4 YEARLY REVIEW OF MODERN AWARDS COMMON CLAIM CASES Workshop Paper Australian Industry Group National PIR Group Conference 4 & 5 May 2015
INTRODUCTION The 4 Yearly Review of Awards by the Fair Work Commission (FWC) commenced in early 2014 and will most likely continue until at least late 2016. The Review involves individually reviewing each of the 122 modern awards, as well as providing the vehicle for a large number of major cases (Common Issues Cases) dealing with entitlements across the award system. The Common Issues Cases include: A review of annual leave provisions in all awards, including leave loading on termination and whether terms permitting the cashing out of annual leave ought to be included in awards (AM2014/47 Annual leave). A case relating to the insertion of time-off-in-lieu of overtime and make-up time provisions in awards that currently do not include this type of flexibility (AM2014/300 Award flexibility). A case relating to casual employment, including union claims to give casual employees the right to convert to permanent employment after a specified period (AM2014/197 Casual employment). A review of provisions applying to part-time employees in modern awards (AM2014/196 Part-time employment). A family and domestic violence clause case in which the ACTU is seeking the inclusion in all awards of a clause which would provide, amongst other aspects, an entitlement to up to 10 days of paid leave per year to an employee suffering from family violence (AM2015/1 Family and domestic violence clause). A family friendly work arrangements case in which the ACTU is seeking a right for new parents to return to work on a part-time basis, with only a very limited right for employer refusal. This case also includes a claim for additional paid leave to attend pre-natal, pre-adoption or permanent care order appointments (AM2015/2 Family friendly work arrangements). Ai Group, National PIR Conference, 4 & 5 May 2015 2
A review of public holiday provisions in modern awards including various union claims for new entitlements (AM2014/301 Public Holidays). A review of the redundancy, district allowances and accident pay provisions that were included in modern awards on a transitional basis only. This case includes union claims to insert national accident pay entitlements applicable to all employees covered by about 40 modern awards and the re-introduction of district allowances in a number of modern awards (AM2014/190 Transitional provisions). The insertion of certain apprentice terms and conditions decided by the Full Bench in the Apprentices, Trainees and Juniors Case in 2012 into a large number of other awards (AM2014/192 Apprentice conditions). An application for a micro-business schedule in all modern awards which would apply to businesses that employ fewer than 5 employees (AM2014/306 Micro business schedule). In addition to the above Common Issues Cases, there are two other major cases that relate to multiple awards: A review of penalty rates in a number of awards, most notably the retail and hospitality sectors, including the fast food industry (AM2014/305 Penalty rates). A review of award terms allegedly inconsistent with the National Employment Standards (NES). A large majority of these terms have been identified by the Fair Work Ombudsman (FWO) (Alleged NES inconsistencies). In addition to the above cases, the ACTU, in its recent Annual Wage Review submission, has called for the FWC to schedule an additional Common Issues Case to deal with an ACTU claim that employers be required to make an additional 0.5% contribution to their employee's superannuation as an award entitlement, on top of the 9.5% contribution required by the Superannuation Guarantee legislation. Ai Group, National PIR Conference, 4 & 5 May 2015 3
PRELIMINARY ISSUES, AWARD STAGE AND PROCESS Section 156 of the Fair Work Act 2009 (FW Act) requires the FWC to conduct a review of modern awards as soon as practicable after each 4th anniversary of the commencement of modern awards. As part of the Review the FWC may make determinations varying, making or revoking modern awards. However these determinations must be made within the context of the modern award provisions of the FW Act, including section 138 which requires that modern award terms be necessary to achieve the modern awards objective set out in section 134 of the FW Act. This 4 Yearly Review commenced in early 2014 and is the first review of modern awards pursuant to section 156 of the FW Act. This Review is separate from the Transitional Review (2 Year Review) of modern awards that took place in 2012 and 2013. This Review comprises of three stages: The initial stage, which dealt with issues associated with the legislative framework for the Review. This stage was completed in 2014; The Award Stage; and The Common Issues Stage. Award Stage The Award Stage of the 4 Yearly Review is divided into four sequential groups. Each of the 122 awards has been allocated to one of four groups for review. As part of the Award Stage, the FWC is redrafting awards into 'plain English' which is proving to be a massive exercise given uncertainties and differences of view about employer and union parties regarding how existing provisions should be interpreted. Exposure drafts for Group 1 and Group 2 awards have been published. Ai Group has carefully considered the exposure drafts and made numerous lengthy submissions to the FWC to protect employers against unintended variations to entitlements. Ai Group, National PIR Conference, 4 & 5 May 2015 4
One major issue that has arisen during the review of Group 1 exposure drafts has been the interpretation and application of the words "ordinary hourly rate" which has a major impact on how various penalties are calculated and the interaction between penalties and allowances. This phrase has an important industrial meaning and its use in modern awards more widely is being considered by the Full Bench. In addition to drafting issues, numerous parties are pursuing substantive changes to individual awards. Some of these matters have been allocated to separate Full Benches of the Commission. The review of Group 1 awards is well-progressed and Group 2 is underway. Group 3 has commenced, but is yet to be timetabled for the release of exposure drafts, submissions and hearings. Group 4 will be dealt with in 2016. Ai Group is very heavily involved in both the Award Stage and the Common Issues Stage of the Review. AM2014/47 ANNUAL LEAVE COMMON ISSUE CASE A Full Bench of the FWC comprising of President Justice Ross, Senior Deputy President Harrison and Commissioner Hampton presided over the Annual Leave Common Issue Case. The case was heard in late 2014 and a decision is yet to be handed down. The case concerns the following matters: the cashing out of annual leave; excessive annual leave; annual close-down; granting leave in advance; payment of annual leave entitlements on termination; and Electronic funds transfer (EFT) and paid annual leave. Ai Group, National PIR Conference, 4 & 5 May 2015 5
Ai Group played a leading role in this case and pursued proposals for clauses to be included in modern awards that would permit: An employer to direct an employee to take annual leave if that employee has an excessive amount of accrued annual leave (6 weeks or more of annual leave accrued); An employee to cash out accrued annual leave entitlements by agreement with the employer, beyond a specified amount of accrued leave; An employer to direct employees to take annual leave during an annual closedown period (in awards that do not currently contain this right); An employer and employee to agree to annual leave being taken in advance; and An employer to pay for annual leave via EFT in accordance with the normal pay cycle rather than in advance. The ACTU argued for the inclusion of a clause in modern awards that would require an employer to pay an employee on termination the employee s annual leave entitlement that would have been payable had the employee actually taken annual leave. The ACTU s argument in favour of this clause was premised on the different interpretations of unions and employer groups with respect to section 90 of the FW Act. Much of the debate has focussed upon whether annual leave loading entitlements in awards are payable on termination. Ai Group filed a number of submissions with respect to the Annual Leave Common Issue Case, including: Ai Group s submission in support of its application; and Ai Group s submission in reply to unions' annual leave applications; Ai Group, National PIR Conference, 4 & 5 May 2015 6
AM2014/300 AWARD FLEXIBILITY COMMON ISSUE CASE The Award Flexibility Common Issue Case primarily concerns an Ai Group application to include time-off-in-lieu of overtime clauses and make up time clauses in nearly all modern awards, with time off calculated at one hour worked for one hour off. Currently many awards do not include such clauses. The AMWU is pursuing a variation to a number of awards to require that time off correspond to the relevant overtime rate, i.e. 1.5 or 2 hours off for each hour worked. The matter is listed for hearing on 5 May 2015 before a Full Bench of the FWC headed by President Ross. Ai Group has filed a number of submissions in the case including: Ai Group s Submission in support of its claims and Ai Group s Submission in reply to the AMWU s claims. AM2014/197 CASUAL EMPLOYMENT AND AM2017/196 PART-TIME EMPLOYMENT COMMON ISSUES CASES A Full Bench of the FWC presided over by Vice President Hatcher will hear the Casual Employment Common Issue Case and Part-time Employment Common Issue Case. The unions are seeking the following changes: A right for casual employees to convert to permanent employment after a specified period; A four hour minimum engagement period for casual and part-time employees; and A requirement that employers give existing casuals the opportunity to increase working hours if the employee wants this. Ai Group, National PIR Conference, 4 & 5 May 2015 7
Ai Group will strenuously oppose the unions claims. Ai Group is arguing that casual employment is an issue that needs to be dealt with on an award by award basis and that one size does not fit all. Within this context, Group is seeking further flexibility in a number of specific awards. The Casual Employment and Part-time Employment Common Issues Cases are likely to be heard together in early 2016, with submissions and evidence likely to be filed later this year. The FWC has not yet issued Directions for the case. There is a potential for the scope of the case to grow. Already, several matters that have arisen regarding the casual and part-time employment provisions in particular awards have been referred to the Full Bench to be dealt with in the case. AM2015/1 FAMILY AND DOMESTIC VIOLENCE CLAUSE COMMON ISSUE The Family and Domestic Violence Clause Common Issue Case concerns an application by the ACTU to insert a clause in all modern awards to provide employees with an entitlement to an additional 10 days per year of paid family and domestic violence leave. The unions clause also includes additional obligations on employees, such as an obligation to ensure confidentiality, safety and to appoint a family and domestic violence contact officer. The matter is being dealt with by a Full Bench presided over by President Ross and has been listed for a jurisdictional hearing on 6 July 2015. Ai Group has filed a submission outlining the key jurisdictional impediments to the granting of the ACTU s claims, including that various matters dealt with proposed clause are not allowable content for modern awards or would have the effect of excluding the NES. If the ACTU s claim is found to be jurisdictionally sound, the Full Bench will issue directions for the filing of submissions and evidence on the merits of the claim and will list the matter for substantive hearings. Ai Group, National PIR Conference, 4 & 5 May 2015 8
Ai Group recognises that family and domestic violence is a serious community problem, and supports appropriate measures and initiatives to help address family and domestic violence (see Ai Group s submission). However, Ai Group opposes family violence being dealt with through specific clauses in awards. Modern awards are intended to provide, together with the NES, a fair and relevant minimum safety net of terms and conditions of employment. Awards are already far too complex to constitute a genuine safety net. Awards need to be simplified - not expanded to deal with the numerous very important community problems which exist. If family violence is to be dealt with through a specific clause in awards, why not street crime, drug dependence, alcohol dependence, illiteracy, homelessness, mental health, age discrimination, gender inequality, road accidents, traffic congestion, environmental degradation, and so on? All social problems interact with the workplace in one way or another. The NES provides employees who are victims of family violence with the right to request flexible work arrangements. This amendment was made to the NES relatively recently. There are a wide range of workplace rights which protect and provide assistance to victims of family violence including: The NES right to request provisions; Personal / carer s leave entitlements; Annual leave entitlements; Facilitative provisions and other award flexibilities; Individual flexibility arrangements; The general protections, including protections against adverse action because the person has a workplace right, protections against termination for a prohibited reason, and protections against discrimination; Unfair dismissal laws; and Ai Group, National PIR Conference, 4 & 5 May 2015 9
Anti-discrimination laws. The clause proposed by the ACTU is extracted at Appendix 1. AM2015/2 FAMILY FRIENDLY WORK ARRANGEMENTS COMMON ISSUE CASE The Family Friendly Work Arrangements Common Issue Case is likely to be heard with the Family and Domestic Violence Clause Common Issue Case. The case concerns an ACTU claim for a Return to Work Part Time from Parental Leave Schedule to be included in all modern awards. The Schedule would: Significantly reduce the circumstances whereby an employer can refuse a return to work on a part-time basis after a period of parental leave; Provide employees with a right to return to work on a part-time basis subject to an employer's ability to refuse on substantial countervailing business grounds ; Not require that the employee have responsibility for the care of the child for which the employee was on a period of parental leave, but rather any child; Apply to all employees (unlike the NES right to request provisions) including those with less than 12 months continuous service and all casual employees; Provide employees with the right to return to their previous full-time position for 2 years following the birth or placement of the child; Provide pregnant employees with the right to unilaterally change their work arrangements (including hours, patterns, types and location of work) for the duration of their pregnancy to ensure their safety and that of their baby, with a right to return to their previous work arrangements at any time with the agreement of the employer; and Provide employees with an additional 2 days' leave to attend appointments associated with pre-natal, pre-adoption or permanent care orders. Ai Group, National PIR Conference, 4 & 5 May 2015 10
This matter is being dealt with by the same Full Bench which is dealing with the Family and Domestic Violence Clause Common Issue Case, which is headed by President Ross. The matter has been listed for a jurisdictional hearing for 6 July 2015. Ai Group has filed a submission outlining the jurisdictional impediments to the ACTU s case, including that the ACTU s claim would have the effect of excluding the right to request provisions in the NES (see section 55 of the FW Act) and the right to a safe job provisions in the NES (see section 81 of the FW Act).. The ACTU s proposed schedule is extracted at Appendix 2. AM2014/301 PUBLIC HOLIDAYS COMMON ISSUES CASE The Public Holidays Common Issues Case concerns proposals of various parties to vary the public holiday provisions in a number of awards. The case is divided into two groups: Claims dealing with part-day public holidays In South Australia; and Other public holiday claims Part-day public holidays This matter relates to a schedule that was inserted into all modern awards a few years ago relating to the South Australian part-day public holidays on Christmas Eve and New Year s Eve. The matter is listed for conference on 13 May before Commissioner Hampton. Other public holiday claims The other public holiday matters are primarily claims made by the SDA, AMWU, HSU and ANMF. The claims can be categorised in two groups: Ai Group, National PIR Conference, 4 & 5 May 2015 11
The inclusion of an award clause providing for an additional day off when a public holiday falls on a non-working day. For example, the SDA is seeking the following clause to be included in the General Retail Industry Award 2010 and the Hair and Beauty Industry Award 2010: This subclause applies to full time employees, and to part time employees who work an average of five days per week. If a public holiday or a part-day public holiday falls on a day an employee is not rostered to work they shall be entitled to receive by mutual agreement: a) Another day or part-day off in lieu; or b) An equivalent day or part-day s pay; or c) One extra day or part-day added to his or her annual leave. This subclause shall not apply to public holidays falling on a Saturday or Sunday (except where they are substituted to another day) nor to part-day public holidays of less than eleven hours. The inclusion of an award clause requiring that public holiday penalty rates be payable to an employee who works on a public holiday that has been substituted (as opposed to an additional public holiday day being proclaimed) by the State or Territory Government with another day. For example when Christmas Day falls on a weekend, penalty rates would be payable on 25 December as well as on the substituted day. These claims will be dealt with in the first half of 2016. Ai Group is strongly opposed to the union claims. Employer claims to reduce the penalty rate payable with respect to work performed on a public holiday in the Restaurant Industry Award 2010, Hospitality Industry (General) Award 2010 and Fast Food Industry Award 2010 will be dealt with during the Penalty Rates Case (see below). Ai Group, National PIR Conference, 4 & 5 May 2015 12
AM2014/190 TRANSITIONAL PROVISIONS COMMON ISSUE CASE UNION CLAIMS FOR NATIONAL ACCIDENT PAY AND DISTRICT ALLOWANCE ENTITLEMENTS The Transitional Provisions Common Issue Case can be categorised into three areas: Proceedings with respect to the expiry of transitional provisions in numerous modern awards dealing with accident pay, district allowances and redundancy pay on 31 December 2014; Proceedings with respect to union claims for the inclusion of an accident pay clause which would apply to all employees covered by the particular award. The unions involved have made separate (and differing) applications to vary up to 40 modern awards; and Proceedings with respect to union claims for the inclusion of district allowance entitlements in 16 modern awards. With respect to the first category, in proceedings before a Full Bench of the FWC comprised of Justice Boulton, Deputy President Kovacic and Commissioner Bull, unions endeavoured to remove the 31 December 2014 sunset date which Ai Group strongly opposed. These union claims have been rejected by the Commission in all industries other than the black coal industry. The second and third categories of proceedings have arisen from a reformulation of the unions claims to retain the transitional provisions in modern awards. The unions are now pursuing national accident pay entitlements for all employees covered by up to 40 modern awards and district allowance entitlements for all employees covered by 16 modern awards. Transitional provisions When modern awards came into operation on 1 January 2010 they typically contained transitional provisions which preserved until 31 December 2014 any entitlements that employees had under relevant pre-modern awards to: Ai Group, National PIR Conference, 4 & 5 May 2015 13
Accident pay (i.e. the difference between the amount paid by the relevant workers compensation authority and the employee s regular ordinary time earnings, to be paid by the employer for a specified period such as 39 weeks); District allowances; and More generous redundancy entitlements than those in the NES in the Fair Work Act 2009. In late 2014, the Full Bench heard detailed arguments from the unions, Ai Group and other employer representatives about the future of the transitional accident pay, district allowance and redundancy provisions. The unions argued for the entitlements to continue indefinitely while Ai Group argued that the entitlements should expire on 31 December 2014 as the Commission intended when the provisions were inserted into awards in 2010. In decisions of 31 October 2014 and 23 December 2014, a Full Bench of the Commission: Rejected the unions claims to remove the 31 December 2014 sunset date from the transitional provisions (with the exception of the accident pay provisions in the Black Coal Mining Industry Award 2010); Decided that the existing accident pay provisions in the Black Coal Mining Industry Award 2010 will have ongoing effect; and Rejected the unions claims for pre-emptive take-home pay orders Employers covered by modern awards, as of 1 January 2015 are no longer obliged to apply the transitional provisions for accident pay, district allowances and redundancy pay (with the exception of the accident pay provisions in the Black Coal Mining Industry Award 2010). However employers must continue to provide any accident pay, district allowance and redundancy entitlements in enterprise agreements, employment contracts or, in the case of redundancy pay, in the NES. Employers should note that the Full Bench in both its 15 April 2015 and 23 Ai Group, National PIR Conference, 4 & 5 May 2015 14
December 2014 decisions highlighted that the Commission has the power to make any take home pay order that the Commission regards as appropriate for an individual employee who suffers a reduction in take home pay as a result of the operation of a transitional provision. For example, if an employee was on workers compensation prior to 1 January 2015 and was receiving accident pay prior to this date, it would be open to the employee to make application to the Commission for a take home pay order requiring the employer to continue to provide accident pay to the employee. If such an application was made, the Commission would decide whether or not to make a take home pay order taking into account relevant jurisdictional and merit issues. Members are urged to contact Ai Group for advice if any applications for take home pay orders are made by their employees. Union claims for national accident pay and district allowance entitlements The proceedings relating to the unions claims for national accident pay standards to be included in up to 40 awards have been part heard with the remainder of the matter scheduled for hearings on 25, 26 and 27 May 2015. The district allowance claims have been listed for hearing on 28 and 29 May 2015. Ai Group is strenuously opposing the unions claims. Ai Group has filed several detailed submissions in the proceedings, including: Ai Group s Accident Submission and Ai Group s District Allowances Submission. AM2014/192 APPRENTICE CONDITIONS COMMON ISSUE CLAIM The Apprentice Conditions Common Issue Claim concerns applications by the ACTU and affiliated unions to vary 37 modern awards to flow-on conditions of employment for apprentices determined by the Full Bench in its Apprentices Case decision of 22 August 2013 during the 2 Yearly Award Review. The unions applications were the subject of a number of conferences convened by Commissioner Roe in which substantial agreement was reached between union and employer parties. AM2014/306 MICRO BUSINESS SCHEDULE COMMON ISSUE CASE Ai Group, National PIR Conference, 4 & 5 May 2015 15
The Micro Business Schedule Common Issue Case concerns an application by Australian Business Industrial and the NSW Business Chamber to insert in 93 modern awards a schedule applying to businesses with fewer than 5 employees. The Schedule would enable an employer to elect to apply provisions within the Schedule instead of the primary award clauses dealing with types of employment, payment of wages, ordinary hours of work, breaks and overtime. The case is yet to be programmed by the FWC. It is likely that it will be heard in 2016. ALLEGED NES INCONSISTENCIES The 4 Yearly Review Full Bench has considered a number of award terms identified by parties, most notably the FWO, as being inconsistent with the NES. The alleged inconsistencies were divided into five categories. Submissions were filed and hearings conducted before a Full Bench of the FWC regarding each of the five categories. The Full Bench has reserved its decision. AM2014/305 PENALTY RATES The Penalty Rats Case concerns a number of applications by employers to review the penalty rates within the following awards: Amusements, Events and Recreation Award 2010; Dry Cleaning and Laundry Industry Award 2010; Fast Food Industry Award 2010; General Retail Industry Award 2010; Hair and Beauty Industry Award 2010; Hospitality Industry Award 2010; Pharmacy Industry Award 2010; Ai Group, National PIR Conference, 4 & 5 May 2015 16
Registered and Licensed Clubs Award 2010; and Restaurant Industry Award 2010. Each of these awards has been allocated by the FWC to one of two groups for the purposes of dealing with the arguments and evidence presented by the applicants and other interested parties Expert evidence common to the two groups is being heard by the Full Bench between 8 and 25 September 2015. Evidence specific to the Hospitality Group will also be heard during this time. Evidence specific to the Retail Group will be heard on 12 and 13 October. Final hearings with respect to both groups are listed for 14 to 18 December. Ai Group Workplace Lawyers and Mr Harry Dixon SC is representing employers in the fast food industry in relation to an application by fast food employers to vary the Fast Food Industry Award 2010: To reduce the penalty payable by employers to employees working night shift Monday to Friday; and To reduce the penalty loading payable for working Sunday by 25%. Ai Group, National PIR Conference, 4 & 5 May 2015 17
APPENDIX 1 XX SUPPORT FOR EMPLOYEES EXPERIENCING FAMILY AND DOMESTIC VIOLENCE X.1 Definition For the purpose of this clause, family and domestic violence is defined as any violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or household or causes the family or household member to be fearful. It includes current or former partners in an intimate relationship, whenever and wherever the violence occurs. It may include physical, sexual, emotional, psychological or financial abuse. X.2 Confidentiality The employer must take all reasonable measures to ensure personal information concerning an employee s experience of family and domestic violence is kept confidential. X.3 Family and Domestic Violence Workplace Contacts and advice referral X.3.1 X.3.2 The employer will appoint a family and domestic violence workplace contact person to provide a point of first contact for employees experiencing family and domestic violence. The name and contact details of the nominated contact person shall be disseminated to all employees. The employer must ensure the contact person is trained in family and domestic violence issues and be able to provide employees with access to the relevant Employee Assistance Program and / or appropriate local specialist resources, support and referral services. X.4 Workplace Safety If it is determined that the disclosing employee, other employees or visitors of the employer may be at risk of physical harm, the employer must take reasonable measures to ensure their safety. X.5 Leave X.5.1 X.5.2 X.5.3 An employee experiencing family and domestic violence will have access to 10 days per year of paid family and domestic violence leave to attend legal proceedings, counselling, appointments with a medical or legal practitioner, relocation, the making of safety arrangements and other activities associated with the experience of family and domestic violence. Upon exhaustion of the leave entitlements in clauses X.5.1, employees shall be entitled to up to 2 days unpaid family and domestic violence leave on each occasion where paid leave would be available. If required, employees may take additional paid or unpaid family and domestic violence leave by agreement with the employer. Ai Group, National PIR Conference, 4 & 5 May 2015 18
X.5.4 X.5.5 X.5.6 X.5.7 X.5.8 Family and domestic violence leave is in addition to any other existing leave entitlements, and may be taken as consecutive or single days or as a fraction of a day. Nothing in this clause shall prohibit the employee from accessing other available forms of leave for the purposes of attending legal proceedings, counselling, appointments with a medical or legal practitioner, relocation, the making of safety arrangements and other activities associated with the experience of family and domestic violence. The employee shall give his or her employer notice of the taking of the leave under this clause, and if required by the employer, evidence that would satisfy a reasonable person that the leave was for the purposes of attending medical appointments, legal proceedings, legal assistance, court appearances, counselling, relocation, the making of safety arrangements and other activities associated with the experience of family and domestic violence. Proof of family and domestic violence may be required and may include a document issued by the police service, a court, a doctor (including a medical certificate), district nurse, maternal and child health care nurse, a family violence support service or lawyer or a statutory declaration. An employee is entitled to use the NES entitlement to personal / carer s leave for the purpose of providing care or support to a person who is experiencing family and domestic violence, including but not limited to, accompanying them to legal proceedings, counselling, appointments with a medical or legal practitioner or to assist them with relocation, the making of safety arrangements, minding children and other activities associated with the experience of family and domestic violence. X.6 Individual Support [This clause supplements the entitlement to request flexible work arrangements pursuant to s.65 of the FWA.] In order to provide support to an employee experiencing family and domestic violence and to provide a safe work environment to all employees, the employer will approve any reasonable request from an employee experiencing family and domestic violence for: (i) (ii) (iii) (iii) (iv) changes to their span of hours or pattern of hours and/or shift patterns; job redesign or changes to duties; changes to the location of work; a change to their telephone number or email address to avoid harassing contact; any other appropriate measure including those available under s.65 of the FWA. Ai Group, National PIR Conference, 4 & 5 May 2015 19
APPENDIX 2 XX RETURN TO WORK PART TIME FROM PARENTAL LEAVE X.1 Returning to work part time from parental leave X.1.1 An employee who is returning to work after taking parental leave and who has responsibility for the care of a child is entitled, subject to this clause, to return to the position they held prior to taking parental leave: (a) (b) part time; or on reduced hours. This is the employee s Right to Return. X.1.2 An employer must give effect to the employee s Right to Return, subject to the following: (a) (b) Where there are substantial countervailing business grounds or where the position no longer exists, the employer must offer to accommodate the employees return to work on reduced hours in an equivalent position commensurate in status and pay to that of the employee s substantive position and for which the employee is qualified and capable of performing. The employer may decline to make an offer to accommodate the employee s return to work on reduced hours in an equivalent position under paragraph (a) above only on substantial countervailing business grounds. X.1.3 X.1.4 X.1.5 The employee seeking to exercise the Right to Return shall provide written application to the employer no less than 28 days prior to the employee s due date of return to work from parental leave. The employer must discuss the employee s application with the employee, and where they choose, their representative, within [14 days] of receiving the application. The employer must take into account all relevant circumstances in considering the employee s application, including- (a) (b) (c) the employee s circumstances; and the nature of the employee s role; and the nature of the arrangements required to accommodate the circumstances or responsibilities; (d) the consequences for the employee of not making such accommodation; and Ai Group, National PIR Conference, 4 & 5 May 2015 20
(e) alternative arrangements that might address the employee s circumstances. X.1.6 A written agreement must be provided by the employer to the employee within 7 days which records an arrangement reached under this clause and which includes, at a minimum, the following matters: (a) (b) (b) (c) (d) the location, hours, days and commencing and finishing times to be worked by the employee; the classification, job description and remuneration of the work to be performed; the period of changed work arrangements; that the terms of the agreement may be varied by written consent; and that all part time working arrangements are subject to the provisions of the Award. X.1.7 X.2: X.2.1 X.2.2 X.2.3 X.2.4 Where the employee s application is refused or where the employer declines to make an offer in accordance with sub clause 1.2, the employer must provide its reasons (including evidence of its consideration of the alternative arrangements that might address the requirements of the employee) to the employee in writing within 7 days of discussing the employee s application under X.1.4. Right to revert to position and / or work arrangements held prior to taking parental leave An employee who has changed their work arrangements in accordance with clause X.1, has the right to revert to the position and / or working arrangements they held prior to taking parental leave, up to 2 years from the date of birth or placement of the child. An employee who intends to revert to the position and / or working arrangements they held prior to taking parental leave upon the 2 year anniversary of the date of birth or placement of the child, shall provide no less than 28 days notice to the employer of their intention. The employer must accommodate the employee s transition to the position and / or working arrangements they held prior to taking parental leave within 28 days of receiving the employee s notice. An employee may revert to the position and / or working arrangements they held prior to taking parental leave at any time before or after 2 years from the date of birth or placement of the child by agreement with the employer. The terms of the agreement, or any variation to it, must be in writing and retained by the employer. A copy of the agreement and any variation to it shall be provided to the employee by the employer. Ai Group, National PIR Conference, 4 & 5 May 2015 21
X.3: X.3.1 X.3.2 X.4: X.4.1 X.4.2 X.4.3 X.4.4 Safe work arrangements during pregnancy An employee who is pregnant may change their work arrangements (including hours, patterns, types and location of work) for the duration of their pregnancy to ensure their safety and that of their baby. An employee who changes their work arrangements in accordance with this clause, is entitled to return to the position and/or work arrangements they held prior to changing their work conditions at any time by agreement with their employer. Paid leave for the purpose of attending appointments associated with pre-natal, preadoption or permanent care orders An employee shall be entitled to 2 days paid leave for the purpose of attending appointments associated with pregnancy, adoption or permanent care orders. Any leave accessed under this clause will be deducted from the employee s entitlement based on the actual time taken to attend each appointment. The employee shall give his or her employer notice of the taking of the leave under this clause, and if required by the employer, evidence that would satisfy a reasonable person that the leave was for the purposes of attending an appointment associated with pre-natal, pre-adoption or permanent care orders. Once paid leave has been exhausted, an employee can access accrued personal leave for the purpose of attending appointments associated with pregnancy, adoption or permanent care orders. An employee is entitled to use the NES entitlement to personal / carer's leave for the purpose of providing care or support or to accompany a person taking leave to attend an appointment associated with pre-natal, preadoption or permanent care orders. Ai Group, National PIR Conference, 4 & 5 May 2015 22