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SECTION 2: TECHNICAL AND GENERAL MATTERS
3. Coverage
3.1 This Agreement is made as an Enterprise
Agreement under Part 2-4 of the Fair Work Act 2009 and covers:
(a) the Clerk of the Senate on behalf of the
Commonwealth of Australia;
(b) employees of the department other than:
(i) Senior Executive Service employees; and
(ii) employees whose salary is paid by another department
or agency.
4. Interpretations/definitions
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Agreement
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means the Department
of the Senate Enterprise Agreement 2010 – 2012.
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department
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means the Department of
the Senate.
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employee
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means a person who is
employed under the Parliamentary Service Act 1999 by the department,
whether full-time, part-time, ongoing or non-ongoing.
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employer
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means the Clerk of the
Senate (the Clerk) on behalf of the Commonwealth.
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FWA
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means
Fair Work Australia.
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HRM
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Human
Resource Management section.
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immediate family
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means:
(a) a spouse, partner,
child, parent, grandparent, grandchild, or sibling of the employee
(b) a child, parent,
grandparent, grandchild or sibling of a spouse or partner of the employee
(c) a person with whom
the employee has a strong affinity
a child includes an
adopted child, a stepchild, an exnuptial child, an adult child or a child in
the care and custody of the employee
a spouse includes a
former spouse, a de facto spouse and a former de facto spouse
a de facto spouse, of
an employee, means a person who lives with the employee on a genuine domestic
basis (whether married to the employee or not)
a partner includes a
former partner.
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manager
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means an employee who
has responsibility for overseeing, monitoring, managing, directing or
supervising a discrete work group.
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NES
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means the National
Employment Standards as set out in the Fair Work Act 2009.
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other documentary
evidence
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means a statutory
declaration, where provision of a medical certificate would otherwise be
required.
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Parliamentary Service
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means the Australian Parliamentary
Service established by the Parliamentary Service Act 1999.
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program manager
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means a Senior
Executive Service employee.
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Program Manager Group
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means the Senior
Executive Service employees collectively.
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section head
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means an employee at
the Parliamentary Executive Level 1 or 2 with management responsibilities for
a discrete work unit.
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sessional employee
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means an employee who
is primarily employed to undertake duties involved with the sittings of the
Senate.
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supervisor
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means an employee who
has responsibility for overseeing, monitoring, managing, directing or
supervising another employee.
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5. Duration and variation
5.1 This Agreement shall commence operation on the
date seven days after the date on which it is approved by FWA. The nominal
expiry date of the Agreement is 30 June 2012.
5.2 During the period starting on the date this
Agreement commences operation and ending on the nominal expiry date, no further
claims may be pursued in respect of terms and conditions of employment by a
person or organisation covered by this Agreement, except where such claims are
consistent with the terms of this Agreement.
6. Employment subject to other laws
6.1 It is acknowledged that employment is subject
to the provisions of the following Acts (and regulations or instruments made
under the Acts), as varied from time to time or replacement legislation, including,
but not limited to:
(a) Fair Work Act 2009;
(b) Long Service Leave (Commonwealth Employees) Act
1976;
(c) Maternity Leave (Commonwealth Employees) Act
1973;
(d) Superannuation Act 1976;
(e) Superannuation Act 1990;
(f) Superannuation Act 2005;
(g) Superannuation (Productivity Benefit) Act 1988;
(h) Superannuation Guarantee (Administration) Act
1992;
(i) Safety, Rehabilitation and Compensation Act
1988;
(j) Occupational Health and Safety Act 1991;
(k) Veterans’ Entitlement Act 1986;
(l) Age Discrimination Act 2004;
(m) Defence Reserve Service (Protection) Act 2001;
(n) Australian Human Rights Commission Act 1986;
and
(o) Parliamentary Service Act 1999.
7. Further agreements
7.1 The Clerk and an employee covered by this
Agreement may agree to make an individual flexibility arrangement to vary the
effect of terms of the Agreement if:
(a) the arrangement meets the genuine needs of the
employer and employee in relation to one or more of the following matters:
(i) arrangements about when work is performed;
(ii) overtime rates;
(iii) penalty rates;
(iv) allowances;
(v) leave loading; and
(b) the arrangement is genuinely agreed to by the
Clerk and employee.
7.2 The Clerk must ensure that the terms of the
individual flexibility arrangement:
(a) are about permitted matters under section 172
of the Fair Work Act 2009; and
(b) are not unlawful terms under section 194 of
the Fair Work Act 2009; and
(c) result in the employee being better off overall
than the employee would be if no arrangement was made.
7.3 The Clerk must ensure that the individual
flexibility arrangement:
(a) is in writing; and
(b) includes the name of the Clerk and employee; and
(c) is signed by the Clerk and employee and if the
employee is under 18 years of age, signed by a parent or guardian of the
employee; and
(d) includes details of:
(i) the terms of the enterprise agreement that
will be varied by the arrangement; and
(ii) how the arrangement will vary the effect of
the terms; and
(iii) how the employee will be better off overall in
relation to the terms and conditions of his or her employment as a result of
the arrangement; and
(iv) states the day on which the arrangement
commences.
7.4 The Clerk must give the employee a copy of
the individual flexibility arrangement within 14 days after it is agreed
to.
7.5 The Clerk or employee may terminate the
individual flexibility arrangement at any time:
(a) by giving no more than 28 days written notice
to the other party to the arrangement; or
(b) if the Clerk and employee agree in writing.
8. Appeals against termination of
employment
8.1 The sole and exhaustive rights and remedies of
an employee in relation to termination of employment are those under:
(a) Part 3-1 and 3-2 of the Fair Work Act 2009;
(b) other Commonwealth laws (including the
Constitution); and
(c) common law.
8.2 Termination of, or a decision to terminate,
employment cannot be reviewed under the procedures contained in this Agreement
for preventing and settling disputes arising from this Agreement.
8.3 Nothing in this Agreement prevents the Clerk
from terminating the employment of an employee for a breach of the Code of
Conduct, without further notice or payment in lieu, in accordance with the Fair
Work Act 2009, subject to compliance with the procedures established by the
Clerk for determining whether an employee has breached the Code of Conduct
under section 13 of the Parliamentary Service Act 1999.
9. Procedures for preventing and
settling disputes arising from this Agreement
9.1 If a dispute
relates to:
(a) a matter arising under the Agreement; or
(b) the NES;
this clause
sets out procedures to settle the dispute.
9.2 An employee who is a party to the dispute
may appoint a representative for the purposes of the procedures in this clause.
9.3 In the first instance, the parties to the
dispute must try to resolve the dispute at the workplace level, by discussions
between the employee or employees and relevant supervisors and/or management.
9.4 If discussions at the workplace level do not
resolve the dispute, a party to the dispute may refer the matter to FWA.
9.5 FWA may deal
with the dispute in two stages:
(a) FWA will first attempt to resolve the dispute as
it considers appropriate, including by mediation, conciliation, expressing an
opinion or making a recommendation; and
(b) if FWA is unable to resolve the dispute at the
first stage, FWA may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the
parties.
Note:
If FWA arbitrates the dispute, it may also use the powers that are available
to it under the Fair Work Act 2009. A decision that FWA makes when arbitrating
a dispute is a decision for the purpose of Division 3 of Part 5.1 of
the Fair Work Act 2009. Therefore, an appeal may be made against the decision.
9.6 While the parties are trying to resolve the
dispute using the procedures in this clause:
(a) an employee must continue to perform his or her
work as he or she would normally unless he or she has a reasonable concern
about an imminent risk to his or her health or safety; and
(b) an employee must comply with a direction given by
the Clerk to perform other available work at the same workplace, or at another
workplace, unless:
(i) the work is not safe; or
(ii) applicable occupational health and safety
legislation would not permit the work to be performed; or
(iii) the work is not appropriate for the employee
to perform; or
(iv) there are other reasonable grounds for the
employee to refuse to comply with the direction.
9.7 The parties to the dispute agree to be bound
by a decision made by FWA in accordance with this clause.
10. Delegation
10.1 The Clerk may, in writing, delegate to, or
authorise a person to exercise, any of the Clerk's powers or functions under
this Agreement. A power which is exercised by a program manager, manager,
section head or supervisor under the Agreement may be exercised and delegated by
the Clerk.
10.2 A program manager may, in writing, authorise a
person to exercise any of the program manager's powers or functions under this
Agreement.
11. Formal acceptance of the Agreement
11.1 This Agreement is made under section 172
of the Fair Work Act 2009. Accordingly, it is an agreement between the
employer and the employees who are covered by this Agreement.
| Employer |
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| Signed: ________________ |
_________________
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Name: Dr Rosemary Laing
Clerk of the Senate |
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| Bargaining representatives |
| Signed for and on behalf of employees covered by this Agreement by their bargaining representatives: |
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