T6296 and T6441
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Trades and Labor Council ALL PUBLIC AND PRIVATE SECTOR AWARDS and The Australian Workers' Union, Tasmania Branch NOMINATED AWARDS
Award variation - insertion of provision for family leave/personal carer's leave in nominated awards in accordance with Test Case decisions of the AIRC in the Family Leave Test Case and the Personal/Carer's Leave Test Case Stage 2 - consent model carer's leave clause and facilitative clauses approved - separate applications required - operative no earlier than date of each decision REASONS FOR DECISION These applications were to flow on to the jurisdiction of this Commission the outcomes of decisions in the Australian Industrial Relations Commission (the AIRC) in the Family Leave Test Case of November 19941 and the Personal/Carer's Leave Test Case - Stage 2 of November 19952. When the matter commenced before us the applicants briefly outlined the purposes of their applications and sought an adjournment to allow further discussions with all interested organisations in order to develop, if possible, a consent model clause for insertion in all awards. All organisations present, including the Minister for Industrial Relations (intervening), supported the adjournment application and indicated a wish to be involved in the consultation process to develop a consent solution. Mr Edwards for the Tasmanian Chamber of Commerce and Industry Limited (the TCCI), and others, said:
and:
The adjournment application was granted. When the proceedings resumed on 25 October 1996, Ms Fitzgerald asked the Bench to adopt, with modification, the federal test case decisions and endorse a model carer's leave clause and certain facilitative clauses on an in-principle basis to be inserted into awards of this jurisdiction on application by the appropriate organisations. Ms Fitzgerald submitted:
Ms Fitzgerald addressed the changing demographics of Australian society, particularly:
Excerpts from the federal decision were drawn to our attention concerning the alleged shift in attitudes to gender roles which had been documented in a number of studies showing that an increasing number of women "regard employment and parenthood as important aspects of their life and that there has been an increasing recognition of the need for men to share more of the family and household responsibilities" and "there is a growing acceptance of a woman's right to be employed and for her to be committed to her job" (transcript p.27). Ms Fitzgerald said that workers also had responsibilities for family members other than their children, most commonly their spouse and parents, adding that workers in the 40s and 50s age group increasingly would be called upon to provide support for elderly parents. The shift away from institutional care for the aged or those with a disability was said "to be contributing to the expanding responsibilities of family carers" (transcript p.27). ILO Convention 156 was ratified by the Tasmanian Government in 1990 and ratified by the Australian Government, Ms Fitzgerald said, which binds the State to take action as necessary to give effect to the Convention. The objectives of the Convention were said to be to remove direct and indirect discrimination in employment due to family responsibilities and to provide a basis upon which workers can reconcile their dual family and work commitments. The Bench was addressed in some detail on the material in the two Federal test case decisions. In the first of the two decisions the approach was to extend employees' access to sick leave to care for or support a member of their family who is ill and to introduce a range of facilitative provisions dealing with annual leave, hours of work and unpaid leave. It was envisaged that as a result of the Stage 2 review additional facilitative provisions in respect of the use of rostered days off and part-time work would be introduced and sick leave and bereavement/compassionate leave entitlements would be aggregated. The second decision following the Stage 2 review decided to aggregate sick leave and bereavement leave for the purpose of allowing an employee to access up to 5 days (or equivalent part days) each year if required to provide care or support for an ill family member. The factors governing the application of this new form of leave were described at pages 20 and 21 of the Stage 2 decision (Print M6700). The Australian Commission sought to address employer concerns by adopting a number of measures designed to reduce the cost impact of its decision by:
We were told that the New South Wales Industrial Relations Commission (the NSW IRC) had adopted the Personal/Carer's Leave Test Case Stage 2 decision with certain modifications. Principally they were that there was to be no aggregation of sick leave and bereavement leave and there was to be no cap on the amount of sick leave which could be used for this purpose. The latter modification was to be reviewed after 12 months. The definition of "family members" varied from the federal definition in respect of same sex relationships. Ms Fitzgerald tendered TTLC Exhibit 4 which included a model clause which she said had been the subject of "significant discussion between the parties" and which utilised parts of the model clause decided by the NSW IRC. The proposed models differ from the federal model clause by adding to the definition of "family member", "foster child, foster parent and legal guardian" from the NSW decision and "step parent". As most Tasmanian awards provide 10 days per annum paid sick leave it had been decided it was not necessary to aggregate bereavement or sick leave given the complexity of such an arrangement. It was submitted that when dealing with those awards with less than a 10-day annual sick leave entitlement the parties would be in a position to adjust the model clause to accommodate those differences. In that respect it differed from the New South Wales model. Model facilitative clauses dealing with annual leave, time off in lieu, make up time and rostered days off also varied from the federal model, Ms Fitzgerald said, in that "the majority of employees and the employer could reach agreement on such a matter whereas the federal model required the union to be involved or at least notified" of the intention to consider a change to normal arrangements. Agreements were to be recorded with the Time and Wages Records as required in accordance with Regulation 25(1)(l) of the Industrial Relations Regulations. The purpose of the facilitative clauses was said to be to provide workers with opportunities to make arrangements to meet their broader family responsibilities not simply to allow paid time to care for family members. The model facilitative clauses were tendered as part of TTLC Exhibit 4. Ms Fitzgerald said that in the public sector, because sick leave in most cases is not provided for in awards but by Regulation, an agreement had been reached with the Minister for Public Sector Administration for a new Regulation to be developed which "reflects both the content and the process for accessing carer's leave" (transcript p.46). Whether or not applications for the insertion of the facilitative clauses were made would be the responsibility of the relevant industrial organisations. Ms Fitzgerald submitted that the application was in accordance with the Wage Fixing Principles and was in the public interest. Mr Edwards informed the Bench that the employers' negotiations with the unions had been predicated on the application not leading to an "immediate variation to any awards" and that it had been agreed that the most effective way for the matter to be processed would be for the commission to make a determination in principle on the model provisions. It was submitted that it was not possible to arrive at one set of words to suit every award. However Mr Edwards said:
In consenting to the application and draft model clauses, Mr Edwards said:
and further:
Mr Edwards stressed that the public interest considerations were "well served when the parties (were) able to come before the commission and indicate consent to a matter of such fundamental importance as personal and family leave" (transcript p.50) and the cost to industry he said, whilst not insignificant, was "not of such a nature as (to) cause any damage to the economy" and he believed the cost was offset by the ability of employees "to properly access these forms of leave for the balancing of work and family responsibility" (transcript p.60). Mr Pearce, for the Minister for Industrial Relations (intervening) endorsed the submissions of the parties and urged the Bench to give "in principle endorsement to the model clause and facilitative arrangements as per exhibit TTLC.4". Such endorsement would "then serve to act as a corner stone to individual award variations where relevant" (transcript p.65). Ms Pearce for the Minister for Public Sector Administration tendered a proposed Carer's Leave Regulation to be inserted in Part 2 of the State Service Regulations which would have an effect similar to the model clause submitted by the TTLC. It would apply to the majority of state servants. Consideration would be given to inserting the provision in other Parts of the State Service Regulations. Because of the range of leave conditions available under the Regulations consideration was being given to ensuring there was no duplication of access to leave. Those public sector awards containing sick leave provisions were to be dealt with in the manner determined for private sector awards. As to the facilitative provisions, Ms Pearce submitted whilst they were viewed as an intrinsic part of the carer's leave package the majority of state servants already had access to such provisions either by regulation or award. Accordingly it had been agreed that:
Ms Pearce said that the Minister's position had been developed around employees drawing conditions of employment from Part 2 of the State Service Regulations as that Part had the widest application across the State Service. The same principles would apply as far as possible, to other categories of employment which would be considered on a case by case basis. The use of regulations for the carer's leave provisions would be a "transitory measure" until the review of conditions of employment agreed in respect of other public sector matters before the Commission was completed and decisions made as to whether such conditions generally should be in awards or regulations. All other employee and employer organisations present supported the major participants in the proceedings. As put to us, the matter comes to the Commission after lengthy consideration and two separate decisions by the AIRC and a further careful consideration by the NSW IRC, the latter decision being the catalyst for the parties to these applications to reach an agreed position. We congratulate the parties, not only on their success in reaching agreement on such an important matter, but for the professional manner in which they went about the exchange of ideas and the accommodation of differing points of view. We are persuaded that organisations with an interest in awards of this Commission should be provided with the opportunity to establish an entitlement to carer's leave for employees with family responsibilities. The statistical material presented to us shows clearly the changing demographic nature of our society. In Tasmania the proportions of men and women, single or in stable relationships in the workforce, are not at the same levels as for Australia as a whole. The trend towards more women in the workforce, towards more single parents in the workforce and towards more elderly parents of people in the workforce is moving at the national rate. We accept that employees with family responsibilities may have been forced to concoct reasons which might "justify" their absences from work to avoid loss of pay. This provision will limit that pressure and, as submitted, could well reduce overall periods of absence. We accept also the desirability of giving the parties the opportunity to develop more flexible work practices, where they do not already exist, through the application of the proposed facilitative clauses dealing with single day annual leave absences; time off in lieu overtime; make up time and rostered days off. The flexibility available to employees through such entitlements should improve the quality of the working lives of those with family responsibilities without imposing significant cost on employers. Only one difference of opinion between the parties remains for this Bench to give direction on that being whether casual employees and part time employees in receipt of a loading to compensate in part for the lack of leave entitlements should be permitted access to carer's leave. The parties, it seemed, were agreed on the general principle that an employee with a sick leave entitlement should have access to paid carer's leave. We share that view. That being the case there is no need for "An employee" to be qualified by excluding casual employees, as it is in the first line of the draft Model Clause, because the remainder of the clause applies only to current or accrued sick leave entitlements. The draft Model Clause will be amended accordingly. As to the availability of unpaid carer's leave, (subclause (b) of the Model Clause) and its possible application to casual and part-time employees, it was submitted that the parties to each award should negotiate an agreed position or failing agreement, argue their respective cases before the Commission when processing individual award applications. Whilst we agree that should be the process, we alert the parties to our prima facie position on the matter which is that provided a casual or part time employee in receipt of a loading is able to satisfy the requirements of paragraphs (ii) to (v) of subclause (a), unpaid carer's leave to a maximum of 5 days in any year should be made available by the employer. Under those circumstances unpaid carer's leave would become a right rather than a privilege granted by the employer. Accordingly we approve in principle and attach hereto the proposed model clauses as contained in TTLC Exhibit 4, subject to the minor amendment referred to above, and we adopt as our own the published reasons of the AIRC issued in both the Family Leave Test Case November 1994 (Print L6900) and the Personal/Carer's Leave Test Case - Stage 2 November 1995 (Print M6700). Variations to awards will be dealt with on application and be made effective from no earlier than the date of each decision.
F D Westwood Appearances: Dates and Place of Hearing: DRAFT MODEL PROVISIONS *. CARER'S LEAVE (a) Paid Carer's Leave (i) In accordance with this subclause, an employee is entitled to use up to a maximum of five days per annum of any current or accrued sick leave entitlement provided for at Clause * - (Title) of the award for absences to provide care and support for either members of their immediate family or household who need their care and support when they are ill. Leave may be taken for part of a single day. (ii) If required the employee must establish, either by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person. (iii) The entitlement to use sick leave in accordance with this subclause is subject to the person being either: (1) a member of the employee's immediate family, or (2) a member of the employee's household. The term 'immediate family' includes: (A) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse, in relation to a person, means a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person; and (B) child or an adult child (including an adopted child, a step child, a foster child or an ex nuptial child), parent (including foster parent, step parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse of the employee. (iv) Where practicable the employee must give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and the person's relationship to the employee, the reasons for taking such leave and the estimated length of absence. If it is not practicable to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence. (v) In normal circumstances an employee must not take carer's leave under this clause where another person has taken leave to care for the same person. (b) Unpaid Carer's Leave An employee may elect, with the consent of the employer, to take unpaid leave for the purpose of providing care to a family or household member who is ill. (c) Grievance Process The dispute settlement clause of the award applies to a dispute about the effect or operation of this clause (insert a dispute settlement clause if the award makes no general provision). To be inserted in Annual Leave Clause: (*) Notwithstanding provisions elsewhere in the award, the employer and the majority of employees at an enterprise may agree to establish a system of single day annual leave absences provided that: (i) An employee may elect, with the consent of the employer, to take annual leave in single day periods or part of a single day not exceeding a total of five days in any calendar year at a time or times agreed between them. (ii) Access to annual leave, as prescribed in paragraph (i) above, shall be exclusive of any shutdown period provided for elsewhere under this award. (iii) An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least five consecutive annual leave days are taken. (iv) An employee or the employees may choose to request a union party to this award, to represent their interests in negotiations referred to in paragraph (i) of this subclause. (v) Once a decision has been taken to introduce an enterprise system of single day annual leave, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to Regulation 25 of the Industrial Relations Regulations 1993. (vi) An employer shall record these short term annual leave arrangements in the time and wages book, as prescribed in Clause * - (Title) of this award. To be inserted in appropriate clause: (*) Time Off in Lieu of Payment Notwithstanding provisions elsewhere in the award, the employer and the majority of employees at an enterprise may agree to establish a system of time off in lieu of overtime provided that: (i) An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer. (ii) Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked (unless otherwise provided elsewhere in the award). (iii) An employer shall, if requested by an employee, provide payment at the rate provided for the payment of overtime as prescribed in Clause * - (Title) of this award, for any overtime worked under this subclause where such time has not been taken within four weeks of accrual. (iv) An employee or the employees may choose to request a union party to this award, to represent their interests in negotiation referred to in paragraph (i) of this subclause. (v) Once a decision has been taken to introduce an enterprise system of time off in lieu, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to Regulation 25 of the Industrial Relations Regulations 1993. (vi) An employer shall record time off in lieu arrangements in the time and wages book as prescribed in Clause * - (Title) of this award at each time this provision is used. To be inserted in appropriate clause: (*) Make Up Time Notwithstanding provisions elsewhere in the award, the employer and the majority of employees at an enterprise may agree to establish a system of make up time provided that: (i) An employee may elect, with the consent of the employer, to work 'make up time' under which the employee takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award. (ii) An employee on shift work may elect, with the consent of their employer, to work 'make up time' under which the employee takes time off ordinary hours and works those hours at a later time, at the shift work rate which would have been applicable to the hours taken off. (iii) An employee or the employees may choose to request a union party to this award, to represent their interests in negotiation referred to in paragraph (i) of this subclause. (iv) Once a decision has been taken to introduce an enterprise system of make up time, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to Regulation 25 of the Industrial Relations Regulations 1993. (v) An employer shall record make up time arrangements in the time and wages book, as prescribed in Clause * - (Title) of the award at each time this provision is used. To be inserted in appropriate clause: (*) Rostered Days Off Notwithstanding provisions elsewhere in the award, the employer and the majority of employees at an enterprise may agree to establish a system of Rostered Days Off to provide that: (i) An employee may elect, with the consent of the employer, to take a rostered day off at any time. (ii) An employee may elect, with the consent of the employer, to take rostered days off in part day amounts. (iii) An employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon by the employee at times mutually agreed by the employer, or subject to the reasonable notice by the employee or the employer. (iv) An employee or the employees may choose to request a union party to this award to represent their interests in negotiation referred to in paragraph (i) of this subclause. (v) Once a decision has been taken to introduce an enterprise system of RDO flexibility, in accordance with this clause, its terms must be set on in the time and wages records kept pursuant to Regulation 25 of the Industrial Relations Regulations 1993. (vi) An employer shall record RDO arrangements in the time and wages book, as prescribed in Clause * - (Title) of the award at each time this provision is used. |