CIRCULAR
 

File No	A21005/1
Circular No	97/11
Issued	2 October 1997
Contact	David Jimenez (02) 9391 9335

 

PERSONAL/CARER'S LEAVE, FAMILY AND COMMUNITY SERVICES LEAVE
 
 

This circular is applicable to the Area/Rural Health Services, Public Hospitals, Ambulance Service, Royal Alexandra Hospital for Children (New Children's Hospital) and Corrections Health. It replaces the Department's previous circular on Family and Community Services Leave, circular 95/36, issued on 24 May 1995. It also replaces previous circulars dealing with Compassionate Leave (88/228 & 89/99).
 

On 11 February 1997 the Public Sector Management Office (PSMO) of the Premier's Department issued a new Determination, developed in consultation with Labor Council and public sector unions, dealing comprehensively with Family & Community Services (FACS) Leave, Personal/Carer's Leave and the flexible use of other leave entitlements for public servants.
 

NSW Health has consulted the PSMO and Labor Council and had regard to the above Determination in developing the following arrangements, which include appropriate modifications to reflect the more generous FACS provisions currently applying in the health system. In line with the PSMO Determination, the FACS and Personal/Carer's Leave entitlements and associated arrangements set out in the attachment to this circular, are to take effect from 30 August 1996, the date of the Industrial Relations Commission judgment in the State Personal/Carer's Leave Test Case.
 

FACS Leave and Personal/Carer's Leave are separate and stand alone entitlements. FACS Leave and Personal/Carer's Leave are available to all employees other than casuals.
 

FACS Leave is available:

* for a range of personal reasons encompassing family responsibilities; or

* for the performance of community service; or

* for cases of pressing necessity.
 
 

Personal/Carer's Leave is available:
 

* to provide care and/or support for sick members of the employee's family or household;

* to provide for the flexible use of other entitlements.

With Personal/Carer's Leave employees are able to access current and up to 3 years accrued sick leave entitlements to care for a sick dependant.
 

There are also facilitative provisions in the new arrangements which are available to assist employees to reconcile work and family responsibilities by providing access to annual leave, time off in lieu of payment of overtime and "make up" time. Access to both paid sick leave and time off in lieu of payment of overtime are specifically for the purpose of caring for a prescribed person.
 

Additional FACS Leave for Bereavement Purposes - where FACS Leave has been exhausted, additional paid leave of up to 2 days may be granted on a discrete 'per occasion' basis to an employee on the death of a family member as defined in clause 1.
 

Flexible Work Practice Alternatives to Using FACS or Personal/Carer's Leave
 

As an alternative to, or to be used in conjunction with FACS or Personal/Carer's Leave, are work practices that permit employees to vary their work arrangements to attend to short term family responsibilities or community services.
 

Health service organisations are to implement, where practicable, policy and procedures as defined in clause 4 "Use of make-up time", whereby employees have available to them the opportunity to:
 

(i) be absent from the workplace for short periods of time (e.g. 2 hours) and be able to make up the time either earlier or later on the same day, or during the following week or month;
 

(ii) exchange shifts or part-shifts with co-workers.
 
 

Implementation
 

All industrial instruments will be varied in due course to include reference to the above FACS and Personal/Carer's Leave arrangements and, where applicable, to remove inconsistent, redundant or inferior award provisions dealing with leave previously used for such purposes.

Any costs resulting from these new arrangements will need to be met from within existing resources.
 

PSMO Review of Personal/Carer's Leave in the Public Sector
 

In view of the Industrial Relation Commission's intention to review the operation of the August 1996 State Personal/Carer's Leave standard clause and general orders, the PSMO is to undertake a comprehensive review of the implementation of FACS and personal/carer's leave in the public sector. The PSMO review is to particularly focus on the extent to which sick leave is accessed by public sector employees for the purpose of caring for a sick person.
 
 

Area Health Services/Hospitals and Ambulance Service should ensure they have appropriate systems in place to enable the implementation and ongoing operation of personal carer's leave and the continued operation of FACS Leave to be monitored. These systems will not only facilitate EEO reporting requirements but should also enable the demand for both forms of leave, and the cost of meeting that demand for the NSW Health system, to be properly assessed. Such information will be vital in any review of the operation of these leave provisions.
 

Any enquiries concerning this circular should be directed by hospitals/health units to the Health Service in the first instance. Only Health Service human resource personnel should contact the Department directly concerning the abovementioned.
 
 

Michael Reid
Director-General

NSW Health System

Family & Community Service Leave, Personal/Carer's Leave and flexible use of other leave entitlements

1. Family and Community Service Leave

1.1.  Family and Community Service Leave - general
 

 (i) For the purposes of this clause:

  1. ‘relative' means a person related by blood, marriage or affinity;

  2. ‘affinity means a relationship that one spouse because of marriage has to blood relatives of the other; and

  3. ‘Household' means a family group living in the same domestic dwelling.

 (ii) The appropriate CEO may grant family and community service leave to an employee:

(a) to provide care and/or support for sick members of the employee's relatives or household; or

(b) for reasons related to the family responsibilities of the employee (e.g. to arrange and or attend a funeral of a relative; to accompany a relative to a medical appointment where there is no element of emergency; parent/teacher meetings; education week activities; to meet elder-care requirements of a relative); or

(c) for reasons related to the performance of community service by the employee (e.g. in matters relating to citizenship; to office holders in local government, other than as mayor, for attendance at meetings, conferences or other associated duties; representing Australia or the State in major amateur sport other than in Olympic/Commonwealth Games); or

(d) in a case of pressing necessity (e.g. where an employee is unable to attend work because of adverse weather conditions which either prevent attendance or threaten life or property; the illness of a relative; where a child carer is unable to look after their charge).

 (iii) Family and Community Service Leave replaces Compassionate Leave.

 (iv) An employee is not to be granted family and community service leave for attendance at court to answer a criminal charge, unless the appropriate CEO approves the grant of leave in the particular case.

1.2. Family and Community Service Leave - entitlement
 

(i) The maximum amount of family and community service leave on full pay that may be granted to an employee is:

(a) 3 working days during the first year of service, commencing on and from 1 January 1995, and thereafter 6 working days in any period of 2 years; OR

(b) 1 working day, on a cumulative basis effective from 1 January 1995, for each year of service after 2 years' continuous service, minus any period of family and community service leave already taken by the employee since 1 January 1995,

 
whichever method provides the greater entitlement.

Example A: An employee working 40 or 38 hours per week will have an entitlement, in their first year of employment, to 24 hours of FACS leave. If the employee takes FACS leave for a full 10 hour shift, the employee would be debited 10 hours of FACS leave.

Example B: An employee working 35 hours per week will have an entitlement, in their first year of employment, to 21 hours of FACS leave. If the employee takes FACS leave for a full 7 hour shift, the employee would be debited 7 hours of FACS leave.

Example C: An employee, employed prior to 1 January 1995, applies for FACS leave on 20 February 1997. The employee is entitled to 6 days in any period of two years. Therefore, to calculate the employee's available FACS leave as at 20 February 1997, add all FACS leave taken from 21 February 1995 to 20 February 1997 and deduct that amount from the 6 days entitlement.
 

(ii) Family and Community Service Leave is available to part-time employees on a pro rata basis, based on the average number of hours worked per week. i.e. a working day shall consist of one-fifth of the employee's average weekly hours during the preceeding 12 months or during the employee's period of employment whichever is the lesser period.

(iii) Where family and community service leave has been exhausted, additional FACS leave of up to 2 days for bereavement may be granted on a discrete, 'per occasion' basis to an employee on the death of a relative or member of a household as defined in Clause 1 "Definitions".

 The appropriate CEO or authorised delegate, may grant an employee other leave entitlements for reasons related to family responsibilities, or community service by, the employee.  An employee may elect, with the consent of the employer, to take:
 

 (a) annual leave;

 (b) long service leave;

 (c) leave without pay.

2. Personal/Carer's Leave

2.1.   Use of sick leave to care for the person concerned - definitions 

A person who needs the employee's care and support is referred to as the "person concerned" and is:
 

(a) a spouse of the employee; or

(b) a de facto spouse, who, in relation to a person, is 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; or

(c) a child or an adult child (including an adopted child, a step child, a foster child or an ex nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

(d) a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or

(e) a relative of the employee who is a member of the same household, where for the purposes of this paragraph:

  1. 'relative' means a person related by blood, marriage or affinity;

  2. 'affinity' means a relationship that one spouse because of marriage has to blood relatives of the other; and

  3. 'household' means a family group living in the same domestic dwelling.

2.2. Use of sick leave to care for the person concerned - entitlement
 

 (a) The entitlement to use sick leave in accordance with this clause is subject to:

  (i) the employee being responsible for the care and support of the person concerned, and

  (ii) the person concerned being as defined in Clause 2.1.

 (b) Other than a casual or any other employee who receives a loading in lieu of sick leave, an employee with responsibilities in relation to a person who needs their care and support shall be entitled to use the untaken sick leave, from that year's annual sick leave entitlement, to provide care and support for such persons when they are ill.

 (c) Sick leave accumulates from year to year. In addition to the current   year's grant of sick leave available under (b) above, sick leave untaken   from the previous 3 years may also be accessed by an employee with   responsibilities in relation to a person who needs their care and support.

 (d) The CEO or authorised delegate may, in special circumstances, make a   grant of additional sick leave. This grant can only be taken from sick   leave untaken prior to the period referred in Clause (c) above.

 (e) The employee shall, if required, establish either by production of a medical certificate or statutory declaration, that the illness of the person concerned is such as to require care by another person.

 (f) The employee has the right to choose the method by which the ground for leave is established, that is, by production of either a medical certificate or statutory declaration.

 (g) The employee is not required to state the exact nature of the relevant illness on either a medical certificate or statutory declaration.

 (h) The employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and that person's relationship to the employee,the reasons for taking such leave and the estimated length of absence.  If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

 (i) In normal circumstances, the employee must not take leave under this subclause where another person has taken leave to care for the same person.

 An employee may elect, with the consent of the employer, to take:
 

 (a) annual leave, including annual leave not exceeding 5 days in single day periods or part thereof, in any calendar year at a time or times agreed by the parties. An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least 5 consecutive annual leave days are taken.

 (b) long service leave.

 (c) leave without pay for the purpose of providing care and support to a member of a class of person set out in 2.1.

 (a) An employee may elect, with the consent of the employer, to take time off in lieu of payment of overtime at a time or times agreed with the employer within 12 months of the said election.

 (b) Overtime taken as time off during ordinary time shall be taken at the ordinary time rate, that is, one hour off for each hour of overtime worked.

 (c) If, having elected to take time as leave in accordance with 3(a) above, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve (12) month period from the date the overtime was worked, or earlier by agreement, or on termination.

 (d) Where no election is made in accordance with paragraph 3(a), the employee shall be paid overtime rates in accordance with the relevant industrial instrument.

4. Use of make-up time
 

 (a) An employee may elect, with the consent of the employer, to work "make-up time".  "Make-up time" is worked when the employee takes time off during ordinary hours for family or community service responsibilities, and works those hours at another time, during the spread of ordinary hours provided in the relevant industrial instrument, at the ordinary rate of pay.

 (b) An employee on shift work may elect, with the consent of the employer, to work "make-up time" (under which the employee takes time off during ordinary hours and works those hours at another time) at the shift work rate which would have been applicable to the hours taken off.

5. Grievance and dispute handling process

 In the event of any grievance or dispute arising in connection with any part of the provisions of this circular, such a grievance or dispute shall be processed in accordance with established grievance and dispute handling procedures.