METROPOLITAN TEACHING HOSPITALS - SALARIES AND CONDITIONS OF SERVICE AWARD 1986 (MEDICAL OFFICERS)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Commission's Own Motion

APPLICANT

-v-

(Not applicable)

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Acting Senior Commissioner P E Scott

DATE thursDAY, 5 April 2012

FILE NO P 15 OF 2007

CITATION NO. 2012 WAIRC 00200

Result Award varied

Order

HAVING heard Ms C Francis on behalf of the Australian Medical Association (WA) and Ms T Sweeney on behalf of the Minister for Health and Ms C Holmes on behalf of the Department of Commerce, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:

THAT the Metropolitan Teaching Hospitals – Salaries and Conditions of Service Award 1986 (Medical Officers) be varied in accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 15th day of March 2012.

Acting Senior Commissioner P E Scott

PUBLIC SERVICE ARBITRATOR

SCHEDULE

1.  Clause 1. - Title:  Delete this clause in its entirety and insert the following in lieu thereof:

1. - TITLE

This Award shall be known as the WA Public Hospitals (Doctors in Training) Award 2011.

2.  Clause 2. - Scope:   Delete this clause in its entirety and insert the following in lieu thereof:

2. - SCOPE

(1) Subject to subclause (2), this Award shall operate throughout the State of Western Australia and shall apply to all medical practitioners employed by a public hospital board or agency as defined under the Hospitals and Health Services Act 1927 as amended.

(2) This Award shall not apply to medical practitioners covered by the provisions of the WA Public Hospitals (Senior Medical Practitioners) Award 2011.

3.  Clause 3. - Arrangement:  Delete this clause in its entirety and insert the following in lieu thereof:

3. - ARRANGEMENT

1. Title

1B. Minimum Adult Award Wage

2. Scope

3. Arrangement

4. Definitions

5. Contract of Service

6. Conditions of Service

7. Part Time Medical Practitioners

8. Casual Medical Practitioners

9. Salaries

10. Higher Qualifications

11. Higher Duties

12. Hours of Duty

13. Rosters

14. Shift, Weekend and Public Holiday Penalties

15. Overtime

16. On Call and Call Back

17. Meal Allowance

18. Uniforms and Laundry

19. Annual Leave

20. Public Holidays

21. Sick Leave

22. Carer’s Leave

23. Bereavement Leave

24. Examination Leave

25. Study Leave

26. Long Service Leave

27. Parental Leave

28. Short Leave

29. Special Leave

30. District Allowance

31. Introduction of Change

32. Dispute Settlement Procedures

33. Establishment of Consultative Mechanisms

34. Board of Reference

35. No Reduction

36. Term of Award

Schedule - Named Parties

4.  Clause 4. - Definitions:  Delete this clause in its entirety and insert the following in lieu thereof:

4. - DEFINITIONS

“Association” means the Western Australian Branch of the Australian Medical Association Incorporated.

“Doctor in Training” means a medical practitioner who is appointed as an Intern, Resident Medical Officer, Registrar, or Senior Registrar.

“Employer” means the Board of a Public Hospital or Agency established pursuant to the Hospital and Health Services Act 1927 (WA) as amended.

“Intern” means a medical practitioner employed as such by a teaching hospital during the first year of relevant experience following graduation, prior to full registration by the Medical Board of Australia.

“Medical Practitioner” means a medical practitioner as defined under the Health Practitioner Regulation National Law (WA) Act 2010 as amended from time to time and includes Interns, Resident Medical Officers, Registrars and Senior Registrars.

 “Registrar” means a registered medical practitioner employed as a registrar.  A registrar may be appointed with or without the Part 1 Examination of an appropriate specialist qualification recognised by the Australian Medical Council (AMC).

“Resident Medical Officer” means a registered medical practitioner employed in the second or subsequent years of relevant experience following graduation.

“Senior Registrar” means a registered medical practitioner who is either appointed as a Senior Registrar, or a registrar who has obtained an appropriate specialist qualification acceptable to the Australian Medical Council (AMC) or equivalent recognised by the Director General of Health.

5.  Clause 5. – Terms of Appointment:  Delete this clause in its entirety and insert the following in lieu thereof:

5. - CONTRACT OF SERVICE

(1) Appointment to the position of medical practitioner shall be between the medical practitioner and the Employer.  The period of engagement shall be as agreed in writing between the medical practitioner and the Employer and shall normally be for 52 continuous weeks.

(2) The Employer appoints the medical practitioner on the basis that the whole of the medical practitioner's working time shall be devoted to the duties of the appointment.

(3) Service may be terminated by either the employer or the medical practitioner giving notice in accordance with the following -

(a) For contracts of less than 52 weeks or for contracts of an indefinite period - 4 weeks' notice.

(b) For contracts of 52 weeks and up to but not including 104 weeks - 6 weeks' notice.

(c) For contracts of 104 weeks and up to but not including 156 weeks - 8 weeks' notice.

(d) For contracts of 156 weeks' duration or longer - 12 weeks' notice.

In lieu of the giving of the required notice the employer or the medical practitioner may pay or forfeit as the case may be salary commensurate with the residual period of notice otherwise required.  Provided that the employer and the medical practitioner may agree to a lesser period of notice.

(4) In the event of the employer deciding that a medical practitioner should be dismissed, the medical practitioner may appeal to a Board of Reference.

(5) Where a medical practitioner has been dismissed or has given or who has been given notice of termination of service in accordance with the provisions of subclause (3) of this Clause or whose appointment had expired in accordance with the provisions of subclause (1) of this Clause the medical practitioner shall be paid all monies due to such medical practitioner on the last day of service, except where unusual circumstances prevent this in which case payment shall be made as soon as possible thereafter but in any case not more than three working days thereafter.

(6) Medical practitioners may be seconded on the approval of the Minister for Health and after consultation between the Director General of Health and the appropriate Employer, to Government recognised hospitals other than those designated in Clause 2. - Scope of this Award.

Medical practitioners in their intern year may be seconded to positions in Government recognised hospitals other than those designated in Clause 2. - Scope of this Award which are recognised by the Medical Board as appropriate to the medical practitioner's training.

6. Clause 6. – Conditions of Service:  Delete this clause in its entirety and insert the following in lieu thereof:

6. - CONDITIONS OF SERVICE

(1) A medical practitioner shall not be bound, without the consent of the patient, to divulge any information which the medical practitioner has learned in attending the patient, and which was necessary to enable the medical practitioner to prescribe or act for the said patient, to any person other than the Medical Superintendent, Deputy Medical Superintendent or senior medical staff of the hospital, or to the Director General, Health Department of Western Australia or the Director General's delegate when the medical practitioner is employed on secondment to a hospital for which the Director General or the Director General's delegate acts as Medical Superintendent.

(2) Where installation of a telephone is approved by the employer, the cost of installation and rental shall be borne by the employer.  Provided however that where the medical practitioner's contract of employment is for 52 weeks, the employer shall not be liable for the cost of more than one installation during that contract period.

(3) Reasonable costs of travel will be provided for calls to the hospital out of normal working hours.

(4) Any medical practitioner required by the employer to visit another centre in the course of official duties shall have reasonable costs of travel provided.

7. Clause 7. – Part Time Medical Officers:  Delete this clause in its entirety and insert the following in lieu thereof:

7. - PART TIME MEDICAL PRACTITIONERS

(1) Medical practitioners in training positions above Level 5 may be employed to be regularly rostered to work for less than the ordinary weekly hours of duty provided that:-

(a) The medical practitioner occupies a recognised post approved by the appropriate College and the Employer for the purposes of obtaining a postgraduate qualification and for the appointment of a medical practitioner/s on a part time basis in accordance with the College's training requirements.

(b) A medical practitioner employed on a part time basis is employed in accordance with the appropriate College's requirements and in any event for a minimum of 50 per cent of the ordinary weekly hours of a full time medical practitioner.

(c) Payment is made on a pro rata basis to the rate prescribed for the level at which the medical practitioner is employed in proportion to which the part time medical practitioner's ordinary hours bear to normal hours prescribed in subclause (1) of Clause 12. - Hours of Duty.

(2) Notwithstanding the provisions of Clause 12. - Hours of Duty and subclause (1) above, a medical practitioner may be regularly employed on any day, to work less hours than prescribed by Clause 12. - Hours of Duty, subclause (1).  A medical practitioner's minimum weekly hours shall be specified at the commencement of the medical practitioner's employment and be worked in minimum continuous periods of three hours.  The medical practitioner's normal hours shall only be varied in accordance with the provisions of this clause.  The hourly rate shall be calculated on the same basis as prescribed in subclause (1)(c) above subject to any penalties provided for within this Award.

Where the employer wishes to increase the normal hours worked by a part time medical practitioner for a period of two or more weeks and the medical practitioner so agrees in writing, the increased hours shall be deemed to be the medical practitioner's normal hours for that period.  Hours worked in excess of the medical practitioner's normal hours in any roster period shall be paid in accordance with subclause (3)(a) hereunder and Clause 15. - Overtime.

(3) (a) When a medical practitioner is employed under the provisions of this clause, there shall be an entitlement to the same leave as prescribed in this Award for full time medical practitioners, payment being on a pro rata basis in the same proportion that the medical practitioner's normal hours bear to the hours prescribed in subclause (1) of Clause 12. - Hours of Duty.

Provided that the ordinary rate for a medical practitioner who is employed in accordance with the provisions of subclause (2), may be increased by an additional 20% in lieu of leave entitlements.

(b) Where during any qualifying period the ordinary hours of a part time medical practitioner vary as a proportion of the hours prescribed in subclause (1) of Clause 12. - Hours of Duty the ordinary hours worked shall be averaged over the qualifying period.

(4) The employer shall advise the Executive Director of the Association within 28 days of the date of this Award coming into operation as to the number of positions occupied, the days on which and number of hours worked by those medical practitioners employed in a part time capacity.

(5) The employer shall advise the Executive Director of the Association within seven days of any part time office created or altered after this Award comes into operation as to the number of positions occupied, the days on which and number of hours worked by those medical practitioners employed in a part time capacity.

(6) Any dispute as to whether a part time position is necessary shall be referred to the Board of Reference.

8. Clause 7A. – Casual Medical Officers:  Delete this clause in its entirety and insert the following in lieu thereof:

8. - CASUAL MEDICAL PRACTITIONERS

(1) Medical practitioners above Level 4 may be employed by the hour for a period of up to four consecutive weeks in any period of engagement.

(2) Medical practitioners so employed shall be engaged for minimum periods of three hours with their ordinary rate of pay being at the appropriate salary rate prescribed in Clause 9. - Salaries with the addition of a 20% loading in lieu of leave entitlements.

(3) At the beginning of each month the employer shall supply to the Association the following information with respect to casual medical practitioners employed during the preceding month -

(a) The name of the casual medical practitioner/s so employed.

(b) The classification in which such a medical practitioner/s was engaged and the number of hours so engaged.

(c) The rate of salary paid to such medical practitioner/s.

9. Clause 8. – Salaries:  Delete this clause in its entirety and insert the following in lieu thereof:

9. - SALARIES

(1) (a) Salaries or salary ranges applicable to medical practitioners covered by this Award calculated on the basis of the ordinary hours of duty specified in subclause (1) of Clause 12. - Hours of Duty of rostered duty in any period of one week shall be:

The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under the Arbitrated Safety Net Adjustment Principle.

These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received by employees since 1 November 1991 above the rate prescribed in the Award, except where such absorption is contrary to the terms of an industrial agreement.

Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

(b) The salary of an Intern shall be at Level 1.

(c) The salary of a Resident Medical Officer shall be within the range of Levels 2 to 4 inclusive, based on years of relevant experience after graduation.  Level 4 shall apply to 4th and subsequent years of experience after graduation.

(d) The salary of a Registrar shall be within the range of Levels 5 to 8 inclusive based on years of relevant experience in that capacity.

(e) The salary of a Senior Registrar shall be within the range of Levels 9 to 10, based on years of relevant experience in that capacity.

(f) Subject to the provisions of this Award, a medical practitioner shall be employed in accordance with the level of work performed.

(2) Subject to good conduct, diligence and efficiency, a medical practitioner shall proceed from the point of entry in the salary range to the maximum of the range for the particular class of employment according to the increments in such salary range.

(3) Salaries shall be paid at least fortnightly.

(4) It is a term of this Award that the Association undertakes for the duration of the Principles determined by the Commission in Court Session in Application No.  704 of 1991 not to pursue any extra claims, award or over award except when consistent with the State Wage principles.

10. Clause 9. – Higher Qualifications:  Delete this clause in its entirety and insert the following in lieu thereof:

10. - HIGHER QUALIFICATIONS

(1) A medical practitioner, other than a senior registrar, who has obtained an appropriate specialist qualification (acceptable to the Australian Medical Council), shall be paid an allowance of $1278.00 per annum.

(2) The above allowance shall be adjusted at the same time and the same proportion as any adjustment to the minimum weekly salary rate prescribed from time to time for a medical practitioner Level 8.

11. Clause 10. – Higher Duties:  Delete this clause in its entirety and insert the following in lieu thereof:

11. - HIGHER DUTIES

A medical practitioner who is directed by the Employer or a duly authorised senior officer to act in an office which is classified higher than the medical practitioner and who performs the full duties and accepts the full responsibility of the higher office for five consecutive working days or more, shall subject to the provisions of this Award be paid an allowance equal to the difference between the medical practitioner's own salary and the salary the medical practitioner would receive if permanently appointed to the office in which the medical practitioner is so directed to act.

12. Clause 11. – Hours of Duty:  Delete this clause in its entirety and insert the following in lieu thereof:

12. - HOURS OF DUTY

(1) A medical practitioner's ordinary hours of duty shall consist of 38 hours per week to be rostered in accordance with the provisions of Clause 13. - Rosters.  The 38 ordinary hours of duty and any required extra duty (other than on call and/or recall) shall be worked in rostered periods as prescribed in Clause 13. – Rosters.

(2) Medical practitioners' hours of duty shall be worked so as to provide the following time off duty:

(a) Eight days free from ordinary hours of duty in each 28 day cycle.

(b) Where practicable, at least two consecutive days off duty shall be granted and shall not be preceded by a night shift unless the medical practitioner is rostered to work on evening or night shift immediately following rostered days off.

(c) Twelve evenings off, Monday to Friday inclusive between the hours of 6.00 pm and 8.00 am, in each 28 day cycle, provided that, by agreement between the Association and the Employer, designated positions shall be exempted from the provisions of this subclause.

(3) (a) Where a medical practitioner is required to resume duty before having had eight consecutive hours off duty the subsequent hours worked until released from duty for eight consecutive hours, shall be included in excess hours and paid for in accordance with Clause 15. - Overtime.  A medical practitioner released from duty shall be entitled to be absent for eight consecutive hours without loss of pay for ordinary working hours occurring during such absence.

(b) Where necessary, Employers have the right to require medical practitioners to work during their time off periods provided the rostered hours of work of any medical practitioner shall not exceed 75 hours in any period of seven consecutive days nor more than 140 hours in any 14 days or 280 hours in any period of 28 consecutive days.

(4) (a) Medical practitioners shall not be rostered to work more than four consecutive nights.

(b) Medical practitioners shall not be rostered for duty for more than 18 consecutive hours except by agreement between the Employer and medical practitioner.  Where a medical practitioner works beyond 18 consecutive hours, the additional hours shall be included in excess hours and paid for in accordance with Clause 15. - Overtime.

(5) Meal breaks shall be a minimum of 30 minutes and shall not be counted as time worked, provided that where a medical practitioner is held on call within the hospital, the period on call shall be counted as part of the medical practitioners' ordinary working hours.

(6) A medical practitioner shall not be compelled to work for more than five hours without a break for a meal, provided that a medical practitioner who commences work at or before 7.00 am may be required to work for six hours before having a meal break.  Provided further that where rostered duty exceeds nine consecutive hours, an additional meal break shall be provided at the completion of each further period of five hours after the completion of the first meal break.

13. Clause 12. – Rosters:  Delete this clause in its entirety and insert the following in lieu thereof:

13. - ROSTERS

(1) Medical practitioner's hours of duty shall be worked according to a roster or rosters which shall operate over either a 14 day or 28 day period and be exhibited at some reasonably convenient place accessible to the medical practitioners to whom it applies.

(2) The roster or rosters shall set out the medical practitioner's times of commencing and ending each period of duty for a period of not less than 14 consecutive days and such rosters shall be posted at least seven days in advance of their commencement of operation.

(3) Except in cases of emergency or where the medical practitioner concerned so agrees, rosters shall not be amended during their currency.  Provided, however, that by agreement amongst themselves and where appropriate clinically, medical practitioners may replace one another for periods of rostered duty provide that the medical practitioners notify the appropriate personnel of the Employer of the change.

(4) Rosters shall be drawn up so as to provide at least eight hours off between successive periods of duty and allow adequate time for rest and sleep.

(5) Notwithstanding the provisions of the foregoing and Clause 12. - Hours of Duty:

(a) Where the Employer and the medical practitioner agree to a roster that has provisions for hours of duty not in conformity with the foregoing paragraph such roster system shall apply.

(b) Special arrangements may be made by agreement between the Employer and the medical practitioner should an officer need to remain on call or to work during off duty periods specified in the preceding subclauses in order to gain sufficient postgraduate medical training and experience to meet the requirements for a higher qualification.

14. Clause 13. – Payment for Rostered Duties: Delete this clause in its entirety and insert the following in lieu thereof::

14. – SHIFT, WEEKEND AND PUBLIC HOLIDAY PENALTIES

(1) A loading of 12.5% of the ordinary salary shall, subject to subclause (2) hereunder, be paid for time worked on afternoon or night duty as defined hereunder:

(a) afternoon duty - commencing or continuing between 12 noon and 6.00 pm.

(b) night duty - commencing or continuing between 6.00 pm and 4.00 am.

(2) The provisions of subclause (1) of this clause do not apply to a medical practitioner who having commenced duty after 4.00 am completes duty at or before 6.00 pm on the same day.

(3) Where a period of duty up to a maximum of 18 hours, is worked as part of the normal roster, the first eight hours are to be paid at the ordinary rate, unless those hours commenced after 12.00 noon or before 4.00 am, in which case the loading as prescribed in subclause (1) or the weekend rates as prescribed in subclause (5), as the case may be, shall be paid for such additional time worked.

(4) Where a medical practitioner works ordinary rostered hours of duty such that the medical practitioner continues to work after 4.00 am the following day, the loading as prescribed in subclause (1) shall continue to apply.

(5) The loading on the ordinary rates of pay for all work performed during ordinary hours on a Saturday and Sunday shall be 50%.  The rates prescribed in this subclause shall be in substitution for and not cumulative on the rates prescribed in subclause (1) of this clause.

(6) Work performed on a holiday referred to in Clause 20. - Public Holidays, shall be paid for at the rate of 250% or if the Employer and medical practitioner mutually agree, the employee shall be paid for time worked at the rate of 150% and in addition, be allowed to observe the holiday on a day mutually acceptable to the Employer and the medical practitioner, provided that no more than five days may be accumulated at any one time.

(7) Medical Practitioners shall submit claims for payment of penalties within three (3) months of an entitlement being established.

15. Clause 14. – Payment for Excess Hours:  Delete this clause in its entirety and insert in lieu thereof:

15. - overtime

(1) (a) Payment for hours of duty worked in excess of 152 hours in any four week cycle shall be paid at the rate of 150% of the equivalent hourly rate applicable to the medical practitioner calculated according to the following formula.

(b) Provided that payment for hours of duty worked in excess of 232 hours in any four week cycle shall be paid at the rate of 200% of the equivalent hourly rate applicable to the medical practitioner calculated according to the following formula.

(2) In lieu of payment for overtime a medical practitioner, on written request, may at the discretion of the employer, be allowed time off proportional to the payment to which the medical practitioner is entitled up to a maximum of five days in each twelve month period to be taken at a time convenient to the employer.

(3) Medical practitioners shall submit claims for payment of overtime within three (3) months of an entitlement being established.

16. Clause 15. – On Call and Call Back:  Delete this clause in its entirety and insert the following in lieu thereof:

16. – ON CALL AND CALL BACK

(1) On Call

(a) Medical practitioners shall be rostered on call in accordance with clinical need by the Medical Superintendent in consultation with the Head of the Department.

(b) A medical practitioner rostered on call shall be paid an hourly allowance equal to 18.75% of the ordinary hourly full time salary rate prescribed from time to time under Clause 9. - Salaries for a medical practitioner, Level 5.  Provided that payment in accordance with this paragraph shall not be made with respect to any period for which payment is otherwise made in accordance with the provisions of this clause when the medical practitioner is recalled to work.

For the purposes of this subclause, the ordinary hourly divisor shall be 1/38 of the minimum weekly salary rate.

(c) For the purposes of this Award a medical practitioner is on call when the medical practitioner is directed by the Employer to remain readily contactable and available to return to work outside of the medical practitioner's normal hours of duty.

(2) Call Back

(a) (i) When a medical practitioner is recalled to work, the medical practitioner shall be paid at the rate of time and a half of the medical practitioner's salary prescribed under Clause 9. - Salaries with a minimum payment of three hours.

(ii) The medical practitioner shall not be obliged to work for three hours if the work for which the medical practitioner was recalled is completed in less time, provided that if the medical practitioner is called out within three hours of starting work on a previous recall the medical practitioner shall not be entitled to any further payment for the time worked within that period of three hours.

(b) Where a medical practitioner is recalled to work, payment for the call back shall commence from:

(i) In the case of a medical practitioner who is on call, the time the medical practitioner starts work;

(ii) In the case of a medical practitioner who is not on call, the time the medical practitioner embarks on the journey to attend the call.  Provided that where a medical practitioner is recalled within two hours prior to commencing normal duty, any time spent in travelling to work shall not be included with actual duty performed for the purpose of determining payment under this paragraph.

(c) A medical practitioner who is required to use the medical practitioner's motor vehicle when recalled to work shall be reimbursed all expenses incurred in accordance with the provisions of Schedule 2 of the Schedules E, F and G of the Public Service Award 1992.

17. Clause 15A. – Claims for Payment of Overtime or Other Penalties:  Delete this clause in its entirety.

18. Clause 16. – Board and Lodging:  Delete this clause in its entirety and insert the following in lieu thereof:

17. - Meal allowance

(1) A medical practitioner required to work hours in excess of their rostered period of duty on any day, shall, when such additional hours necessitate the taking of a meal away from the medical practitioner's usual place of residence, be supplied by the Employer with any meal required or be reimbursed for each meal purchased at the following rates:-

Breakfast $10.45

Lunch  $12.80

Evening  $15.40

Supper  $10.45

(2) These rates shall be automatically adjusted in accordance with adjustments to the rates prescribed in Schedule H – Overtime Allowance, Part II Meals of the Public Service Award 1992.

(3) Such reimbursement shall be in addition to any payment for overtime to which the medical practitioner is entitled.

19. Clause 17. – Uniforms and Laundry:  Delete this clause in its entirety and insert the following in lieu thereof:

18. - UNIFORMS AND LAUNDRY

Protective clothing and uniforms shall be supplied free of charge to each medical practitioner and these shall be laundered at the expense of the Employer.  The protective clothing remains the property of the Employer concerned and must be returned to the Employer at the completion of the medical practitioner's period of service.

20. Clause 18. - Annual Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

19. - ANNUAL LEAVE

(1) (a) A full time medical practitioner shall be entitled to 4 weeks annual leave per annum.  The entitlement accrues pro-rata on a weekly basis.

(b) Medical practitioners who are rostered to work their ordinary hours on Sundays and/or public holidays during a qualifying period of employment for annual leave shall be entitled to receive additional annual leave as follows -

(i) If 35 ordinary shifts on such days have been worked - one week.

(ii) If less than 35 ordinary shifts on such days have been worked the medical practitioner shall be entitled to have one additional day's leave for each seven ordinary shifts so worked, provided that the maximum additional leave shall not exceed five working days.

(c) A medical practitioner who during a qualifying period towards an entitlement of annual leave was employed continuously on both a full-time and part-time basis or a part-time basis only may elect to take a lesser period of annual leave calculated by converting the part-time service to equivalent full-time service.

(2) A medical practitioner may take annual leave during the period in which it accrues, but the time during which the leave may be taken is subject to the approval of the employer.  All annual leave taken shall be at the rate of salary applicable at the time of taking such leave.

(3) When the convenience of the hospital is served the employer may approve the deferment of the commencing date for taking annual leave, but such approval shall only remain in force for one year.

The employer may renew the approval referred to immediately above for a further period of a year or further periods of a year but so that a medical practitioner does not at any time accumulate more than three years' entitlement.

Where the convenience of the employer is served the employer may approve the deferment of the commencement date for taking annual leave so that a medical practitioner accumulates more than three years' entitlement, subject to any condition which the employer may determine.

When a medical practitioner who has received approval to defer the commencement date for taking annual leave under this subclause next proceeds on annual leave, the annual leave first accrued shall be the first leave taken.

(4) Notwithstanding the provisions of this clause, the employer may direct a medical practitioner to take accrued annual leave and may determine the date on which such leave shall commence.

(5) Medical practitioners upon request shall receive their ordinary pay and any allowances due to them for the period of their annual leave prior to going on such annual leave.

(6) (a) If a practitioner lawfully leaves their employment, or their employment is terminated by the employer through no fault of the practitioner, before the practitioner has taken annual leave to which they are entitled, the practitioner is to be paid for the untaken leave.

(b) Annual leave may also, by agreement between the Employer and practitioner, be taken in advance of it having accrued.  In such a case the advance payment shall be offset against any future leave accrual or against monies otherwise payable to the practitioner on termination.  No refund is required in the event of the death of the practitioner.

(c) In addition to any payment to which a medical practitioner may be entitled under this clause, where a medical practitioner's employment is terminated after the completion of 52 weeks' continuous service and the medical practitioner has not been allowed the annual leave prescribed under this Award, the medical practitioner shall be given payment in lieu of that leave.

(7) A medical practitioner shall be entitled to the payment of a 17.5% loading when proceeding on annual leave.

(8) (a) The medical practitioner shall be paid for any period of annual leave prescribed by this clause at the medical practitioner's ordinary rate of salary, and in the case of medical practitioners providing services pursuant to Clause 14. – Shift, Weekend and Public Holiday Penalties of this award, such payments shall include the shift and weekend penalties the medical practitioner would have received had the medical practitioner not proceeded on annual leave.  Where it is not possible to calculate the shift and weekend penalties the medical practitioner would have received, the medical practitioner shall be paid at the rate of the average of such payments made each week over the four weeks prior to taking leave.

A medical practitioner who is granted additional annual leave in accordance with paragraph (b) of subclause (1) shall be paid a loading equivalent to 20% of normal salary for the additional leave or shift and weekend penalties the medical practitioner would have received had the medical practitioner not proceeded on annual leave, whichever is the greater.

(b) The loading shall be calculated on the medical practitioner's current salary rate and paid on a maximum of four weeks' annual leave or five weeks' annual leave in the case of a medical practitioner who accrues an additional week's leave in accordance with paragraph (b) of subclause (1) of this clause.  The maximum loading payable on four weeks' annual leave shall not exceed the Average Weekly Total Earnings of All Males in Western Australia, as published by the Australian Bureau of Statistics, for the September quarter of the year immediately preceding that in which such leave commences.  The maximum payment to medical practitioners who are granted an additional week's annual leave shall not exceed 5/4ths of the Average Weekly Total Earnings of All Males in Western Australia, as published by the Australian Bureau of Statistics, for the September quarter of the year immediately preceding that in which the annual leave commences.

(c) The following additional conditions shall apply -

(i) When annual leave is approved to be taken in periods of less than four weeks, a pro rata loading shall be paid at the rate applicable when such leave is taken.

(ii) A medical practitioner who has been permitted to proceed on annual leave and who ceases duty before completing the required continuous service to accrue such leave must refund the value for the unearned pro rata portion, but no refund is required in the event of the death of a medical practitioner.

(iii) Annual leave commencing in any year and extending without a break into the following year attracts the loading calculated on the salary applicable on the day such leave commenced.

(iv) The loading payable on approved accumulated annual leave shall be at the rate applicable at the date such leave is taken.  Under these circumstances a medical practitioner can receive up to the maximum loading for the approved accumulated annual leave in addition to the loading for the current year's entitlement.

(v) Payment made for annual leave on the retirement or resignation of a medical practitioner shall include the loading calculated in accordance with the provisions of this subclause.  The loading shall also be included in the payment made for annual leave to the widow/er or estate of a deceased medical practitioner.

(vi) The loading prescribed in this subclause shall not apply to proportionate leave on termination.

(9) In the case of any medical practitioner transferring from one employer to another and who is covered by this Award the annual leave entitlement shall be transferred.

(10) Payment in lieu of annual leave shall be made on the death, resignation or retirement of a medical practitioner.

21. Clause 18A. – Public Holidays:  Delete this clause in its entirety and insert the following in lieu thereof:

20. - PUBLIC HOLIDAYS

(1) A medical practitioner employed on a full time basis is entitled to -

(a) (i) The following public holidays in accordance with the Public and Bank Holidays Act, 1972 -

New Year's Day

Australia Day

Labour Day

Good Friday

Easter Monday

Anzac Day

Foundation Day

Sovereign's Birthday

Christmas Day

Boxing Day

(ii) When any of the days mentioned in placitum (i) of paragraph (a) hereof falls on a Saturday or Sunday the holiday shall be observed on the next succeeding Monday, provided that when Boxing Day falls on a Saturday, Sunday or Monday the holiday shall be observed on the next succeeding Tuesday.

(b) Two additional days of paid leave per calendar year which may be taken at a time mutually agreed between the employer and employee provided that:

(i) these days are not cumulative and may only be taken in the year in which they fall due;

(ii) not more than one day may be taken before Easter Monday;

(iii) the employer and employees may agree alternative arrangements for the taking of these days or payment in lieu thereof.

(2) (a) When any of the days observed as a holiday in this clause fall during a period of annual leave the holiday or holidays shall be observed on the next succeeding work day or days as the case may be after completion of that annual leave.

(b) When any of the days observed as a holiday as prescribed in this clause fall on a day when a medical practitioner is rostered off duty and the medical practitioner has not been required to work on that day the medical practitioner shall be paid as if the day was an ordinary working day or if the employer agrees be allowed to take a day's holiday in lieu of the holiday at a time mutually acceptable to the employer and the medical practitioner.

(3) A medical practitioner who is required to be on call in accordance with the provisions of Clause 16. - On Call and Call Back of this Award on a day observed as a public holiday during what would normally have been the medical practitioner's ordinary hours shall be allowed to observe that holiday on a day mutually acceptable to the hospital and the medical practitioner.

(4) A medical practitioner employed on part time basis shall be entitled to public holidays and public service holidays in accordance with subclause (3)(a) of Clause 7. - Part Time Medical practitioners of this Award.

22. Clause 19. - Sick Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

21. - SICK LEAVE

(1) A medical practitioner who is unfit for duty due to illness or injury shall, as soon as possible, notify the Medical Superintendent of the fact and shall also advise the likely date of resuming duty.

(2) No sick leave with pay exceeding two consecutive working days shall be granted without an adequate medical certificate or other evidence that would satisfy a reasonable person.

(3) A medical practitioner who is unable to resume duty on the expiration of the period shown in the first certificate, shall produce a further certificate and shall continue to do so upon the expiration of the period respectively covered by such certificates.

(4) Where a medical practitioner is ill during a period of annual leave and produces at the time, or as soon as practicable thereafter, medical evidence to the satisfaction of the employer that the medical practitioner is or was as a result of the illness confined to the medical practitioner's place of residence or a hospital for a period of at least seven consecutive calendar days, the employer may grant the medical practitioner sick leave for the period during which the medical practitioner was so confined and reinstate the medical practitioner's annual leave equivalent to the period of confinement.

(5) Where a medical practitioner is ill during the period of long service leave and produces at the time, or as soon as practicable thereafter, medical evidence to the satisfaction of the employer that the medical practitioner is or was confined to the medical practitioner's place of residence or a hospital for a period of at least fourteen consecutive calendar days, the employer may grant the medical practitioner sick leave for the period during which the medical practitioner was so confined and reinstate the medical practitioner's long service leave equivalent to the period of confinement.

(6) The basis for determining the sick leave that may be granted shall be ascertained by crediting the medical practitioner concerned with the following periods, such leave shall be cumulative:

(7) Where a medical practitioner is duly absent on account of illness and the medical practitioner's entitlement to sick leave on full pay is exhausted, the medical practitioner may, with the approval of the employer, elect to convert any part of the entitlement to sick leave on half pay to sick leave on full pay, but so that the sick leave entitlement on half pay is reduced by two days for each day of sick leave on full pay that the medical practitioner received by the conversion.

(8) No sick leave shall be granted with pay if the illness or injury has been caused by misconduct of the medical practitioner or in any case of absence from duty without sufficient cause.

(9) Where a medical practitioner suffers an injury within the meaning of Section 5 of the Workers' Compensation and Injury Management Act 1981, which necessitates that practitioner being absent from duty, sick leave with pay shall be granted to the extent of sick leave credits.  In accordance with Section 80(2) of the Workers' Compensation and Injury Management Act 1981 where the claim for workers' compensation is decided in favour of the medical practitioner, sick leave credit is to be reinstated and the period of absence shall be granted as sick leave without pay.

(10) Where a medical practitioner resigns or is terminated by the Employer through no fault of the medical practitioner and is engaged by another respondent to this Award within seven days of the expiration of any period for which payment in lieu of annual leave or public holidays has been made, the period of sick leave that has accrued to the medical practitioner's credit shall remain to such medical practitioner's credit and the provision of subclause (6) shall continue to apply to such medical practitioner.

If a practitioner was, immediately prior to being employed by the employer, employed by any other WA government employer, or by the Commonwealth or any other State of Australia, and the period between the date when the practitioner ceased previous employment and the date of the practitioner commencing employment with the employer does not exceed one week, or such further period as the employer determines, the employer may credit that practitioner additional sick leave credits up to those held at the date the  practitioner ceased the previous employment.

(11) A pregnant medical practitioner shall not be refused sick leave by reason only that the illness or injury encountered by the medical practitioner is associated with the pregnancy.

23. Immediately following Clause 21. - Sick Leave, insert two new clauses, Clause 22. – Carers Leave and Clause 23. - Bereavement Leave as per the following:

22. - CARERS LEAVE

(1) An employee is entitled to use, each year, up to ten (10) days of the employee's sick leave entitlement to provide care or support to a member of the employee's family or household who requires care or support because of:

(a) an illness or injury of the member; or

(b) an unexpected emergency affecting the member.

(2) An employee shall, wherever practicable, give the employer notice of the intention to take carer's leave and the estimated length of absence. If it is not practicable to give prior notice of absence, an employee shall notify the employer as soon as possible on the first day of absence. Where possible, an estimate of the period of absence from work shall be provided.

(3) An employee shall provide, where required by the employer, evidence to establish the requirement to take carers leave. An application for carers leave exceeding two consecutive working days shall be supported by evidence that would satisfy a reasonable person of the entitlement.

(4) The definition of family shall be the definition of ‘relative” contained in the Western Australian Equal Opportunity Act 1984.  That is, a person who is related to the officer by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependant on, or is a member of the household of, the officer. “Member of the employee's household” means a person who, at or immediately before the relevant time for assessing the employee's eligibility to take leave, lived with the employee.

(5) Carers leave may be taken on an hourly basis or part thereof.

(6) Where an employee cannot take paid carer's leave for a particular occasion, an employee is entitled to unpaid carer's leave of up to two days for each occasion on which a member of the employee's family or household requires care and support because of:

(a) an illness or injury of the member;

(b) an unexpected emergency affecting the member; or

(c) the birth of a child by the member.

23. - BEREAVEMENT LEAVE

(1) Medical practitioners including casuals shall on the death of:

(a) the spouse or de-facto partner of the medical practitioner;

(b) the child, step-child or grandchild of the medical practitioner (including an adult child, step-child or grandchild);

(c) the parent, step-parent or grandparent of the medical practitioner;

(d) the brother, sister, step brother or step sister; or

(e) any other person who, immediately before that person's death, lived with the medical practitioner as a member of the medical practitioner's household;

be eligible for up to two (2) days paid bereavement leave, provided that at the request of a medical practitioner the employer may exercise discretion to grant bereavement leave to a medical practitioner in respect of some other person with whom the medical practitioner has a special relationship.

(2) The two (2) days need not be consecutive.

(3) Bereavement leave is not to be taken during any other period of leave.

(4) Payment of such leave may be subject to the medical practitioner providing evidence, if so requested by the employer, of the death or relationship to the deceased that would satisfy a reasonable person.

(5) A medical practitioner requiring more than two (2) days bereavement leave in order to travel overseas in the event of the death overseas of a member of the medical practitioner's immediate family may, upon providing adequate proof, in addition to any bereavement leave to which the medical practitioner is eligible, have immediate access to annual leave and/or accrued long service leave or leave without pay provided all accrued leave is exhausted.

(6) Travelling time for Regional Medical Practitioners

(a) Subject to prior approval from the employer, a medical practitioner entitled to bereavement leave and who, as a result of such bereavement, travels to a location within Western Australia that is more than 240 km from their workplace will be granted paid time off for the travel period undertaken in the medical practitioner’s ordinary working hours up to a maximum of 15 hours per bereavement. The employer will not unreasonably withhold approval.

(b) The employer may approve additional paid travel time within Western Australia where the medical practitioner can demonstrate to the satisfaction of the employer that more than two days travel time is warranted.

(c) The provisions of sub clause (6) are not available to medical practitioners whilst on leave without pay or sick leave without pay.

(d) The provisions of sub clauses (6) (a) and (b) apply as follows.

(i) A medical practitioner employed on a fixed term contract for a period greater than 12 months, shall be credited with the same entitlement as a permanent medical practitioner for each full year of service and pro rata for any residual portion of employment.

(ii) A medical practitioner employed on a fixed term contract for a period less than 12 months shall be credited with the same entitlement on a pro rata basis for the period of employment.

(iii) A part time medical practitioner shall be entitled to the same entitlement as a full time medical practitioner for the period of employment, but on a pro rata basis according to the number of ordinary hours worked each fortnight.

(iv) For casual medical practitioners, the provisions apply to the extent of their agreed working arrangements.

24. Clause 20. – Examination Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

24. - EXAMINATION LEAVE

(1) Upon application medical practitioners shall be granted leave with pay in order to attend examinations within Australia and New Zealand for higher qualifications which have been approved by the employer.

(2) Leave granted shall be such as to allow the medical practitioner to travel to and from the centre at which the examination is to be held by the fastest means possible.  The medical practitioner will be free from duties on a working day for a study day, immediately preceding the examination.

(3) Any leave granted under the provisions of this Clause shall be exempt from and in addition to the provisions of Clause 19. - Annual Leave, of this Award.

(4) Where a medical practitioner has been granted leave under this Clause, notification of the results of the examination shall be forwarded to the employer on receipt by the medical practitioner or as soon as is practicable thereafter.

25. Clause 21. – Study Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

25. - STUDY LEAVE

(1) Upon application a medical practitioner shall be granted up to two weeks study leave per annum, to be taken within one month of the date of the approved examination for which such medical practitioner is studying.  Such leave shall form part of the medical practitioner's annual leave entitlement.

(2) Applications for leave under this Clause shall be made to the employer at least 2 months prior to the commencement of the leave and shall include evidence of registration for the examination.

(3) Special leave for additional study leave may be granted at the discretion of the employer.

26. Clause 22. - Long Service Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

26. - LONG SERVICE LEAVE

(1) (a) A medical practitioner employed on a full time basis is entitled to 13 weeks long service leave on full pay on the completion of a period of seven years of continuous service and an additional 13 weeks of long service leave on full pay for each subsequent period of seven years of continuous service completed by the medical practitioner.

(b) A medical practitioner employed on a part time basis shall be entitled to long service leave in accordance with this Clause, payment for which shall be calculated in accordance with Clause 7. - Part Time Medical practitioners, of this Award.

(2) (a) Notwithstanding the provisions of subclause (1) above a medical practitioner who, during a qualifying period towards an entitlement of long service leave was employed continuously on both a full time and part time basis or a part time basis only may elect to take a lesser period of long service leave calculated by converting the part time service to equivalent full time service.

(b) A medical practitioner who has elected to compact an accrued entitlement to long service leave in accordance with this subclause shall only take such leave in one period.  In such circumstances the period excised as "continuous service" in subclause (1) shall be 13 weeks.

(3) A medical practitioner shall take the long service leave to which an entitlement has accrued at the convenience of the employer.

(4) Subject to the approval of the employer a medical practitioner shall take long service leave at any time within three (3) years of the leave becoming due.  Provided that the employer may approve the deferment of taking long service leave beyond three (3) years in "exceptional circumstances".

"Exceptional circumstances" shall include retirement within five (5) years of the date of entitlement.

Approval to defer the taking of long service leave may be withdrawn or varied at any time by the employer giving the medical practitioner notice in writing of the withdrawal or variation.

(5) Upon the application of a medical practitioner, the employer may approve the taking by the medical practitioner of -

(a) double the period of long service leave entitlement on half pay instead of the period of long service leave entitlement on full pay; or

(b) any portion of long service leave entitlement on full pay or double the portion on half pay, provided that the minimum portion of long service leave entitlement taken shall be one complete month's entitlement or a multiple thereof.

(6) Continuous service shall not include -

(a) any period during which a medical practitioner is absent on a long service leave entitlement or any portion thereof;

(b) any period exceeding two weeks during which the medical practitioner is absent on leave without pay, unless the employer determines otherwise; and

(c) any service by a medical practitioner who resigns, is dismissed or whose services are otherwise terminated other than service prior to such resignation, dismissal or termination when that prior service had actually entitled the medical practitioner to long service leave.

(7) A lump sum payment for long service leave accrued in accordance with this Clause and for pro-rata long service leave shall be made in the following cases:

(a) As a retiring allowance, to a medical practitioner who retires at or over the age of fifty five years or who is retired on the grounds of ill health, provided that no payment shall be made for pro-rata long service leave unless the medical practitioner has completed not less than twelve months' continuous service.

(b) To a medical practitioner who not having resigned is retired for any other cause; provided that no payment shall be made for pro-rata long service leave unless the medical practitioner has completed not less than three years' continuous service before the date of retirement.

(c) To the estate of a medical practitioner in the event of death, unless the medical practitioner is survived by a spouse legally dependent on the medical practitioner or some other person legally so dependent who is approved by the employer for the purpose.  Provided that no payment shall be made for pro-rata long service leave unless the medical practitioner had completed not less than twelve months' continuous service prior to the date of death.

(8) (a) A medical practitioner may, prior to commencing long service leave, request approval for the substitution of another date for the commencement of long service leave and the employer may approve such substitution.

(b) Subject to the provisions of subclause (6) the service of a medical practitioner shall not be deemed to have been broken if the medical practitioner's employment is ended by the employer for any reason other than misconduct or unsatisfactory service but only if -

(i) the medical practitioner resumes employment under this Award not later than six months from the day on which the employment ended; and

(ii) payment pursuant to subclause (7) of this clause has not been made.

(9) (a) If a practitioner, immediately prior to being employed by the employer was employed by any other WA Government employer or by the Commonwealth or any other State of Australia, and the period between the date when that practitioner ceased the previous employment and the date of commencing employment with the new employer does not exceed one week, or such further period as the employer determines, that practitioner shall be entitled to thirteen weeks of long service leave on full pay on the date determined by:

(i) calculating the pro rata portion of long service leave to which the practitioner would have been entitled up to the date of appointment by the employer in accordance with the provisions that applied to the previous employment referred to, but in calculating that period of pro rata long service leave, any long service leave taken or any benefit granted in lieu of any such long service leave during that employment shall be deducted from any long service leave to which the practitioner may become entitled under this clause; and

(ii) by calculating the balance of the long service leave entitlement of the practitioner upon appointment by the employer in accordance with the provisions of subclause (1) of this clause.

(b) In addition to any entitlement arising from the application of paragraph (a) of this subclause, a practitioner previously employed by any other WA Government employer may, on approval of the employer be credited with any period of long service leave to which the practitioner became entitled during the former employment but had not taken at the date of appointment with the employer provided the former employer had given approval for the practitioner to accumulate the entitlement.

(c) A practitioner previously employed by the Commonwealth or by any other State of Australia shall not proceed on any period of long service leave without the express approval of the employer until the practitioner has served a period of not less than three years continuous service under this Award and becomes entitled to long service leave on full pay.

(d) Nothing in this Agreement confers on any practitioner previously employed by the Commonwealth or by any other State of Australia any entitlement to a complete period of long service leave that accrued in the practitioner’s favour prior to the date on which the practitioner commenced employment under this Award.

(10) A practitioner who has elected to retire at or over the age of 55 years and who will complete not less than twelve months' continuous service before the date of retirement may apply to take pro rata long service leave before the date of retirement, based on continuous service of a lesser period than that prescribed by subclause (1) for a long service leave entitlement.

(11) Long service leave accrued prior to the introduction of this Award shall remain to the credit of the medical practitioner.

27. Clause 23. - Maternity Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

27. - PARENTAL LEAVE

(1) Definitions

(a) “Employee” includes full time, part time, permanent, fixed term contract and “eligible” casual employees.

(b) A casual employee is “eligible” if the employee -

(i) has been engaged by the public sector on a regular and systematic basis for a sequence of periods of employment during a period of at least twelve (12) months; and

(ii) but for an expected birth of a child to the employee or the employee’s spouse or de facto partner or an expected placement of a child with the employee with a view to the adoption of the child by the employee, would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.

(c) Without limiting sub clause (1)(b), a casual employee is also “eligible” if the employee –

(i) was engaged by the public sector on a regular and systematic basis for a sequence of periods during a period (the first period of employment) of less than twelve (12) months; and

(ii) at the end of the first period of employment, the employee ceased, on the employer’s initiative, to be so engaged by the public sector employer; and

(iii) the public sector employer later again engaged the employee on a regular and systematic basis for a further sequence of periods during a period (the second period of employment) that started not more than three months after the end of the first period of employment; and

(iv) the combined length of the first period of employment and the second period of employment is at least twelve (12) months; and

(v) the employee, but for an expected birth of a child to the employee or the employee’s spouse or de facto partner or an expected placement of a child with the employee with a view to adoption of the child by the employee, would have a reasonable expectation of continuing engagement in the public sector on a regular and systematic basis.

(d) “Partner” means a person who is a spouse or de facto partner.

(e) “Primary Care Giver” is the employee who will assume the principal role for the care and attention of a child/children. The employer may require confirmation of primary care giver status.

(f) “Public sector” means an employing authority as defined in Section 5 of the Public Sector Management Act 1994 (WA).

(g) “Replacement Employee” is an employee specifically engaged to replace an employee proceeding on parental leave.

(2) Entitlement to Parental and Partner Leave

(a) An employee is entitled to a period of up to 52 weeks unpaid parental leave in respect of the:

(i) birth of a child to the employee or the employee's partner; or

(ii) adoption of a child who is not the child or the stepchild of the employee or the employee's partner; is under the age of five (5); and has not lived continuously with the employee for six (6) months or longer.

(b) An employee, other than an eligible casual employee, identified as the primary care giver of a child and who has completed twelve months continuous service in the Western Australian public sector shall be entitled to fourteen weeks paid parental leave which will form part of the 52 week entitlement provided in subclause (2)(a) of this clause.

(c) An employee may take the paid parental leave specified in subclause (2)(b) at half pay for a period equal to twice the period to which the employee would otherwise be entitled.

(d) A pregnant employee can commence the period of paid parental leave any time up to six (6) weeks before the expected date of birth and no later than four (4) weeks after the birth.  Any other primary care giver can commence the period of paid parental leave from the birth date or for the purposes of adoption from the placement of the child but no later than four (4) weeks after the birth or placement of the child.

(e) Paid parental leave for primary care purposes for any one birth or adoption shall not exceed fourteen weeks.

(f) The paid and unpaid parental leave entitlement up to a maximum of 52 weeks may be shared between partners assuming the role of primary care giver.

(g) Parental leave may only be taken concurrently by an employee and his or her partner as provided for in subclause (3) or under special circumstances with the approval of the employer.

(h) Where less than the standard parental leave is taken the unused portion of the period of paid or unpaid leave cannot be preserved in any way.

(i) An employee may elect to receive pay in advance for the period of paid parental leave at the time the parental leave commences, or may elect to be paid the entitlement on a fortnightly basis over the period of the paid parental leave.

(j) An employee is eligible, without resuming duty, for subsequent periods of parental leave in accordance with the provisions of this clause.

(3) Partner Leave

(a) An employee who is not a primary care giver shall be entitled to a period of unpaid partner leave of up to one (1) week at the time of the birth of a child/children to his or her partner.  In the case of adoption of a child this period shall be increased to up to three (3) weeks unpaid leave.

(b) The employee may request to extend the period of unpaid partner leave up to a maximum of eight weeks.

(c) The employer is to agree to an employee’s request to extend their partner leave under  sub clause (3)(b) unless:

(i) having considered the employee’s circumstances, the employer is not satisfied that the request is genuinely based on the employee’s parental responsibilities; or

(ii) there are grounds to refuse the request relating to its adverse effect on the employer’s business and those grounds would satisfy a reasonable person. These grounds include, but are not limited to:

· cost;

· lack of adequate replacement staff;

· loss of efficiency; and

· impact on the production or delivery of products or services by the employer.

(d) The employer is to give the employee written notice of the employer’s decision on a request for extended partner leave. If the employee’s request is refused, the notice is to set out the reasons for the refusal.

(e) An employee who believes their request for extended partner leave under sub clause (3)(b) has been unreasonably refused may seek to enforce it as a minimum condition of employment and the onus will be on the employer to demonstrate that the refusal was justified in the circumstances. 

(f) The taking of partner leave by an employee shall have no effect on their or their partner’s entitlement, where applicable, to paid parental leave under this clause.

(4) Birth of a child

(a) An employee shall provide the employer with a medical certificate from a registered medical practitioner naming the employee, or the employee's partner confirming the pregnancy and the estimated date of birth.

(b) If the pregnancy results in other than a live child or the child dies in the fourteen weeks immediately after the birth, the entitlement to paid parental leave remains intact.

(5) Adoption of a child

(a) An employee seeking to adopt a child shall be entitled to two (2) days unpaid leave to attend interviews or examinations required for the adoption procedure.  Employees working or residing outside the Perth metropolitan area are entitled to an additional day’s unpaid leave.  The employee may take any paid leave entitlement in lieu of this leave.

(b) If an application for parental leave has been granted for the adoption of a child, which does not eventuate, then the period of paid or unpaid parental leave is terminated.  Employees may take any other paid leave entitlement in lieu of the terminated parental leave or return to work.

(6) Other leave entitlements

(a) An employee proceeding on unpaid parental leave may elect to substitute any part of that leave with accrued annual leave or long service leave for the whole or part of the period of unpaid parental leave.

(b) Subject to all other leave entitlements being exhausted, an employee shall be entitled to apply for leave without pay following parental leave to extend their leave by up to two (2) years.  The employer is to agree to a request to extend their leave unless:

(i) the employer is not satisfied that the request is genuinely based on the employee’s parental responsibilities; or

(ii) there are grounds to refuse the request relating to its adverse effect on the employer’s business and those grounds would satisfy a reasonable person. These grounds include, but are not limited to:

· cost;

· lack of adequate replacement staff;

· loss of efficiency;

· impact on the production or delivery of products or services by the employer.

(c) The employer is to give the employee written notice of the employer’s decision on a request for leave without pay under subclause (6)(b). If the request is refused, the notice is to set out the reasons for the refusal.

(d) An employee who believes their request for leave without pay under subclause (6)(b) has been unreasonably refused may seek to enforce it as a minimum condition of employment and the onus will be on the employer to demonstrate that the refusal was justified in the circumstances. 

(e) Any period of leave without pay must be applied for and approved in advance and will be granted on a year-by-year basis.  Where both partners work for the employer the total combined period of leave without pay following parental leave will not exceed two (2) years.

(f) An employee on parental leave is not entitled to paid sick leave and other paid absences other than as specified in subclause (6)(a) and (6)(g).

(g) Should the birth or adoption result in other than the arrival of a living child, the employee shall be entitled to such period of paid sick leave or unpaid leave for a period certified as necessary by a registered medical practitioner.  Such paid sick leave cannot be taken concurrently with paid parental leave.

(h) Where a pregnant employee not on parental leave suffers illness related to the pregnancy or is required to undergo a pregnancy related medical procedure the employee may take any paid sick leave to which the employee is entitled or unpaid leave for a period as certified necessary by a registered medical practitioner.

(7) Notice and Variation

(a) An employee shall give not less than four (4) weeks notice in writing to the employer of the date the employee proposes to commence paid or unpaid parental leave stating the period of leave to be taken.

(b) An employee seeking to adopt a child shall not be in breach of sub clause (7)(a) by failing to give the required period of notice if such failure is due to the requirement of the adoption agency to accept earlier or later placement of a child, or other compelling circumstances.

(c) An employee proceeding on parental leave may elect to take a shorter period of parental leave and may at any time during that period elect to reduce or extend the period stated in the original application, provided four (4) weeks written notice is provided.

(8) Transfer to a safe job

(a) If the employee gives her employer a medical certificate from a medical practitioner containing a statement to the effect that, in the medical practitioner’s opinion, the employee is fit to work, but that it is inadvisable for her to continue in her present position for a stated period because of:

(i) illness, or risks, arising out of her pregnancy; or

(ii) hazards connected with that position; then

the employer must modify the duties of the position or alternatively transfer the employee to a safe job at the same classification level for the period during which she is unable to continue in her present position.

(b) If the employee’s employer does not think it to be reasonably practicable to modify the duties of the position or transfer the employee to a safe job the employee is entitled to paid leave for the period during which she is unable to continue in her present position.

(c) An entitlement to paid leave provided in subclause (8)(b) is in addition to any other leave entitlement the employee has and is to be paid the amount the employee would reasonably have expected to be paid if the employee had worked during that period.

(d) An entitlement to paid leave provided in subclause (8)(b) ends at the earliest of whichever of the following times is applicable:

(i) the end of the period stated in the medical certificate;

(ii) if the employee’s pregnancy results in the birth of a living child – the end of the day before the date of birth;

(iii) if the employee’s pregnancy ends otherwise than with the birth of a living child – the end of the day before the end of the pregnancy.

(9) Communication during Parental Leave

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

(i) make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave; and

(ii) provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave.

(b) The employee shall take reasonable steps to inform the employer about any significant matter that will affect the employee’s decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to return to work on a part-time basis.

(c) The employee shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with sub clause (9)(a).

(10) Replacement Employee

Prior to engaging a replacement employee the employer shall inform the person of the temporary nature of the employment and the entitlements relating to the return to work of the employee on parental leave.

(11) Return to Work

(a) An employee shall confirm the intention to return to work by notice in writing to the employer not less than four (4) weeks prior to the expiration of parental leave.

(b) Where an employer has made a definite decision to introduce major changes that are likely to have a significant effect on the officer’s position the employer shall notify the officer while they are on parental leave.

(c) An employee on return to work from parental leave will be entitled to the same position or a position equivalent in pay, conditions and status and commensurate with the employee’s skill and abilities as the substantive position held immediately prior to proceeding on parental leave.  Where the employee was transferred to a safe job the employee is entitled to return to the position occupied immediately prior to transfer.

(12) Right to return to work on a modified basis

(a) An employee may return on a part time or job-share basis to the substantive position occupied prior to the commencement of leave or to a different position at the same classification level in accordance with Clause 7. – Part-Time Employment of this Award.

(b) An employee may return on a modified basis that involves the employee working on different days or at different times, or both; or on fewer days or for fewer hours or both, than the employee worked immediately before starting parental leave.

(13) Right to revert

(a) An employee who has returned on a part time or modified basis in accordance with subclause (12) may subsequently request the employer to permit the employee to resume working on the same basis as the employee worked immediately before starting parental leave or full time work at the same classification level.

(b) An employer is to agree to a request to revert made under subclause (13)(a) unless there are grounds to refuse the request relating to the adverse effect that agreeing to the request would have on the conduct of operations or business of the employer and those grounds would satisfy a reasonable person.

(c) An employer is to give the employee written notice of the employer’s decision on a request to revert under subclause (13)(a). If the request is refused, the notice is to set out the reasons for the refusal.

(d) An employee who believes their request to revert under subclause (13)(a) has been unreasonably refused may seek to enforce it as a minimum condition of employment and the onus will be on the employer to demonstrate that the refusal was justified in the circumstances.

(14) Effect of Parental Leave on the Contract of Employment

(a) An employee employed for a fixed term contract shall have the same entitlement to parental leave, however the period of leave granted shall not extend beyond the term of that contract.

(b) Paid parental leave will count as qualifying service for all purposes of this Award.  During paid parental leave at half pay all entitlements will accrue as if the employee had taken the entitlement to paid parental leave at full pay.

(c) Absence on unpaid parental leave shall not break the continuity of service of employees but shall not be taken into account in calculating the period of service for any purpose of this Award.

(d) An employee on parental leave may terminate employment at any time during the period of leave by written notice in accordance with sub clause (3) of Clause 5. – Contract of Service of this Award.

(e) An employer shall not terminate the employment of an employee on the grounds of the employee’s application for parental leave or absence on parental leave but otherwise the rights of the employer in respect of termination of employment are not affected.

28. Clause 24. - Short Leave:  Delete this clause in its entirety and insert the following in lieu thereof:

28. - SHORT LEAVE

The employer may, upon sufficient cause being shown, grant a medical practitioner leave of absence not exceeding two consecutive working days, but any leave of absence granted under the provisions of this Clause should not exceed in the aggregate three working days in any one calendar year.

29. Clause 25. - Special Leave:  Delete the clause title “25. - SPECIAL LEAVE” and insert in lieu thereof:

29. - SPECIAL LEAVE

30. Clause 29. - Special Leave:  Immediately following Clause 29 - Special Leave insert a new clause as per the following:

30. - DISTRICT ALLOWANCE

Subject to provisions of this Award, the provisions of “Clause 43 - District Allowance” of the Public Service Award 1992 shall apply to medical practitioners employed under this Award.

31. Clause 25A. – Introduction of Change:  Delete this clause in its entirety and insert the following in lieu thereof:

31. - INTRODUCTION OF CHANGE

(1) (a) Where an employer has made a definite decision to introduce major changes in production, programme, organisation, structure or technology that are likely to have significant effects on medical practitioners, the employer shall notify the medical practitioners who may be affected by the proposed changes and the Association.

(b) "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of medical practitioners to other work or locations and restructuring of jobs.

Provided that where the Award makes provisions for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

(2) (a) The employer shall discuss with the medical practitioner affected and the Association, inter alia, the introduction of the changes referred to in subclause (1) hereof, the effects the changes are likely to have on medical practitioners, measures to avert or mitigate the adverse effects of such changes on medical practitioners and shall give prompt consideration to matters raised by the medical practitioners and/or the Association in relation to the changes.

(b) The discussion shall commence as early as practicable after a firm decision has been made by the employer to make the changes referred to in subclause (1) hereof.

(c) For the purposes of such discussion, the employer shall provide to the medical practitioners concerned and the Association, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on medical practitioners and any other matters likely to affect medical practitioners provided that the employer shall not be required to disclose confidential information the disclosure of which would be inimical to his/her interests.

32. Clause 25B. - Dispute Settling Procedures:  Delete this clause in its entirety and insert the following in lieu thereof:

32. - DISPUTE SETTLEMENT PROCEDURES

(1) Subject to the provisions of the Industrial Relations Act 1979, Clause 31. - Introduction of Change and Clause 34. - Board of Reference any grievance, complaint or dispute, or any matter raised by the Association or a respondent employer and medical practitioners engaged under this Award, shall be settled in accordance with the procedures set out herein.

The parties agree that no bans, stoppages or limitations will be imposed prior to, or during the time this procedure is being followed.

This clause in no way limits the rights of employers, employees and the Association under the Occupational Safety and Health Act 1984 or other related legislation.

(2) Where the matter is raised by a medical practitioner, or a group of medical practitioners, the following steps shall be observed -

(a) The medical practitioner(s) concerned shall discuss the matter with the Head of Department.  If the matter cannot be resolved at this level the Head of Department shall, within three (3) working days, refer the matter to the Medical Superintendent and the medical practitioner(s) shall be advised accordingly.

(b) The Medical Superintendent shall, if so able, answer the matter raised within one (1) week of it being referred and, if the Medical Superintendent is not able, refer the matter to the Hospital Executive for its attention, and the medical practitioner(s) shall be advised accordingly.

(c) (i) If the matter has been referred in accordance with paragraph (b) above the medical practitioner(s) or the appropriate AMA Hospital Medical practitioner Representative shall notify the Association, to enable the opportunity of discussing the matter with the employer.

(ii) The employer shall, as soon as practicable after considering the matter before it, advise the medical practitioner(s) or, where necessary, the Association of its decision.  Provided that such advice shall be given within one(1) month of the matter being referred to the employer.

(d) Should the matter remain in dispute after the above processes have been exhausted and be an industrial matter either party may refer the matter to the Western Australian Industrial Relations Commission.

Where the parties jointly agree that the matters are of a non-industrial nature, then by agreement between the parties the matters may be referred to other appropriate bodies, e.g.  relevant Medical Colleges for advice and/or assistance.

(e) Nothing in this procedure shall preclude the parties reaching agreement to shorten or extend the periods specified above.

(3) Where the employer seeks to discipline a medical practitioner, or terminate a medical practitioner the following steps shall be observed -

(a) (i) In the event that a medical practitioner commits a misdemeanour, the medical practitioner's immediate supervisor or any other officer so authorised may in accordance with that authority exercise the employer's right to reprimand the medical practitioner so that the medical practitioner understands the nature and implications of his/her conduct.

(ii) The first two reprimands shall take the form of warnings and, if given verbally, shall be confirmed in writing as soon as practicable after the giving of the reprimand.

(iii) Should it be necessary, for any reason, to reprimand a medical practitioner three (3) times in a period not exceeding twelve (12) months' continuous service, the contract of service shall, upon the giving of that third reprimand, be terminable in accordance with the provisions of this Award.  The medical practitioner shall have the right to be represented when being reprimanded.

(iv) The above procedure is meant to preserve the rights of the individual employee, but it shall not, in any way, limit the right of the employer to summarily dismiss a medical practitioner for misconduct.

(4) The settlement of procedures provided by this clause shall be applied to all manner of disputes referred to in subclause (1) hereof, and no party, or individual, or group of individuals shall take any other action, of whatever kind, which may frustrate a settlement in accordance with its procedures.  Observance of these procedures shall in no way prejudice the right of any party in dispute to refer, where appropriate, the matter for resolution in the Western Australian Industrial Relations Commission.

The status quo (i.e.  the condition applying prior to the issue arising) will remain until the issue is resolved in accordance with the procedure outlined above.

(5) The Association recognises that the employers have a statutory and public responsibility to provide health care services without any avoidable interruptions.

This grievance procedure has been developed between the parties to provide an effective means by which medical practitioners may reasonably expect problems will be dealt with as expeditiously as possible by hospital management.

Accordingly the Association hereby agrees that during any period of industrial action, sufficient labour will be made available to carry out work essential for life support within hospitals.

(6) In resolving issues of an industry wide nature discussions will commence at the level specified in (2)(c)(i) above between the appropriate Association officials and representatives of the respondents.  For the purpose of this clause industry wide issues mean those issues affecting more than one site or involving claim(s) seeking variation(s) to the Award.

(7) The parties acknowledge that this procedure formed part of the package which justified the payment of the increases available under the Structural Efficiency Principle.

Accordingly, the parties agree that if either party is of the view that the other party is in breach of this procedure, the matter will be referred to the Western Australian Industrial Relations Commission for it to determine -

(a) whether a breach of the procedure has occurred; and

(b) subject to (a) above, the appropriateness of the continued provision of the benefits provided under the Structural Efficiency Principle or any other action considered appropriate by the Commission.

33. Clause 25C. - Award Modernisation:  Delete this clause in its entirety.

34. Clause 25D. - Establishment of Consultative Mechanism:  Delete this clause in its entirety and insert the following in lieu thereof:

33. - ESTABLISHMENT OF CONSULTATIVE MECHANISM

The parties to this Award are required to establish a consultative mechanism/s and procedures appropriate to their size, structure and needs, for consultation and negotiation on matters affecting the efficiency and productivity of the Public Sector Health Industry.

35. Clause 26. - Board of Reference:  Delete this clause in its entirety and insert the following in lieu thereof:

34. - BOARD OF REFERENCE

(1) There shall be a Board of Reference consisting of a Chairman and an equal number of employer and employee members who shall be appointed pursuant to Section 48 of the Industrial Relations Act, 1979, and to Part 14 of the Industrial Relation Commission Regulations 2005.

(2) The Board of Reference is hereby assigned the function of determining any dispute between the parties in relation to any matter which, under this Award may be allowed approved, fixed, determined or dealt with by a Board of Reference.

36. Clause 27. - No Reduction:  Delete this clause in its entirety and insert the following in lieu thereof:

35. - NO REDUCTION

No medical practitioner employed at the date of this Award shall suffer any reduction or derogation of any conditions applicable to the medical practitioner's employment as a result of the introduction or application of this Award.

37. Clause 28. - Term of Award:  Delete this clause in its entirety and insert the following in lieu thereof:

36. - TERM OF AWARD

This Award shall operate from 6 January 1986 and shall remain in force unless replaced or cancelled.

38. Schedule - Names Parties:  Delete this schedule in its entirety and insert the following in lieu thereof:

SCHEDULE - NAMED PARTIES

(1) THE NAMED ORGANISATION OF EMPLOYEES

The Western Australian Branch of the Australian Medical Association

(2) THE NAMED EMPLOYERS

The Boards of Public Hospitals and Agencies established pursuant to the Hospital and Health Services Act 1927 as amended.