TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Health Services Union of Australia, Tasmania No. 1 Branch
(T9527 of 2001)

DENTISTS AWARD
HOSPITALS AWARD
MEDICAL DIAGNOSTIC SERVICES (PRIVATE SECTOR) AWARD
MEDICAL PRACTITIONERS (PRIVATE SECTOR) AWARD
NURSING HOMES AWARD

Award variation - bereavement leave - application approved - operative date ffpp 27 July 2001

REASONS FOR DECISION

[1] This application, lodged by the Health Services Union of Australia, Tasmania No. 1 Branch, pursuant to Section 23 of the Act and referred to a Full Bench by virtue of Section 35[1][e], seeks to delete existing Compassionate Leave clauses in the nominated awards and substitute the following:

"Bereavement Leave

An employee shall on the death of a member of the employee's immediate family, or a member of the employee's household be entitled upon application being made to, and approved by the employer, to leave up to and including the day of the funeral of such relative and such leave will be without deduction of pay not exceeding the number of ordinary hours worked by the employee in three ordinary days.

Proof of such death, in the form of a death notice or other written evidence, shall be furnished by the employee to the satisfaction of the employer.

PROVIDED that no such payment shall be made in respect of an employee's rostered days off.

PROVIDED FURTHER that this clause shall have no operation while the period of entitlement to leave under it coincides with any other period of entitlement to leave.

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."

[2] The practical effect of this application is to re-define the eligibility criteria in terms of an employee's immediate family or a member of an employee's household.

[3] In speaking to the application Mr Kleyn submitted that the existing provision is now out of date and requires variation to bring it into line with community standards. The clause proposed was consistent, in terms of eligibility, with the Carer's Leave clause adopted by various jurisdictions, including this Commission. In support of this position Mr Kleyn relied on the AIRC Family Leave Test Case,1 the Personal Carer's Leave Test Case2 , the NSW Industrial Relations Commission State Personal Carer's Leave Case3 and the Full Bench decision of this Commission in the Personal Carer's Leave Test Case4.

[4] In addressing the principle underpinning this application Mr Kleyn referred to the Full Bench decision in the Commonwealth Personal Carer's case which said:5

"In our view, eligibility for bereavement leave should cover the same class of persons entitled to access carer's leave. It would be illogical and perhaps discriminatory to provide employees with an entitlement to care for a sick member of their household but not provide them with leave to attend that person's funeral in the event that the latter does not recover from the illness."

[5] Mr Kleyn submitted that the eligibility criteria included in the proposed clause is identical to the carer's leave clause determined by this Commission. He said:6

"For consistency sake, we have looked at the bereavement leave clause and taken the view that it should have the same accessibility, the same eligibility criteria for entitlement to leave as does the carer's leave."

[6] Mr Kleyn submitted that the application was consistent with the Wage Fixing Principles, notably Principle 4 dealing with the Award Safety Net and to some extent Principle 12 - Award Review Process, as it relates to the removal of discriminatory provisions.

[7] Mr Kleyn acknowledged that the broadening of the eligibility criteria may result in a minor cost impact. However this would not impact on employment or the Tasmanian economy and as such the application was consistent with the public interest.

[8] Ms P Wright of the Australian Nursing Federation Tasmanian Branch, who was unable to be present at the hearing, indicated that the ANF consented to the application.

[9] Mr Watson, in indicating the Tasmanian Chamber of Commerce and Industry Limited's consent to the application, noted that former spouses and de facto spouses would now be eligible for bereavement leave, a reversal of the existing position. As such he wished to sound a cautionary note that whilst widespread abuse was not anticipated, employers reserved the right to come back to the Commission if this proved not to be the case.

[10] Mr Watson also noted that the expression "member of the employee's household" was not intended to embrace a situation whereby a number of people shared a household for purely commercial reasons.

[11] The parties agreed that the application was limited to the nominated awards and did not have test case status.

[12] We are satisfied that the application is consistent with both the Wage Fixing Principles and the public interest. The application is approved operative from the beginning of the first full pay period to commence on or after 27 July 2001.

[13] The Commission will issue orders in due course to give effect to this decision.

P L Leary
PRESIDENT

Appearances:
Mr T Kleyn for the Health Services Union of Australia, Tasmania No. 1 Branch.
Mr M Watson for Tasmanian Chamber of Commerce and Industry Limited.

Date and Place of Hearing:
2001
July 27
Hobart

1 Print L6900 29/11/1994
2 Print M6700 28/11/1995
3 IRC2 of 1996
4 T6296 and T6441 of 1996
5 Page 15
6 Transcript p. 4