Employment Relations FAQ


  • Long Service Leave
  • Parental Leave
  • Personal/Carer's Leave when on Annual Leave 
  • Redundancy
  • Right to Request: Flexible Working Arrangements


Long Service Leave

Question: 
I have a permanent Part-Time Employee who is due for Long Service Leave. Their hours have varied over the last 10 years. How do I calculate their entitlements?

If an Employee is taking Long Service Leave (LSL), or being paid out LSL on termination, the Long Service Leave Act 1955 (NSW) requires the School to pay out the LSL at the Employee’s ordinary pay or the average weekly ordinary rate of pay earned during the previous five years, whichever is the greatest

Question:
I have an Employee who commenced employment as a Casual Teacher, then worked as a Temporary Teacher before being engaged as an ongoing member of staff. They are now requesting Long Service Leave. What period of service is considered when calculating their Long Service Leave entitlements?

In calculating LSL, the Employer should include any of the Employee’s continuous service whether on a full-time, part-time or casual, under one or more contracts of employment. The service of an Employee is deemed as continuous where an Employee returns to work or is reemployed within 2 months of the date of termination.

For example, if the contract of employment for a Temporary Teacher concluded at the end of the school year and they recommenced on a permanent basis at the start of the new school year, the period of service as a Temporary Teacher will need to be included in their LSL calculations as the Employee was reemployed within 2 months of the date of termination of the temporary contract.


Parental Leave

Question:
How do I calculate the entitlements of a Teacher who is taking a year of Parental Leave at the end of Term 4?

A Teacher who is taking parental leave at the end of Term 4 in any year is entitled to receive the following upon the commencement of their leave:

1. Pro rata payment for non-term time calculated in accordance with the formula in the relevant agreement.

  • Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2017 – see clause 17
  • Independent Schools NSW Teachers (Hybrid Model) Multi-Enterprise Agreement 2017 – see clause 10
  • Independent Schools NSW Teachers Multi-Enterprise Agreement 2017 – see clause 10

2. Pro rata annual leave loading (when pro rata for non-term time is calculated)

3. 1.07 weeks of annual leave (Standards clause 19.2(h); Hybrid clause 12.2(b)(vii); Steps clause 12.2(b)(vii))

4. 14 weeks paid parental leave (if applicable)

For more information, see the Parental Leave guide from the Fair Work Ombudsman or contact the Workplace Management team at AISNSW on (02) 9299 2845 for a Maternity Leave sample letter. 

Relevant Links

  • Independent Schools NSW Teachers MEA 2017
  • Independent Schools NSW/ACT Standards Model (Teachers) MEA 2017
  • Independent Schools NSW Teachers (Hybrid Model) MEA 2017
  • Parental Leave: Fair Work Ombudsman

Personal/Carer's Leave when on Annual Leave

Question:

What happens if a staff member is on Annual Leave but they or a member of their family get sick while they are on that leave? Do I have to change their leave from Annual Leave to Personal/Carer’s Leave?

Section 89(2) of the Fair Work Act 2009 (Cth) states that if the period during which an Employee takes paid Annual Leave includes a period of any other leave (i.e. Personal/Carer’s Leave), the Employee is not taken to be on paid Annual Leave for the period of that other leave or absence.

Therefore, you must re-credit the Employee with Annual Leave for the duration of the illness and deduct the equivalent sum from their Personal/Carer’s Leave balance.

Normal requirements for Employees to provide evidence such as medical certificates would applyPlease refer to the industrial instrument that the School is covered by for further details. (Standards clause 18.6; Hybrid clause 12.1(f); Steps clause 12.1(f); SAO NSW clause 26.1(d) and 27.1(b); SAO ACT clause 15.3).


Redundancy

Question: 
I have an Employee who is not performing well. I do not have time to conduct a performance management process. Can I make the Employee redundant?

A genuine redundancy occurs when the employer no longer requires anyone to perform the role being made redundant. This means that appointing another person to the role or a very similar role will expose the school to risk an unfair dismissal claim on the basis that the redundancy is not genuine.

Section 389(1) of the Fair Work Act 2009 (Cth) defines a genuine redundancy as:

(a)  The person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

Generally speaking, consultation means ensuring that you offer to contact the Staff representative after you have spoken to staff members who are likely to be affected by the restructure or redundancy.

Section 389(2) of the Fair Work Act 2009 (Cth) provides that:

A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a)  The employers enterprise; or

(b) Or the enterprise of an associated employer.

The School will be obliged to consider any redeployment opportunities that may be suitable for the employee to undertake, taking into consideration the employee’s qualifications, skills and experience. The School should ensure that in exploring redeployment opportunities, associated entities are also contacted to confirm whether or not they have any vacancies that could be used for redeployment of redundant staff.

If there is a vacant position that is suitable for the employee to fill, the position should be offered to them.

See the Redundancy and Restructure checklist for more information.

Please contact a member of the Workplace Management team for tailored advice.


Right to Request: Flexible Working Arrangements

Question:
A staff member who is currently on Maternity Leave has requested to return on flexible working arrangements. Who is eligible to make a request? What are the formal requirements?

An eligible Employee (other than a Casual Employee) must have completed at least 12 months of continuous service with the Employer immediately before making the request.

An eligible Casual Employee must be a long term Casual Employee of the School immediately before making the request and must have a reasonable expectation for continuous employment on a regular and systematic basis.

Section 65(1A) of the Fair Work Act 2009 (Cth) provides the circumstances in which the Employee may request to change their working arrangements:

  • the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
  • the employee is a carer (within the meaning of the Carer Recognition Act 2010);
  • the employee has a disability;
  • the employee is 55 or older;
  • the employee is experiencing violence from a member of the employee's family;
  • the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family.

Section 65(3) of the Fair Work Act 2009 (Cth) provides that the request must: 

  • be in writing; and
  • set out details of the change sought and of the reasons for the change.

Question: 
What are Flexible Working Arrangements? What do I need to do with the request?

Examples of flexible working arrangements include changes in:

  • hours of work (e.g. reduction in hours worked, changes to start and finish times)
  • patterns of work (e.g. working ‘split-shifts’ or job sharing)
  • location of work (e.g. working from home).

Under Section 65(4) of the Fair Work Act 2009 (Cth), the Employer must give the Employee a written response to the request within 21 days, stating whether the Employer grants or refuses the request. The Employer may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal.

Question: 
What are reasonable business grounds for refusing a request?

Section 65(5A) of the Fair Work Act 2009 (Cth) states that the following are reasonable business grounds:

  • that the new working arrangements requested by the employee would be too costly for the employer;
  • that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee; 
  • that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
  • that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

NB: This list is not exhaustive. It gives an indication as to what would be considered.

Question:
I have a Teacher that has requested to work only 2 and a half days a week for child care purposes. The spread of the timetable makes this very difficult to achieve. What do I do if I think I am not able to grant them their request?

It is not essential for an Employer to choose between granting an Employee’s request in full or refusing the request. The School should rather meet with the Employee to discuss their proposed working arrangement and the issues that may arise if the request is granted. Where possible, the Employer should attempt to reach an agreement that balances both the needs of the School and the Employees.

The School should examine all options available to them particularly any employment opportunities within the School that can be offered, such as a Teacher working in a boarding house supervision role or an RFF role. The more options the School provides the Employee, the easier it is to demonstrate to the Fair Work Commission that the School has tried to accommodate the Employee’s need for flexible working arrangements. A written response needs to be issued to the Employee within 21 days of their written request, setting out the reasons for the refusal of the initial request, any options that are available or a statement of the revised agreements (if agreed).

NB: As an Employer you are not required to hold open an Employee’s Full-Time position until he/she no longer requires flexible working arrangements. You may offer changed terms and conditions as an ongoing variation to the Employee’s contract of employment.