Family Provisions Test Case decision — Carers leave expanded to include emergencies

In December 2005, the Full Bench of the Industrial Relations Commission of New South Wales (“the Commission”) made a general order under section 50 of the Industrial Relations Act 1996 to flow on the National Decision in the Family Provisions Test Case 2005. The general order provided that NSW awards were to be varied by general order to give effect to standard clauses in the following relation to the following matters:

• parental leave,
• personal carer’s leave, and
• unpaid carers and bereavement leave for Casual Employee’s.

Carers leave expanded to include emergencies

It was decided that part time and full time employees may draw on their Personal/Carers Leave in order to provide care for persons who require care due to an unexpected emergency.

The provisions have been operating since 19th December 2005. The NSW public sector, including State Owned Corporations, was excluded from the General Order, as per the terms of the Memorandum of Understanding (MOU) between the NSW Government and Unions NSW.

The MOU between the NSW Government and Unions NSW provides an exemption from the General Order on the basis that public sector employment conditions were more beneficial than provisions in the proposed General Order. For example, it was agreed that the MOU would not flow-on the provisions of clause 2 and 3 of the Proposed Order concerning Personal Carers' Leave for non-casual employees.

However, where the Family Provisions Test Case introduced more beneficial provisions the MOU committed the NSW Government to varying individual public sector instruments to provide the more beneficial conditions in the following areas:

• access for casuals to unpaid bereavement, personal carers and parental leave;
• increased access to annual leave in single days to fulfil personal/carers responsibilities (if not already available);
• an obligation for the employer to communicate with an employee on parental leave about their position;
• the right to request an additional year of unpaid parental leave
• the right to request up to 8 weeks simultaneous unpaid parental leave
• the right to request return to part time work until the child reaches school age.

For more information on the Family Provisions Test Case, please refer to the following Memo (M2005-15 Family Provisions Test Case Flow On).