ENGINEERING TRADES (GOVERNMENT) AWARD, 1967 AWARD NOS. 29, 30 AND 31 OF 1961 AND 3 OF 1962

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Minister for Education AND OTHERS

APPLICANTS

-v-

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch AND The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch

RESPONDENTS

CORAM Chief Commissioner A R Beech

DATE FRIday, 28 September 2012

FILE NO/S APPL 52 OF 2012

CITATION NO. 2012 WAIRC 00894

Result Award varied

Order

HAVING heard from Ms C Holmes on behalf of the applicants and from Ms N Ireland for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch and from Ms P Lim for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch, I, the undersigned, pursuant to the powers conferred on me under s 40 of the Industrial Relations Act 1979, hereby order –

THAT the Engineering Trades (Government) Award, 1967 Award Nos. 29, 30 and 31 of 1961 and 3 of 1962 be varied in accordance with the following schedule and that such variations shall have effect on and from the 27th day of September 2012.

Chief Commissioner A R Beech

SCHEDULE

1. Clause 2 – Arrangement:  Delete this clause and insert the following in lieu thereof:

2. - ARRANGEMENT

1. Title

1B. Paid Rates

2. Arrangement

3. Area and Scope

4. Term

5. Classification Structure and Definitions

6. Contract of Service

7. Higher Duties

8. Casual and Part-Time Employees

9. Under-Rate Employees

10. No New Designations

11. No Reduction

12. Apprentices

13. Hours of Duty

14. Overtime

15. Shift Work

16. Payment of Wages

17. Special Rates and Provisions

18. Car Allowance

19. Fares and Travelling Allowances

20. Distant Work - Construction

21. District Allowances

22. Holidays

23. Annual Leave

24. Sick Leave

25. Long Service Leave

26. Shop Stewards

27. Notice Boards

28. Right of Entry

29. Board of Reference

30. Bereavement Leave

31. Leave to Attend Union Business

32. Carers’ Leave

33. Trade Union Training Leave

34. Parental Leave

35. Paid Leave for English Language Training

36. Training Leave

37. Structural Efficiency

38. Complaints and Charges Against Employees

39. Liberty to Apply

40. Employees North of 26th Parallel - Travel Concession, Annual Leave

41. Introduction of Change

42. Jury Service

43. Defence Force Training Leave

Appendix - Resolution of Disputes Requirement

First Schedule - Wages

Second Schedule - List of Respondents

Third Schedule - Memoranda of Agreement

Fourth Schedule - Definitions of Previous Classifications

Fifth Schedule - Building Management Authority Wages and Conditions

Sixth Schedule - Named Parties to the Award

2. Clause 6 – Contract of Service:  Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) The contract of service for a casual employee shall be by the hour.  Provided that the minimum engagement shall be two hours.

3. Clause 8 – Casual and Part-Time Employees:  Delete this clause and insert the following in lieu thereof:

8. – Casual and PART-TIME EMPLOYEES

(1) Casual employees

(a) A "casual employee" shall mean an employee who is engaged on an hourly basis for a period not exceeding four weeks in any workplace. 

(b) When an employee is appointed on a casual basis and before they are so engaged, they shall be informed of their casual status and their conditions of employment.

(c) The minimum period of engagement for a casual employee shall be two hours.

(d) A casual employee shall be paid a loading of 20 per cent in addition to the rates prescribed in the First Schedule - Wages of this award, reduced to an hourly basis. This loading shall be in lieu of annual leave, sick leave and public holidays. 

(2) Part time employees

(a) “Part time employee” means an employee who undertakes work for less than the hours designated as full time by Clause 13. – Hours of Duty.

(b) At the time of engagement, or when a full time employee undertakes a period of part time employment, the employer and the part time employee will agree in writing on a regular pattern of work, specifying the hours worked each day, which days of the week the employee will work, and the actual starting and finishing times each day. Rostered employees shall be informed of their minimum hours of engagement and the basis upon which rosters are formulated. An agreement concerning a part time employee’s ordinary hours of work shall be consistent with the relevant provisions of Clause 13. – Hours of Duty.

(c) The employer and employee may agree, in writing, to a temporary variation to an employee’s ordinary working hours such that:

(i) time worked up to eight hours on any day is not to be regarded as overtime but an extension of the agreed hours for that day and should be paid at the normal rate of pay;

(ii) additional days worked, up to a total of five days per week, are regarded as an extension of the agreed hours and should be paid at the normal rate of pay;

(iii) additional hours worked for which overtime is not paid shall be considered as part of the employee’s ordinary working hours; and

(iv) any time worked beyond the relevant daily spread of hours and/or days of the week as prescribed in Clause 13 shall be considered overtime.

(d) Nothing in this Clause prevents the employer and employee from agreeing, in writing, to a permanent variation to the part time employee’s ordinary working hours as established under Clause 8(2)(b).

(e) A part time employee shall be entitled to the same entitlements as a full time employee, to be provided on a pro rata basis according to the hours worked by the employee.

(f) A part time employee shall remain entitled to leave accrued in respect of a previous period of full time employment, in such periods and manner as specified in Clause 23. - Annual Leave.

(g) A full time employee shall be paid for and take any annual leave accrued in respect of a period of part time employment under this subclause, in such periods and manner as specified in Clause 23. - Annual Leave, as if the employee were working part time in the class of work the employee was performing as a part time employee immediately before resuming full time work

(h) Provided that, by agreement between the employer and employee, the period over which the leave is taken may be shortened to the extent necessary for the employee to receive pay at the employee’s current full time rate.

(i) A part time employee shall have sick leave entitlements which have accrued under Clause 24. - Sick Leave (including any entitlement accrued in respect of previous full time employment) converted into hours. When this entitlement is used, whether as a part time employee or as a full time employee, it shall be debited for the ordinary hours that the employee would have worked during the period of absence.

4. Clause 23 – Annual Leave:  Delete this clause and insert the following in lieu thereof:

23. – ANNUAL LEAVE

(1) (a) Except as hereinafter provided, an employee will receive 152 hours annual leave, paid as               ordinary wages, for each period of 12 months continuous service. 

(i) A full time employee will be credited with a pro rata annual leave entitlement of 2.92 hours for each completed week of service.

(ii) A part time employee’s annual leave entitlement will be calculated on a pro rata basis, according to the number of hours worked.

(iii) Untaken pro rata leave will become accrued at the end of each period of 12 months continuous service and be cumulative from year to year.

(b) In respect of employees who work a 19 day four weekly cycle with the twentieth day being taken as a rostered day off, the calendar year will be divided into thirteen, twenty day work cycles.  During the year employees will be required to take one period of their annual leave to include the rostered day off duty for that particular work cycle.  There will be no additional pay or leave in lieu of that rostered day off.

(2) (a) "Ordinary wages" for an employee other than a shift worker shall mean the rate of wage               including service pay the employee has received for the greatest proportion of the calendar               month prior to the leave being taken.

(b) "Ordinary wages" for a shift worker shall mean the rate of wage the shift worker would receive under Clause 15. - Shift Work of the award according to the employee's roster or projected roster including Saturday and Sunday shifts.

(3) (a) A seven day shift worker, i.e.  a shift worker who is rostered to work regularly on Sundays               and holidays shall be allowed one week's leave in addition to the leave to which the               employee is otherwise entitled under this clause.

(b) Where an employee with twelve months continuous service is engaged for part of a qualifying twelve monthly period as a seven day shift worker, the employee shall be entitled to have the period of annual leave to which they are otherwise entitled under this clause increased by one-twelfth of a week for each completed month the employee is continuously so engaged.

(4) If any award holiday falls within an employee's period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day, there shall be added to that period one day being an ordinary working day for each such holiday observed as aforesaid.

(5) If an employee lawfully leaves their employment, or their employment is terminated by the employer through no fault of the employee, the employee shall be paid any pro rata annual leave not taken at his or her ordinary rate of wage. Provided that this will include any untaken leave referred to in subclause (3) of this clause, which will be paid as an additional 0.73 hours for each completed week of continuous service.

(6) In addition to any payment to which the employee may be entitled under subclause (5) of this clause, an employee who terminates shall be given payment in lieu of untaken accrued annual leave and the loading prescribed in subclause (11) hereof unless -

(a) the employee has been justifiably dismissed for misconduct; and

(b) the misconduct for which the employee has been dismissed occurred prior to that annual leave becoming accrued.

(7) An employee may be granted paid annual leave prior to accumulating sufficient annual leave entitlements. Should the services of that employee terminate or be terminated prior to sufficient annual leave being accrued, the employee shall refund to the employer the difference between the amount received by him or her for wages in respect of that period of annual leave taken and the amount which would have accrued to the employee by reason of the length of his or her service up to their date of termination.

(8) (a) Employees continue to accrue annual leave while on paid leave for the following purposes:

(i) annual leave;

(ii) long service leave;

(iii) observing a public holiday prescribed by this award;

(iv) sick leave;

(v) carer's leave;

(vi) bereavement leave;

(vii) parental leave; and

(viii) workers' compensation, except for that portion of an absence that exceeds six months in any year.

(b) Employees continue to accrue annual leave while on unpaid sick leave except for that portion of an absence that exceeds three months.

(c) Employees do not accrue annual leave when absent on approved periods of leave without pay that exceed 14 consecutive calendar days.

(9) When operations are closed down for the purpose of allowing annual leave to be taken, as prescribed by subclause (17) hereof, during such period employees with less than a full year of service shall only be entitled to payment for the number of days leave due to them.  This payment shall include the loading prescribed in subclause (11) of this clause.  Provided that nothing herein contained shall deprive the employer of the right to retain such employees as may be required during the close down period.

(10) Employees regularly working for the Government north of South Latitude 26 shall be allowed to accumulate annual leave for two years, subject to the convenience of the Department.  Such employees who proceed to Fremantle and Geraldton during the period of such leave shall be allowed once in each two years reasonable travelling time on the forward and return journeys between the place of their employment and either of the said ports.

(11) In addition to the payment prescribed for annual leave, an employee shall receive a loading calculated on the rate of wage prescribed by subclause (2) hereof.  This loading shall be as follows:

(a) Day workers - an employee who could have worked on day work had they not been on leave - a loading of 17.5%.

(b) Shift workers - an employee who could have worked on shift work had they not been on leave shall be paid either:

(i) the shift loadings prescribed by Clause 15. - Shift Work the employee would have received;

or

(ii) a 20% loading on the rate prescribed by subclause (2)(a) of this clause;

whichever is the greater.

The loading prescribed by this subclause shall not apply to proportionate leave on termination.

(12) Any annual leave entitlement accumulated to an employee as at the date of introduction of a 38 hour week shall be adjusted in hours in the ratio of 38 to 40.

(13) In taking annual leave, if an employee's entitlement expires part way through a day, the employee shall have the option of resuming duty for that full day or take the balance of the day as approved leave without pay.

(14) The provisions of this clause shall not apply to casual employees.

(15) (a) Annual leave shall be given and taken in one or two continuous periods.  If given in two               continuous periods, one such period must be of at least 21 consecutive days, including non-              working days.  Provided that if the employer and an employee so agree, annual leave may               be given and taken in two separate periods, either of 21 consecutive days' duration including               non-working days, or in three separate periods.

(b) Provided further that an employee may, with the consent of the employer, take short term annual leave, not exceeding five days in any calendar year, at a time or times separate from any of the periods determined in accordance with this subclause.

(16) (a) Annual leave shall be given at a time fixed by the employer within a period not exceeding               six months from the date when the right to annual leave accrued and after not less than four               weeks' notice to the employee.

(b) Provided that, by agreement between the employer and an employee, annual leave may be taken at any time within a period of 12 months from the date on which it falls due and with less than four weeks' notice to the employee.

(17) (a) The employer may close down operations for one or two separate periods for the purpose of               granting annual leave in accordance with this clause.  If the operations are closed in two               separate periods, one of those periods shall be for at least 21 consecutive days, including               non-working days,

(b) Provided that where the majority of employees concerned agree, the employer may close down a work section, or sections, in one, two or three separate periods for the purpose of granting annual leave in accordance with this subclause.  Provided further that if the employer closes down operations on more than one occasion, one of those periods shall be for a period of at least 14 consecutive days, including non-working days.  In such cases the employer shall advise employees concerned of the proposed dates of each close down before asking for their agreement.

(c) (i) The employer may close down operations, or a section or sections thereof, for a period of at least 21 consecutive days, including non-working days and grant the balance of annual leave due to an employee in one continuous period in accordance with a roster.

(ii) Provided that, with the agreement of the majority of employees concerned, the employer may close down operations for a period of at least 14 consecutive days, including non-working days and grant the balance of annual leave due by mutual arrangement with an employee.

(18) (a) In addition to the leave prescribed in this clause, an extra five working days as annual leave               shall be available to employees working north of the 26° parallel.  This additional               entitlement shall be available on completion of each year of continuous service in the               region.

(b) The additional leave available in paragraph (a) hereof shall be applied under the same conditions provided in this clause, with the exception of the loading prescribed in subclause (11) hereof which will not apply to the extra five days of leave.

5. Clause 30 – Compassionate Leave:  Delete this clause and insert the following in lieu thereof:

30. – Bereavement Leave

(1) Employees including casuals shall on the death of:

(a) the employee’s partner;

(b) a child, step-child or grandchild of the employee (including an adult child, step child or grandchild);

(c) a parent, step-parent or grandparent of the employee;

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

(e) any other person who, immediately before the relevant time for assessing the employees eligibility to take leave, lived with the employee as a member of the employee's household;

be eligible for up to two (2) days paid bereavement leave, provided that at the request of an employee the employer may exercise a discretion to grant bereavement leave to an employee in respect of some other person with whom the employee 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) An employee shall not be entitled to claim payment for bereavement leave on a day when that employee is not ordinarily rostered to work.

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

(6) An employee 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 employee's immediate family may, upon providing adequate proof, in addition to any bereavement leave to which the employee is eligible, have immediate access to annual leave and/or accrued long service leave or leave without pay provided all accrued leave is exhausted.

Travelling Time for Regional Employees

(7) Subject to prior approval from the employer, an employee 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 employee’s ordinary working hours up to a maximum of 15.2 hours per bereavement.  The employer will not unreasonably withhold approval.

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

(9) The provisions of this clause are not available to employees whilst on leave without pay or personal leave without pay.

(10) The provisions of (7) and (8) - Travelling Time for Regional Employees, apply as follows.

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

(b) An employee 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.

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

(d) For casual employees, the provisions apply to the extent of their agreed working arrangements.

6. Clause 32 – Deleted:  Delete this clause and insert the following in lieu thereof:

32. - Carers’ Leave

(1) An employee is entitled to use, each year, up to ten 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 practical, give the employer notice of the intention to take carers’ 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 Equal Opportunity Act 1986.  That is, a person who is related to the employee by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the employee. "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.

7. Clause 34 – Maternity Leave:  Delete this clause and insert the following in lieu thereof:

34. – 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 (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) "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.

(e) "Public sector" means an employing authority as defined in Section 5 of the Public Sector Management Act 1994.

(f) "Replacement Employee" is an employee specifically engaged to replace an employee proceeding on parental leave.

(2) Entitlement to parental 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 paragraph (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 (5) 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) 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.

(4) 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.

(5) 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 (5)(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 (5)(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.

(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) 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;

• 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 (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 (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 (6)(a) and (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 (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 (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 clause (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 (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.

 Nothing in this clause shall be construed as requiring an employer to engage a replacement employee.

(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) 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) Work on a modified basis

(a) A pregnant employee may work part time in one or more periods while she is pregnant where part time employment is, because of the pregnancy, necessary or desirable.

(b) 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 8. – Casual and Part-Time Employees of this award.

(c) 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 (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 (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 (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 (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 under 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 the requirements 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.

8. Clause 43 – Adoption Leave:  Delete this clause and insert the following in lieu thereof:

43. – DEFENCE FORCE TRAINING LEAVE

(1) Subject to departmental approval and convenience, leave of absence may be granted to an employee who is a volunteer member of the Defence Forces or the Cadet Force for the purpose of attending an annual camp of continuous training, additional approved camp or course of instruction, subject to the conditions set out hereunder.

(2) (a) An employee may be granted two weeks of special leave on full pay in each period of 12               months commencing on 1 July each year.  Two weeks means, in the case of five day a week               employees, ten days and, in the case of six day a week employees, 12 days' pay.

(b) If the Officer in Charge of a unit certifies that it is essential for an employee to be at the camp in an advance or rear party, a maximum of four extra days on full pay may be granted in the 12 month period.

(3) (a) In addition to leave granted under subclause (2) of this clause, further leave for the purpose               of attending an additional approved camp or course of instruction may be granted as leave               without pay and the difference between civil and Defence Forces pay made up.

(b) In calculating Defence Forces pay for additional camps or courses, weekends and holidays should be excluded so that employees will have the benefit of any pay with respect of these days.  Evidence must be submitted to the employer of the necessity for attendance at such extra camps or courses of instruction.

(4) Employees who are members of the Defence Forces and the Cadet Force may only be granted leave for attendance at one annual camp of continuous training and one additional approved camp or course of instruction.

9. Clause 44 – Defence Force Training Leave:  Delete this clause.