Details of the proposed offer
Background / Purpose
I write in relation to the negotiations for a replacement General NTPS Enterprise Agreement (EA), which commenced on 18 March 2021.
Outlined below are the terms of a ‘without prejudice’ offer for a new enterprise agreement to replace the existing Northern Territory Public Sector 2017-2021 Enterprise Agreement (‘the current Agreement’). This offer takes into account the relevant unions (referred to as ‘the unions’) made up of: Community and Public Sector Union (CPSU), Electrical Trades Union (ETU), Australian Manufacturing Workers’ Union (AMWU), Professionals Australia (PA), United Workers Union (UWU), Australian Nursing and Midwifery Federation (ANMF), Transport Workers Union (TWU) and Australian Education Union (AEU) bargaining issues and claims and claims from employee self-nominated bargaining representatives. This offer reflects the progress made during the negotiation meetings to date.
The offer is consistent with the NT Public Sector Wages Policy 2021-2024 and the NTPS Bargaining Policy 2021-2024, and the terms comprise a complete package of improvements and changes to terms and conditions of employment.
The content of the proposal offer reflects the discussions and collaborative approach that has occurred since the commencement of the negotiations. This means there has been:
- genuine consideration and time to discuss the unions’ claims, and employer proposals including NTPS sector-wide common conditions;
- sharing of information such as costing of claims and proposals; and
- consideration of operational information including the application and interpretation of current agreement provisions.
The proposals set out below include consideration of the logs of claims received, which have been discussed during negotiation meetings to be incorporated into a new agreement or addressed through other mechanisms.
- Term of Agreement
It is proposed the new agreement (the Agreement) will have a four-year term that will provide employees with job certainty and secured terms and conditions over this period including employment security provisions whereby no involuntary redundancies arise as a result of implementing the Agreement.
- Lump sum payment
There would be a $1000 lump sum payment per annum with the first payment due after the Agreement has been approved by the Fair Work Commission. For the years 2022, 2023 and 2024 the annual payment would be made on the first pay day on or after 10 August.
Overall, employees would receive $4000 over 4 years.
Employer superannuation guarantee is applicable to the lump sum payment. However, due to the rules of the defined benefit schemes, employer superannuation guarantee is not applicable to the lump sum paid to NTGPASS and CSS members.
- Changes to Wages Policy During Term of Agreement
Should there be a change to the Wages Policy during the term of the Agreement that provides for additional benefits above those contained in this offer (such as an increase to salaries above the value of the lump sum payment at point 2 of this offer) these will be passed on through a determination.
Improved NTPS Common Conditions
- Incorporate PSEM By-law leave entitlements in the Agreement
The following By-law entitlements will be incorporated into the Agreement:
- Defence Service Leave (By-law 14)
- Leave Without Pay (By-law 16)
- Leave to Attend Arbitration Business (By-law 17)
- Release for Jury Service (By-law 20
- Release to Attend as a Witness (By-law 21)
- Miscellaneous Leave (By-law 18)
Miscellaneous leave (By-law 18) entitlements would be set out in separate clauses, namely ‘Blood Donation Leave’ and ‘Leave to Engage in Voluntary Emergency Management Activities’ (See Item 9 below for an enhancement to this entitlement.)
- Improved leave for disabilities caused by war service (War Service Leave)
The existing entitlements, referenced in the current personal leave provisions but set out in Determination Number 6 of 2011, would be improved and included in the Agreement to support a comprehensive agreement. The improvement will enable eligible employees to access their accrued war service leave (i.e. leave granted and accrued in relation to their original disability) for a further condition recognised as caused by war sometime after the recognition of the original disability (e.g. PTSD). Leave is currently only available in relation to the original disability.
- NAIDOC March and approved activities
NEW - Paid NAIDOC leave would be available (up to 3 hours) to attend NAIDOC march and NAIDOC week activities. Paid leave will be approved where flextime or time off in lieu are not otherwise available.
- Foster and Kinship Carers leave
Foster Carer and Kinship Carers Leave, set out in Determination Number 7 of 2020, would be included in the Agreement to support a comprehensive agreement and the entitlements improved to provide 2 days paid leave (currently unpaid) to attend Permanent Care Order interviews.
- Gender Transition Leave
NEW - Gender transition leave would be available to support employees who wish to transition their gender. Employees (excluding casuals) with at least 12 months service and who have commenced transitioning their gender, would be entitled to up to 12 months leave, inclusive of 4 weeks paid and 48 weeks unpaid. Additional paid leave may be granted by the CEO on a case-by-case basis.
- Leave to engage in voluntary emergency management activities
This is a new clause that transfers Miscellaneous Leave (By-law 18) in relation to volunteering for emergency management activities into the Agreement. The existing By-law provision will be updated to reflect current legislation and improved to include paid leave for reasonable rest time immediately following the employee’s participation in the emergency management activity.
- Improved Compassionate Leave
There would be a number of improvements to compassionate leave as follows:
- 3 days increased to 5 days on the death or serious threat to life of the employee’s immediate family or household member, which will now include stillbirths (refers to cl 38.4(a) of the current Agreement);
- NEW – 3 days paid compassionate leave on the death of the employee’s (excluding casuals) extended family member. These are relatives not covered under ‘immediate family or household member’. ‘Extended family member’ would be defined in the Agreement as meaning:
- a spouse of the employee’s child (e.g. son-in- law)
- a spouse of the employee’s sibling (e.g. sister-in-law)
- an aunt, uncle, niece, nephew or first cousin of the employee.
- NEW – 3 days paid leave if the employee or their partner experiences a miscarriage. The employee must provide a medical certificate from a medical practitioner stating that the employee’s pregnancy or the partner’s pregnancy has ended. Leave is unpaid for casual employees.
- NEW – Kinship Obligation Leave – five days paid leave for Sorry Business
The Australian First Nation’s definition of ‘kinship’ will be included in the Agreement for the purpose of providing up to 5 days paid leave per annum to attend ‘sorry business’ or related purposes. That definition is:
Australian First Nations kinship where there is a connection, relationship or obligation under the customs, traditions or cultures of the communities, groups or families to which the employee belongs.
The definition was developed by an extensive consultation process involving key Aboriginal NTPS representatives.
The 5 days will be in addition to compassionate leave, may be taken in broken periods and at half pay. The 5 days does not accrue and is not cumulative.
- Health Screening Leave
Currently 1 hour paid leave is available every 2 years for cancer screening under Miscellaneous Leave (By-law 18). The Agreement would replace this entitlement with a new ‘health screening leave’ that enables employees to access up to 2 hours of paid leave per year for the purpose of undertaking a health screening test associated with a public health screening program. A ‘health screening test’ means a diagnostic procedure or medical appointment undertaken to screen for cancer or mental health conditions. If an employee undertakes screening for cancer and mental health in the same year, the maximum entitlement is 2 hours of paid leave.
- Flexible Lifestyle (Purchased) Leave
The ‘Purchase of Additional Leave (Purchased Leave)’ in Schedule 1 clause 1.3 of the current Agreement would be re-named ‘Flexible Lifestyle (Purchased) Leave’ and enhanced to allow employees to request up to 8 weeks additional leave (currently maximum 6 weeks) per year and to take the leave in blocks of 2 days (currently 1 week minimum).
This scheme enables employees to purchase more leave, through salary deductions, to be taken in the year it is purchased. Conditions will apply, including the requirement for employees to provide a written plan outlining how they intend to utilise the leave and the purchase must not result in an excess recreation leave balance.
- Returning from Parental Leave
Full-time employees returning from parental leave currently have a right ‘to request’ to convert to part-time employment on a temporary or permanent basis. Where the employee wishes to do so, the Agreement would provide a right to return on a part-time basis for up to 6 months. The provision will provide that the employee can return to the same job/ duties or alternative duties. If ‘alternative duties’ required to accommodate part-time, the employee will be paid their full rate of pay (for position they held before parental leave) for the hours worked whilst on transfer to alternative duties. A longer period may be requested and approved by the CEO.
- Pre-natal Leave
NEW - An employee, whose partner is pregnant, or a pregnant employee will be able to access up to 8 hours paid leave to attend pre-natal appointments. Casuals will have access to unpaid leave. Currently employees use personal or other leave or flextime to accommodate these appointments.
- Pre-adoption Leave
IMPROVED - The Agreement would improve the existing entitlement for employees to enable up to 2 days paid leave (currently unpaid) to attend interviews or examinations required in order to obtain approval for the employee’s adoption of a child. Casual employees will be eligible for up to 2 days unpaid leave as per the current provisions.
- Transition to Retirement
NEW - The Agreement would provide up to 2 hours of paid leave per annum (total 6 hours over 3 years) for employees aged 62 or older who are transitioning to retirement to seek independent financial advice about their superannuation and other financial matters. Paid leave can be approved where flextime or time off in lieu are not otherwise available.
- Provision for Casuals right to request conversion to ongoing employment
A clause would be included in the Agreement to allow casual employees to request the conversion of their employment to ongoing where the employee has been engaged for a period of at least 12 months and where the employee has worked a regular pattern of hours.
- Domestic Family and Sexual Violence Provisions
The existing domestic and family violence provisions in clause 40 of the current Agreement would be expanded to include circumstances where employees have experienced sexual violence (i.e. sexual violence in non-domestic/family situations). The paid leave entitlements, currently provided in Miscellaneous Leave (By-law 18), will be included in the Agreement to support a comprehensive agreement. The CEO will retain the ability to approve uncapped paid leave for these purposes.
- Emergency Leave
The current By-law 15 Emergency Leave entitlement would be included in the Agreement with some modifications. The entitlement would be reduced from 3 days per annum to 2 days per annum. The change in entitlements reflects the current average take-up of this entitlement and offsets improvements in other leave entitlements. The definition of what constitutes an ‘emergency’ will be clarified for greater consistency in the application of the entitlement.
- Overtime Rates
The Agreement would provide that where overtime worked spans midnight and a higher overtime rate applies at the start of the overtime shift, that higher rate will apply for the whole overtime shift worked. For example, overtime worked on a Public Holiday (double time) into a non-Public Holiday (time and a half) will all be paid at double time.
The Agreement would also provide that the calculation of overtime payments will recognise overtime hours commenced before and continuing after midnight as one continuous period to determine when an employee is entitled to a higher overtime rate. For example, once the employee has worked 2 hours at time and a half from 10 pm to midnight, they will be entitled to double time until the end of their shift. This addresses the unions’ claims that overtime penalty rates will not be artificially re-started at midnight.
Responses to Union Claims
I have also agreed to a number of the unions claims that have been discussed during negotiation meetings and propose to incorporate into this offer as set out below.
- Time off in lieu of overtime (TOIL)
The current 8 month period in which employees must take TOIL would be reduced to 3 months. As per current provisions, where TOIL cannot be taken the employee will be paid overtime.
- Minimum Engagement for Casual Employees
Casual employees will be entitled to a minimum daily engagement of 3 hours.
- Sonographer skills and responsibility allowance
The current entitlements provided in Determination Number 1096 of 2018 would be incorporated into the Agreement.
- Overtime for Senior Radiographers and Sonographers
A facilitative clause would be incorporated into the Agreement permitting the Chief Executive Officer of the Department of Health to approve overtime and restriction duty to Senior Radiographers and Sonographers provided certain conditions are satisfied. Currently approval from the Commissioner for Public Employment is required.
- Removal of Lower Level Classifications (Physical, Technical and Administrative Officer)
The unions have proposed removing some entry level classifications and reviewing increment scales for classifications. In response and to ensure a comprehensive examination of classifications is undertaken, I propose including in the Agreement commitments for the parties to undertake joint reviews into Physical, Technical and Administrative Officer classifications at level 4 and below. These reviews would commence within three months of the commencement of the Agreement with any agreed outcomes implemented via a Commissioner for Public Employment’s determination. Recommendations and proposals put forward by the review working parties will be considered in line with the NTPS Wages Policy.
- Remote Locality Rental Concession
The Agreement will include the entitlement to a 100% rental concession for Category 1 and 2 Remote Localities currently provided in Determination Number 1016 of 2018. In addition, the current applicable rental concessions for all remote localities will be listed in the Agreement. ‘Remote Localities’ to remain as defined in Determination Number 8 of 2015.
- Infectious Disease
The unions sought provisions dealing with pandemic situations e.g. COVID-19, and other changes to the infectious diseases provisions in the current Agreement. As discussed in bargaining, pandemic events are rare and COVID-19 has shown that I am able to quickly and appropriately respond to rapidly changing circumstances to support employees with a range of entitlements using my powers under the Public Sector Employment and Management Act 1993. The claim to include pandemic leave conditions in the Agreement is not agreed. Employees who are sick or suffering from a notifiable disease will be required to utilise personal leave. Where an employee has exhausted their leave entitlements, the CEO may grant additional sick leave at half pay, as is currently the case. However, the clause has been amended in response to unions’ claims where employees are required to quarantine but are not sick. Employees will be required to take recreation leave only where working from home or another location is not possible.
- Definitions for Ongoing, Fixed Period and Casual employment
Proposed new clause to provide definitions of types of employment in the Agreement to be modelled on NTPS Enterprise Award 2016 and current NTPS 2017-2021 Enterprise Agreement, as well as the Determinations Numbered 9 of 2012 (Part-time employment) and 3 of 2012 (Casual employment).
This clause would incorporate my proposed casual employment and casual conversion provisions.
- Apprentices and Trainees – prior service recognised
NEW – An ongoing or fixed period employee, who was previously a hosted trainee or apprentice with a NT Government agency (NTG) during their traineeship or apprenticeship, will have their prior service with the NTG host agency recognised for the purposes of parental leave and long service leave. Service will be recognised provided there was less than 2 months break between the time with the hosted NTG agency and employment with the NTPS.
- NTPS Apprentice, Trainees and Graduates
NEW – the Agreement will include four new classifications, and the applicable employment terms and conditions, currently provided in Commissioner’s determinations. The classifications are: ‘NTPS Trainee’, ‘NTPS Apprentice’, ‘NTPS School-Based Traineeship’ and ‘Graduate Trainee’. Incorporating these classifications into the Agreement supports a comprehensive agreement and extends agreement coverage to these employees.
- Improved Consultative Committee provision
An improved clause 15 (Consultative Committees) to outline matters the CEO can consider in relation to the operation of a consultative committees such as, the scheduling of meetings, the composition of the committee and standing agenda items.
- Dispute Settling Procedures – All matters subject to dispute settling procedures, some by conciliation
The unions are seeking to amend the current clause so all matters arising under the Agreement are subject to dispute settlement procedures (i.e. remove the exemptions) and therefore ultimately arbitration by the Fair Work Commission. I have considered the unions’ position and am prepared to amend the clause to allow all matters to be subject to the dispute settlement procedures. However, for disputes in relation to:
- refusals for requests for flexible work, in all circumstances, or to extend parental leave;
- the operation of Division 4A of the NES in the Fair Work Act 2009, and refusals for requests to convert casual employment under the Agreement; and
- assessment outcomes for Senior Classification level positions
these will be dealt with under the dispute settlement procedures through internal resolution and conciliation by the Fair Work Commission. An employee who has a grievance about their treatment in employment can choose to have the decision reviewed in accordance with section 59 of the PSEM Act.
- Work Life Balance and Family Friendly Provisions
Employees would continue to have access to the work life balance options provided under the current Agreement (e.g. recreation leave at half pay, part-time employment, and flextime). The offer contains a number of enhancements to existing entitlements that facilitate employees working flexibly.
For consistency and to ensure employee requests are considered in a timely manner, all requests for flexible work, regardless of the circumstances, will require a response from the CEO (or delegate) within 21 days and may only be refused on reasonable business grounds. ‘Reasonable business grounds’ will be as defined in the current Agreement.
The unions’ initial claim sought increases to the employer contribution by 0.5% per annum until the rate reached 12%., irrespective of any Commonwealth legislation. I acknowledge the claim was varied with unions seeking to include just a commitment in the Agreement to increase to 0.5%. I was unable to agree to this part of the unions’ claim as it is outside the Wages Policy.
Employer superannuation guarantee (SG) will be paid in accordance with federal legislation. This means legislated SG increases during the term of the Agreement will apply and that superannuation will only be paid up to the maximum contribution base even if an employee’s ordinary time earnings (including allowances which count for purposes of superannuation) exceed this amount. For employees in defined benefit schemes (e.g. NTGPASS and CSS), superannuation will continue to apply in accordance with the rules of the relevant fund.
- Commitment to Review Community Language Allowance
The parties to review Determination Number 6 of 2013 during the term of this Agreement and implement the agreed outcomes of the review. The Agreement to include a clause to confirm that, if directed by the CEO to use their bilingual communication skills, employee will be paid in accordance with Determination Number 6 of 2013 Community Language Allowance.
- Commitment to Review of Increment Scales - Professional Classifications
A commitment to conduct a review of the increment scales within the Professional classification to examine the increments, especially in comparison of their public sector counterparts and include any cost implications associated with any proposal. The review to commence within 12 months of the commencement of the Agreement.
- Commitment to Shiftwork Review
It is proposed that the parties undertake a review of the terms and conditions presently in place for shiftworkers under the Agreement. It is proposed that issues to be discussed as part of the review, amongst others that may arise during the review, will include:
- definitions of day, afternoon and night shift
- ordinary hours of work and associated salary
- shiftwork penalties
- provisions for notice of roster changes.
- Chief Correctional Officers and above ranks
- Core Instructors Allowance – the current rate in Schedule 9 clause 9.15.3(a) will be increased from $100 to $110.38 per day (consistent with the rate applicable to correctional officers) together with the introduction of paying 50% of the daily rate where only half day training is conducted. The rate will not be indexed or adjusted during the term of the Agreement.
- Long Service Leave – the Agreement will amend Schedule 9 clause 9.17 to reinstate long service leave entitlements that were inadvertently incorrectly translated from the Senior Prison Officers’ Arbitral Tribunal Determination Number 4 into the current Agreement. The correction relates to employees exempt from the requirement to utilise accrued long service leave entitlements within specified periods.
- Overtime - during negotiations ‘in principle’ agreement was reached in relation to my offer, set out in paragraph 21 above, regarding overtime spanning midnight for Chief Correctional Officers and above.
- Special Education Support Officers
The Agreement to include a signpost clause referencing the Department of Education’s ‘Duty of Care Information Sheet’ to assist school-based employees (e.g. Special Education Support Officers) with their responsibilities in relation to student supervision and the teacher’s duty of care.
- Retention of clauses/provisions
To address the claims related to the retention of existing clauses or provisions, it is proposed to:
- retain the existing clause 33 regarding the management of reasonable workloads
- retain the existing clause 14 Management of Change with some technical amendments. This maintains the existing requirement to consult prior to a decision being made
- retain the existing clause 30.1 providing for no involuntary redundancies to occur directly as a result of implementing the Agreement.
- Recreation Leave – application and recall to duty
A claim was submitted seeking a number of changes to the existing cl 42.5 (Granting of Leave). In response to the union’s claim, the current clause will be amended to state that an application for recreation leave will not be unreasonably refused. Other concerns regarding the timeliness of granting leave applications and recall to duty can be addressed operationally. In practice, employees being recalled to duty occurs very rarely and subject to exceptional circumstances.
- Integrity of Payments
NEW – In response to unions’ claim to inform employees about the legal requirements under the Financial Management Act on the occasion they receive an overpayment or underpayment of salaries, a new provision to reference the appropriate legislation. The new provision amends the existing cl 25 Recovery of Overpayments.
- Commitment to develop NTPS Fatigue Management Principles
The parties agree that better fatigue management across the NTPS is a common goal and agreement to develop Fatigue Management Principles guidelines (NTPS General EA) in conjunction with the unions.
- Operational matters regarding the application of conditions
There were a number of matters raised by the unions and bargaining agents pertaining to the application of entitlements and conditions, for example, the application and processes for uniforms for certain employees (e.g. protective footwear), and camping allowance if camping gear is not provided to the employee. These were investigated and reported back during the bargaining process. Such matters are encouraged to be raised during the life of any agreement to ensure employees and managers are applying the correct employment entitlements.
Any agreed proposals arising from reviews conducted during the term of the agreement that have cost or operational implications will be subject to the NTPS Wages and Bargaining policies.
I have also considered other matters raised in the unions’ log of claims provided since 18 March 2021 and raised during the course of negotiations. As discussed in negotiation meetings, there were some claims that could not be agreed to, as they would not be in line with the NTPS Wages Policy (for example, increases to allowances without any efficiencies or offsets).
During the last five months all claims and proposals have been discussed and I acknowledge that where agreement has not been reached, unions are still pursuing their claims. However, I have chosen to put forward an offer to assist the parties to understand my position on all claims and proposals at this time. I invite unions and bargaining representatives to provide their feedback so parties can work towards reaching ‘in principle’ agreement on all matters for a new enterprise agreement.
The above offer is reflected in the draft Agreement enclosed with this offer. The draft Agreement was developed from individual draft clauses tabled during.
I consider the above offer to represent a good package that provides an appropriate balance between job certainty, improved conditions for employees and which is within the NTPS Bargaining Policy. The offer also reflects the extensive and constructive discussions about issues raised by all parties during bargaining.
I look forward to continuing our productive discussions and reaching agreement, so we can implement the new terms and conditions of employment and provide the first $1000 lump sum payment in a timely manner.
Vicki Telfer PSM
Commissioner for Public Employment
23 August 2021
Last updated: 23 August 2021
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