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Tasmanian Industrial Commission
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See end of Decision for Awards varied

Industrial Relations Act 1984
s23 application for award or variation of award

Tasmanian Trades and Labor Council
(T12444 of 2005)
Private Sector Awards



HOBART, 8 March 2006

Award variation - Personal Leave - application approved - operative date 15 March 2006


[1] This is an application pursuant to s.23 of the Industrial Relations Act 1984 (the Act) by the Tasmanian Trades and Labor Council to vary private sector awards of this Commission in accordance with the decision of the Australian Industrial Relations Commission "Work and Family Test Case" of August 2005 (Print PR082005).

[2] At the hearing on 18 January 2006, Mr Cocker appearing for the Tasmanian Trades and Labor Council submitted that "This application ... seeks to vary private sector awards of the Commission through the insertion into those awards of matters that assist working people to reconcile their employment obligations with their family responsibilities. The provisions that are sought seek to extend the period of simultaneous unpaid parental leave up to eight weeks, to extend the period of unpaid parental leave up to a maximum of 24 months and return from a child - or parental leave on a part-time basis until the child reaches school age. This Act acknowledges that there is a dichotomy from the applications by providing that termination of an employee can't be made on the grounds of family responsibilities..."1

[3] Mr Watson appearing for the Tasmanian Chamber of Commerce and Industry Limited submitted "...that there is agreement to the application on the basis that it is the outcome of a Federal test case decision. And following the history of the way that this Commission has dealt with those particular decisions, we see no reason to depart from that approach in this particular case. So on that basis, we advise that we agree to the application."2

[4] Mr Fitzgerald appearing for the Australian Mines and Metals Association (Incorporated) and Mr Baker intervening on behalf of the Minister for Industrial Relations supported the application.

[5] The application reflects the decision of the Australian Industrial Relations Commission in its "Work and Family Test Case" (Print PR082005). The effect of this decision is as follows:

  • Clauses relating to Sick Leave and Carers Leave will be incorporated in a new clause titled Personal Leave.

  • Personal Leave for the purpose of care for a member of the immediate family or household has been increased to a maximum of ten days, with the capacity to extend this period by agreement between the employer and employee.

  • Modified arrangements in respect of unpaid Carers leave.

  • Casual employees to be entitled to not be available to attend work if they need to care for members of their immediate family or household, or in the event of a death of an immediate family or household member.

  • Right to request

    (i) An employee entitled to parental leave pursuant to the provisions of clause [ ] may request the employer to allow the employee:

    (1) to extend the period of simultaneous unpaid parental leave provided for in clause [ ] up to a maximum of eight weeks;

    (2) to extend the period of unpaid parental leave provided for in clause [ ] by a further continuous period of leave not exceeding 12 months;

    (3) to return from a period of parental leave on a part-time basis until the child reaches school age,

    to assist the employee in reconciling work and parental responsibilities.

    (ii) The employer shall consider the request having regard to the employee's circumstances and, provided the request is genuinely based on the employee's parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer's business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

[6] Having considered the submissions presented by the parties the Commission is satisfied that the requirements of s.36 of the Act as it relates to the public interest, are satisfied.

[7] Accordingly, the application is granted. Pursuant to s. 35 of the Act, we determine that all private sector awards are varied to reflect the Full Bench decision referred to above. The operative date for all awards is 15 March 2006.

[8] Consistent with the Full Bench decision, a number of orders will require individual prescription to address and consolidate current entitlements. There is to be no diminution of existing entitlements where they are in excess of the standard provisions.

[9] Members of the Commission will issue orders in their respective areas of responsibility to give effect to this decision.


P L Leary

Mr S Cocker for the Tasmanian Trades and Labor Council
Mr T Kleyn for the Health Services Union of Australia, Tasmania No 1 Branch
Mr M Watson for the Tasmanian Chamber of Commerce and Industry Limited
Mr W Fitzgerald for the Australian Mines and Metals Association (Incorporated)
Mr P Baker for the Minister for Industrial Relations (intervening)

Date and place of hearing:
January 18

1 Transcript PN 7 - 8
2 Supra 51

Awards Varied:
Aerated Waters
Architects (Private Industry)
Australian Cement Holdings Enterprise
Automotive Industries
Baking Industry
Barristers and Solicitors
Broadcasting and Television
Building and Construction Industry
Building Trades
Business Services
Butter and Cheesemakers
Catholic Education
Child Care and Childrens Services
Clay and Mud Products
Cleaning and Property Services
Clerical and Administrative Employees (Private Sector)
Clothing Industry
Community Services
Concrete Products
Dairy Processing
Disability Service Providers
Draughting and Technical Employees (Private Industry)
Electrical Engineers
Estate Agents
Farming and Fruit Growing
Fibreglass and Plastics
Fish, Aquaculture and Marine Products
Fuel Merchants
Furnishing Trades
Hairdressing, Health and Beauty Industry
Health and Fitness Centres
Hotels, Resorts, Hospitality and Motels
Ice Cream Makers
Impact Fertilisers Enterprise
Independent Schools (Non-Teaching Staff)
Independent Schools (Teachers) Tasmania
Laundry and Dry Cleaning
Leather, Canvas and Sheet Plastic Fabrication
Licensed Clubs
Meat Processing Industry
Meat Retailing
Medical Diagnostic Services (Private Sector)
Medical Practitioners (Private Sector)
Metal and Engineering Industry
Metal and Engineering On-Site Construction Industry
Metalliferous Mining and Processing
Miscellaneous Workers
Mobile Crane Hire
Monumental Masons
Nursing Homes
Optical Industries
Photographic Industry
Plant Nurseries
Professional Engineers and Scientists (Private Industry)
Public Accountants
Public Vehicles
Quarrying and Lime Processing 
Restaurant Keepers
Retail Pharmacy
Retail Trades
Rubber Trades
Security Industry
Shearing Industry
Shellfish Industry
Silviculture and Afforestation
Surveyors (Private Industry)
Tasmanian Information Technology Industry
Temco Enterprise
Timber Merchants
Totalizator Agency
TOTE Tasmania Racecourse
Transport Workers General
Vegetable Preservers
Veterinary Services
Wholesale Pharmaceutical
Wholesale Plant Bakeries
Wholesale Trades
Zinifex Hobart Smelter Enterprise
Zinifex Rosebery (Mining)