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Attachment 1: Consultation model clause

1. This term applies if the employer:

a) proposes to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or

b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Major change

2. For a major change referred to in paragraph (1)(a):

a) the employer must notify the relevant employees and their union of the decision to introduce the major change; and

b) subclauses (3) to (9) apply.

3. The relevant employees may appoint a representative for the purposes of the procedures in this term.

4. If:

a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

5. As soon as practicable after the employer has developed a change proposal the employer must:

a) discuss with the relevant employees:

i) the introduction of the change; and

ii) the effect the change is likely to have on the employees; and

iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

b) for the purposes of the discussion—provide, in writing, to the relevant employees:

i) all relevant information about the change including the nature of the change proposed; and

ii) information about the expected effects of the change on the employees; and

iii) any other matters likely to affect the employees.

6. However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

7. The employer must give prompt and genuine consideration to matters raised about the
major change by the relevant employees.

8. If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5)
are taken not to apply.

9. In this term, a major change is likely to have a significant effect on employees if it results in:

a) the termination of the employment of employees; or

b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

d) the alteration of hours of work; or

e) the need to retrain employees; or

f) the need to relocate employees to another workplace; or

g) the restructuring of jobs.

Change to regular roster or ordinary hours of work

10. For a change referred to in paragraph (1)(b):

a) the employer must notify the relevant employees of the proposed change; and

b) subclauses (11) to (15) apply.

11. The relevant employees may appoint a representative for the purposes of the procedures in this term.

12. If:

a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

13. As soon as practicable after proposing to introduce the change, the employer must:

a) discuss with the relevant employees the introduction of the change; and

b) for the purposes of the discussion—provide to the relevant employees:

i) all relevant information about the change, including the nature of the change; and

ii) information about what the employer reasonably believes will be the effects of the change on the employees; and

iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and

c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

14. However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

15. The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.

16. In this term: relevant employees means the employees who may be affected by a change referred to in subclause (1).

Attachment 2: Dispute resolution model clause

The purpose of this model clause is to provide clarity and guidance to departments and agencies about what is required in a public sector enterprise agreement to satisfy both Government policy and the requirements of the FW Act.

1. Disputes

a) Unless otherwise provided for in this agreement, a dispute about a matter arising under this agreement or the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute about whether an employer had reasonable grounds to refuse a request for flexible working conditions under [refer to relevant enterprise agreement clause] or an application to extend unpaid parental leave under [refer to relevant enterprise agreement clause].

b) For the avoidance of doubt, this clause does not apply to any dispute on a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement.

c) The employer or an employee covered by this agreement may choose to be represented at any stage by a representative, including an employer or employee organisation.

2. Obligations

a) The parties to the dispute, and their representatives, must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

b) Whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an employee who has a reasonable concern about an imminent risk to his or her health or safety, has advised the employer of this concern and has not unreasonably failed to comply with a direction by the employer to perform other available work that is safe and appropriate for the employee to perform.

c) No person covered by the agreement will be prejudiced as to the final settlement of the dispute by the continuance of work in accordance with this clause.

3. Agreement and dispute settlement facilitation

a) For the purposes of compliance with this agreement (including compliance with this dispute procedure) where the chosen employee representative is another employee of the employer, he/she must be given reasonable opportunity to enable her/him to represent employees concerning matters pertaining to the employment relationship including but not limited to:

i) investigating the circumstances of a dispute or an alleged breach of this agreement or the National Employment Standards;

ii) endeavouring to resolve a dispute arising out of the operation of the agreement or the National Employment Standards; or,

iii) participating in conciliation, arbitration or agreed alternative dispute resolution process.

b) Any release from normal duties is subject to the proviso that it does not unduly affect the operations of the employer.

4. Discussion of dispute

a) The dispute must first be discussed by the aggrieved employee(s) with the immediate supervisor of the employee(s).

b) If the matter is not settled, the employee(s) can require that the matter be discussed with another representative of the employer appointed for the purposes of this procedure.

5. Internal process

a) If any party to the dispute who is covered by the agreement refers the dispute to an established internal dispute resolution process, the matter must first be dealt with in accordance with that process, provided that the process is conducted in a timely manner and it is consistent with the following principles:

i) the rules of natural justice;

ii) appropriate mediation or conciliation of the dispute is provided;

iii) any views on who should conduct the review shall be considered by the employer; and

iv) the process is conducted as quickly, and with as little formality, as a proper consideration of the matter allows.

b) If the dispute is not settled through an internal dispute resolution process, a party to the dispute may refer the dispute to FWC for conciliation and if the matter remains unresolved, arbitration.

6. Disputes of a collective character

a) The parties covered by the agreement acknowledge that disputes of a collective character concerning more than one employee may be dealt with more expeditiously by an early reference to FWC.

b) No dispute of a collective character may be referred to FWC directly unless there has been a genuine attempt to resolve the dispute at the workplace level prior to it being referred to FWC for conciliation.

7. Conciliation

a) Where a dispute is referred for conciliation, a member of FWC may arrange for whatever process the member considers may assist in resolving the dispute to occur.

b) Conciliation before FWC shall be regarded as completed when:

i) the parties to the dispute have informed the FWC member they have reached agreement on the settlement of the dispute; or

ii) the member of FWC conducting the conciliation has, either of their own motion or after an application by either party, satisfied themselves that there is no likelihood that within a reasonable period, further conciliation will result in a settlement; or

iii) the parties to the dispute have informed the FWC member that there is no likelihood of agreement on the settlement of the dispute.

8. Arbitration

a) If the dispute has not been settled when conciliation has been completed, either party to the dispute may request that FWC proceeds to determine the dispute by arbitration.

b) Where a member of FWC has exercised conciliation powers in relation to the dispute, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute if a party to the dispute objects to the member doing so.

c) Subject to sub clause 8(d) below, the determination of FWC is binding upon the persons covered by this agreement.

d) An appeal lies to a Full Bench of FWC, with the leave of the Full Bench, against a determination of a single member of FWC made pursuant to this clause.

9. Conduct of matters before FWC

a) Subject to any agreement between the parties to the dispute in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, FWC may conduct the matter in accordance with Subdivision B of Division 3 of Part 5 1 of the FW Act.

Attachment 3: Work and family model clauses

Outlined below are a parental leave, a personal/carer’s leave and a compassionate leave model clause for use by departments and agencies.

The model clauses provide guidance as to what is required in a public sector collective enterprise agreement, based on the FW Act National Employment Standards.

1. Parental leave

1.1. Application

Full time, part time and Eligible Casual Employees are entitled to parental leave under this clause if:

a) the leave is associated with:

i) the birth of a child of the Employee or the Employee’s Spouse; or

ii) the placement of a child with the Employee for adoption; and

b) the Employee has or will have a responsibility for the care of the child.

1.2. Definitions

For the purposes of this clause:

a) Eligible Casual Employee means a casual Employee:

i) employed by the Employer on a regular and systematic basis for a continuing period or sequence of periods of employment during a period of at least twelve months; and

ii) who has, but for accessing parental leave under this clause, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

b) Continuous Service is work for the Employer on a regular and systematic basis (including any period of authorised leave). [Insert any existing or agreed portability arrangements]

c) Child means:

i) in relation to birth-related leave, a child (or children from a multiple birth) of the Employee or the Employee’s Spouse;

ii) in relation to adoption-related leave, a child (or children) who will be placed with an Employee, and:

  • who is, or will be, under 16 as at the day of placement, or the expected day of placement;
  • has not, or will not have, lived continuously with the Employee for a period of 6 months or more as at the day of placement, or the expected day of placement; and
  • is not (otherwise than because of the adoption) a child of the Employee or the Employee’s spouse.

d) Primary Caregiver means the person who is the primary carer of a newborn or newly adopted Chil The primary carer is the person who meets the Child’s physical needs more than anyone else. Only one person can be a Child’s primary carer on a particular day. In most cases the Primary Caregiver will be the birth mother of a newborn or the initial primary carer of a newly adopted child.

e) Secondary Caregiver means a person who has parental responsibility for the Child but is not the Primary Caregiver.

f) Spouse includes a de facto spouse, former spouse or former de facto spouse. The Employee’s de facto spouse means a person who lives with the Employee as husband, wife or same sex partner on a bona fide domestic basis, whether or not legally married to the Employee.

1.3. Summary of parental leave entitlements

  Paid lead Unpaid leave Total
Primary caregiver      
More than 12 months service 8 weeks Up to 44 weeks 52 weeks
Less than 12 months service

0

Up to 52 weeks 52 weeks
Eligible casual employee 0 Up to 52 weeks 52 weeks
Secondary caregiver      
More than 12 months service __ weeks Up to __ weeks 52 weeks
Less than 12 months service 0 Up to 52 weeks 52 weeks
Eligible casual employee 0 Up to 52 weeks 52 weeks
Pre-natal leave      
Pregnant employee __ hours    
Spouse __ hours    
Permanent care leave      
More than 12 months service __ weeks Up to __ weeks 52 weeks
Less than 12 months service 0 Up to 52 weeks 52 weeks
Grandparent leave 0 Up to 52 weeks 52 weeks

1.4. Parental leave – Primary caregiver

a) An Employee who has, or will have, completed at least twelve months paid Continuous Service and who will be the Primary Caregiver at the time of the birth or adoption of their Child, is entitled to up to 52 weeks parental leave, comprising:

i) 8 weeks paid parental leave; and

ii) up to 44 weeks unpaid parental leave.

b) An Employee who will be the Primary Caregiver but has not completed at least twelve months paid Continuous Service at the time of the birth or adoption of their Child, is entitled to up to
52 weeks unpaid parental leave.

c) An Eligible Casual Employee who will be the Primary Caregiver at the time of the birth or adoption of their Child is entitled to up to 52 weeks unpaid parental leave.

d) Only one parent can receive Primary Caregiver parental leave entitlements in respect to the birth or adoption of their Child. An Employee cannot receive Primary Caregiver parental leave entitlements:

i) if their Spouse is, or will be, the Primary Caregiver at the time of the birth or adoption of their Child;

ii) if their Spouse has received, or will receive, paid maternity leave, primary caregiver entitlements, or a similar entitlement, from their employer; or

iii) if the Employee has received, or will receive, Secondary Caregiver parental leave entitlements in relation to their Child.

e) A period of parental leave taken in accordance with this clause must be for a single continuous period.

1.5 Parental leave – Secondary caregiver

a) An Employee who has, or will have, completed at least twelve months paid Continuous Service and who will be the Secondary Caregiver at the time of the birth or adoption of their Child, is entitled to up to 52 weeks parental leave, comprising:

i) __ weeks paid parental leave; and

ii) up to __ weeks unpaid parental leave.

b) An Employee who will be the Secondary Caregiver but has not completed at least twelve months paid Continuous Service at the time of the birth or adoption, is entitled to up to 52 weeks unpaid parental leave.

c) An Eligible Casual Employee who will be the Secondary Caregiver at the time of the birth or adoption of their Child is entitled to up to 52 weeks unpaid parental leave.

d) Only one parent can receive Secondary Caregiver parental leave entitlements in respect to the birth or adoption of their Child.

e) An Employee cannot receive Secondary Caregiver parental leave entitlements where the Employee has received Primary Caregiver parental leave entitlements in relation to their Child.

1.6. Pre Natal Leave

a) A pregnant Employee will have access to paid leave totalling up to [insert the number] hours per pregnancy to enable the Employee to attend routine medical appointments associated with the pregnancy. The Employer should be flexible enough to allow the Employee the ability to leave work and return on the same day.

b) An Employee who has a Spouse who is pregnant will have access to paid leave totalling up to [insert the number] hours per pregnancy to enable the Employee to attend routine medical appointments associated with the pregnancy.

c) The Employee is required to provide a medical certificate from a registered medical practitioner confirming that the Employee or their Spouse is pregnant. Each absence on pre-natal leave must also be covered by a medical certificate.

d) Paid pre-natal leave is not available to casual Employees.

1.7. Pre-adoption leave

a) An Employee seeking to adopt a Child is entitled to unpaid leave for the purpose of attending any compulsory interviews or examinations as are necessary as part of the adoption procedure.

b) The Employee and the Employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the Employee is entitled to take up to two days unpaid leave.

c) Where paid leave is available to the Employee, the Employer may require the Employee to take such leave instead.

d) The Employer may require the Employee to provide satisfactory evidence supporting the leave.

1.8. Permanent care leave

a) If, pursuant to the Children, Youth and Families Act 2005 (Vic) or any successor to that legislation, an Employee (other than a casual Employee), is granted a permanent care order in relation to the custody or guardianship of a child and the Employee is the Primary Caregiver for that child, the Employee will be entitled to [insert the number] weeks’ paid leave at a time to be agreed with the Employer.

1.9. Grandparent leave

a) An Employee, who is or will be the Primary Caregiver of a grandchild, is entitled to a period of up to 52 weeks’ continuous unpaid grandparent leave in respect of the birth or adoption of the grandchild of the Employee.

1.10. Continuing to work while pregnant

a) The Employer may require a pregnant Employee to provide a medical certificate stating that the Employee is fit to work their normal duties where the Employee:

i) continues to work within a six week period immediately prior to the expected date of birth of the child; or

ii) is on paid leave under clause 1.12(b).

b) The Employer may require the Employee to start parental leave if the Employee:

i) does not give the Employer the requested certificate within seven days of the request; or

ii) gives the Employer a medical certificate stating that the Employee is unfit to work.

1.11. Personal/carer’s leave

A pregnant Employee, not then on parental leave, who is suffering from an illness whether related or not to the pregnancy, may take any paid and/or unpaid personal/carer’s leave in accordance with [insert the clause number].

1.12. Transfer to a safe job

a) Where an Employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the Employee make it inadvisable for the Employee to continue at their present work, the Employee will be transferred to a safe job with no other change to the Employee’s terms and conditions of employment until the commencement of parental leave.

b) If there is no safe job available, the employee is entitled to take paid no safe job leave, or the Employer may require the Employee to take no safe job paid leave immediately for a period which ends at the earliest of either:

i) when the Employee is certified unfit to work during the six week period before the expected date of birth by a registered medical practitioner; or

ii) when the Employee’s pregnancy results in the birth of a living child or when the Employee’s pregnancy ends otherwise than with the birth of a living child.

The entitlement to no safe job leave is in addition to any other leave entitlement the Employee has.

1.13. Special parental leave

Where the pregnancy of an Employee not then on parental leave terminates other than by the birth of a living child, the Employee may take leave for such periods as a registered medical practitioner certifies as necessary, as follows:

a) where the pregnancy terminates during the first 20 weeks, during the certified period/s the Employee is entitled to access any paid and/or unpaid personal/carer’s leave entitlements in accordance with clause [insert the clause number];

b) where the pregnancy terminates after the completion of 20 weeks, during the certified period/s the Employee is entitled to paid special maternity leave not exceeding the amount of paid parental leave available under clause 1.3 and thereafter, to unpaid special maternity leave.

1.14. Notice and evidence requirements

a) An Employee must give at least 10 weeks written notice of the intention to take parental leave, including the proposed start and end dates. At this time, the Employee must also provide a statutory declaration stating:

i) that the Employee will become either the Primary Caregiver or Secondary Caregiver of the Child, as appropriate;

ii) the particulars of any parental leave taken or proposed to be taken or applied for by the Employee’s Spouse; and

iii) that for the period of parental leave the Employee will not engage in any conduct inconsistent with their contract of employment.

b) At least four weeks before the intended commencement of parental leave, the Employee must confirm in writing the intended start and end dates of the parental leave, or advise the Employer of any changes to the notice provided in clause 1.14(a), unless it is not practicable to do so.

c) The Employer may require the Employee to provide evidence which would satisfy a reasonable person of:

i) in the case of birth-related leave, the date of birth of the Child (including without limitation, a medical certificate stating the date of birth or expected date of birth); or

ii) in the case of adoption-related leave, the commencement of the placement (or expected day of placement) of the Child and that the Child will be under 16 years of age as at the day of placement or expected day of placement.

d) An Employee will not be in breach of this clause if failure to give the stipulated notice is occasioned by confinement or placement occurring earlier than the expected date or in other compelling circumstances. In these circumstances the notice and evidence requirements of this clause should be provided as soon as reasonably practicable.

1.15. Commencement of parental leave

a) An Employee who is pregnant may commence Primary Caregiver parental leave at any time within 14 weeks prior to the expected date of birth of the Child. The period of parental leave must commence no later than the date of birth of the Child.

b) In all other cases, Primary Caregiver parental leave commences on the day of birth or placement of the Child.

c) Secondary caregiver parental leave may commence on the day of birth or placement of the Child.

d) The Employer and Employee may agree to alternative arrangements regarding the commencement of parental leave.

e) Unless otherwise agreed, any entitlement to paid parental leave will be paid from the date of commencement of parental leave.

1.16. Single period of parental leave

Parental leave is to be available to only one parent at a time, in a single unbroken period, except in the case of concurrent leave.

1.17. Employee couple – Concurrent leave

a) Two Employees covered by this Agreement may take up to eight weeks concurrent leave in connection with the birth or adoption of their Child.

b) Concurrent leave may commence one week prior to the expected date of birth of the Child or the time of placement in the case of adoption.

c) Concurrent leave can be taken in separate periods, but each block of concurrent leave must not be less than 2 weeks, unless the Employer otherwise agrees.

1.18. Parental leave and other entitlements

a) An Employee may in lieu of or in conjunction with parental leave, access any annual leave or long service leave entitlements which they have accrued subject to the total amount of leave not exceeding 52 weeks or a longer period as agreed under clause 1.20(b).

b) Where a Public Holiday occurs during a period of paid parental leave, the Public Holiday is not to be regarded as part of the paid parental leave and the Employer will grant the Employee a day off in lieu, to be taken by the Employee immediately following the period of paid parental leave.

c) Unpaid parental leave under clauses 1.4, 1.5, 1.20 and 1.22 shall not break an Employee’s continuity of employment but it will not count as service for leave accrual or other purposes.

1.19. Keeping in touch days

a) During a period of parental leave an Employer and Employee may agree to perform work for the purpose of keeping in touch in order to facilitate a return to employment at the end of the period of leave.

b) Keeping in touch days must be agreed and be in accordance with section 79A of the Fair Work Act 2009.

1.20. Extending parental leave

a) Extending the initial period of parental leave

i) An Employee who is on an initial period of parental leave of less than 52 weeks under clause 1.4 or 1.5, may extend the period of their parental leave on one occasion up to the full 52 week entitlement.

ii) The Employee must notify the Employer in writing at least four weeks prior to the end date of their initial parental leave period. The notice must specify the new end date of the parental leave.

b) Right to request an extension to parental leave

i) An Employee who is on parental leave under clause 1.4 or 1.5 may request an extension of unpaid parental leave for a further period of up to 12 months immediately following the end of the current parental leave period.

ii) In the case of an Employee who is a member of an employee couple, the period of the extension cannot exceed 12 months, less any period of parental leave that the other member of the Employee couple will have taken in relation to the Child.

iii) The Employee’s request must be in writing and given to the Employer at least 4 weeks before the end of the current parental leave period. The request must specify any parental leave that the Employee’s spouse will have taken.

iv) The Employer shall consider the request having regard to the Employee’s circumstances and, provided the request is based on the Employee’s parental responsibilities, may only refuse the request on reasonable business grounds.

v) The Employer must not refuse the request unless the Employer has given the Employee a reasonable opportunity to discuss the request.

vi) The Employer must give a written response to the request as soon as practicable, and no later than 21 days after the request is made. The response must include the details of the reasons for any refusal.

c) Total period of parental leave

i) The total period of parental leave, including any extensions, must not extend beyond 24 months.

ii) In the case of an employee Couple, the total period of parental leave for both parents combined, including any extensions, must not extend beyond 24 months. The Employee’s entitlement to parental leave under clause 1.4 or 1.5 will reduce by the period of any extension taken by a member of the couple under clause 1.20.

1.21. Calculation of pay for the purposes of parental leave

a) The calculation of weekly pay for paid parental leave purposes will be based on the average number of ordinary hours worked by the Employee over the past three years. The calculation will exclude periods of unpaid parental leave.

b) The average number of weekly hours worked by the Employee, determined in accordance with clause 1.21(a) above, will be then applied to the annual salary applicable to the Employee’s classification and salary point at the time of taking parental leave to determine the actual rate of pay whilst on parental leave.

c) Despite z, an Employee who reduces the time fraction they work to better cope during pregnancy will not have their subsequent paid parental leave reduced accordingly.

d) Half Pay

The Employee may elect to take any paid parental leave entitlement at half pay for a period equal to twice the period to which the Employee would otherwise be entitled.

1.22. Commonwealth paid parental leave

Paid parental leave entitlements outlined in this clause are in addition to any payments which may be available under the Commonwealth Paid Parental Leave Scheme.

1.23. Returning to work

a) Returning to work early

i) During the period of parental leave an Employee may return to work at any time as agreed between the Employer and the Employee, provided that time does not exceed four weeks from the recommencement date desired by the Employee.

ii) In the case of adoption, where the placement of an eligible child with an Employee does not proceed or continue, the Employee will notify the Employer immediately and the Employer will nominate a time not exceeding four weeks from receipt of notification for the Employee’s return to work.

b) Returning to work at conclusion of leave

i) At least four weeks prior to the expiration of parental leave, the Employee will notify the Employer of their return to work after a period of parental leave.

ii) Subject to 1.23(b)(iii), an Employee will be entitled to the position which they held immediately before proceeding on parental leave. In the case of an Employee transferred to a safe job pursuant to clause 1.12 above, the Employee will be entitled to return to the position they held immediately before such transfer.

iii) Where such position no longer exists but there are other positions available which the Employee is qualified for and is capable of performing, the Employee will be entitled to a position as nearly comparable in status and pay to that of their former position.

c) Returning to work at a reduced time fraction

i) To assist an Employee in reconciling work and parental responsibilities, an Employee may request to return to work at a reduced time-fraction until their Child reaches school age, after which the Employee will resume their substantive time-fraction.

ii) Where an Employee wishes to make a request under 1.23(c)(i), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the Employee is due to return to work from parental leave.

1.24. Consultation and 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 request 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 clause 1.24(a).

1.25. Extended family leave

a) An Employee who is the Primary Caregiver and has exhausted all parental leave entitlements may apply for unpaid Extended Family Leave as a continuous extension to their parental leave taken in accordance with this clause. The total amount of leave, inclusive of parental leave taken in accordance with this clause cannot exceed seven years.

b) The Employee must make an application for Extended Family Leave each year.

c) An Employee will not be entitled to paid parental leave whilst on Extended Family leave.

d) Upon return to work the Employer may reallocate the Employee to other duties.

1.26. Replacement employees

a) A replacement Employee is an Employee specifically engaged or temporarily acting on higher duties or transferred, as a result of an Employee proceeding on parental leave.

b) Before an Employer engages a replacement Employee the Employer must inform that person of the temporary nature of the employment and of the rights of the Employee who is being replaced.

c) It is agreed that the limitation in clause [insert the clause number] on the use of fixed term employment to replace the Employee does not apply in this case.

1.27. Casual employees

The Employer must not fail to re engage a casual Employee because the Employee has accessed parental leave in accordance with this clause. The rights of the Employer in relation to engagement and re engagement of casual Employees are not affected, other than in accordance with this clause.

2. Personal/carer’s leave

The provisions of this clause apply to full time and regular part time employees. See 2.1 (h) for casual employees’ entitlements.

2.1 Amount of paid personal/carer’s leave

a) Paid personal/carer’s leave will be available to an employee when they are absent because of:

i) personal illness or injury; or

ii) personal illness or injury of an immediate family or household member who requires the employee’s care or support; or

iii) an unexpected emergency affecting an immediate family or household member; or

iv) the requirement to provide ongoing care and attention to another person who is wholly or substantially dependent on the employee, provided that the care and attention is not wholly or substantially on a commercial basis.

b) Personal leave of:

i) [insert agreed or relevant sick leave or personal leave award entitlement] days/hours will be available in the first year of service;

ii) [insert agreed or relevant sick leave or personal leave award entitlement] days/hours will be available per annum in the second and subsequent years of service.

c) An employee’s entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and unused personal/carer’s leave accumulates from year to year.

d) Immediate family or household

The term immediate family includes:

i) spouse (including a former spouse, a de facto partner and a former de facto partner) of the employee. A de facto partner means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes); and

ii) (child or an adult child (including an adopted child, a step child or an exnuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee (or insert agency’s definition).

e) Use of accumulated personal/carer’s leave

An employee is entitled to use accumulated personal/carer’s leave for the purposes of this clause where the current year’s personal/carer’s leave entitlement has been exhausted.

[insert any notice, certification etc. provisions]

f) Absence on public holidays

If the period during which an employee takes paid personal/carer’s leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

g) Unpaid personal leave

Where an employee has exhausted all paid personal/carer’s leave entitlements, he/she is entitled to take unpaid carer’s leave to provide care or support in the circumstances outlined in 2.1 (a)(iii), or (iv). The organisation and the employee will agree on the period. In the absence of agreement the employee is entitled to take up to two (2) days’ unpaid carer’s leave per occasion.

h) Casual employees – caring responsibilities

i) Casual employees are entitled to be unavailable to attend work or to leave work:

a. if they need to care for members of their immediate family or household who are sick and require care or support, or who require care due to an unexpected emergency, or the birth of a child; or

b. upon the death in Australia of an immediate family or household member.

ii) The Employer and the employee will agree on the period for which the employee will be entitled to be unavailable to attend work. In the absence of agreement, the employee is entitled to not be unavailable to attend work for up to two (2) days per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

iii) The Employer will require the casual employee to provide satisfactory evidence to support the taking of this leave.

3. Compassionate leave

3.1. Amount of compassionate leave

a) Employees are entitled to (insert agreed entitlement) days compassionate leave on each occasion when a member of the employee’s immediate family or a member of the employee’s household:

i) contracts or develops a personal illness that poses a serious threat to his or her life;

ii) sustains a personal injury that poses a serious threat to his/her life; or

iii) dies.

b) Any unused portion of compassionate leave will not accrue from year to year and will not be paid out on termination.

c) Such leave does not have to be taken consecutively.

d) An employee may take unpaid compassionate leave by agreement with the employer.

e) The Employer will require the employee to provide satisfactory evidence to support the taking of compassionate leave.

4. Family violence leave

4.1.General principle

a) The Employer recognises that Employees sometimes face situations of violence or abuse in their personal life that may affect their attendance or performance at work. Therefore, the Employer is committed to providing support to staff that experience family violence.

b) Leave for family violence purposes is available to employees who are experiencing family violence to allow them to be absent from the workplace to attend counselling appointments, legal proceedings and other activities related to, and as a consequence of, family violence.

4.2 Definition of family violence

Family violence includes physical, sexual, financial, verbal or emotional abuse by a family member as defined by the Family Violence Protection Act 2008 (Vic).

4.3. Eligibility

a) Leave for family violence purposes is available to all employees with the exception of casual employees.

b) Casual employees are entitled to access leave without pay for family violence purposes.

4.4 General measures

a) Evidence of family violence may be required and can be in the form an agreed document issued by the Police Service, a Court, a registered health practitioner, a Family Violence Support Service, district nurse, maternal and health care nurse or Lawyer. A signed statutory declaration can also be offered as evidence.

b) All personal information concerning family violence will be kept confidential in line with the Employer’s policies and relevant legislation. No information will be kept on an Employee’s personnel file without their express written permission.

c) No adverse action will be taken against an Employee if their attendance or performance at work suffers as a result of experiencing family violence.

d) The Employer will identify contact/s within the workplace who will be trained in family violence and associated privacy issues. The Employer will advertise the name of any Family Violence contacts within the workplace.

e) An Employee experiencing family violence may raise the issue with their immediate supervisor, Family Violence contacts, union delegate or nominated Human Resources contact. The immediate supervisor may seek advice from Human Resources if the Employee chooses not to see the Human Resources or Family Violence contact.

f) Where requested by an employee, the Human Resources contact will liaise with the Employee’s manager on the Employee’s behalf, and will make a recommendation on the most appropriate form of support to provide in accordance with clause 4.5 and clause 4.6.

g) The Employer will develop guidelines to supplement this clause and which details the appropriate action to be taken in the event that an employee reports family violence.

4.5 Leave

a) An employee experiencing family violence will have access to 20 days per year of paid special leave for medical appointments, legal proceedings and other activities related to family violence (this leave is not cumulative but if the leave is exhausted consideration will be given to providing additional leave). This leave will be in addition to existing leave entitlements and may be taken as consecutive or single days or as a fraction of a day and can be taken without prior approval.

b) An Employee who supports a person experiencing family violence may utilise their personal/carer’s leave entitlement to accompany them to court, to hospital, or to care for children. The Employer may require evidence consistent with clause 4.4 (a) from an Employee seeking to utilise their personal/carer’s leave entitlement.

4.6. Individual support

a) In order to provide support to an Employee experiencing family violence and to provide a safe work environment to all Employees, the Employer will approve any reasonable request from an Employee experiencing family violence for:

i) temporary or ongoing changes to their span of hours or pattern or hours and/or shift patterns;

ii) temporary or ongoing job redesign or changes to duties;

iii) temporary or ongoing relocation to suitable employment;

iv) a change to their telephone number or email address to avoid harassing contact;

v) any other appropriate measure including those available under existing provisions for family friendly and flexible work arrangements.

b) Any changes to an employee’s role should be reviewed at agreed periods. When an employee is no longer experiencing family violence, the terms and conditions of employment may revert back to the terms and conditions applicable to the Employee’s substantive position.

c) An employee experiencing family violence will be offered access to the Employee Assistance Program (EAP) and/or other available local employee support resources. The EAP shall include professionals trained specifically in family violence.

d) An Employee that discloses that they are experiencing family violence will be given information regarding current support services.

Attachment 4: Victorian Public Service redeployment policy

Purpose

The aim of this policy is to specify the redeployment approach to be adopted across the Victorian Public Service (VPS) for employees covered by the Victorian Public Service (VPS) Enterprise Agreement 2016. The development of this policy is informed by current legislative provisions and the VPS Enterprise Agreement 2016.

Redeployment policy

In managing employees who have declared surplus public service body heads recognise their obligations and commit to placing surplus employees into vacancies for which they are suitable. Surplus employees are to commit to participate in the redeployment process in good faith including actively considering reasonable alternative employment.

Legislation

Part 3 of the Public Administration Act 2004 establishes that public service body heads, on behalf of the Crown, have all the rights, powers, authorities and duties of an employer in respect of the public sector body and employees in it. Section 31A provides that the employer may assign work to an employee and section 28(1) provides that the employer may transfer an employee to duties in other public service bodies or in public entities.

VPS Enterprise Agreement 2016 redeployment principles

The VPS Enterprise Agreement 2016 sets out the following policy principles:

  • The redeployment of surplus employees wherever practical and consistent with the application of merit.
  • Surplus employees have priority to be placed in vacancies that occur within the public service unless the person is determined to be unsuitable for appointment to that vacancy by the prospective employing agency.
  • The placement of surplus employees shall be managed at agency level. The redeploying agency is to provide individualised case management and support, including counselling, provision of job search skills, liaison and retraining to assist in achieving placements.
  • Processes to be consistent with the application of the principles of fair and reasonable treatment and merit selection.
  • Unplaced surplus employees to have access to departure packages only after a reasonable period.
  • Retrenchment and payment of a separation package to be used as an action of last resort where redeployment within a reasonable period does not appear likely.
  • Where a vacancy exists for which a redeployee is suitable and is the only candidate or the best candidate among redeployees, a valid offer will be made. Such an offer involves an offer of duties to a suitably qualified employee (which may be at the same or different level or status or the same or different general location as the employee’s previous employment).
  • Redeployees will have priority access to vacancies both at the employee’s classification level and below their classification level and, where appropriate, will be provided with salary maintenance.
  • Relinquishing agencies will provide support to redeployees being placed in alternative positions utilising high quality and professional expertise.
  • Redeployees will actively engage in the redeployment process.

Redeployment process

The redeployment process commences after an employee has been declared surplus. The approach to managing a surplus employee in the VPS is set out below:

a) Preparing for redeployment

Preparation for redeployment is to occur within two weeks after an employee is declared surplus:

  • The employer is to appoint a case manager for each surplus employee.
  • The case manager and the surplus employee will:
    i) undertake a skills audit of the surplus employee;
    ii) organise/participate in CV preparation and interview skills training; and
    iii) agree on job search criteria (duties, location and classification).

b) Commencing redeployment

On commencing the formal three-month redeployment process:

  • the case manager and the surplus employee are to identify all possible public service vacancies for matching and to discuss options to facilitate the matching process and any retraining required;
  • the case manager will facilitate the consideration of the surplus employee by the relevant employer;
  • the case manager will provide feedback to the surplus employee after a referral or interview;
  • agencies will ensure that all relevant vacancies are reviewed to maximise the opportunities for valid offers for redeployment to be made. The aim will be to offer duties as close to the employees current level as is possible;
  • where a vacancy exists for which a redeployee is suitable and is the only candidate or the best candidate amongst redeployees, a valid offer will be made;
  • a valid offer involves an offer of duties to a suitably qualified employee (which may be at the same or lower level or status or the same or different general location as the employees previous employment); and
  • in using best endeavours to identify potential duties to offer surplus staff, priority should be accorded to duties in the following order:
    i) duties for which the employee is already qualified or who would become qualified for the position as a result of incidental or top up training within a reasonable distance from the location of existing duties and not less than at the same level or status;
    ii) duties at a lower level or status (where this change of level or status is acceptable to the employee) within a reasonable distance from existing duties; and
    iii) duties at a lower level or status and at a different location (where this change of level, status and location is acceptable to the employee).

c) Assignment or transfer to a suitable vacancy

  • An assignment to an internal ongoing vacancy or transfer to an ongoing role in another agency completes the redeployment process.
  • An assignment/secondment to a specific term vacancy requires that the case manager and surplus employee will continue to pursue ongoing vacancies during the placement.

d) Termination

  • If redeployment is not achieved at the end of three months, employment will be terminated and the surplus employee will be provided with the current VPS retrenchment package.

e) Employee safeguards

  • There will be a minimum period for redeployment of 3 months unless agreed otherwise.
  • Placement in a specific term vacancy of up to 3 months temporarily stops the redeployment process.
  • There will be salary maintenance for up to 6 months where the surplus employee is placed by agreement in a lower classified vacancy.
  • Agencies undertaking redeployment processes will consult with the staff in affected workplaces and the relevant union covered by the VPS Enterprise Agreement 2016 to ensure that all parties can be confident that appropriate efforts are being made to place affected employees in properly assessed duties.
  • Departmental grievance processes are available and are to be managed expeditiously in relation to issues raised by surplus employees. Where departmental grievance processes are utilised:
    i) all time frames continue unless FWC recommends that specific time frames be suspended in which case agencies will observe FWC recommendations; and
    ii) where a union covered by the VPS Enterprise Agreement 2016 is representing the interests of aggrieved employees, the union is to be provided with necessary information so it can satisfy itself that the provisions of this policy have been complied with.
  • Nothing in this policy disturbs any existing avenues of redress available to aggrieved employees. Where the process involves the operation of Clause 12 of the VPS Enterprise Agreement 2016 (Resolution of Disputes), the full provisions of this clause shall apply including arbitration in accordance with Clause 12.11. Where these matters involve FWC, agencies will not challenge FWCs jurisdiction to address matters properly associated with redeployment unless the matters relate to termination on the ground of redundancy (which is outside the jurisdiction of FWC as set out in Re: AEU). While agencies recognise that FWC could decide to deal with all matters within its jurisdiction, this does not preclude agencies from seeking to argue that FWC should, as a matter of discretion, refuse to hear a matter on the basis that it has been appropriately dealt with by other processes.

Attachment 5: Example – Notice of employee representational rights

As outlined in the chapter called Steps for Making Enterprise Agreements, the Notice must be a separate, standalone document with no agency logos, contact details or additional text added to it. The only information that can be inserted (in the identified place) is the name of the employer, the proposed name of the new agreement and the proposed coverage, which in most cases will be by reference to an existing agreement.

Below is an example of a completed Notice that was provided to all employees in relation to bargaining for the VPS Enterprise Agreement 2016. Please note that highlighted text included in the first paragraph of the Notice below must be changed to include information relevant to a particular bargaining.

Schedule 2.1 Notice of employee representational rights (regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

The State of Victoria gives notice that it is bargaining in relation to an enterprise agreement, the Victorian Public Service Enterprise Agreement 2016 which is proposed to cover those employees who are covered by the Victorian Public Service Workplace Determination 2012.

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on 1300 799 675.

Reviewed 17 December 2019

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