Public Hospital Medical Officers (State) Award 2022

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by NSW Ministry of Health.

 

(Case No. 215164 of 2023)

 

 

AWARD

 

PART A

 

Arrangement

 

Clause No.        Subject Matter

 

1.        Definition

2.        Salaries

3.        Payment of Salaries

4.        Qualification Allowance

5.        In-charge Allowance

6.        Hours of Work

7.        Part-Time Employees

8.        Penalty Rates

9.        Time Worked

10.      Meal Breaks

11.      Overtime

12.      On Call and Call Back

13.      Higher Duties Allowance

14.      Annual Leave

15.      Public Holidays

16.      Sick Leave

17.      Maternity, Adoption and Parental Leave

17A.    Lactation Breaks

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

18A.    Family Violence Leave

19.      Long Service Leave

20.      Board and Accommodation

21.      Uniform and Laundry Allowances

22.      Termination of Employment

23.      Settlement of Disputes

24.      Anti-Discrimination

25.      Study Leave

26.      Travelling Allowances

27.      Mobility, Excess Fares and Travelling

28.      Secondment

29.      Relocation Expenses

30.      Labour Flexibility

31.      Salary Packaging

32.      Reasonable Hours

33.      Salary Sacrifice to Superannuation

34.      No Extra Claims

35.      Area, Incidence and Duration

 

PART B

 

Table 1 - Allowances and Other Rates

 

PART C

 

PART A

 

1.  Definitions

 

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

 

"Employer" means the Secretary of the Ministry of Health exercising employer functions on behalf of the Government of New South Wales (and includes a delegate of the Secretary). 

 

"Health Service" means a Local Health District constituted under section 8 of the Health Services Act 1997, a Statutory Health Corporation constituted under section 11 of that Act, and an Affiliated Health Organisation constituted under section 13 of that Act.

 

"Higher Medical Qualifications" means such qualifications obtained by a medical practitioner subsequent to graduation and includes:

 

(i)       post-graduate university degrees and diplomas recognised by the Medical Board of Australia as qualifications, or

 

(ii)      membership or fellowship of the Royal College or Royal Australasian College of Physicians or fellowship of the Royal College or Royal Australasian College of Surgeons or membership or fellowship of the Royal College of Obstetricians and Gynaecologists, or

 

(iii)     such other post-graduate qualifications obtained by examination and recognised by the Medical Board of Australia and acceptable to the employer, including fellowship of the Royal Australian College of General Practitioners.

 

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

 

"Intern" means a medical officer serving in a hospital prior to obtaining full registration with the Medical Board of Australia pursuant to the Health Practitioner Regulation National Law Act.

 

"Registrar" means a medical officer who:

 

(i)       has had at least three years' experience in public hospital service as defined under this Award or any lesser period acceptable to the Ministry of Health, and

 

(ii)      is appointed as a registrar by a hospital, and

 

(iii)     is occupying a position of registrar in an established position as approved by the employer.

 

"Resident" means a medical officer who has obtained full registration.

 

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

 

"Senior Registrar" means a registrar holding higher medical qualifications and occupying a position of senior registrar in an established position as approved by the employer.

 

"Service" for the purpose of clause 2, Salaries, means service before and/or after the commencement of this Award in one or more hospitals or in other institutions approved from time to time by agreement between the parties of this Award.  It shall include service as a medical officer in the Australian Armed Forces and service, whether continuous or not, in other hospitals within the Commonwealth of Australia.

 

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

 

"Weekly Rates" will be ascertained by dividing an annual amount by 52.17857 or a weekly rate can be multiplied by 52.17857 to obtain the annual amount.

 

2.  Salaries

 

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

 

3.  Payment of Salaries

 

(i)       All salaries and other payments shall be paid fortnightly.

 

(ii)      Employees shall have their salary paid into one account with a bank or other financial institution in New South Wales as nominated by the employee, except where agreement as to another method of payment has been reached between the Union and the employer due to the isolation of the work location. 

 

(iii)     Salaries shall be deposited by the employer in sufficient time to ensure that wages are available for withdrawal by employees no later than pay day, provided that this requirement shall not apply where employees nominate accounts with non-bank financial institutions which lack the technological or other facilities to process salary deposits within 24 hours of the employer making deposits with such financial institutions, but in such cases the employer shall take all reasonable steps to ensure that the wages of such employees are available for withdrawal by no later than pay day. 

 

(iv)     Penalty rates and overtime worked during the second week of the pay fortnight may be paid to employees in the next pay period by the employer.

 

(v)       Subject to adequate notice in writing on each occasion, employees who are rostered off on pay day shall be entitled to have their salary deposited before proceeding on their day or days off.

 

(vi)     Underpayment and overpayment of salaries - the following process will apply once the issue of underpayment or overpayment is substantiated.

 

(a)       Underpayment

 

(1)       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.

 

(2)       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.

 

(b)      Overpayment

 

(1)       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.

 

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

 

(3)       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.

 

(4)       The recovery rate of 10% of an employee’s gross fortnightly base pay referred to in subclause (b)(3) above may be reduced by agreement, where the employee can demonstrate that undue hardship would result.

 

(5)       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 (b)(3) 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.

 

4.  Qualification Allowance

 

An allowance detailed in the Medical Officers section of the Health Professional and Medical Salaries Award shall be paid to officers who obtain an appropriate higher medical qualification subject to graduation. 

 

Provided that this clause shall not apply to an officer who is appointed as a Senior Registrar, the salary rate prescribed in clause 2, Salaries, of this Award for such position having taken into account that a higher medical qualification is a prerequisite for appointment. 

 

Provided further that, where an officer in his/her fifth and subsequent years of training is expected to meet the formal requirements of a higher medical qualification in that year, he/she shall be paid half the qualification allowance.

 

5.  In-Charge Allowance

 

An allowance as set out in Item 1 of Table 1, Allowances, shall be paid to medical officers for each twelve hours, or part thereof, of continuous in-charge duty for responsibility for after-hours medical services.

 

6.  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 officers 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 officers 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 officer shall be paid the monetary value of any untaken additional roster leave, calculated at the officer's ordinary time rate of pay as prescribed by clause 2, Salaries, of this Award. 

 

(ii)      Officers 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 four hours in length.

 

(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 officer is not employed by a hospital 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)    Officers 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 clause shall not apply in respect of the granting by the employer of additional roster leave pursuant to this clause.

 

7.  Part-Time Employees

 

(i)       Medical officers engaged on a part-time basis as at 1 June 1993 under the provisions of Agreement No 1 of 1975 made in accordance with section 40BA of the Public Hospitals Act 1929, were able to elect to be employed as part-time employees under the provisions of this clause.  Part-time employees who did not make such an election continue to be subject to the provisions of Agreement No. 1 of 1975 (see Ministry of Health Policy Directive PD2005_474) in lieu of the provisions of this clause.

 

(ii)      A part-time medical officer is one who is appointed by the employer to work a specified number of hours which are less than those prescribed for the same classification employed on a full-time basis under this Award.

 

(iii)     A part-time medical officer shall be entitled to all other benefits of this Award not expressly provided for herein in the same proportion as their ordinary hours of work bear to full-time hours. 

 

(iv)     A part-time medical officer shall be paid an hourly rate calculated on the basis of one thirty-eighth of the appropriate rate prescribed for the same classification employed on a full-time basis under clause 2, Salaries of this Award with a minimum payment for two hours for each start. 

 

(v)       A part-time medical officer shall not be entitled to an additional day off or part thereof as prescribed in subclause (ii) of clause 6, Hours of Work of this Award.

 

(vi)     Annual Leave

 

A part-time medical officer shall be granted on completion of each 12 months service four weeks annual leave on ordinary pay.

 

(vii)    Overtime

 

(a)       Overtime shall be paid for 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 Sundays shall be paid for at the rate of double time. 

 

(b)      Overtime will be paid to part-time medical officers as follows:

 

(1)       All time worked in excess of the ordinary hours as prescribed in clause 6 Hours of Work of this Award; or

 

(2)       All time worked in excess of ten hours in any one shift.

 

(viii)   Public Holidays

 

(a)       For the purposes of this clause, public holidays are as set out in subclause (iv) of clause 15, Public Holidays of this Award.

 

(b)      A public holiday occurring on a part-time medical officer’s ordinary working day shall be allowed to employees without loss of pay.

 

(c)       Where a part-time medical officer is required to and does work on a public holiday, the medical officer shall have their ordinary rostered hours on that day added to the period of their 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 medical officer.

 

(d)      Hours worked on public holidays shall be paid at the rate of time and one half. 

 

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 p.m. and midnight, Monday to Friday - 12.5 per cent.

 

(ii)      Midnight and 7.00 a.m., midnight Sunday to midnight Friday - 25 per cent.

 

(iii)     Midnight Friday and midnight Saturday - 50 per cent.

 

(iv)     Midnight Saturday and midnight Sunday - 75 per cent.

 

9.  Time Worked

 

Time worked means the time during which an officer 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 officer, in waiting to carry out some active function, is studying or resting or sleeping or engaged in any other activity.

 

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

 

Provided further that where an officer attends of his/her own volition outside of hours rostered on duty, or where an officer 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.  Meal Breaks

 

The principles to be applied by the employer in relation to meal breaks for Resident Medical Officers are outlined in Ministry of Health Circular No. 88/251.

 

Day Shifts - Monday to Friday

 

(i)       In the interests of patient care and the health and welfare of medical staff, officers must have a break from duty for the purpose of taking a meal.

 

(ii)      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).

 

 (iii)    If officers are required to work during their meal break they shall be paid for the time worked.

 

(iv)     Medical Administrators are to establish simple and effective procedures in consultation with officers to record when staff are required to work through their meal break and to ensure that payment is made.

 

Shifts Other than Day Shifts - Monday to Friday.

 

The arrangements outlined in Circular No. 83/250 of 19 August, 1983 in relation to meal breaks during shifts other than Day Shifts, Monday to Friday, will continue to apply.

 

11.  Overtime

 

(i)       All time worked by officers in excess of the ordinary hours specified in clause 6, Hours of Work, of this Award, shall be paid at the rate of time and one-half for the first two hours, and double time thereafter provided that all overtime performed on a Sunday, shall be at double time.

 

(ii)      An officer 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:

 

(a)       as set out in Item 2 of Table 1, Allowances, for breakfast when commencing such overtime work at or before 6.00 a.m.;

 

(b)      as set out in Item 2 of Table 1, Allowances, 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 p.m.;

 

(c)       as set out in Item 2 of Table 1, Allowances, for luncheon when such overtime extends beyond 2.00 p.m. on Saturdays, Sundays or holidays;

 

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

 

The rates prescribed in this subclause shall be varied in accordance with any variations in the rates payable under Crown Employees (Public Service Conditions of Employment) Award.

 

12.  On Call and Call Back

 

(i)       An "on call period" is a period during which an officer is required by the employer to be on call.

 

(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 officer shall be paid for each on-call period which coincides with a day rostered on duty an allowance as set out in Item 3 of Table 1, Allowances, and for each on-call period coinciding with a rostered day off an allowance as set in the said Item 3 with a maximum payment as set out in the said Item 3 per week.

 

(iv)     Subject to subclauses (v) - (ix) below, officers who are recalled for duty, whether notified before or after leaving the employer’s premises, shall be paid for all time worked at the appropriate overtime rate, with a minimum of four hours at such rates.

 

(v)       Officers may be required to perform other work that arises during the recall period. Officers shall not be required to work the full four hour minimum payment period if they complete the work they were recalled to perform and any additional work they are required to undertake, within a shorter period.

 

(vi)     The employer must have processes in place for the formal release of officers from recall duty.

 

(vii)    Officers who are not formally released and who are recalled again during the four hour minimum payment period are not entitled to any additional payment until the expiration of the four hour period.

 

(viii)   Officers who are advised they will not be required to perform any additional work and are formally released and who are subsequently recalled again during the four hour minimum payment period, shall be entitled to another four hour minimum payment.

 

(ix)     Officers 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 payment of one hour at such rates.

 

(x)       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 in being available for emergency duty.

 

(xi)     For the purposes of subclause (ix) "clinical appraisal remotely" means as provided in either (a) or (b) below:

 

(a)       assessing (by an on-call resident medical officer or registrar) a patient's physical condition to make a diagnosis or a differential diagnosis away from a hospital that incorporates all of the following:

 

1.        The taking of a telephone call or calls, or receiving an email or emails, from a medical practitioner on duty in a hospital about a patient.

 

2.        Receiving the history of the patient so that the patient's current medical condition and any relevant past medical history including previous surgery and use of medications, if known, is provided.

 

3.        Discussing with the medical practitioner on duty the patient's current medical condition and asking questions in respect of the condition as necessary such that the information provided enables an evaluation of the patient's physical condition.

 

4.        Directing further examination to be conducted as clinically required, and obtaining other clinical information or opinion from other medical practitioners as necessary.

 

5.        Identifying the likely cause of the patient's condition and providing a diagnosis and a prognosis based on the information provided from undertaking 1 to 4 above.

 

6.        Ensuring that there is a sufficient clinical justification for the proposed treatment including, if relevant, admission to hospital.

 

7.        Instructing the medical practitioner on duty in a hospital what course of treatment should be followed including ensuring the proposed treatment is not contraindicated, being satisfied that such treatment is able to be determined, and can be properly implemented, without requiring the return of the on-call resident medical officer or registrar. This would include developing or confirming a management plan, or varying an existing management plan with the endorsement of the staff specialist or VMO responsible for the care of the patient.

 

8.        Directing follow-up requirements and subsequently reviewing the patient, if appropriate, based on those requirements.

 

9.        Complying with relevant NSW Health and local policies, procedures and directions.

 

(b)      the provision of a report by an on call registrar on images forwarded electronically in circumstances where:

 

1.        had the communications technology involved not been utilised the registrar would have had to have returned to the workplace to provide that report; and

 

2.        there has been prior approval at the facility level to the use, and the conditions of use, of such technology by the registrar.

 

(xii)    A clinical appraisal provided remotely pursuant to subclause (xi)(a) above shall attract a minimum payment of one hour at the appropriate overtime rate only in circumstances where, if it had not been provided remotely, the on-call resident medical officer or registrar would have otherwise needed to have returned to the workplace. Any additional requirement to provide further clinical appraisal falling within the hour from which the initial clinical appraisal commenced shall not attract an additional payment. Any time worked beyond the expiration of one hour shall be paid at overtime rates. Time where work is not being performed will not be counted as time for the purposes of overtime payment.

 

13.  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.

 

14.  Annual Leave

 

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

 

(ii)      Officers 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 12, On Call and Call Back, of this Award shall be disregarded when assessing an officer's entitlement under the 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 officer with accrued additional annual leave pursuant to this subclause can elect at any time to be paid an amount equivalent to the value of accrued additional annual 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 in one consecutive period, or, if the officer and the employer so agree, in either two or three separate periods, but not otherwise.

 

(iv)     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 officer, be postponed for a further period not exceeding six months.

 

(v)       If the officer and the employer so agree, the annual leave or any such separate periods, may be taken wholly or partly in advance before the officer 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.    

 

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

 

(vii)    The employer shall give the officer at least two months' notice of the date from which his or her annual leave is to be taken.

 

(viii)   The employer shall pay each officer before entering upon annual leave his or her ordinary rate of salary for the period of leave.  For the purposes of this subclause "ordinary rate of salary" means the Award rate of salary and qualification allowance if applicable.

 

(ix)     Where the employment of an officer is terminated, the officer 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 officer is entitled under this Award.

 

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

 

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

 

(b)      the sum paid by the employer to the officer 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 officer under subclause (ix) of this clause;

 

(c)       the employer shall not be liable to make any payment to the officer under the said subclause (ix) and shall be entitled to deduct the amount of such excess from any remuneration payable to the officer upon the termination of the employment.

 

NOTATION: The conditions under when the annual leave loading shall be paid to officers are the same as generally applied through circulars issued by the Ministry of Health.

 

15.  Public Holidays

 

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

 

(ii)      Where an officer is required to, and does work on any of the public holidays set out in this clause, the officer shall be paid for the hours worked at the rate of time and one-half. In addition, the officer shall have one day added to annual leave for each public holiday so worked unless time off in respect of time worked on such public holiday has been granted.

 

(iii)     Where a public holiday falls on a rostered day off, the officer shall have one day added to annual leave.

 

(iv)     Provided that an employee who has accrued additional annual leave referred to in subclauses (ii) and (iii) of this clause can elect at any time to be paid an amount equivalent to the value of the accrued additional annual 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 as actually taken.

 

(v)       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, Eight Hour 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 is situated.

 

16.  Sick Leave

 

(i)       An officer shall be allowed sick leave on full pay calculated by allowing 76 "ordinary" hours per year 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;

 

(b)      an officer shall not be entitled to sick leave until the expiration of three months' continuous service;

 

(c)       each officer 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 officer shall not be entitled to sick leave on full pay for any period in respect of which such officer is entitled to accident pay or workers' compensation; provided, however, that where an officer is not in receipt of accident pay an employer shall pay to an officer who has sick leave entitlements under this clause, the difference between the amount received as workers' compensation and full pay.  The officer'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 officer is not eligible for sick leave during periods when he/she would have normally been rostered on overtime shifts;

 

(f)       an officer is not entitled to more than 8 hours' sick leave in respect of any one day.

 

(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 19, Long Service Leave, of this Award.

 

(iii)     Full pay for the purpose of this clause shall include the uniform allowance where payable, under clause 21, Uniform and Laundry Allowance, of this Award.

 

(iv)     The employer shall not terminate the services of an officer except on the grounds of misconduct during the currency of any periods of paid sick leave.

 

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

 

17.  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 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 subclause (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 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.

 

(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 subclause (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 subclauses (i)(b) and (c) must be recorded in writing.

 

(iv)     Where an employee wishes to make a request under subclause (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 subclause (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 Ministry Determination.

 

(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.

 

17A.  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.

 

18.  Family and Community Services Leave and Personal/Carers’ Leave

 

(i)       Family and Community Services (FACS) Leave and Personal/Carer’s Leave are separate, and 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 takes 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 subclause (i) of Part B 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 subclause (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 subclause (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 paragraph (iv)(a) above, the employee shall be paid overtime rates in accordance with the provisions of clause 11, 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 subclause (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 subclauses (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. 

 

18A.  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.

 

19.  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 shall be determined in accordance with the provisions of section 7 of the NSW 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 following:

 

(1)       where an officer, after ceasing employment with the employer is re-employed by the employer a subsequent to the 1st July 1974, any service of that officer before he/she was so re-employed shall not be counted for the purpose of determining any long service leave due to that officer 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;

 

(2)       an officer employed at the 1st July 1974, and who was entitled to count broken service under the provisions of the Award in force prior thereto shall be entitled to count such broken service prior to the 1st July 1974.

 

(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 (excluding part-time service under clause 7 of this Award), except as provided in subclause (d) of this clause.

 

(d)      An employee shall be entitled to have previous part-time service under Agreement No.1 of 1975 which is the equivalent of at least two full day’s duty per week taken into account for long service leave purposes in conjunction with full-time service or part-time service under clause 7 of this Award, on the basis of the proportion that the actual number of hours worked each week bears to 40 hours up until 30 June 1987 and bears to 38 on and from 1 July 1987, provided the part-time service merges without break with the subsequent full-time or part-time service.

 

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

 

on full pay;

 

on half pay; or

 

on double pay.

 

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

 

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

 

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

 

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/her leave entitlement in accordance with section 7 of the NSW Health Policy Directive PD2019_010 Leave Matters 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 officer and shall apply only to persons in the employ of the employer on or after the 1st July 1974.  Where an officer 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 officer may be entitled pursuant to this clause.

 

20.  Board and Accommodation

 

(i)       Where an officer lives at a hospital, deductions from his/her salary for accommodation and/or board may be made by the employer at the rates prescribed from time to time by the Public Health System Nurses’ and Midwives’ (State) Award. 

 

(ii)      Where individual meals only are provided, the officer may be charged the charges applicable under the Public Health System Nurses’ and Midwives’ (State) Award.

 

(iii)     No deduction shall be made from the salary of an officer for board and accommodation when the officer is absent on annual, sick or long service leave, provided that the employer shall be entitled to make the deduction for accommodation where the officer:

 

(a)       having been requested to leave his/her room completely vacant fails to do so; or

 

(b)      is absent on sick leave and such absence does not exceed six consecutive days.

 

21.  Uniform and Laundry Allowance

 

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

 

(ii)      Where the 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 4 of Table 1, Allowances;

 

(b)      in other cases, an amount as also set in Item 4 of Table 1. 

 

22.  Termination of Employment

 

Employment may be terminated only by four weeks' notice given in writing either by the employer or the officer at any time during the week or by payment or forfeiture of four weeks' salary as the case may be, provided that the officer and the employer may agree to a lesser period of notice.  Nothing in this clause shall prevent the summary dismissal of an officer for misconduct or neglect of duty.

 

23.  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 Health Service or establishment 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 Union.

 

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

 

(iii)     Whilst these procedures are continuing, no stoppage of work or any form of ban or limitation of work shall be applied.

 

(iv)     The Union reserves 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 Union.  Such committee shall have the power to investigate all matters in dispute and to report to the Chief Executive Officer of the Health Service and the Union respectively with such recommendations 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 Public Health Employees (State) Industrial Committee.

 

(v)       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.

 

24.  Anti-Discrimination

 

(i)       It is intention of the parties bound by this Award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.

 

(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.  Study Leave

 

(i)       Subject to the terms of this clause the employer may grant to officers other than interns, study leave without loss of pay as follows:

 

Face-to-face courses: Half hour study time for every hour of compulsory lecture and/or tutorial attendance, up to a maximum of four hours study time per week. Where no face-to-face course is provided:  A maximum of four hours study time per week for a maximum of 27 weeks per year.

 

(ii)      Study leave shall only be granted in respect of a course:

 

(a)       leading to higher medical qualifications as defined in clause 1, Definitions, of this Award; and

 

(b)      in respect of a qualification which when obtained would be relevant to the needs of the hospital.

 

(iii)     The officer shall submit to the employer a timetable of the proposed course of study and evidence of the officer's enrolment in the course.

 

(iv)     The grant of study leave is subject to the convenience of the employer and should not interfere with the maintenance of essential services or with patient care.

 

(v)       Periods of study leave granted shall not be taken into account for the purposes of calculating overtime payments;

 

(vi)     Study leave granted subject to the terms of this clause, may be accrued to a maximum of seven working days for the purpose of enabling the officer to study prior to a written, oral or clinical examination.  An option to accumulate study leave in terms of this subclause shall be exercised at the commencement of each academic year and the officer shall notify the employer accordingly;

 

(vii)    Officers who have given continuous service of more than one year shall be allowed to accrue study leave not taken up to a maximum of fourteen calendar days.

 

26.  Travelling Allowances

 

(i)       An officer 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 officer drives his/her own vehicle, he/she shall, in lieu, be eligible for a mileage allowance equivalent to the "Transport Allowance" 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 officer who, with the approval of the employer, uses on official business, a motor vehicle maintained primarily for other than official business, shall be paid the above-mentioned mileage allowance from time to time effective. However, where it is estimated that an officer will, with the approval of the employer, 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 850 kilometres of official running, he/she shall be paid at the "Official Business Rate" prescribed by clause 36 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 at the rate in force from time to time throughout the year.

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

 

(a)       occurs when an officer 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 officer 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";

 

(c)       shall include other arrangements as agreed to between the employer and the Union from time to time.

 

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

 

27.  Mobility, Excess Fares and Travelling

 

For the purpose of this clause accustomed place of work shall mean the location where an employee is regularly required to commence duty by the employer.

 

(i)       An employee shall be required to proceed to the accustomed place of work and return home once on each ordinary working day or shift in the employee's own time and at the employee's own expense.

 

(ii)

 

(a)       Where an employee is directed to report for duty to a place of work other than the employee's accustomed place of work the employee shall travel to and from the alternative place of work in the employer's time for those periods in excess of time normally taken to travel to and from the accustomed place of work.

 

(b)      If the excess of travelling time on a particular day or shift is greater than the prescribed ordinary hours of duty for the particular category of staff for that day or shift, then the excess of hours shall be paid at the ordinary rate of pay to the extent of travelling time.

 

(c)       Fares incurred by such employee in excess of the fares normally incurred in travelling to the employee's accustomed place of work and returning home from the accustomed place of work shall be reimbursed.

 

(d)      Where the employee is required to report to an alternative place of work and has the prior approval of the employer to travel by his/her own mode of conveyance, the employee shall be paid a kilometre allowance for kilometres travelled in excess of the kilometres the employee normally travels between the accustomed place of work and home. The kilometre allowance will be prescribed from time to time by the Industrial Relations Secretary.

 

(iii)

 

(a)       Where an employer has determined that an employee or employees should report to a new accustomed place of work on a permanent basis, the decision must be discussed with the affected employee(s) and the local branch of the Union prior to notice of changed accustomed place of work being given.

 

(b)      The employer shall give the employee reasonable notice of the requirement to report to a new accustomed place of work. For the purpose of this subclause "reasonable notice" shall be one calendar month prior to the date the employee is first required to report to the new accustomed place of work.

 

(c)       Where the accustomed place of work is changed on a permanent basis by the employer, the employee shall report to the new accustomed place of work on the date specified by the employer.

 

(d)      If there is disagreement about such a decision after such discussion or if a significant number of employees are involved, the matter should be referred to the Secretary who will discuss the matter with the Union and will determine the date upon which notice will be given to employee(s).

 

(iv)

 

(a)       The provision of this clause shall not apply to an employee appointed to regularly perform relief duties or to employees specifically employed to perform duties at more than one place of work except as provided in (b) hereunder.

 

(b)      If a reliever incurs fares in excess of $5 per day in travelling to and from the relief site, the excess shall be reimbursed.

 

Where a reliever, with the prior approval of the employer, travels by his/her own mode of conveyance and incurs travelling costs in excess of $5 per day to and from the relief site, such excess shall be reimbursed. The rate applicable shall be the kilometre allowance prescribed from time to time by the Industrial Relations Secretary less $5.

 

This $5 shall be reviewed annually by the employer.

 

(v)       No payment shall be made under this clause unless the employer is satisfied that the employee has incurred additional expenditure in having to report to an alternative place of work, at the direction of the employer.

 

(vi)     Travel to an alternative place of work, either by public transport or own mode of conveyance, shall in all instances be by the most direct route.

 

28.  Secondment

 

(i)       Allowance - An officer, other than an intern, seconded to work in a hospital listed at Part C of this Award shall have his/her salary increased by one incremental step, by way of allowance, for the period the officer works in such hospital.

 

For the duration of the officer's secondment, other than periods of leave, the allowance shall be treated as salary for the purpose of calculating overtime and shift penalties.

 

(ii)      Travel - An officer referred to in subclause (i) of this clause shall be allowed a paid journey to Sydney and return by economy class airfare or equivalent thereof for each period of 7 weeks in the employment of a hospital listed at Part C of this Award.

 

At the discretion of the employer the paid journey may be taken in advance.  Such travel may be used for the purpose of furthering the officer's medical education.

 

29.  Relocation Expenses

 

Where an officer is employed by the employer within the metropolitan area and applies for and obtains a permanent position at a country location (being either a position covered by this Award or a Career Medical Officer position), the costs incurred by the officer in respect to removal of furniture and effects and conveyancing in the purchase of a residence are to be refunded by the employer on the following basis:-

 

At the time the appointment is taken up: 50% of costs incurred.

 

After one year's service at the country location: a further 25% of the costs incurred.

 

After two years’ service at the country location: the remaining 25% of the costs incurred.

 

These arrangements become effective in relation to country appointments made after 1 January 1989.

 

30.  Labour Flexibility

 

(i)       The 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 the employee's classification, grouping and/or career stream provided that such duties are not designed to promote de-skilling.

 

(ii)      The 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 the employer pursuant to subclauses (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 higher duties allowances shall apply in such circumstances.

 

31.  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 Policy Directive PD2018_044 Salary Packaging, 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 2. 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 NSW Health Policy Directive PD2018_044 Salary Packaging, as varied from time to time.

 

(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 Policy Directive PD2018_044 Salary Packaging as amended from time to time.

 

32.  Reasonable Hours

 

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

 

(ii)      The 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 subclause (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.

 

33.  Salary Sacrifice to Superannuation

 

(i)       Notwithstanding the salaries prescribed in clause 2, 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, 31 Salary Packaging, of this Award may be made up to one hundred (100) per cent of the salary payable under the relevant 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 of the relevant Award 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 2, 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.

 

34.  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.

 

35.  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 Medical Officers (State) Award 2022 and all variations thereof.

 

(iii)     This Award shall apply to persons employed in classifications contained herein employed in the New South Wales 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 and Other Rates

 

Item No.	Clause	Allowance Description	Frequency	Rate from first pay period on or after 1-Jul-2023
		In Charge
1	5	In charge Allowance	Per 12 hours of duty or part thereof	22.80
		Meal Allowance for Overtime
2	11(ii)	(a) Breakfast at or before 6.00 a.m.	Each	35.65*
2	11(ii)	(b) Evening at least 1 hour after normal ceasing time and extends beyond or is worked wholly after 7.00 pm.	Each	35.65*
2	11(ii)	(c) Lunch beyond 2.00pm Saturdays, Sundays or Holidays	Each	35.65*
		On-call
3	12(iii)	On-call allowance per on-call period which coincides with a day rostered on duty	Per Day	17.70
3	12(iii)	On-call allowance per on-call period which coincides with a day rostered off duty	Per Day	35.50
3	12(iii)	On Call Per Week (Medical Officers)	Per Week	124.10
		Uniform
4	21(iii)	Full uniform including special shoes if required	Per Week	2.89
4	21(iii)	Other Cases	Per Week	2.13

 

* NB: These rates are varied in accordance with any variations in the rates payable under Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.

 

PART C

 

Albury Base Hospital

 

Armidale Hospital

 

Bathurst Base Hospital

 

Byron Central Hospital

 

South East Regional Hospital

 

Broken Hill Base Hospital

 

Coffs Harbour Health Campus

 

Dubbo Base Hospital

 

Goulburn Base Hospital

 

Grafton Base Hospital

 

Griffith Base Hospital

 

Lismore Base Hospital

 

Orange Health Service

 

Port Macquarie Base Hospital

 

Shoalhaven District Memorial Hospital

 

Tamworth Rural Referral hospital

 

Manning Base Hospital (Taree)

 

Tweed Hospital

 

Wagga Wagga Health Service

 

 

 

N. CONSTANT, Chief Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.