (sick, annual and/or long service leave) or to take sick leave without pay.

 

Where an employee is entitled to paid maternity leave, but because of illness, is on sick, annual, long service leave, or sick leave without pay prior to the birth, such leave ceases nine weeks prior to the expected date of birth. The employee then commences maternity leave with the normal provisions applying.

 

(x)       Transfer to a More Suitable Position

 

Where, because of an illness or risk associated with her pregnancy, an employee cannot carry out the duties of her position, an employer is obliged, as far as practicable, to provide employment in some other position that she is able to satisfactorily perform. This obligation arises from Section 70 of the Industrial Relations Act 1996. A position to which an employee is transferred under these circumstances must be as close as possible in status and salary to her substantive position.

 

(xi)     Miscarriages

 

In the event of a miscarriage any absence from work is to be covered by the current sick leave provisions

 

(xii)    Stillbirth

 

In the case of a stillbirth, (as classified by the Registry of Births, Deaths and Marriages) an employee may elect to take sick leave, subject to production of a medical certificate, or maternity leave. She may resume duty at any time provided she produces a doctor's certificate as to her fitness.

 

(xiii)   Effect of Premature Birth on Payment of Maternity Leave

 

An employee who gives birth prematurely and prior to proceeding on maternity leave shall be treated as being on maternity leave from the date leave is commenced to have the child. Should an employee return to duty during the period of paid maternity leave, such paid leave ceases from the date duties are resumed.

 

(xiv)   Right to Return to Previous Position

 

In accordance with the obligations set out in Section 66 of the Industrial Relations Act 1996, an employee returning from maternity leave has the right to resume her former position.

 

Where this position no longer exists the employee is entitled to be placed in a position nearest in status and salary to that of her former position and to which the employee is capable or qualified.

 

(xv)     Further Pregnancy While on Maternity Leave

 

Where an employee becomes pregnant whilst on maternity leave a further period of maternity leave shall be granted. If an employee enters on the second period of maternity leave during the currency of the initial period of maternity leave, then any residual maternity leave from the initial entitlement ceases.

 

An employee who commences a subsequent period of maternity leave while on unpaid maternity leave under subclause (iv)(a) of Part A of this clause or subclause (i)(b) of Part D of this clause is entitled to be paid at their normal rate (i.e. the rate at which they were paid before proceeding on maternity leave).

 

An employee who commences a subsequent period of maternity leave during the first 12 months of a return to duty on a part-time basis as provided under subparagraph (i)(c) of Part D of this clause is entitled to be paid at their substantive full-time rate for the subsequent period of maternity leave.

 

An employee who commences a subsequent period of maternity leave more than 12 months after returning to duty on a part-time basis under subclause (i)(c) of Part D, Right to Request, of this clause, will be entitled to paid maternity leave for the subsequent period of maternity leave at their part-time rate.

 

B.        Adoption Leave

 

(i)       Eligibility

 

All full-time and permanent part-time employees who are adopting a child and are to be the primary care giver of the child are eligible for unpaid adoption leave.

 

To be eligible for paid adoption leave a full-time or permanent part-time employee must also have completed at least 40 weeks continuous service prior to the date of taking custody of the child.

 

An employee who has once met the conditions of paid adoption leave, will not be required to again work the 40 weeks continuous service in order to qualify for further periods of paid adoption leave, unless

 

(a)       there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after their services have been otherwise dispensed with; or

 

(b)       the employee has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Worker's Compensation Act (NSW) 1987 as varied from time to time.

 

(ii)      Portability of Service for Paid Adoption Leave

 

As per maternity leave conditions.

 

(iii)     Entitlement

 

(a)       Paid Adoption Leave

 

Eligible employees are entitled to paid adoption leave of fourteen weeks at the ordinary rate of pay from and including the date of taking custody of the child.

 

Paid adoption leave may be paid: -

 

on a normal fortnightly basis; or

 

in advance in a lump sum; or

 

at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

 

Annual and/or long service leave credits can be combined with periods of adoption leave at half pay to enable an employee to remain on full pay for that period.

 

(b)       Unpaid Adoption Leave

 

Eligible employees are entitled to unpaid adoption leave as follows:

 

where the child is under the age of 12 months - a period of not more than 12 months from the date of taking custody;

 

where the child is over the age of 12 months and under 18 years old - a period of up to 12 months, such period to be agreed upon by both the employee and the employer.

 

(iv)     Applications

 

Due to the fact that an employee may be given little notice of the date of taking custody of a child, employees who believe that, in the reasonably near future, they will take custody of a child, should formally notify the employer as early as practicable of the intention to take adoption leave. This will allow arrangements associated with the adoption leave to be made.

 

(v)      Variation after Commencement of Leave

 

After commencing adoption leave, an employee may vary the period of leave, once without the consent of the employer and otherwise with the consent of the employer. A minimum of fourteen days’ notice must be given, although an employer may accept less notice if convenient.

 

(vi)     Staffing Provisions

 

As per maternity leave conditions.

 

(vii)    Effect of Adoption Leave on Accrual of Leave, Increments, etc.

 

As per maternity leave conditions.

 

(viii)   Right to return to Previous Position

 

As per maternity leave conditions.

 

C.        Parental Leave

 

(i)       Eligibility

 

To be eligible for parental leave a full-time or permanent part-time employee must have completed at least 40 weeks continuous service prior to the expected date of birth or to the date of taking custody of the child.

 

An employee who has once met the conditions for paid parental leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid parental leave, unless:

 

(a)       there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after their services have been otherwise dispensed with: or

 

(b)       the employee has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act 1987 as varied from time to time.

 

(ii)      Portability of Service for Paid Parental Leave

 

As per maternity leave conditions.

 

(iii)     Entitlements

 

Eligible employees whose spouse or partner (including a same sex partner) is pregnant or is taking custody of a child, are entitled to a period of leave not exceeding 52 weeks, which includes one week of paid leave, and may be taken as follows:

 

(a)       an unbroken period of up to one week at the time of the birth of the child, taking custody of the child or other termination of the pregnancy (short parental leave), and

 

(b)       a further unbroken period in order to be the primary caregiver of the child (extended parental leave).

 

(c)       The entitlement of one week’s paid leave may be taken at anytime within the 52 week period and shall be paid:

 

at the employees ordinary rate of pay for a period not exceeding one week on full pay, or

 

two weeks at half pay or the period of parental leave taken, whichever is the lesser period.

 

(d)       Extended parental leave cannot be taken at the same time as the employee’s spouse or partner is on maternity or adoption leave except as provided for in subparagraph (i)(a) of Part D, Right to Request of this clause.

 

Annual and/or long service leave credits can be combined with periods of parental leave on half pay to enable an employee to remain on full pay for that period.

 

(iv)     Applications

 

An employee who intends to proceed on parental leave should formally notify their employer of such intention as early as possible, so that arrangements associated with their absence can be made.

 

(a)       In the case of extended parental leave, the employee should give written notice of the intention to take the leave.

 

(b)       The employee must, at least four weeks before proceeding on leave, give written notice of the dates on which they propose to start and end the period of leave, although it is recognised in situations of taking custody of a child, little or no notice may be provided to the employee. In such an instance, the employee should notify the employer as early as practicable.

 

(c)       The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that their spouse or partner is pregnant and the expected date of birth, or in the case of an adoption, an official form or notification on taking custody of the child.

 

(d)       In the case of extended parental leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:

 

(1)       if applicable, the period of any maternity leave sought or taken by his spouse, and

 

(2)       that they are seeking the period of extended parental leave to become the primary care giver of the child.

 

(v)      Variation after Commencement of Leave -

 

After commencing parental leave, an employee may vary the period of her/his parental leave, once without the consent of the employer and otherwise with the consent of the employer. A minimum of fourteen days’ notice must be given, although an employer may accept less notice if convenient.

 

(vi)     Effect of Parental Leave on Accrual of Leave, Increments etc.

 

As per maternity leave conditions.

 

(vii)    Right to Return to Previous Position

 

As per maternity leave conditions.

 

D.        Right to Request

 

(i)       An employee entitled to maternity, adoption or parental leave may request the employer to allow the employee:

 

(a)       to extend the period of simultaneous maternity, adoption or parental leave use up to a maximum of eight weeks;

 

(b)       to extend the period of unpaid maternity, adoption or extended parental leave for a further continuous period of leave not exceeding 12 months;

 

(c)       to return from a period of maternity, adoption or parental leave on a part-time basis until the child reaches school age;

 

to assist the employee in reconciling work and parental responsibilities.

 

(ii)      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.

 

(iii)     The employee’s request and the employer’s decision made under subparagraphs (i)(b) and (c) must be recorded in writing.

 

(iv)     Where an employee wishes to make a request under subparagraph (i)(c):

 

(a)       the employee is to make an application for leave without pay to reduce their full-time weekly hours of work

 

(b)       such application must be made as early as possible to enable the employer to make suitable staffing arrangements. At least four weeks notice must be given;

 

(c)       salary and other conditions of employment are to be adjusted on a basis proportionate to the employee’s full-time hours of work i.e. for long service leave the period of service is to be converted to the full-time equivalent and credited accordingly.

 

(d)       employees who return from leave under this arrangement remain full-time employees. Therefore the payment of any part-time allowance to such employees does not arise.

 

E.        Communication During Leave

 

(i)       Where an employee is on maternity, adoption or parental leave and a definite decision has been made to introduce significant change at the workplace, the employer shall take reasonable steps to:

 

(a)       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 the leave; and

 

(b)       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 the leave.

 

(ii)      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 the 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.

 

(iii)     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 (i).

 

NOTE:

 

(a)       The entitlement to Maternity, Adoption and Parental leave for part-time employees who receive an adjusted hourly rate along with casual employees, are in accordance with the provisions of Part 4, Parental Leave of the Industrial Relations Act 1996 and/or Determination made under the Health Services Act 1997.

 

(b)       Where a casual employee is entitled to parental leave under the Industrial Relations Act 1996, the following provisions shall also apply in addition to those set out in the Act.

 

An employer must not fail to re-engage a casual employee because:

 

the employee or employee’s spouse is pregnant; or

 

the employee is or has been immediately absent on parental leave.

 

The rights of the employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.

 

(c)       Part-time employees who receive an adjusted hourly rate are also entitled to the provisions of Part D, Right to Request and Part E, Communication During Leave, of this clause.

 

(d)       Liability for Superannuation Contributions

 

During a period of unpaid maternity, adoption or parental leave, the employee will not be required to meet the employer's superannuation liability.

 

21A.  Lactation Breaks

 

(i)       This clause applies to employees who are lactating mothers. A lactation break is provided for breastfeeding, expressing milk or other activity necessary to the act of breastfeeding or expressing milk and is in addition to any other rest period and meal break as provided for in this Award.

 

(ii)      A full-time employee or a part-time employee working more than four hours per day is entitled to a maximum of two paid lactation breaks of up to 30 minutes each per day or per shift.

 

(iii)     A part-time employee working four hours or less on any day or shift is entitled to only one paid lactation break of up to 30 minutes each per day or per shift worked.

 

(iv)     A flexible approach to lactation breaks can be taken by mutual agreement between an employee and their manager provided the total lactation break time entitlement is not exceeded. When giving consideration to any such requests for flexibility, a manager needs to balance the operational requirements of the organisation with the lactating needs of the employee.

 

(v)       The employer shall provide access to a suitable, private space with comfortable seating for the purpose of breastfeeding or expressing milk. Other suitable facilities, such as refrigeration and a sink, shall be provided where practicable. Where it is not practicable to provide these facilities, discussions between the manager and the employee will take place to attempt to identify reasonable alternative arrangements for the employee’s lactation needs.

 

(vi)     Employees experiencing difficulties in effecting the transition from home based breastfeeding to the workplace will have telephone access in paid time to a free breastfeeding consultative service, such as that provided by the Australian Breastfeeding Association’s Breastfeeding Helpline Service or the Public Health System.

 

(vii)    Employees needing to leave the workplace during time normally required for duty to seek support or treatment in relation to breastfeeding and the transition to the workplace may utilise sick leave or other leave in accordance with the Award.

 

22.  Trade Union Leave

 

(i)       Eligibility

 

Applies to members of the Association(s) accredited by the Association(s) as delegates.

 

(ii)      Paid Special Leave

 

Paid special leave is available for attendance at:

 

(a)       annual or bi-annual conferences of the delegate’s union; and

 

(b)      meetings of the union’s executive/committee of management;

 

(c)       authorised union delegate meetings;

 

(d)      annual conference of Unions NSW;

 

(e)       bi-annual conference of the Australian Council of Trade Unions.

 

(iii)     Limits

 

There is no limit on the special leave that could be applied for or granted.

 

(iii)     Responsibilities of the Union Delegate

 

Responsibilities of the union delegate are:

 

(a)       to establish accreditation as a delegate with the union;

 

(b)      to provide sufficient notice of absence to the employer; and,

 

(c)       to lodge a formal application for special leave.

 

(v)       Responsibilities of the relevant Association

 

Responsibilities of the relevant Association are:

 

(a)       to provide documentary evidence to the employer about an accredited delegate in sufficient time to enable the employer to make arrangements for performance of duties;

 

(b)      to meet all travelling, accommodation and any other costs incurred by the accredited delegate; and,

 

(c)       to provide the employer with confirmation of attendance of attendance of the accredited delegate.

 

(vi)     Responsibilities of the employer

 

Responsibilities of the employer are:

 

(a)       to release the accredited delegate for the duration of the conference or meeting;

 

(b)      to grant special leave (with pay); and,

 

(c)       to ensure that the duties of the absent delegate are performed in his/her absence, if appropriate.

 

(vii)    Period of Notice

 

Generally, dates of conferences or meetings are known well in advance and it is expected that employers would be notified as soon as accreditation has been given to a delegate or at least two weeks before the date of attendance.

 

Where extraordinary meetings are called at short notice, a shorter period of notice would be acceptable, provided such notice is given to the employer as soon as advice of the meeting is received by the accredited delegate.

 

(viii)   Travel Time

 

Where a delegate has to travel to Sydney, inter or intra state, to attend a conference or meeting, special leave will also apply to reasonable travelling time to and from the venue of the conference or meeting.

 

No compensation, such as time off in lieu, is to be provided if travel can be and is taken on an accredited delegate’s non-working day or before or after their normal hours of work.

 

(ix)      Payment of Allowances

 

No allowances will be claimable in cases of special leave granted for attendance at union conferences or executive meetings covered by this clause - see also subclause (v) above.

 

23.  Labour Flexibility

 

(i)       An employer may direct an employee to carry out such duties as are reasonable, and within the limits of the employee's skill, competence and training consistent with employee's classification, grouping and/or career stream provided that such duties are not designed to promote deskilling.

 

(ii)      An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained or has otherwise acquired the necessary skills in the use of such tools and equipment.

 

(iii)     Any direction issued by an employer pursuant to subclause (i) and (ii) shall be consistent with the employer's responsibilities to provide a safe and healthy work environment.

 

(iv)     Existing provisions with respect to the payment of mixed functions/higher duties allowances shall apply in such circumstances. In no circumstances shall an employee’s salary be reduced by the application of this clause.

 

24.  Anti-Discrimination

 

(i)       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 and age and responsibilities as a carer.

 

(ii)      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.

 

(iii)     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 or harassment.

 

(iv)     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 jurisdiction.

 

(v)       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.

 

NOTES -

 

(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 this 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:

 

25.  Salary Sacrifice to Superannuation

 

(i)       Notwithstanding the salaries prescribed in clause 3, Salaries as varied from time to time, an employee may elect, subject to the agreement of the employee’s employer, to sacrifice a part or all of the salary payable under the salaries clause to additional employer superannuation contributions. Such election must be made prior to the commencement of the period of service to which the earnings relate. The amount sacrificed together with any salary packaging arrangements under clause 26. Salary Packaging, of this Award may be made up to one hundred (100) per cent of the salary payable under the salaries clause, or up to one hundred (100) per cent of the currently applicable superannuable salary, whichever is the lesser.

 

In this clause, ‘superannuable salary’ means the employee’s salary as notified from time to time to the New South Wales public sector superannuation trustee corporations.

 

(ii)      Any pre-tax and post-tax payroll deductions must be taken into account prior to determining the amount of available salary to be packaged. Such payroll deductions may include but are not limited to superannuation payments, HECS payments, child support payments, judgement debtor/garnishee orders, union fees and private health fund membership fees.

 

(iii)     Where the employee has elected to sacrifice a part or all of the available payable salary to additional employer superannuation contributions:

 

(a)       The employee shall be provided with a copy of the signed agreement. The salary sacrifice agreement shall be terminated at any time at the employee’s election and shall cease upon termination of the employee’s services with the employer.

 

(b)      Subject to Australian taxation law, the amount of salary sacrificed will reduce the salary subject to appropriate PAYE taxation deductions by the amount sacrificed; and

 

(c)       Any allowance, penalty rate, overtime, payment for unused leave entitlements, weekly workers’ compensation, or other payment, other than any payment for leave taken in service, to which an employee is entitled under the relevant award or any applicable award, Act, or statute which is expressed to be determined by reference to an employee’s salary, shall be calculated by reference to the salary which would have applied to the employee under the salaries clause in the absence of any salary sacrifice to superannuation made under this Award.

 

(iv)     The employee may elect to have the specified amount of payable salary which is sacrificed to additional employer superannuation contributions:

 

(a)       paid into the superannuation scheme established under the First State Superannuation Act 1992 as optional employer contributions; or

 

(b)      subject to the employer’s agreement, paid into a private sector complying superannuation scheme as employer superannuation contributions.

 

(v)       Where an employee elects to salary sacrifice in terms of subclause (iv) above, the employer will pay the sacrificed amount into the relevant superannuation fund.

 

(vi)     Where the employee is a member of a superannuation scheme established under:

 

(a)       the Police Regulation (Superannuation) Act 1906;

 

(b)      the Superannuation Act 1916;

 

(c)       the State Authorities Superannuation Act 1987;

 

(d)      the State Authorities Non-Contributory Superannuation Act 1987; or

 

(e)       the First State Superannuation Act 1992.

 

The employee’s employer must ensure that the amount of any additional employer superannuation contributions specified in subclause (i) above is included in the employee’s superannuable salary which is notified to the New South Wales public sector superannuation trustee corporations.

 

(vii)    Where, prior to electing to sacrifice a part or all of their salary to superannuation, an employee had entered into an agreement with their employer to have superannuation contributions made to a superannuation fund other than a fund established under legislation listed in subclause (v) above, the employer will continue to base contributions to that fund on the salary payable under clause 3. Salaries, of the Award to the same extent as applied before the employee sacrificed that amount of salary to superannuation. This clause applies even though the superannuation contributions made by the employer may be in excess of the superannuation guarantee requirements after the salary sacrifice is implemented.

 

26.  Salary Packaging

 

(i)       By agreement with their employer, employees may elect to package part or all of their salary in accordance with this clause, to obtain a range of benefits as set out in the NSW Health Services Salary Packaging Policy and Procedure Manual, as amended from time to time. Such election must be made prior to the commencement of the period of service to which the earnings relate. Where an employee also elects to salary sacrifice to superannuation under this Award, the combined amount of salary packaging/sacrificing may be up to 100 per cent of salary.

 

Any salary packaging above the fringe benefit exemption cap will attract fringe benefits tax as described in paragraph (iv) below.

 

(ii)      Where an employee elects to package an amount of salary:

 

(a)       Subject to Australian taxation law, the packaged amount of salary will reduce the salary subject to PAYE taxation deductions by that packaged amount.

 

(b)      Any allowance, penalty rate, overtime payment, payment for unused leave entitlements, weekly workers’ compensation, or other payment other than any payment for leave taken in service, to which an employee is entitled under this Award or statute which is expressed to be determined by reference to an employee’s salary, shall be calculated by reference to the salary which would have applied to the employee under this Award in the absence of any salary packaging or salary sacrificing made under this Award.

 

(c)       ‘Salary’ for the purpose of this clause, for superannuation purposes, and for the calculation of Award entitlements, shall mean the Award salary as specified in Clause 3. Salaries, and which shall include ‘approved employment benefits’ which refer to fringe benefit savings, administration costs, and the value of packaged benefits.

 

(iii)     Any pre-tax and post-tax payroll deductions must be taken into account prior to determining the amount of available salary to be packaged. Such payroll deductions may include but are not limited to superannuation payments, HECS payments, child support payments, judgement debtor/garnishee orders, union fees, and private health fund membership fees.

 

(iv)     The salary packaging scheme utilises a fringe benefit taxation exemption status conferred on public hospitals and local health districts, which provides for a fringe benefit tax exemption cap of $17,000 per annum. The maximum amount of fringe benefits-free tax savings that can be achieved under the scheme is where the value of benefits when grossed-up, equal the fringe benefits exemption cap of $17,000. Where the grossed-up value exceeds the cap, the employer is liable to pay fringe benefits tax on the amount in excess of $17,000, but will pass this cost on to the employee. The employer’s share of savings, the combined administration cost, and the value of the package benefits, are deducted from pre-tax dollars.

 

(v)       The parties agree that the application of the fringe benefits tax exemption status conferred on public hospitals and local health districts is subject to prevailing Australian taxation laws.

 

(vi)     If an employee wishes to withdraw from the salary packaging scheme, the employee may only do so in accordance with the required period of notice as set out in the Salary Packaging Policy and Procedure Manual.

 

(vii)    Where an employee ceases to salary package, arrangements will be made to convert the agreed package amount to salary. Any costs associated with the conversion will be borne by the employee, and the employer shall not be liable to make up any salary lost as a consequence of the employee’s decision to convert to salary.

 

(viii)   Employees accepting the offer to salary package do so voluntarily. Employees are advised to seek independent financial advice and counselling to apprise them of the implications of salary packaging on their individual personal financial situations.

 

(ix)     The employer and the employee shall comply with the procedures set out in the NSW Health Services Salary Packaging Policy and Procedure Manual as amended from time to time.

 

27.  Reasonable Hours

 

(i)       Subject to sub-clause (ii) an employer may require an employee to work reasonable overtime at overtime rates unless or as otherwise provided for under the Award.

 

(ii)      An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

 

(iii)     For the purposes of sub-clause (ii) what is unreasonable or otherwise will be determined having regard to:

 

(a)       any risk to employee health and safety;

 

(b)      the employee’s personal circumstances including any family and carer responsibilities;

 

(c)       the needs of the workplace or enterprise;

 

(d)      the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

 

(e)       any other relevant matter.

 

28.  Higher Duties Allowance

 

An employee who is called upon to relieve an employee in a higher classification continuously for five working days or more and who satisfactorily performs the whole of the duties and assumes the whole of the responsibilities of the higher classification, shall be entitled to receive, for the period of relief, the minimum pay of such higher classification.

 

29.  Underpayment and Overpayment of Salaries

 

The following process will apply once the issue of underpayment or overpayment is substantiated.

 

(i)       Underpayment

 

(a)       If the amount underpaid is equal to or greater than one day’s gross base pay the underpayment will be rectified within three working days.

 

(b)      If the amount underpaid is less than one day’s gross base pay it will be rectified by no later than the next normal pay. However, if the employee can demonstrate that rectification in this manner would result in undue hardship, every effort will be made by the employer to rectify the underpayment within three working days.

 

(ii)      Overpayment

 

(a)       In all cases where overpayments have occurred, the employer shall as soon as possible advise the employee concerned of both the circumstances surrounding the overpayment and the amount involved. The employer will also advise the employee of the pay period from which the recovery of the overpayment is to commence.

 

(b)      One off overpayments will be recovered in the next normal pay, except that where the employee can demonstrate that undue hardship would result, the recovery rate shall be at 10% of an employee’s gross fortnightly base pay.

 

(c)       Unless the employee agrees otherwise, the maximum rate at which cumulative overpayments can be recovered is an amount, calculated on a per fortnight basis, equivalent to 10% of the employee’s gross fortnightly base pay.

 

(d)      The recovery rate of 10% of an employee’s gross fortnightly base pay referred to in subclause (ii)(c) above may be reduced by agreement, where the employee can demonstrate that undue hardship would result.

 

(e)       Where an employee’s remaining period of service does not permit the full recovery of any overpayment to be achieved on the fortnightly basis prescribed in subclause (ii)(c) above, the Employer shall have the right to deduct any balance of such overpayment from monies owing to the employee on the employee’s date of termination, resignation or retirement, as the case may be.

 

30.  No Extra Claims

 

Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (or its successor however described), there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2024 by a party to this Award.

 

31.  Area, Incidence and Duration

 

(i)       This Award takes effect from 1 July 2023 and shall remain in force for a period of one year.

 

(ii)      This Award rescinds and replaces the Public Hospital Career Medical Officers (State) Award 2022, published 8 September 2022 (392 I.G. 1004) and all variations thereof.

 

(iii)     This Award shall apply to persons employed in classifications contained herein employed in the NSW Health Service under section 115(1) of the Health Services Act 1997, or their successors, assignees or transmittees.

 

(iv)     In the period 1 July 2023 to the commencement of the first full pay period on or after 1 July 2023, the applicable rates of pay are those that applied immediately prior to the first full pay period on or after 1 July 2023.

 

PART B

 

Table 1 - Allowances

 

Item No.	Clause	Allowance Description	Frequency	Rate from first pay period on or after 01-Jul-2023 $
		In-Charge
1	6	In-charge allowance	Per 12 hours of duty or part thereof	39.20
		On Call
2	11(iii)	On-call Allowance per on-call period which coincides with a day rostered on duty	Per Day	43.00
2	11(iii)	On-call Allowance per on-call period which coincides with a day rostered off duty	Per Day	85.90
2	11(iii)	On Call Per Week (Career Med. Officers)	Per Week	300.90
		Uniform
3	16(ii)(a)	Full uniform including special shoes if required	Per Week	2.89
3	16(ii)(a)	Other cases	Per Week	2.13

 

Schedule 2

 

Grounds and Reasons

 

1.        The Applicant seek a new award to preserve conditions of employment.  The wage rates for 1 July 2023 are not included as the parties continue discussions regarding consent wage rates.

 

2.        The new award rolls over existing conditions currently provided by the award and includes a ‘no extra claims’ clause in the terms contained within Schedule 1 of this application.

 

3.        clarifying meaning or expression without changing the intended provision of the term or condition of employment concerned.

 

4.        Table 1 “Allowances” in Part B of the Award has been reduced to a single column showing only the rate to apply from the first full pay period on or after 1 July 2023. A clause has been added to confirm that the salary and allowances that apply from 1 July 2023 to the first full pay period on or after 1 July 2023 is the rate that applied immediately prior to the first full pay period on or after 1 July 2023.

 

5.        The new award is intended to apply for one year effective from 1 July 2023, subject to any order or award the Commission may make.

 

6.        The award meets the provisions of the Industrial Relations Act 1996 (NSW) and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) as amended by the Industrial Relations (Public Sector Conditions of Employment) Amendment Regulation 2022 (NSW).

 

 

 

N. CONSTANT, Chief Commissioner

 

 

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Printed by the authority of the Industrial Registrar.