TELECOMMUNICATIONS SERVICES INDUSTRY AWARD 2002
Subject to the terms of this clause employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child.
The provisions of this clause apply to full-time, part-time and eligible casual employees, but do not apply to other casual employees.
An "eligible casual employee" means a casual employee:
(a) employed by an employer on a regular and systematic basis for several periods of employment or on a regular and systematic basis for an ongoing period of employment during a period of at least 12 months; and
(b) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.
For the purposes of this clause, `continuous service' is work for an employer on a regular and systematic basis (including any period of authorised leave or absence).
An employer must not fail to re-engage a casual employee because:
(a) the employee or employee's spouse is pregnant; or
(b) the employee is or has been immediately absent on parental leave
The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.
27.1 Definitions
27.1.1 For the purpose of this clause child means a child of the employee under the age of one year except for adoption of a child where `child' means a person under age of five years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.
27.1.2 Subject to 27.1.3, in this clause, spouse includes a de facto or former spouse.
27.1.3 In relation to 27.5, spouse includes a de facto spouse but does not include a former spouse.
27.2 Basic entitlement
27.2.1 After twelve months continuous service, parents are entitled to a combined total of 52 weeks unpaid parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may be taken and for males, paternity leave may be taken. Adoption leave may be taken in the case of adoption.
27.2.2 Subject to 27.3, parental leave is to be available to only one parent at a time, in a single unbroken period, except that both parents may simultaneously take:
27.2.2(a) for maternity and paternity leave, an unbroken period of up to one week at the time of the birth of the child;
27.2.2(b) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child.
27.3 Maternity leave
27.3.1 An employee must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:
27.3.1(a) of the expected date of confinement (included in a certificate from a registered practitioner stating that the employee is pregnant) - at least 10 weeks;
27.3.1(b) of the date on which the employee proposes to commence maternity leave and the period of leave to be taken - at least 4 weeks.
27.3.2 When the employee gives notice under 27.3.1 the employee must also provide a statutory declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for the period of maternity leave she will not engage in any conduct inconsistent with her contract of employment.
27.3.3 An employee will not be in breach of this clause if failure to give the stipulated notice is occasioned by confinement occurring earlier than the presumed date.
27.3.4 Subject to 27.2.1 and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth.
27.3.5 Where an employee continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, an employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties.
27.4 Special maternity leave
27.4.1(a) Where the pregnancy of an employee not then on maternity leave terminates after 28 weeks other than by the birth of a living child, then the employee may take unpaid special maternity leave of such periods as a registered medical practitioner certifies as necessary.
27.4.1(b) Where an employee is suffering from an illness not related to the direct consequences of the confinement, an employee may take any paid sick leave to which she is entitled in lieu of, or in addition to, special maternity leave.
27.4.1(c) Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take any paid sick leave to which she is then entitled and such further unpaid special maternity leave as a registered medical practitioner certifies as necessary before her return to work. The aggregate of paid sick leave, special maternity leave and parental leave, including parental leave taken by a spouse, may not exceed 52 weeks.
27.4.2 Where leave is granted under 27.3.5, during the period of 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.
27.5 Paternity leave
An employee will provide to the employer at least ten weeks prior to each proposed period of paternity leave, with:
27.5.1 a certificate from a registered medical practitioner which names his spouse, states that she is pregnant and the expected date of confinement, or states the date on which the birth took place; and
27.5.2 written notification of the dates on which he proposes to start and finish the period of paternity leave; and
27.5.3 a statutory declaration stating:
27.5.3(a) he will take that period of paternity leave to become the primary care-giver of a child;
27.5.3(b) particulars of any period of maternity leave sought or taken by his spouse; and
27.5.3(c) that for the period of paternity leave he will not engage in any conduct inconsistent with his contract of employment
27.5.4 The employee will not be in breach of clause 27.2 if the failure to give the required period of notice is because of the birth occurring earlier then expected, the death of the mother of the child, or other compelling circumstances.
27.6 Adoption leave
27.6.1 The employee will notify the employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of a child takes place earlier.
27.6.2 Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:
27.6.2(a) the employee is seeking adoption leave to become the primary care-giver of the child;
27.6.2(b) particulars of any period of adoption leave sought or taken by the employee's spouse; and
27.6.2(c) that for the period of adoption leave the employee will not engage in any conduct inconsistent with his contract of employment
27.6.3 An employer may require an employee to provide confirmation from the appropriate government authority of the placement.
27.6.4 Where the placement of child for adoption 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.
27.6.5 An employee will not be in breach of this clause as a consequence of failure to give the stipulated periods of notice if such failure results from a requirement of an adoption agency to accept earlier or later placement of a child, the death of a spouse, or other compelling circumstances.
27.6.6 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. 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. Where paid leave is available to the employee, the employer may require the employee to take such leave instead.
27.7 Variation of period of parental leave
Unless agreed otherwise between the employer and employee, an employee may apply to their employer to change the period of parental leave on one occasion. Any such change to be notified at least four weeks prior to the commencement of the changed arrangements.
27.8 Parental leave and other entitlements
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.
27.9 Transfer to a safe job
27.9.1 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 her present work, the employee will, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.
27.9.2 If the transfer to a safe job is not practicable, the employee may elect, or the employer may require the employee to commence parental leave for such period as is certified necessary by a registered medical practitioner.
27.10 Returning to work after a period of parental leave
27.10.1 An employee will notify of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.
27.10.2 Subject to subclause 27.10.4, 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 27.9, the employee will be entitled to return to the position they held immediately before such transfer.
27.10.3 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.
27.10.4 An eligible casual employee who is employed by a labour hire company who performs work for a client of the labour hire company will be entitled to the position which they held immediately before proceeding on parental leave.
Where such a position is no longer available, but there are other positions available that the employee is qualified for and is capable of performing, the employer shall make all reasonable attempts to return the employee to a position comparable in status and pay to that of the employee's former position.
27.11 Replacement employees
27.11.1 A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave.
27.11.2 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.
28.1 A full-time employee required to attend for jury service during the employee's ordinary working hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of attendance for such jury service and the amount of wage the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.
28.2 Where a part-time employee is required to attend for jury service and such attendance coincides with a day on which the employee would normally be required to work, payment shall be made to the employee in accordance with 28.1 hereof.
28.3 An employee shall notify the employer as soon as possible of the date upon which the employee is required to attend for jury service. Further, the employee shall give the employer proof of attendance, the duration of such attendance and the amount received in respect of such jury service.
29.1 Prescribed public holidays
29.1.1 A full time employee under this award is entitled to the following public holidays, without loss of pay; where such employee's normal paid hours fall on the public holiday:
New Year Day;
Australia Day;
Good Friday;
Easter Saturday;
Easter Monday;
Anzac Day;
Queen's Birthday;
Labour Day or Eight Hours' Day;
Christmas Day; and
Boxing Day (in South Australia, Proclamation Day - 26 December shall be observed instead of Boxing Day).
29.1.2 Where another day is generally observed in a locality in substitute for any of the above days, that day shall be observed as the public holiday in lieu of the prescribed day.
29.2 In addition to the public holidays prescribed in 29.1 hereof, full-time employees are entitled to the following:
29.2.1 New South Wales
An additional public holiday shall be observed as a public holiday on a day which shall be upon between the employer and employees in each establishment.
29.2.2 Victoria
Melbourne Cup Day or a local equivalent.
29.2.3 South Australia
Adelaide Cup Day.
29.2.4 Western Australia
Foundation Day.
29.2.5 Queensland
An employee shall be entitled to one day in each twelve months as Show Day in the locality in which the employee works.
29.2.6 Tasmania
Southern Tasmania - Regatta Day; Northern Tasmania - Bank Holiday.
29.2.6(a) Note: Southern Tasmania includes Oatlands and all towns south of Oatlands but excludes those areas excluded in the State Proclamation regarding this day, and Northern Tasmania includes all towns north of Oatlands.
29.2.6(b) An employee in the employ of one employer shall not be entitled to receive in any one calendar year both Regatta Day and bank holiday as public holidays.
29.2.7 Australian Capital Territory
Canberra Day or, by agreement between the employer and the majority of employees, Picnic Day (being the first Monday in March) in lieu of Canberra Day.
29.2.8 Northern Territory
Picnic Day.
29.3 Part-time employees
Refer to 12.4 of this award to determine the public holiday entitlements of part-time employees.
29.4 Additional days
Where an additional public holiday is proclaimed or gazetted by the Commonwealth or a State or Territory Government and such proclaimed or gazetted holiday is to be observed generally by persons throughout that State or Territory or a locality thereof, then such day shall be deemed to be a holiday for the employees working in the area the subject of the proclamation or gazetted notice.
29.5 Substitution of certain public holidays which fall on a weekend
29.5.1 Where Christmas Day falls on a Saturday or a Sunday, 27 December shall be observed as the public holiday in lieu of the prescribed day.
29.5.2 Where Boxing Day falls on a Saturday or a Sunday, 28 December shall be observed as the public holiday in lieu of the prescribed day.
29.5.3 Where New Year's Day or Australia Day falls on a Saturday or a Sunday, the following Monday shall be observed as the public holiday in lieu of the prescribed day.
29.6 Alternate days by agreement
29.6.1 By agreement between the employer and the majority of employees in the relevant enterprise or section of the enterprise, an alternative day may be taken as the public holiday in lieu of any of the prescribed days.
29.6.2 An employer and an individual employee may agree to the employee taking another day as the public holiday in lieu of the day which is being observed as the public holiday in the enterprise or relevant section of the enterprise. Such agreement shall be recorded in the time and wages records.
29.7 Payment for time worked on a public holiday
[29.7.1 varied by PR926105 from 22Nov02]
29.7.1 Except as provided for in 29.7.2 hereof, an employee who is required to work on a public holiday shall be paid at the following rates for a minimum of three hours:
Day work - double time and one half;
Afternoon and night shifts - double time.
This rate is in substitution for and not cumulative upon the allowances set out in clause 22 - Hours of Work or the overtime penalties in Clause 24 - Overtime.
29.7.2 The payment required under 29.7.1, shall only apply to time which is worked on the actual public holiday day, i.e. midnight to midnight.
29.8 Absence on working day before or after a public holiday
An employee absent on the working day before or the working day after a public holiday without reasonable excuse (proof of which shall be on the employee), or without the consent of the employer, shall not be entitled to payment for such holiday.
29.9 Leave of absence
The entitlement to a public holiday shall not apply to an employee during any period of unpaid leave exceeding two weeks, except where such unpaid leave is in respect of personal injury or illness.
30.1 Superannuation legislation
30.1.1 The subject of superannuation contributions is dealt with extensively by legislation including the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act 1993 and the Superannuation (Resolution of complaints) Act 1993. The legislation, as varied from time to time, governs the superannuation rights and obligations of the parties
30.1.2 Notwithstanding 30.1.1, the following provisions shall also apply.
30.2 Definitions
30.2.1 The Fund for the purposes of this clause shall mean:
30.2.1(a) The Australian Retirement Fund (ARF) or the Superannuation Trust of Australia (STA); or
30.2.1(b) Any fund agreed to between the employer and the majority of the employees concerned in the workplace or relevant section/s. Agreement in this respect may also be reached between the employer and an individual employee; or
30.2.1(c) Any fund the employer was contributing to as at 22 November 2002 or at the date of becoming bound by this award, provided that the level of contributions satisfies the award's requirements.
30.2.1(d) An employer is not required to contribute to more than one fund in respect of an employee employed under this award.
30.2.2 "Ordinary time earnings" for the purposes of this clause, means:
30.2.2(a) the classification rate under this award;
30.2.2(b) any over-award payment;
30.2.2(c) loadings which the employee earns for working ordinary hours of duty; and
30.2.2(d) casual loading in respect of casual employees.
29.2.3 "Ordinary time earnings" does not include bonuses, commission, payments for overtime or other payments, remuneration or allowances.
30.3 Employer contributions
A respondent employer shall contribute to the Fund in respect of each employee such contributions as required to comply with the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992 as amended from time to time.
30.4 Voluntary employees contributions
30.4.1 Subject to statutory requirements, an employee may make contributions to the Fund in addition to those made by the respondent employer under clause 30.3.
30.4.2 An employee who wishes to make additional contributions must authorise the respondent employer in writing to pay into the Fund, from the employee's wages, amounts specified by the employee in accordance with the Fund Trust Deed and Rules.
30.4.3 An employer who receives written authorisation from the employee, must commence making payments into the Fund on behalf of the employee within fourteen days of receiving authorisation.
30.4.4 Employees shall have the right to adjust the level of contributions made on their own behalf on the first of July each year provided that by agreement with the respondent employer the employees may vary their additional contribution at other times.
30.5 Absence from work
Subject to the governing rules of the Fund of which an employee is a member, the following provisions shall apply:
30.5.1 Paid leave
Contributions shall continue whilst a member of a Fund is absent on paid annual leave, sick leave, long service leave, public holidays, jury service, bereavement leave or other paid leave.
30.5.2 Work- related injury or illness
In the event of an employee's absence from work being due to work-related injury or work-related illness, contributions at the normal rate shall continue for the period of absence (subject to a maximum of 52 weeks total absence for each sickness or injury) provided that:
30.5.2(a) the member of the Fund is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with statutory requirements or the provisions of this award; and
30.5.2(b) the person remains an employee of the employer.
SCHEDULE A - COMPANIES BOUND BY THIS AWARD
[Sched A substituted by PR935314 ppc 25Jul03]
AAPT Limited
AAPT Mobile Ltd
AOL Australia Pty Limited
Asia Global Crossing Pty Ltd
B Digital Limited
AT&T Global Network Services Pty Limited
CardCall Pty Ltd
Clariti Telecommunications Pty Limited
Concentrix Pty Ltd
Davnet Pty Ltd
Equant Australia Pty Ltd
Evotec Pty Ltd
Evotec (Victoria) Pty Ltd
Flow Com Limited
Global One Communications Pty Limited
GoConnect Australia Pty Ltd
Hutchison Telecommunications (Australia) Limited
ihug Australia
Macquarie Corporate Telecommunications Limited
Macrocom Pty Ltd
MCI Worldcom Australia Pty Limited
New Tel Limited
NTT Australia Pty Ltd
OzEmail Pty Ltd
Pahth Telecommunications Limited
PanAmSat Asia Pty Ltd
People Telecom Ltd
PocketMail Australia Pty Ltd
Powertel Limited
Primus Telecommunications (Australia) Pty Ltd
RSL COM Australia Pty Limited
Southern Cross Telco Pty Ltd
TeleOne Pty Ltd
TransACT Carrier Pty Ltd
TransACT Communications Pty Ltd
Uecomm (limited to the State of Victoria)
Vodafone Network Pty Limited
Vodafone Pty Ltd
WorldxChange Communications Pty Limited
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