ENROLLED NURSES AND NURSING ASSISTANTS (GOVERNMENT) AWARD

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES UNITED VOICE WA

APPLICANT

-v-

The HON Minister for Health AND OTHERS

RESPONDENT

CORAM Acting Senior Commissioner P E Scott

DATE FRIday, 1 february 2013

FILE NO/S APPL 688 OF 2005

CITATION NO. 2013 WAIRC 00062

Result Award varied and consolidated

Order

HAVING heard Mr V Nguyen on behalf of United Voice 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 Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:

THAT the Enrolled Nurses and Nursing Assistants (Government) Award be varied and consolidated 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 31st day of January 2013.

Acting Senior Commissioner P E Scott

SCHEDULE

1. Delete the entire contents of the Award and insert the following in lieu thereof:

1. - TITLE

This Award shall be known as the "Enrolled Nurses and Assistants in Nursing (Government) Award".

2. - ARRANGEMENT

1.  TITLE

2.  ARRANGEMENT

3.  SCOPE

4.  NAMED PARTIES

5.  DEFINITIONS

6.  RELATIONSHIP WITH THE MISCELLANEOUS GOVERNMENT CONDITIONS AND ALLOWANCES AWARD NO. A4 OF 1992

7.  CONTRACT OF EMPLOYMENT

8.  TYPES OF EMPLOYMENT

9. HOURS

10. OVERTIME

11. SHIFT AND WEEKEND WORK

12.  ROSTERS

13.  MEAL AND TEA BREAKS

14.  ON CALL

15.  MINIMUM ADULT AWARD WAGE

16. CLASSIFICATION AND WAGES

17.  TRANSFER, TRAVELLING AND RELIEF ALLOWANCES

18.  UNIFORMS AND LAUNDRY

19. LEADING HAND ALLOWANCE

20.  ANNUAL LEAVE

21.  SICK LEAVE

22.  CARER'S LEAVE

23.  LONG SERVICE LEAVE

24.  PUBLIC HOLIDAYS

25.  EMERGENCIES

26.  DISPUTE RESOLUTION

27.  DISCIPLINARY PROCEDURE

28.  ACCESS TO THE COMMISSION

29.  PROVISION OF SERVICES

SCHEDULE A - PROVISIONS OF THE MISCELLANEOUS GOVERNMENT CONDITIONS AND ALLOWANCES AWARD NO. A4 OF 1992

3. - SCOPE

This Award will operate throughout the State of Western Australia and will apply to all employees engaged in classifications described in Clause 16 - Classification and Wages, who are employed by a Board (other than an Agency Board) as defined in section 2 of the Hospitals and Health Services Act 1927 as amended.

4. - NAMED PARTIES

4.1 Union Party

United Voice WA

4.2 Named Employers

All Boards (other than any Agency Boards) established pursuant to and defined in section 2 of the Hospital and Health Services Act 1927 as amended.

5. - DEFINITIONS

5.1 "Accrued Day(s) Off" (ADO(s)) means the paid day(s) off accruing to an employee resulting from an entitlement to the 38 hour week as prescribed in Clause 9 - Hours of this Award.

5.2 “AIN in Training” means an Assistant in Nursing undertaking the AIN Training Program.

5.3 “AIN Training Program” means the paid Certificate III training program conducted or commissioned by the employer. 

5.4 “Assistant in Nursing” (AIN) means an employee, other than a person registered under the Health Practitioner Regulation National Law (WA) Act 2010, whose substantial employment in terms of the purpose to be achieved, is the provision of “care” to persons.

5.5 “Care” in connection with the role of an Assistant in Nursing, encompasses:

(a) Giving assistance to persons who because of disability, illness, or decreased mobility are unable to maintain their bodily needs without frequent assistance.

(b) Carrying out tasks which are directly related to the maintenance of persons a person’s bodily needs where that person because of disability, illness, or decreased mobility is unable to carry out those tasks for themselves.

(c)  Assisting a person registered under the Health Practitioner Regulation National Law (WA) Act 2010 to carry out the work described herein or any other work directly related to a person's care.

5.6 "Casual employee" means an employee engaged by the day and informed of their casual conditions prior to commencing work.  In accordance with paragraph 8.1(c), "casual employee" who is an enrolled community nurse or enrolled community school nurse is engaged by the hour.

5.7 “Commission” means the Western Australian Industrial Relations Commission.

5.8 “Employee” means a person described in Clause 16 – Classification and Wages of this Award and employed by an employer.

5.9 “Employer” means an employer named in subclause 4.2 – Named Employers.

5.10 "Enrolled Community Nurse" means a registered enrolled nurse employed to work in the community health area.

5.11 "Enrolled Community School Nurse" means a registered enrolled nurse employed to work in a school or schools.

5.12 “Enrolled Nurse” means a person registered under the Health Practitioner Regulation National Law (WA) Act 2010 in the nursing and midwifery profession whose name is entered on Division 2 of the register of nurses kept under that Law as a registered enrolled nurse.

5.13 “Fixed term contract employee” means a person engaged by the employer for a specified period in accordance with subclause 7.5.

5.14 “Full time employee” means an employee who is engaged for 38 hours per week in accordance with Clause 9 – Hours.

5.15 “Hospital” means any public hospital, health care facility or other facility controlled by one of the named employers in subclause 4.2.

5.17 “Ordinary Rate of Pay” means the weekly rate of pay as prescribed in Clause 16 – Classification and Wages of this Award.

5.18 "Part Time Employee" means an employee who regularly works less than an average of 38 hours per week.

5.19 “Partner” means either a spouse or de facto spouse/partner.  A de facto spouse/partner means a person who is in a ‘marriage like’ relationship with the employee and includes same sex partners.

5.20 "Union" shall mean United Voice WA.

6. - RELATIONSHIP WITH THE MISCELLANEOUS GOVERNMENT CONDITIONS AND ALLOWANCES AWARD NO. A4 OF 1992

The provisions of the Miscellaneous Government Conditions and Allowances Award No. A4 of 1992 listed in Schedule A of this Award will apply, as varied or replaced from time to time, to all employees covered by this Award.

7. - CONTRACT OF EMPLOYMENT

7.1 An employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training, including work which is incidental or peripheral to the employee’s main tasks or functions.

7.2 Notice of Termination by Employer

(a) Subject to subclause 7.3, the employment of an employee, other than a casual employee or fixed term contract employee as defined in Clause 5 – Definitions, must not be terminated unless the employer has given the employee the required period of notice in accordance with the following table or the employer provided the employee with payment in lieu of notice.

(b) The period of notice for an employee, who at the time of being terminated is over 45 years of age and has completed at least two year’s continuous service with the employer, will be increased by one week.

(c) The employee may be terminated by the employer giving the employee part of the required period of notice, with payment in lieu for the remainder of the required period of notice.

(d) Payment in lieu of notice must equal or exceed the total amounts that, if the employee’s employment had continued until the end of the required period of notice, the employer would have become liable to pay the employee because of the employment continuing during that period.

(e) Payment in lieu of notice must be worked out on the basis of:

(i) the employee’s ordinary hours of work, even if they are not standard hours;

(ii) the amounts ordinarily payable to the employee in respect of those hours including, for example, allowances, loadings and penalties; and

(iii) any other amounts payable under the employee’s contract of employment.

7.3 Termination of an Employee for Serious Misconduct

(a) An employer may terminate an employee without notice or payment in lieu of notice if the employee is guilty of serious misconduct. In such cases, wages will be paid up to the time of dismissal only.

(b) “Serious misconduct” means misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice.

7.4 Notice of Termination by Employer of Casual Employees

The employment of a casual employee must not be terminated unless the employer has given the employee one hour’s notice of termination or payment in lieu of one hour’s notice.

7.5 Notice of Termination of Fixed Term Contract Employees

Fixed term contract employees as defined in Clause 5 – Definitions are not, at the conclusion of the contract, entitled to notice or payment in lieu of notice. 

7.6 Notice of Termination by Employee

(a) Except as otherwise provided in this clause, an employee will provide the employer with two weeks’ notice of termination.

(b) If the employee fails to give the required notice the employer may withhold holiday or other pay up to the amount of a fortnight's wages.

(c) A casual employee will provide the employer with one hour’s notice of termination or forfeit one hour’s pay in lieu of the required notice.

7.7 Statement of Employment

An employer will, in the event of termination of employment, provide upon request to the employee who has been terminated, a written statement specifying the period of employment and the classification or type of work performed by the employee.             

7.8 Job Search Entitlement

(a) During the period of notice of termination given by the employer, an employee will be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment. The time off will be taken at times that are convenient to the employee after consultation with the employer.

(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee will, at the request of the employer, be required to produce proof of attendance at an interview or they will not receive payment for the time absent. For this purpose, a statutory declaration will be sufficient.

8. - TYPES OF EMPLOYMENT

8.1 Casual Employment

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

(b) Casual employees will receive a 20% loading on the base rate for their classification, as set out in Clause 16 – Classification and Wages, in lieu of annual leave, sick leave and public holidays.

(c) An enrolled community nurse or enrolled community school nurse will be deemed to be a casual employee if employed for a period of less than four weeks either part time or full time, provided that the contract of employment for a casual enrolled community nurse or an enrolled community school nurse will be by the hour.

(d) The minimum engagement for a casual community nurse or enrolled community school nurse is two hours.

8.2 Part Time Employment

(a) Enrolled Nurses and Assistants in Nursing, excluding Enrolled Community Nurses and Enrolled Community School Nurses

(i) Part-time employees will be remunerated at a weekly rate pro-rata to the rate prescribed for the class of work on which they are engaged only in the proportion which their ordinary weekly hours bear to 38 or 40 where ADOs accrue , provided that part-time employees who work less than fifteen hours per week are not eligible to accrue ADOs. 

(ii) Part time employees will be allowed annual leave and sick leave and payment for such as prescribed in Clause 19 - Annual Leave and Clause 21 - Sick Leave in the same ratio as their ordinary weekly hours averaged over the qualifying period, bear to 38 or 40 where ADOs accrue.

(iii) Where the employer wishes to increase the ordinary hours worked by a part time employee in any roster period and the part time employee so agrees with one day’s clear notice provided, the increased hours will be deemed to be the ordinary hours for that roster period.

(b) Enrolled Community Nurses and Enrolled Community School Nurses

(i) A part time nurse means a nurse engaged on a fortnightly contract of service who regularly works less than 38 hours per week.

(ii) A part time enrolled community nurse who works twenty hours or less per week and part time enrolled community school nurses will be remunerated at a weekly rate pro rata to the rate prescribed for the class of work on which they are engaged only in the proportion which their ordinary weekly hours bear to 38.

(iii) Part time nurses who work more than twenty hours per week, other than part time school nurses, will be remunerated at a weekly rate pro rata to the rate prescribed for the class of work on which they are engaged in the proportion which their ordinary weekly hours bear to forty and such nurses will accrue time towards accrued days off, as prescribed in paragraphs 9.8(c) and (d) of this Award for full time employees in the same proportion as used for calculating the weekly wage.

(iv) Part time nurses will be allowed sick leave and annual leave in accordance with the provisions of this Award, only in the proportion which their weekly hours of duty bear to 38 hours.

9. - HOURS

9.1 Ordinary Hours

Subject to the provision of paragraphs 13.1(a) and (b), the ordinary working hours shall be an average of 38 hours per week over any five days of the week, worked over any one of the following cycles.

(a) A four week cycle of nineteen days of eight hours each with 0.4 of one hour each day worked accruing as an entitlement to take the twentieth day in each cycle as a day off and paid for as though worked.

(b) Actual hours of 76 hours over nine days per fortnight with the tenth day to be taken as an unpaid rostered day off.

(c) Actual hours of 40 per week or 80 per fortnight with two hours of each week's work accruing as an entitlement to a maximum of twelve days off in each twelve month period.

For the purposes of this paragraph the ADOs shall be taken in a minimum period of one week made up of five consecutive ADOs in conjunction with a period of annual leave or at a time mutually acceptable to the employer and the employee.

Notwithstanding the provisions of this paragraph, where an employer and employee mutually agree ADOs may be taken in single day absences.

9.2 Accrued Days Off

(a) A roster for ADOs will be posted at least four weeks before the time it comes into operation.

(b) A roster for ADOs may allow an employee to take ADOs before they become due.

(c) An employer and employee may by agreement substitute the ADO the employee is to take off for another day, in which case the ADO will become an ordinary working day.

(d) Payment of Penalties

Penalties are paid on actual hours worked. For example in the case of a full time employee who works an eight hour shift, the employee is paid eight hours of shift penalty loading plus the ordinary time rate for seven hours and 36 minutes with the balance of time actually worked (0.4 hours) being credited toward an ADO. When an ADO is taken, payment is made at the ordinary time rate because the shift penalty loading has already been paid.

(e) Termination

(i) An employee who has not taken any ADOs accumulated during a work cycle in which employment is terminated, will be paid the total of hours accumulated towards the ADO for which payment has not already been made.

(ii)  An employee who has taken any ADO during a work cycle in which employment is terminated will have the wages due on termination reduced by the total hours for which payment has already been made but for which the employee had no entitlement toward those ADOs.

(f) Workers' Compensation

(i)  Twenty Day Work Cycle

(A)  Where an employee is on workers' compensation for periods of less than one complete twenty day cycle, such employee will accrue towards and be paid for the succeeding ADO following such absence.

(B)  An employee will not accrue ADOs for periods of workers' compensation where such period of leave exceeds one or more complete twenty day work cycles.

(C)  Where an employee is on workers' compensation for less than one complete twenty day work cycle and an ADO falls within the period, the employee will not be re-rostered for an additional ADO.

(ii)  Twelve Months Work Cycle

(A)  Where an employee is on workers' compensation for periods less than a total of twenty consecutive work days in a work cycle such employee will accrue towards and be paid for the succeeding ADO following such absence.

(B)  Where an employee is on workers' compensation for periods greater than a total of twenty consecutive days in a work cycle such employees will have the period of workers' compensation added to the work cycle.

(C)  Where an employee is on workers' compensation for periods greater than twenty consecutive work days and an ADO falls within the period the employee will be re-rostered for another ADO on completion of the twenty day work cycle following such absence.

(g)  Leave without Pay

(i)  Twenty Day Work Cycle

An employee who is absent on any form of leave without pay during a 20 day work cycle will not accumulate an entitlement to an ADO for the period of such leave nor will the employee be entitled to an ADO whilst on leave without pay.

(ii)  Twelve Month Work Cycle

(A)  An employee who is absent on any form of leave without pay for less than a total of five days in any work cycle will not have payment reduced when proceeding on ADOs.

(B)  An employee who is absent on any form of leave without pay for a total of five days or more in any work cycle will have such period of leave added to the work cycle.

9.3 Shift Change

(a)  An employee changing from night shift to day shift or from day shift to night shift will be free from shift during the twenty hours immediately preceding the commencement of the changed shift.

(b)  An employee changing from afternoon shift to day shift will not be required to commence such shift until a period of nine and one half hours has elapsed since ceasing afternoon shift except in country hospitals below Regional level where a period of eight hours will suffice.

(c) An employee other than one engaged to work part time will not be required to work a combination of shifts exceeding the following:

(i) in the case of a weekly roster; all night, day or afternoon shifts, or both day and afternoon shifts.

(ii)  In the case of a fortnightly roster; all night, day or afternoon shifts or both day and afternoon shifts in either or both halves of the roster.

(d) The provisions of paragraphs (a), (b) and (c) of this subclause will not apply if the employee is required to perform the shift to enable the nursing services of the hospital to be carried on when an employee is absent from shift or in an emergency or where the employer and the Union mutually agree to vary the provisions of this subclause.

9.4 Days Off Duty

(a) Subject to subclause 9.3, employees on day shift will, where practicable, be allowed two days' continuous time off duty per week, and those on night shift will, where practicable, be allowed two days' continuous time off duty each week or four days' continuous time off duty per fortnight.

(b) Provided that where the days off duty as specified are missed and not taken within four weeks, equivalent time will be added to the annual leave of the employee.

9.5  Shifts

(a)  No employee will be required to work in excess of five shifts per week or ten shifts per fortnight except as provided by subclauses 9.3 and 9.4.

(b)  Subject to the provisions of this clause and where practicable, the ordinary hours of work will be rostered over not more than six consecutive days.

(c)  By mutual agreement between the employer and the Union the scale of duties for employees working night duty can be varied to four shifts per week or eight shifts per fortnight.

(d)  An employee may be required to work on any off day in the case of an emergency and such time will be paid for in accordance with Clause 10 - Overtime of this Award.

9.6  Part Time Employees

(a) The provisions of this clause apply to a part-time employee in the same proportion as the hours normally worked bear to a full-time employee.

(b) In circumstances where less than sixteen hours per week are worked an employer may pay an employee for all hours actually worked at an hourly rate based on a 38 hour week in lieu of accrual of ADOs.

9.7 Enrolled Nurses Employed in Clinics or Departments

Notwithstanding anything to the contrary in this clause and at the option of the employer, Enrolled Nurses employed in clinics or departments which function during the normal hours of duty on Monday, Tuesday, Wednesday, Thursday, Friday and Saturday may be granted hours of duty together with public holidays, long service leave and annual leave as are generally applicable to the clerical staff employed in the said clinics or departments. The daily hours of duty shall include a break of not more than one hour for lunch and such time shall not be included as part of the normal working week of 37.5 hours.

9.8 Enrolled Community Nurse and Enrolled Community School Nurse

Notwithstanding anything else contained in this clause, the following provisions relating to hours of work will apply to employees stipulated below.

Enrolled Community School Nurse

(a)  The ordinary hours of work for an enrolled community school nurse will be 38 per week, with the ordinary hours worked each day to be no more than seven hours 36 minutes between Monday to Friday inclusive.

(b) The minimum period of engagement of a casual enrolled community nurse or an enrolled community school nurse will be two hours.

Enrolled Community Nurse

(c)  The ordinary hours of duty for an enrolled community nurse will be an average of 38 per week with the hours actually worked being 40 per week to be between 8.00 a.m. and 6.00 p.m. Monday to Friday inclusive.

(d) No day will exceed eight hours without payment of overtime.

(e) The ordinary hours will be worked within a twenty-day, four-week cycle with 0.4 of an hour for each day worked accruing as an entitlement to take the twentieth day in each cycle as an ADO.

(f) The minimum period of engagement of a casual enrolled community nurse or an enrolled community school nurse will be two hours.

9.9  In addition to the time off duty hereinbefore provided, Enrolled Nurses engaged in X-ray or radium work will be allowed such other time off duty as in the opinion of the Medical Officer in charge of such work may be necessary consequent upon such work for the purpose of maintaining or restoring them to normal health, and all such time will be computed as part of the normal working time and there will be no reduction in the wage in respect thereof.

9.10  Where employees are required to travel as part of their duties such travelling time will be considered as part of their working time and there will be no reduction in respect thereof.

10. - OVERTIME

10.1  Requirement to Work Reasonable Overtime

(a)  An employer may require an employee to work reasonable overtime at overtime rates.

(b)  An employee is not to be required or requested by the employer to work more than:

(i) the employee’s ordinary hours of work as per Clause 9 – Hours; and

(ii) reasonable additional hours as determined under paragraph 10.1(c).

(c) For the purposes of determining whether additional hours than an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors are to be taken into account. The factors that may be taken into account include, but are not limited to, the following:             

(i)  any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;

(ii)  the employee’s personal circumstances, including any family responsibilities;

(iii)  the conduct of the operations or business in relation to which the employee is required or requested to work the additional hours;

(iv)  any notice given by the employer of the requirement or request that the employee work the additional hours;

(v) any notice given by the employee of the employee’s intention to refuse to work the additional hours;

(vi) whether any of the additional hours are on a public holiday in the area of the State where the employee is required to work; and

(vii) the employee’s hours of work over the four weeks ending immediately before the employee is required to work the additional hours.

(d) In calculating the number of hours that an employee has worked in a particular week, the hours worked by the employee are taken to include any hours of authorised leave, paid or unpaid, taken by the employee during the week. “Authorised leave” means leave that is authorised by the employee’s employer, under a term or condition of the employee’s employment or under a law or instrument in force under a law of the State or Commonwealth.

10.2 Entitlement

(a) Except as hereinafter provided, all time worked in excess of the ordinary or rostered hours prescribed in Clause 9 - Hours or subclause 8.2 – Part Time Employment of this Award will be overtime and will be paid for at time and one-half for the first two hours and double time thereafter.

(b) All work performed by employees on any day on which they are rostered off duty or days worked in excess of those provided in Clause 9 - Hours or subclause 8.2 – Part Time Employment will be paid for at the rate of double time.

(c) The rates prescribed in paragraphs 10.2(a) and (b) will apply to part time employees who work outside of the employee’s ordinary hours as agreed to by the employer and employee, except where the employer and employee have agreed to a temporary variation to the employee’s ordinary working hours.

(d)  In accordance with subclause 10.7 and 10.8 an employee recalled to work will be paid a minimum of two hours at overtime rates.

10.3  Time Off in Lieu

(a) Where the employee and the employer so agree, time off in lieu of payment for overtime may be allowed proportionate to the payment to which the employee is entitled.

(b) Such time off is to be taken at the convenience of the employer provided that:

(i) the time off is in unbroken periods according to each period of overtime worked; and

(ii)  the time off is rostered within 28 days from the time when it accrued, except where it arises from the changeover from night shift to day shift, or day shift to night shift; or

(iii)  by mutual agreement between the employer and the employee, the time off may be accumulated beyond 28 days from the time when it accrued so as to be taken in conjunction with periods of approved annual and/or long service leave.

(c) If the employer does not grant the time off in lieu within 28 days from the time when it accrued and no further agreement as prescribed in subparagraph 10.3(b)(iii) is reached, the time will be paid at the appropriate overtime rate within 28 days of the time when it accrued.

10.4 Meal Allowance

(a) Any employee who, without being notified the previous day or earlier, is required to continue working for more than one hour after the usual ceasing time will be provided with any meals occurring during such overtime by the employer or be paid $12.70 in lieu of the meal.

(b) This rate will be adjusted in accordance with the Consumer Price Index – Meals Out & Take Away Foods – Perth (ABS Cat. No. 6455.0.40.001).

10.5 Ten Hour Break

(a)  When overtime work is necessary it will, wherever reasonably practicable, be so arranged that employee has at least ten consecutive hours off duty between the work of successive days.

(b)  An employee who works so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day that they have not had at least ten consecutive hours off duty between those times will, subject to this paragraph, be released after completion of such overtime until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(c)  If, on the instructions of their employer, an employee resumes or continues work without having had ten consecutive hours off duty, the employee will be paid at double rates until they are released from duty for such period and will then be entitled to be absent until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(d) The provisions of this subclause will apply in the case of shift workers who rotate from one shift to another, as if eight hours were substituted for ten hours when overtime is worked -

(i)  for the purpose of changing shift rosters; or

(ii) where a shift worker does not report for duty; or

(iii) where a shift is worked by arrangement between the employees themselves.

10.6  Overtime for Enrolled Community Nurse or Enrolled Community School Nurse

Work performed by an enrolled community nurse or an enrolled community school nurse at the direction of the employer outside the spread of hours, or in addition to the daily hours prescribed in subclauses 9.5 and 9.8 of Clause 9 - Hours of this Award or on a Saturday or Sunday will be paid or compensated for as below:

(a) one and one half times the ordinary rate for the first two hours and double time thereafter on any day Monday to Friday inclusive;

(b)  double time on Saturday or Sunday;

(c)  double time and one half on public holidays;

(d)  Time off in lieu

(i) By agreement between the employee and employer, time off in lieu of payment for overtime may be granted proportionate to the payment to which the employee is entitled.

(ii) The actual period of time off may be accrued and taken at a time convenient to the employer, provided that:

(A) Such time off is to be taken in unbroken periods according to each period of overtime worked; and

(B) The time off is rostered within 28 days from the time when it accrued, except where it arises from the changeover from night duty to day duty, or day duty to night duty.

(iii) If the employer does not grant the time off in lieu within 28 days from the time when it accrued in accordance with subparagraph (ii), the time will be paid at the appropriate overtime rate.

(iv) By agreement between the employee and the employer, payment may be made at the rate of time and one half with equivalent time to that worked being taken off at a time convenient to the employer in lieu of making payment in accordance with paragraph (c).

10.7 Recall to Work for Enrolled Nurses, excluding Enrolled Community Nurse or Enrolled Community School Nurses

(a)  Where an enrolled nurse is recalled to work for any purpose, within two hours of commencing normal duty, the enrolled nurse will be paid at the appropriate overtime rate for that period up to and until the commencement of normal duty, but the enrolled nurse will not be obliged to work for the full period if the work for which the enrolled nurse was recalled is completed in less time.

(b)  Where an enrolled nurse is recalled to duty in accordance with paragraph (a) of this subclause, then the payment of the appropriate overtime rate will commence from:

(i) in the case of an enrolled nurse who is on call, from the time the enrolled nurse starts work. Provided that the enrolled nurse is entitled to a minimum payment of two hours at overtime rates even where the actual period worked is less than two hours or where upon the enrolled nurse’s arrival at the worksite the employer decides that the enrolled nurse is no longer needed;

(ii) in the case of an enrolled nurse who is not on call, time spent travelling to and from the place of duty where the employee is actually recalled to perform emergency duty will be included with actual duty performed for the purpose of overtime payment. Provided that where an employee is recalled within two hours, work will be included with actual duty for the purpose of overtime payment.

(c) If an enrolled nurse is recalled to work the employee will:

(i)  except as provided in subparagraph (ii) below, be provided free of charge with transport from home to the place of employment and return or, be paid the vehicle allowance provided in Clause 23 - Fares and Travelling Allowances of the Miscellaneous Government Conditions and Allowances Award No. A 4 of 1992 as amended;

(ii) if recalled to work within two hours of commencing normal duty and the enrolled nurse remains at work, the employee will be provided free of charge with transport from home to the place of employment or, be paid the vehicle allowance provided in Clause 23 - Fares and Travelling Allowances of the Miscellaneous Government Conditions and Allowances Award No. A 4 of 1992 as amended, for the journey from the employee’s home to the place of employment.

10.8  Recall to Work for Enrolled Community Nurse or Enrolled Community School Nurse

(a)  (i) Subject to the provisions of subparagraph (ii) below an enrolled community nurse or an enrolled community school nurse who is recalled to work for any purpose will be paid a minimum of two hours at the appropriate overtime rate but the nurse will not be obliged to work for two hours if the work for which the nurse was recalled is completed in less time. 

(ii) Provided that if a nurse is called out within two hours of starting work on a previous call the nurse will not be entitled to any further payment for the time worked within that period of two hours.

(b)  Where an employee is recalled to duty in accordance with paragraph (a) of this subclause, then the payment of the appropriate overtime rate will commence from:

(i) in the case of an employee who is on call, from the time the employee starts work. Provided that the employee is entitled to a minimum payment of two hours at overtime rates even where the actual period worked is less than two hours or where upon the employee’s arrival at the worksite the employer decides that the employee is no longer needed;

(ii) in the case of an employee who is not on call, time spent travelling to and from the place of duty where the employee is actually recalled to perform emergency duty will be included with actual duty performed for the purpose of overtime payment. Provided that where an employee is recalled within two hours, work will be included with actual duty for the purpose of overtime payment.

11. - SHIFT AND WEEKEND WORK

11.1 Subject to subclause 11.4, where on any day an employee commences his/her ordinary hours of work before 4.00 a.m. or after 12 noon, he/she shall be paid a loading of $2.58 per hour or pro rata for part thereof in addition to his/her ordinary rate of wage.

11.2 The provisions of subclause 11.1 do not apply to an employee who on any day commences his/her ordinary hours of work after 12.00 noon and completes those hours before 6.00 p.m. on that day. Provided that employees in receipt of shift allowance shall not have that allowance decreased by the operation of this subclause.

11.3 Where an employee works a broken shift each portion of that shift shall be considered a separate shift for the purpose of this clause. Provided that a shift broken by a meal break of one hour or less shall not constitute a broken shift.

11.4 (a)  A loading of $3.99 per hour or pro rata for part thereof shall be paid to an employee in addition to his/her ordinary rate of wage for time worked on permanent afternoon or night shift.

(b) For the purpose of this subclause an employee shall be deemed to have been working permanent afternoon or night shift where such employee works that shift as part of a non-rotating roster.

11.5 Subject to the provisions of subclause 11.7 of this clause work performed during ordinary hours on the weekend shall in addition to the ordinary rate of wage attract a loading as follows:

(a) Saturday - $10.50 per hour or pro rata for part thereof;

(b) Sunday - $21.11 per hour or pro rata for part thereof.

(c) The rates prescribed in this subclause shall be in substitution for and not cumulative on the rates prescribed in subclauses 11.1 and 11.4.

11.6 An employee who regularly performs shift or weekend work shall be paid ADOs including shift or weekend penalties, when those days are taken as leave at the rate which applied when they were accumulated.

11.7  Where the ordinary hours of work span 12 midnight on a Friday night or Sunday night the additional payments for shift work and work during the weekend will be made by calculating for each part of the shift according to the rate applicable for the additional payment for shift work and work during the weekend as the case may be.

11.8  The provisions of this clause will not apply to community nurses or enrolled community nurses.             

12. - ROSTERS

12.1 Rostering Arrangements

(a) A roster of the working hours shall be exhibited in such place as it may conveniently and readily be seen by each worker concerned.

(b) Where practicable rosters will be posted at least seven days prior to the commencing date of the first working period in the roster. Rosters will in any event be posted not less than 48 hours prior to the commencing date of the first working period in the roster.

(c) The roster shall be available to the Union secretary or his/her nominee for inspection at all reasonable times.

(d) Rosters may be altered at any time if the hospital exigencies render any alteration necessary.

12.2 Change in the rostering arrangements

(a) The employer and the Union may agree to a work cycle of 38 hours per week or 76 hours per fortnight or any other method.

(b)  Any change in rostering arrangements will be designed to improve productivity, efficiency and cost effectiveness in the work place and will follow the below procedure:

(i)  Any proposed roster variations for each site or sub site will be explained to the employees concerned and to the Union who will consider them.

(ii)  The affected parties (i.e. site management and employees) will then consult with each other with a view to agreeing to the proposed roster.

(iii)  Where agreement cannot be reached, the issue will be resolved in accordance with the dispute settlement procedure in this Award.             

13. - MEAL AND TEA BREAKS

13.1 Meal Breaks for Employees other than Nurses Employed in Clinics or Departments

(a) Meal breaks will not be less than 30 minutes but will not be counted as time worked.

(b) Provided that where an Enrolled Nurse is called on duty during a meal time the period worked will be counted in the ordinary working hours of duty.

(c) Where an employee is unable to access their 30 minute unpaid meal break they will be paid for a straight through shift at ordinary rates.

(d) Any meal or tea break during which an enrolled community school nurse is required to be available to work or working will be counted as time worked and included as part of the seven hours 36 minutes day.

13.2 Meal Breaks for Nurses Employed in Clinics or Departments

The daily hours of duty for a nurse employed in a clinic or department will include a break of not more than one hour for lunch and such time will not be included as part of the normal working week.

13.3  Tea Breaks

The time allowed for morning and afternoon tea will not exceed seven minutes which will be taken when convenient to the employer without deduction of pay for such time.

14. - ON CALL

14.1 (a) For the purposes of this Award an employee is on call when they are directed by the employer to remain at such a place as will enable the employer to readily contact the employee during the hours when they are not otherwise on duty.

(b) In determining the place at which the employee will remain, the employer may require that place to be within a specified radius from the hospital or place of employment.

14.2  (a) An employee rostered to be on call will be paid the allowance prescribed in paragraph 14.2(b) for each hour or part thereof during which the employee is on call.             

(b) The applicable allowance is 18.75% of 1/38th of the hourly rate of pay prescribed for an ASEN 2.

(c) Provided that payment in accordance with this clause will not be made with respect to any period for which payment is otherwise made in accordance with the provisions of Clause 10 – Overtime when the employee is recalled to work.

14.3 If the usual means of contact between the employer and the employee on call is a telephone and if the employee pays or contributes towards the payment of the rental of such telephone the employer will pay the employee an amount being a proportion of the telephone rental calculated on the basis that for each seven days on which an employee is required to be on call the employer will pay the employee 1/52nd of the annual rental paid by the employee.

14.4 Provided that where the employer and the Union agree in writing, other arrangements may be made for compensation of on call work to enrolled community nurses or enrolled community school nurses.

14.5 Where it is determined that the means of contact is to be by pager or similar device the employer will provide the employee with the device at no charge.

14.6 An enrolled community nurse or an enrolled community school nurse will not be required to remain on call whilst on leave or the day before commencing leave, or whilst on accrued days off, or the day before commencing accrued days off, unless by mutual agreement between the nurse and employer.

15. - MINIMUM ADULT AWARD WAGE

15.1 No employee aged 21 or more shall be paid less than the minimum adult award wage unless otherwise provided by this clause.

15.2 The minimum adult award wage for full-time employees aged 21 or more is $627.70 per week payable on and from the commencement of the first pay period on or after 1 July 2012.

15.3 The minimum adult award wage is deemed to include all State Wage order adjustments from State Wage Case Decisions.

15.4 Unless otherwise provided in this clause adults employed as casuals, part-time employees or piece workers or employees who are remunerated wholly on the basis of payment by result shall not be paid less than pro rata the minimum adult award wage according to the hours worked.

15.5 Employees under the age of 21 shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision in this award to the minimum adult award wage.

15.6 The minimum adult award wage shall not apply to apprentices, employees engaged on traineeships or Jobskill placements or employed under the Commonwealth Government Supported Wage System or to other categories of employees who by prescription are paid less than the minimum award rate, provided that no employee shall be paid less than any applicable minimum rate of pay prescribed by the Minimum Conditions of Employment Act 1993.

15.7 Liberty to apply is reserved in relation to any special category of employees not included here or otherwise in relation to the application of the minimum adult award wage.

15.8 Subject to this clause the minimum adult award wage shall –

(a) Apply to all work in ordinary hours.

(b) Apply to the calculation of overtime and all other penalty rates, superannuation, payments during any period of paid leave and for all purposes of this Award. 

15.9 Minimum Adult Award Wage

The rates of pay in this Award include the minimum weekly wage for employees aged 21 or more payable under the 2012 State Wage order decision.  Any increase arising from the insertion of the minimum wage will be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award.  Such above award payments include wages payable pursuant to enterprise agreements, consent awards or award variations to give effect to enterprise agreements and over award arrangements.  Absorption which is contrary to the terms of an agreement is not required.

Increases under previous State Wage Case Principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset the minimum wage.

15.10 Adult Apprentices

(a) Notwithstanding the provisions of this clause, an apprentice, 21 years of age or more, shall not be paid less than $543.50 per week on and from the commencement of the first pay period on or after 1 July 2012.

(b) The rate paid in the paragraph above to an apprentice 21 years of age or more is payable on superannuation and during any period of paid leave prescribed by this Award.

(c) Where in this Award an additional rate is expressed as a percentage, fraction or multiple of the ordinary rate of pay, it shall be calculated upon the rate prescribed in this award for the actual year of apprenticeship.

(d) Nothing in this clause shall operate to reduce the rate of pay fixed by the Award for an adult apprentice in force immediately prior to 5 June 2003.

16. - CLASSIFICATION AND WAGES

16.1  Subject to subclause 16.3, the minimum weekly rate of wage payable to employees covered by this Award shall be as per the provisions comprising:

(a)  Part A – Wages Adjusted by Arbitrated Safety Net Adjustments; or

(b)  Part B – Expired Industrial Agreement Wages;

whichever are the greater.

16.2  Subject to subclause 16.3, the wage rates to apply for the purpose of the no-disadvantage test under the Industrial Relations Act 1979 shall be as per the provisions comprising:

(a)  Part A – Wages Adjusted by Arbitrated Safety Net Adjustments; or

(b)  Part B – Expired Industrial Agreement Wages;

whichever are the greater.

16.3  The rates contained in Part B – Expired Industrial Agreement Wages shall only apply to the employees and employers who are respondent to the WA Health - LHMU - Enrolled Nurses and Assistants in Nursing Industrial Agreement 2007 (AG 15/08), as replaced from time to time.

PART A: WAGES ADJUSTED BY ARBITRATED SAFETY NET ADJUSTMENTS

16.4 The rates of pay in subclause 16.7 include arbitrated safety net adjustments available since December 1993.

16.5 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 subclause 16.7, except where such absorption is contrary to the terms of an industrial agreement.

16.6 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.

16.7 Subject to subclauses 16.1, 16.2 and 16.3, the weekly rate of wage payable to employees covered by this Award will be as follows:

16.8 Assistant in Nursing (under 19 years of age)

The rate shall be a percentage of the total wage prescribed for an Assistant in Nursing in his/her first year of employment in paragraph 16.7(d) per week, as follows:-

16.9 Where an Assistant in Nursing undertakes duties other than providing care those duties shall be consistent with the range of duties undertaken by nurses generally in the setting in which the Assistant in Nursing is employed.

16.10 An Assistant in Nursing shall work within the limits of their competency as assessed consistent with nationally recognised training and competency standards applicable to assistants in nursing.

16.11 An Assistant in Nursing shall not be required to provide care other than under the direction of a person registered under the Health Practitioner Regulation National Law (WA) Act 2010 and where that nurse remains professionally accountable for the care provided.

16.12 An Assistant in Nursing who has completed their first year of service and who is accepted for training as an Enrolled Nurse, will be paid not less than the employee would have received had the employee continued as an Assistant in Nursing.

16.13 An Assistant in Nursing in Training is paid in accordance with subclause 16.7 as an Assistant in Nursing in the first year of employment.

16.14 When the term "year of employment" is used in this clause it will mean all service whether full time or part time in any of the classifications contained in this Award with any hospital covered by this Award and will be calculated in periods of completed months from the date of commencement of work covered by this Award.  Provided that:

(a) "Service" in this context will have the same meaning as it does in the long service leave conditions appropriate to the employee concerned, but confined to named employers party to this Award; except where the employer or the Commission deems it appropriate to include service with hospitals not a party to this Award.

(b) Employees will be paid the rates shown in this clause according to their year of employment calculated in accordance with the provisions of this subclause. 

(c) Proof of previous service, if required by the employer, will rest on the employee; provided that production of the statement of employment referred to in subclause 7.7, will be sufficient proof for the purpose of this paragraph.

16.15 Re-registration and Length of Service

Notwithstanding the provisions of paragraph 16.14(b), an Enrolled Nurse who successfully completes a re-registration course following a break in service will commence employment on the rate prescribed as follows:

(a) Five year break in service - at third year of employment rate provided that the first and second year of service rates have previously been attained.

(b) Six year but less than eight year break in service - at second year of employment rate.

(c) Greater than eight year break in service - at the first year of employment rate.

16.16 Enrolled Community School Nurses on Days Not Required to Work

The wage rate for an enrolled community school nurse, where such a nurse is not required by the employer to present for duty on any day when the school is not open, will be calculated as follows:

Weekly wage = the normal rate for an enrolled nurse as prescribed in subclauses 16.7 multiplied by 48.5, and divided by 52.166.

PART B – EXPIRED INDUSTRIAL AGREEMENT WAGES

16.17  The wage rates contained in subclause 16.18 have been incorporated from the WA Health - LHMU - Enrolled Nurses and Assistants in Nursing Industrial Agreement 2007 (AG 15/08) and are not to be subject to arbitrated safety net adjustments.

16.18 Subject to subclauses 16.1, 16.2 and 16.3, the weekly rate of wage payable to employees covered by this Award will be as follows:

Enrolled Nurses

(a)  The classification structure for Enrolled Nurses will be as follows:

(i)  “Enrolled Nurse Level 1” is an Enrolled Nurse in the first year of employment.

(ii)  “Enrolled Nurse Level 2” is an Enrolled Nurse in the second year of employment.

(iii)  “Enrolled Nurse Level 3” is an Enrolled Nurse in the third year of employment.

(iv)  “Enrolled Nurse Level 4” is an Enrolled Nurse in the fourth year of employment.

(v)  “Advanced Skill Enrolled Nurse Level 1” (ASEN 1) is an Enrolled nurse who has:

(A) at least 3 years’ experience and a post registration qualification of at least 6 months duration, relevant to their area of clinical practice; or

(B) at least 4 years’ experience and sufficiently demonstrated competencies, as defined in clause 16.18(b) relevant to their area of clinical practice.

(vi)  Advanced Skill Enrolled Nurse Level 2 (ASEN 2) is an Advanced Skill Enrolled Nurse in the second year of employment as an Advanced Skill Enrolled Nurse.

(b) For the purposes of clause 16.18(a):

(i)  “sufficiently demonstrated competencies” means the employee has satisfied the competencies process contained in the Advanced Skill Enrolled Nurse Competencies Workbook.

(ii)  The “Advanced Skill Enrolled Nurse Competencies Workbook” will be as agreed from time to time between the employer(s) and the Union.

16.19 The rates of pay for Enrolled Nurses will be as follows:

16.20 The rates of pay for Assistants in Nursing will be as follows:

16.21 Assistant in Nursing (under 19 years of age)

The rate shall be a percentage of the total wage prescribed for an Assistant in Nursing in his/her first year of employment in subclause 16.20, as follows:-

16.22 Where an Assistant in Nursing undertakes duties other than providing care those duties shall be consistent with the range of duties undertaken by nurses generally in the setting in which the Assistant in Nursing is employed.

16.23 An Assistant in Nursing shall work within the limits of their competency as assessed consistent with nationally recognised training and competency standards applicable to assistants in nursing.

16.24 An Assistant in Nursing shall not be required to provide care other than under the direction of a person registered under the Health Practitioner Regulation National Law (WA) Act 2010 and where that nurse remains professionally accountable for the care provided.

16.25 An Assistant in Nursing who has completed their first year of service and who is accepted for training as an Enrolled Nurse, will be paid not less than the employee would have received had the employee continued as an Assistant in Nursing.

16.26 An Assistant in Nursing in Training is paid in accordance with subclause 16.20 of this clause as an Assistant in Nursing in the first year of employment.

16.27 Enrolled Community School Nurses on Days Not Required to Work

The wage rate for an enrolled community school nurse, where such a nurse is not required by the employer to present for duty on any day when the school is not open, will be calculated as follows:

Weekly wage = the normal rate for an enrolled nurse as prescribed in subclause 16.20 multiplied by 48.5, and divided by 52.166.

17. - TRANSFER, TRAVELLING AND RELIEF ALLOWANCES

The provisions of Clause 42 – Camping Allowance, Clause 44 – Disturbance Allowance, Clause 48 – Property Allowance, Clause 50 – Relieving Allowance, Clause 51 – Removal Allowance, Clause 53 – Transfer Allowance, Clause 54 – Travelling Allowance, Clause 55 – Weekend Absence From Residence, Schedule C – Camping Allowance and Schedule I – Travelling, Transfer and Relieving Allowance of the Public Service Award 1992 will apply to employees covered by this Award.

18. - UNIFORMS AND LAUNDRY

18.1 Enrolled Nurses and Assistants in Nursing, excluding Enrolled Community Nurse or Enrolled Community School Nurses

(a) The employer will provide free of charge the following number and type of uniforms to each employee:

(i) six dresses; or

(ii) six pairs of trousers/culottes/shorts and 6 short or long sleeved shirts; and

(iii) two jackets or cardigans

(b) The employee will choose which combination of the above best suits their needs.

(c) The employer will determine the material, colour, pattern and conditions of the uniforms issued.

(d) All employees must wear a suitably enclosed shoe, however, the employer may not specify colour or brand.

(e) The standard uniform issue may be varied by agreement between the employer and the Union where a hospital has the need for particular items of clothing to be worn.

(f) No staff member will be required to wear stockings.

(g) By agreement between an employer and an employee and where a hospital is situated north of 26º south latitude, jackets and cardigans need not be supplied.

(h) Uniforms will be replaced as and when necessary on a fair wear and tear basis.

(i) Each employee will have a sufficient number of uniforms to ensure a clean uniform daily.

(j) All washable clothing forming part of the uniform supplied by the employer shall be laundered free of cost to the employees. Provided that in lieu of such free laundering the employer may pay the employee $2.10 per week.

This rate will be adjusted in accordance with the Consumer Price Index – Cleaning, repair and hire of clothing and footwear – Perth (ABS Cat. No. 6455.0.40.001).

(k) Laundering of jackets and cardigans issued as part of the uniform shall be the responsibility of the employee. No laundry allowance will be paid for this work.

(l) At all times the uniform issued to the employee will remain the property of the employer.

18.2 Enrolled Community Nurses and Enrolled Community School Nurses

(a)  The employer will provide nurses with all uniforms.

(b) These uniforms will at all times remain the property of the employer.

(c)  Provided further that in lieu of providing uniforms the employer may pay an allowance of $9.00 per week, and the nurse will wear uniforms which conform to the uniform stipulated by the employer with respect to material, colour, pattern and conditions.

This rate will be adjusted in accordance with the Consumer Price Index – Cleaning, repair and hire of clothing and footwear – Perth (ABS Cat. No. 6455.0.40.001).

(d) Where the employer does not require the nurse to wear a uniform no allowance shall be paid.

(e) Each nurse shall be entitled to all reasonable laundry work at the expense of the employer, but where the employer elects not to launder the uniforms, the nurse shall be paid an allowance of $3.00 per week.

This rate will be adjusted in accordance with the Consumer Price Index – Cleaning, repair and hire of clothing and footwear – Perth (ABS Cat. No. 6455.0.40.001).

19. - LEADING HAND ALLOWANCE

Leading Hands shall be paid the ordinary wage prescribed for the classification in which they are employed increased by:

19.1 $24.10 per week when in charge of not less than three and not more than ten other employees;

19.2 $36.50 per week when in charge of more than ten and not more than twenty other employees; and

19.3 $48.50 per week when in charge of more than twenty employees.

the provisions of this subclause shall not apply to enrolled community nurses or enrolled community school nurses.

20. - ANNUAL LEAVE

20.1 Except as hereinafter provided a period of seven consecutive weeks' leave shall be allowed to an employee by his/her employer after each period of twelve months' continuous employment with such employer. This entitlement shall accrue pro rata on a weekly basis and is cumulative.

20.2 Prior to commencing leave, each employee shall be paid for that period of leave:

(a) Where an employee has worked less than the full time hours per week specified in Clause 9 - Hours of this Award over the accrual period for which annual leave is being taken, the hours for which payment is made shall be calculated on an average of the number of hours worked per week during the accrual period;

(b) the rate of wage the employee would have received had they not proceeded on leave. In the case of rostered workers that wage shall include the shift work and weekend penalties that employee would have received had they not proceeded on leave;

where it is not possible to calculate the shift and weekend penalties the employee would have received the employee shall be paid the average of such payments made each week over the four weeks prior to taking leave;

OR

(c) For 5/7ths of that leave, the rate of wage shown in Clause 16 – Classification and Wages of this Award for the employee’s class of work and in addition be paid a loading of 18.75% of that wage and for the remaining 2/7ths of that leave due in each year, be paid according to paragraph (b) of this subclause;

whichever is the greater benefit to the employee. Provided that the loading prescribed by this subclause shall not apply to pro rata annual leave on termination.

20.3 Subject as hereinafter provided:

(a) If after one week's continuous employment an employee lawfully terminates their employment or their employment is terminated by the employer through no fault of the employee, the employee shall be paid 5.11 hours pay, (at the rate prescribed by paragraph (b) of subclause 20.2) in respect of each completed week of continuous service for which annual leave has not already been taken.

(b) In addition to any payment to which the employee may be entitled under this subclause, an employee whose employment terminates after the employee has completed a twelve monthly qualifying period and who has not been allowed the leave prescribed under this Award in respect of that qualifying period shall be given payment in lieu of that leave unless the employee has been justifiably dismissed for misconduct and the misconduct for which the employee has been dismissed occurred prior to the completion of that qualifying period.

20.4 (a)  The annual leave prescribed in this clause may be taken in two portions, if so required by the employee, provided that no portion shall be less than two consecutive weeks.

(b) By mutual agreement between the employer and the employee, the annual leave may be further split on one additional occasion, provided that no portion shall be less than one week.

(c) When an employee requests that their annual leave be split into two or three portions the employer shall make every reasonable endeavour to accommodate the wishes of the employee.

20.5 Any time in respect of which an employee is absent from work except paid sick leave or unpaid sick leave up to three months, the first 26 weeks of any absence on workers compensation, annual leave, long service leave and bereavement leave, shall not count for the purpose of determining annual leave entitlements.

20.6 Leave shall be given as soon as practicable after falling due and shall not accumulate except with the consent of the employee, but in no case shall it accumulate for more than two years.

20.7 Before going on annual leave each employee shall be given at least two weeks' notice of the date leave is to be taken, unless the employee and the employer agree on a lesser period.

20.8 The provisions of this clause shall not apply to casual employees.

20.9 When an employee proceeds on the first four weeks of the seven weeks' annual leave prescribed by subclause 20.1 there will be no accrual towards an ADO as prescribed in 9.1 of Clause 9 - Hours this Award. Accrual towards an ADO shall continue during any other period of annual leave prescribed by this clause.

20.10 Any annual leave entitlement as at 1st January, 1985 shall be adjusted in hours in the ratio of 38 to 40.

20.11 Annual leave for enrolled community nurses and enrolled community school nurses

Notwithstanding anything else herein contained, the provisions of this subclause shall apply to enrolled community nurses and enrolled community school nurses.

(a) Subject to the provisions of this subclause, each nurse shall be entitled to four weeks' leave with payment of ordinary wages after each twelve months' continuous service. This entitlement shall accrue pro rata on a weekly basis and is cumulative.

(b) A loading of 17.5% shall be paid in addition to the ordinary wage payable under this subclause.

(c) A nurse may, with the approval of the employer, be allowed to take the annual leave prescribed by this clause before the completion of twelve months' continuous service as prescribed by paragraph (a) of this subclause.

(d) (i) Except as provided in subparagraph (ii) hereunder if after one week's continuous employment, a nurse lawfully terminates her/his employment or her/his employment is terminated by the employer through no fault of the nurse, the nurse shall be paid 2.92 hours' pay (at the rate prescribed by paragraph (a) of this subclause) in respect of each completed week of continuous service for which annual leave has not already been taken.

(ii) A nurse who is dismissed for misconduct which occurred after the completion of a twelve monthly qualifying period shall, subject to Clause 7 - Contract of Employment of this Award, be given payment for the leave accrued but not taken.

(e) If the service of a nurse terminates and the nurse has taken a period of leave in accordance with paragraph (c) of this subclause, and if the period of leave so taken exceeds that which would become due pursuant to paragraph (a) of this subclause, the nurse shall be liable to pay the amount representing the difference between the amount received by her/his for the period of leave taken in accordance with paragraph (c) of this subclause and the amount which would have accrued in accordance with paragraph (a) of this subclause. The employer may deduct this amount from monies due to the nurse by reason of the other provisions of this Award at the time of termination.

(f) A school nurse shall not be required to present herself/himself for duty on any day when the school is not open. Subject to subparagraph (i) of paragraph (d) hereof, she/he shall be paid ordinary wages on any day of which she/he is relieved of the obligation to present herself/himself for work.

If a school nurse is required to work on any day observed as a school holiday she/he shall be paid at the rate of double time and a half.

(g) A school nurse who works a minimum of four weeks continuously but less than a full school year shall be entitled to payment at the ordinary rate of pay for or in lieu of the Christmas and term vacation periods related to that school year on the basis on 9.75 hours' pay for each week the nurse was employed to actually work in the school.

(h) A school nurse absent from work on leave without pay shall lose all entitlements to payment at the ordinary rate of pay for or in lieu of Christmas and term vacation periods in accordance with the following table.

(i) An annual leave loading shall be included in the last payment of ordinary wages made prior to Christmas Day or in the event of termination prior to the end of the school year, in the final payment made to the school nurse.

Subject to paragraph (h) hereof annual leave loading shall be 17.5% of four weeks' wages at the rate of pay applicable at the time of payment.

Where a school nurse is employed for less than the full school year, the annual leave loading shall be paid on a pro rata basis in the same proportions as the number of weeks which the nurse was actually employed to work in the school bears to the number of weeks in the same year.

(j) In addition to any payment to which the nurse may be entitled under subparagraph (i) of paragraph (d) hereof, a nurse whose employment terminates after completing a twelve monthly qualifying period and who has not been allowed the leave prescribed under this Award in respect of that qualifying period, shall be given payment in lieu of that leave unless the nurse has been justifiably dismissed for misconduct and the misconduct for which the nurse has been dismissed occurred prior to completion of that qualifying period.

(k) The annual leave prescribed in paragraph (a) of this subclause may, by consent between the employer and the employee, be taken in two portions provided that no portion shall be less than two consecutive weeks. Provided further that school nurses shall be required to clear annual leave during periods of school vacation.

(l) When computing the annual leave due under this clause, no deduction shall be made from such leave in respect of the period a nurse is on long service leave, annual leave, absent through sickness with or without pay except for that portion of an absence that exceeds three months, or absent on workers' compensation, except for that portion of an absence that exceeds six months.

(m) The leave of a nurse shall not accumulate except with the consent of the nurse and in no case shall it accumulate for more than two years.

(n) Before going on annual leave each nurse shall be given at least two weeks' notice of the date leave is to be taken, unless the nurse and the employer agree on a lesser period.

(o) The first four weeks of annual leave prescribed in this clause shall not accrue time towards an ADO as prescribed in subclause 9.1 of Clause 9 - Hours of this Award. Accrual towards an ADO shall continue during any other period of annual leave prescribed by this clause.

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

21. - SICK LEAVE

21.1 The provisions of this clause do not apply to casual employees.

21.2 For the purposes of this clause, “continuous service” will not include any period:

(a) exceeding fourteen calendar days in one continuous period during which an employee is absent on leave without pay. In the case of leave without pay that exceeds fourteen calendar days, the entire period of such leave without pay is excised in full;

(b) which exceeds six months in one continuous period during which an employee is absent on workers’ compensation. Only that portion of such continuous absence that exceeds six months will not count as “continuous service”; or

(c) which exceeds three months in one continuous period during which an employee is absent on sick leave without pay. Only the portion of such continuous absence that exceeds three months will not count as “continuous service”.

21.3 Entitlement

(a)  This sick leave entitlement accrues pro rata on a weekly basis and accrues from year to year.

(b)  The employer will credit full-time employees with either 76 or 80 hours (depending on whether the employee accrues ADOs) of sick leave credits for each twelve month period of continuous service.

(c) An employee employed on a fixed term contract will receive the same entitlement as a permanent employee. 

(d) A part time employee will be entitled to the same sick leave credits as a full time employee, but on a pro rata basis according to the number of hours worked, be it either 76 or 80 hours per fortnight.  Payment for sick leave will only be made for those hours that would normally have been worked had the employee not been on sick leave.

(e) Sick leave may be taken on an hourly basis or part thereof.

(f) Payment for sick leave shall be at the rate, including shift and weekend penalties, the employee would have received had the employee not proceeded on sick leave.

(g) The accrued entitlement to sick leave shall be reduced by the number of hours the employee was rostered to work on the day the employee was absent on sick leave.

(h) An employee whilst on paid sick leave shall continue to accrue an entitlement to an ADO.

(i)  Payment may be adjusted at the end of each accruing year, or at the time the employee leaves the service of the employer in the event of the employee being entitled by service subsequent to the sickness in that year to a greater allowance than that made at the time the sickness occurred.

21.4  Evidence

(a) An application for sick leave exceeding two consecutive working days will be supported by evidence that would satisfy a reasonable person of the entitlement.

(b)  The number of sick days which may be granted without production of evidence that would satisfy a reasonable person required by paragraph 21.4(a) will not exceed, in aggregate, five working days in any one accruing year.

(c)  An employee will, as soon as reasonably practicable, notify the employer of their inability to attend for work due to illness or injury and the estimated duration of the absence.

(d)  Other than in extraordinary circumstances, the notification required by paragraph 21.4(d) will be given to the employer within 24 hours of the commencement of the absence.

21.5  Access to sick leave while on annual or long service leave

(a) Subject to this subclause, an employee is unable to access sick leave while on any period of annual or long service leave.

(b) Where an employee is ill or injured 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, as a result of the illness or injury, the employee was confined to their place of residence or a hospital for a period of at least seven consecutive calendar days, the employer will grant sick leave for the period during which the employee was so confined and reinstate annual leave equivalent to the period of confinement.

(c)  Payment for replaced annual leave will be at the wage rate applicable at the time the leave is subsequently taken provided that, where the annual leave loading prescribed in Clause 20 – Annual Leave has been paid to the employee with respect to the replaced annual leave, it will be deemed to have been paid.

(d) Where an employee is ill or injured during a 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, as a result of the illness or injury, the employee was confined to their place of residence or a hospital for a period of at least fourteen consecutive calendar days, the employer may grant sick leave for the period during which the employee was so confined and reinstate long service leave equivalent to the period of confinement.

21.6 In exceptional circumstances, the employer may approve the conversion of an employee's sick leave credits to half pay to cover an absence on sick leave due to illness or injury.

21.7 An employee is unable to access sick leave while on any period of leave without pay.

21.8 If an employee’s injury or illness is attributable to:

(a) the employee’s serious and wilful misconduct; or

(b) the employee’s gross and wilful neglect,

in the course of their employment, the employee is not entitled to be paid for their absence from work resulting from the illness or injury.

21.9 Workers’ Compensation

(a) Where an employee suffers a disability within the meaning of section 5 of the Workers' Compensation and Injury Management Act 1981 (WA) which necessitates that employee being absent from duty, sick leave with pay will be granted to the extent of sick leave credits.

(b) In accordance with section 80(2) of the Workers' Compensation and Injury Management Act 1981 (WA), where the claim for workers’ compensation is decided in favour of the employee, sick leave credits are to be reinstated and the period of absence granted as sick leave without pay.

21.10  Portability

Where:

(a)  an employee was, immediately prior to being employed by the employer, employed in the service of the public service of Western Australia or any other state body of Western Australia; and

(b) the period of employment between the date when the employee ceased previous employment and the date of commencing employment with the employer does not exceed one week or any other period approved by the employer;

the employer will credit the employee additional sick leave credits equivalent to those held at the date the employee ceased previous employment.

21.11 Unused sick leave will not be cashed out or paid out when an employee ceases their employment.

22. - CARER’S LEAVE

22.1 An employee is entitled to use, each year, any part 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.

22.2 Definitions

(a) “Member of the employee’s family” will have the meaning contained in the Equal Opportunity Act 1984 for “relative”.  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.

(b) “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.

22.3 An employee will, wherever practicable, 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 will notify the employer as soon as possible on the first day of absence. Where possible, an estimate of the period of absence from work will be provided.

22.4 An employee will 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 will be supported by evidence that would satisfy a reasonable person of the entitlement.

22.5 Carers’ leave may be taken on an hourly basis or part thereof.

22.6 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.

22.7 A casual employee will be entitled to not be available to attend work or to leave work if they need to provide care or support for a member of their family or household because of:

(a) an illness or injury of the member;

(b) an unexpected emergency affecting the member; or

(c) the birth of a child.

22.8 The employer and the casual employee will agree on the period for which the casual employee will be entitled to not be available to attend work.  In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion.  The casual employee is not entitled to any payment for the period of non-attendance.

22.9 An employer must not fail to re-engage a casual employee because the casual employee accessed the entitlements provided for in this clause.  The rights of an employer to engage or not engage a casual employee are otherwise not affected.

23. - LONG SERVICE LEAVE

23.1 The long service leave provisions set out in Volume 66 of the Western Australian Industrial Gazette, Application 763 of 1982, at pages 319 to 321 inclusive apply to employees other than casual employees covered by this Award.

23.2 The provision of the Long Service Leave Act 1958 will apply to casual employees where they are eligible under the terms of that Act.

23.3 When an employee proceeds on long service leave there will be no accrual towards an ADO as prescribed in subclause 9.1 of Clause 9 – Hours of this Award.

24. - PUBLIC HOLIDAYS

24.1 For the purposes of this clause the following days, or days observed in lieu thereof, will be considered public holidays and paid in accordance with subclauses 24.3 and 24.4:

New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, WA Day, Sovereign's Birthday, Christmas Day and Boxing Day.

24.2 Where any of the days referred to in subclause 23.1 falls on a Saturday or a Sunday the holiday will be observed on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday the holiday will be observed on the next succeeding Tuesday.

24.3 A loading of 50% per hour, will be paid to an employee rostered to work on a Public Holiday in addition to the employee’s ordinary rate of wage for each hour worked or part thereof.

24.4 Work performed by an enrolled community nurse or an enrolled community school nurse at the direction of the employer on a day specified in subclause 24.1, 24.2 or 24.6 will be paid or compensated for as below:

(a) double time and one half, or

(b) in lieu of making payment in accordance with paragraph (a) above, and by agreement between the employee and the employer, payment may be made at the rate of time and one half with equivalent time to that worked being taken off at a time convenient to the employer.

24.5 (a) In any branch or department in the community health service area where the clerical and administrative staff observe additional holidays with pay, such days will be allowed to enrolled community nurses and enrolled community school nurses as holidays with pay.

(b) The provisions of this paragraph will not apply where the enrolled community nurse or enrolled community school nurse is required to maintain a service to other employees of an employer party to this Award.

24.6 Where -

(a) a day is proclaimed as a public holiday or as a public half-holiday under Section 7 of the Public and Bank Holidays Act, 1972; and

(b) that proclamation does not apply throughout the State or to the metropolitan area of the State;

that day will be a whole holiday for the purposes of this Award within the district or locality specified in the proclamation.

25. - EMERGENCIES

In the event of any emergency arising, the employer may with the consent of the Commission, take such measures as may in the employer’s opinion are necessary for the safety and protection or welfare of patients notwithstanding anything contained in this Award.

26. - DISPUTE RESOLUTION

26.1 Preamble

(a) Subject to the provisions of the Industrial Relations Act 1979 (as amended) any grievance, complaint or dispute, or any matter raise by the Union or named employer and his/her employees shall be settled in accordance with the procedures set out herein.

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

26.2 Procedure

(a) The status quo (ie. the condition applying prior to the issue arising) will remain until the issue is resolved in accordance with the procedure outlined in this clause.

(b) Any questions, disputes or difficulties arising under the Award or in the course of the employment of employees covered by the Award will be dealt with in accordance with the following dispute resolution procedure.

(c) The employee/s and the manager with whom the dispute has arisen will discuss the matter and attempt to find a satisfactory solution within three working days. An employee is entitled to have a union representative accompany them.

(d) If the dispute cannot be resolved at this level, the matter will be referred to and be discussed with the relevant manager’s superior and an attempt made to find a satisfactory solution within a further three working days. An employee is entitled to have a union representative accompany them.

(e) If the dispute is still not resolved, it may be referred by the employee/s or union representative to the employer or their nominee.

(f) Where the dispute cannot be resolved within five working days of the union representative’s referral of the dispute to the employer or their nominee, either party may refer the matter to the Commission for conciliation and arbitration as required.

(g) The period for resolving a dispute may be extended by agreement between the parties.

(h) At all stages of the procedure, the employee is entitled to have a union representative accompany them.

(i) Notwithstanding the above, the union may raise matters directly with representatives of the employer. In each case, the union and the employer will endeavour to reach agreement. If no agreement is reached, either party may refer the dispute to the Commission for conciliation and/or arbitration.

27. - DISCIPLINARY PROCEDURE

Where the employer seeks to discipline an employee, or terminate an employee’s contract of employment the following steps will be observed:

27.1 In the event that an employee commits a misdemeanour, the employee's immediate supervisory or any other employee so authorised, may exercise the employer's right to reprimand the employee so that the employee understands the nature and implications of their conduct.

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

27.3 Should it be necessary, for any reason, to reprimand an employee three times in a period not exceeding twelve months continuous service, the contract of service will, upon the giving of that third reprimand, be terminable in accordance with the provisions of this Award.

27.4 The above procedure is meant to preserve the rights of the individual employee, but it will not, in any way, limit the right of the employer to summarily dismiss an employee for misconduct.

28.  - ACCESS TO THE COMMISSION

28.1 The settlement procedures contained within this clause will be applied to all manner of disputes, including those arising under this Award, referred to in Clause 26 hereof, and no party, or individual, or group of individuals, will commence any other action, of whatever kind, which may frustrate a settlement in accordance with its procedures.

28.2 Observance of these procedures will in no way prejudice the right of any party in dispute to refer the matter for resolution in the Commission, at any time.

29. - PROVISION OF SERVICES

29.1 The Union recognises that the Department of Health has a statutory and public responsibility to provide health care services without any avoidable interruptions.

29.2 This grievance procedure has been developed between the parties to provide an effective means by which employees may reasonably expect problems will be dealt with as expeditiously as possible by Health Service Management.

29.3 Accordingly, the Union 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.

SCHEDULE A - PROVISIONS OF THE MISCELLANEOUS GOVERNMENT CONDITIONS AND ALLOWANCES AWARD NO. A4 OF 1992

Parental Leave

Leave Without Pay

Bereavement Leave

Study Leave

Cultural/Ceremonial Leave

Purchased Leave – 48/52 Wages Arrangement

Deferred Wages Arrangement

Blood/Plasma Donors Leave

Emergency Services Leave

Defence Force Reserves Leave

Payment of Wages

Salary Packaging

Employment Records

Right of Entry

Trade Union Training Leave

District Allowance

Fares and Travelling Allowances

Paid Leave for English Language Training

Employees Living North of the 26 Degrees South Latitude

Introduction of Change

Consultation

Collection of Banking Details

Training and Skills Acquisition

Union Facilities for Union Representatives

Witness and Jury Service

Liberty to Apply

Traineeships

Commitment to Bargaining

Access to Award