Enterprise Agreement 2011 - 2014

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Contents

Definitions and Interpretations

Part A - Agreement Title and Scope

1. Title
2. Duration
3. Parties Bound
4. Flexibility Agreements
5. Closed Agreement & No Extra Claims
6. Variations to this Agreement
7. Comprehensive Agreement
8. Advices to Employees
9. Delegation of Powers under this Agreement

Part B - Objectives of this Agreement

10. Objectives of this Agreement

Part C - Employment Conditions

(I) Salaries

11. Salary Increases
12. Commencing Salaries
13. Salaries for Judges' Associates and Research Assistants
14. Salary Rates and Junior Rates
15. Salary on Reduction
16. Categories of Employees; Non Ongoing & Intermittent/Irregular employees
17.Performance-based Salary Progression
18. Intermittent/Irregular Employees
19. Employer Superannuation Contributions
20. Remuneration Packaging - Salary Sacrifice
21. Assistance with Annual Public Transport Fares
22. Payment on Death
23. Resignation and Notice

(II) Work Hours and Flexible Working Arrangements

24. Balancing Work and Private Lives
25. Hours of Duty
26. Patterns of Attendance
27. Alternative Attendance Arrangements
28. Working from Home
29. Recording Attendance
30. Flextime Scheme
31. Flextime Credits/Debits on Cessation of APS Employment
32. Managing the Flextime System
33. Time off in Lieu for Federal Court Manager & Federal Court Legal Employees
34. Time Off in Lieu for Judges' Staff
35. Relief Arrangements for Judges' Executive Assistants
36. Overtime and Shiftwork
37. Part Time Work

(III) Allowances, Other Benefits and Entitlements

38. General
39. Overtime Meal Allowance
40. Higher Duties Allowance
41. Temporary Performance in SES Positions
42. On-Call Allowance
43. Admiralty Marshals
44. Allowance for First Aid Officers, Health and Safety Representatives, Fire Wardens and Harassment Contact Officers
45. Language Allowance
46. Court Officer Uniforms
47. Damage to Clothing and Personal Effects
48. Relocation Assistance

(IV) Leave and Public Holidays

49. Maternity, Adoption, Fostering and Parental Leave
50. Portability of Accrued Recreation and Sick Leave Entitlements
51. Recreation Leave
52. Purchased Leave
53. Personal Leave
54. Other Leave and Miscellaneous Leave Types
55. Long Service Leave
56. Public Holidays and Christmas New Year

(V) Travel

57. Travel Arrangements
58. Child Care When Travelling
59. Extended Absences
60. Working and Camping in Remote Localities
61. Motor Vehicle Allowance
62. Excess Travelling Time

Part D - Organisational Structures and Workforce Change

63. Responding to Changing Circumstances
64. Change Management and e-Services Initiatives
65. Classification Reviews
66. Classifications and Qualifications
67. Work Level Standards
68. Retirement Transition
69. Excess Employees
70. Consultation on Excess Employees
71. Period of Notice
72. Severance Benefit on Voluntary Retrenchment
73. Retention Periods
74. Engagement of Consultants
75. Outsourcing

Part E - Performance Management Practices

76. Performance Management
77. Managing Under Performance
78. Absence Without Approval
79. Non Performance of Duties - Extended Absence Without Approval & Frequent Short Absences
80. Probation
81. Managing Misconduct
82. Employment Outside the Court

Part F - National and Local Training and Development Initiatives

83. Implementing a National Training and development strategy
84. Developing a Skilled Workforce
85. Studies Assistance
86. Professional Membership Fees
87. Temporary Placement Opportunities
88. Inter-registry mobility

Part G - Working Environment and Environmental Initiatives

89. Valuing Workplace Diversity and Balancing Work and Personal Responsibilities
90. Ensuring Equity of Treatment Among Registries
91. Child and Dependant Care
92. Occupational Health and Safety, Security and Accommodation
93. Employee Assistance Program
94. Health and Well-Being of Employees
95. Use of Taxis After Hours
96. Environmental Initiatives

Part H - Consultative & Dispute Resolution Processes

97. Effective Communication and Consultative Committees
98. National Consultative Committee (NCC)
99. Regional Consultative Committee (RCCs)
100. Consultation on Major Changes
101. Dispute Resolution
102. Signatures of Employer and Bargaining Representatives

Attachment 1

Federal Court Salary Rates (Non Legal)
Federal Court Salary Rates (Legal)

Attachment 2 - Supported Wage Payments - Employees with a Disability

Attachment 3 - Federal Court Allowances

Attachment 4 - Principles for Workplace Delegates

 

Definitions and Interpretations

Wherever the following terms appear in this Agreement, they mean:

APS - means the Australian Public Service

Court - means the Federal Court of Australia

Chambers - means a work area of the Court comprising a Judge and the Judge's personal staff

CPSU - means CPSU, the Community and Public Sector Union

District Registrar - means the District Registrar of a District Registry of the Court, or for management purposes, the Executive Director Corporate Services

Employee - means a person employed in the Court, whether full time or part time, under and within the meaning of the Public Service Act 1999

Family - means a person who is related by blood, by adoption, by fostering or by marriage (including a genuine de facto relationship without discrimination as to sexual preference), a child, adopted child or foster child of a person to whom the employee is so married, and another person with whom a staff member has a strong affinity, as determined under subclause 24.3 of this Agreement.

the de facto partner of an employee:

(a) means a person who, although not legally married to the employee lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes); and

(b) includes a former de facto partner of the employee.

Federal Court Manager Level 1 and Level 2 - means an employee undertaking the duties of a position classified under the Federal Court's Work Level Standards at the level of Federal Court Manager Level 1 or Level 2

FWA - means Fair Work Australia

HDA - means higher duties allowance

Individual flexibility agreement - means an agreement between an employee and the Registrar under Clause 4 of the Federal Court of Australia Enterprise Agreement 2011 - 2014

Irregular or intermittent employee - means a person employed in the Court, under sub-section 22(2)(c)of the Public Service Act 1999, for duties that are irregular or intermittent

Judge - means a Judge of the Court, including the Chief Justice

Judges' staff - means the Judge's Executive Assistant, Associate & Research Assistants

Manager - means the immediate supervisor or section/team leader of an employee

NCC - means the National Consultative Committee

NES - Means National Employment Standards

Non-ongoing employee - means an employee engaged under sub-section 22 (2) (b) of the Public Service Act 1999

RCC - means Regional Consultative Committee

Registrar - means the Registrar of the Court

Registry - means a District Registry and/or the Principal Registry of the Court

Salary - means the employee's rate of salary/pay in accordance with the salary rates at Attachment 1.

SES - means the Senior Executive Service of the Australian Public Service

Settlement period - means the two-week period used for the calculation of hours of attendance and payment of salary

Standard day - means 7 hours and 21 minutes, being from 8:30 am to 4:51 pm with a one hour meal period from 1:00 pm to 2:00 pm

This Agreement - means the Federal Court of Australia Enterprise Agreement 2011-2014

TOIL - means time off in lieu

Workforce Plan - means a plan outlining how an organisation will ensure its workforce meets the organisation's future needs

Work Level Standards - means the standards by which the Court determines the appropriate classification level for duties performed by employees

Principles

The following principles apply to all parts of this Agreement:

  • Employee rights bring with them accompanying responsibilities, as outlined in the APS Values and Code of Conduct.
  • Decisions by managers and delegates will be transparent, equitable, and fair and made without delay.
  • Decisions under this Agreement will sometimes need to strike a balance between organisational requirements and the work-life balance needs of the employee.
  • Access to discretionary provisions under this Agreement will not be denied or withheld unreasonably.
  • Employees have the right to request reasons for decisions and for those reasons to be provided promptly.

Part A - Agreement Title and Scope

1. Title

1.1 This Agreement will be known as the Federal Court of Australia Enterprise Agreement  2011 - 2014.

1.2 This Agreement was made under Section 172 of the Fair Work Act 2009.

2. Duration

2.1 This Agreement commences 7 days after the date this Agreement is approved by Fair Work Australia or 1 July 2011, whichever is later and has a nominal expiry date of 30 June 2014.

3. Parties Bound

3.1 This Agreement covers the Commonwealth (acting through the Registrar) and employees (other than SES employees) engaged under the Public Service Act 1999 in the Federal Court of Australia.

4. Flexibility Agreements

4.1 The Registrar and an employee covered by this Agreement may agree to make an individual flexibility agreement to vary the effect of terms of this Agreement if:

a. the individual flexibility agreement deals with 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

(vi) remuneration.

b. the arrangement meets the genuine needs of the employer and employee in relation to one or more of the matters mentioned in paragraph (a); and

c. the arrangement is genuinely agreed by the employer and employee.

4.2 The Registrar must ensure that the terms of the individual flexibility agreement:

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.

4.3 The Registrar must ensure that the individual flexibility agreement:

a. is in writing; and

b. includes the name of the employer and employee; and

c. is signed by the employer 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 individual flexibility agreement; 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

e. states the day on which the arrangement commences and where applicable where the arrangement ceases.

4.4 The Registrar must give the employee a copy of the individual flexibility agreement within 14 days after it is agreed to.

4.5 The Registrar or employee may terminate the individual flexibility arrangement:

a. by giving no more than 28 days notice to the other party; or

b. if the employer and employee agree in writing – at any time.

Reporting of Flexibility Agreement Outcomes

4.6 Outcomes will be reported to the NCC at its quarterly meetings having appropriate regard to confidentiality and privacy principles.

5. Closed Agreement and No Extra Claims

5.1 Subject to Clause 4, this agreement exhaustively states the terms and conditions of employment of the employees covered by it, other than terms and conditions applying under a Commonwealth law.

5.2 From the commencement of this Agreement, a person or organisation covered by this Agreement will not pursue further claims for terms and conditions of employment that would have effect during the period of operation of this Agreement, except where consistent with the terms of this Agreement.

6. Variations to this Agreement

6.1 Any variations to this Agreement will be made pursuant to section 207 of the Fair Work Act 2009.

7. Comprehensive Agreement

7.1 Nothing in this Agreement varies or displaces any entitlement of a Judge which may be contained in the Judges' Handbook, Federal Court of Australia.

7.2 It is acknowledged that employment is subject to the following Acts (and regulations or instruments made under the Acts), amongst others:

  • Fair Work Act 2009
  • Public Service Act 1999
  • Long Service Leave (Commonwealth Employees) Act 1976
  • Maternity Leave (Commonwealth Employees) Act 1973
  • Public Employment (Consequential and Transitional) Amendment Act 1999
  • Superannuation Act 1976
  • Superannuation Act 1990
  • Superannuation (Productivity Benefit) Act 1988
  • Safety Rehabilitation and Compensation Act 1988
  • Occupational Health and Safety Act 1991
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Superannuation Benefits (Supervisory Mechanisms) Act 1990
  • Human Rights and Equal Opportunity Act 1986
  • Disability Discrimination Act 1992

8. Advices to Employees

8.1 Where written notice or advice is provided to an employee under a provision in this Agreement, this will be deemed to have been given when delivered in person, or if sent by mail, two working days following the date of postage by registered post.

9. Delegation of powers under this Agreement

9.1 The Registrar may delegate any of his powers under this agreement by written instrument including any conditions applying to the use of those powers.

This Agreement

10. Objectives of this Agreement

10.1 The Federal Court of Australia, created by the Federal Court of Australia Act 1976, is a superior Court of record and a Court of law and equity. It sits in all capital cities and elsewhere in Australia from time to time.

10.2 Employees are employed under the provisions of the Public Service Act 1999. On a day-to-day basis, Court employees within registries are responsible to the Registrar, whilst employees within Judges' chambers are responsible to the Judge within whose chambers they work.

10.3 This Agreement supports ongoing changes in the organisation of work in the Court and the relationships that underpin that work. The Court and its employees will support the implementation of these changes and agree to work cooperatively in their implementation through the consultative processes contained in this Agreement.

10.4 Court management is committed to providing staff with timely information and training to accompany any changes and the NCC will be consulted regarding the timing, quality and frequency of this. In addition to its other roles, the NCC will monitor the progress of change initiatives in this Agreement, with the aim of ensuring staff have appropriate input into change processes.

10.5 This Agreement reinforces the Court's commitment to a quality people management framework, consistent with the APS Values and Code of Conduct, that fosters a spirit of cooperation, drives skill development and maintains a focus on results and performance through:

a. Flexible employment conditions tailored to meet the needs of the Court and its employees

b. Organisational structures, standards and change processes that promote job flexibility, mobility and career paths and enable the Court to respond to changing circumstances

c. Effective performance management practices built on individual and team feedback

d. Integrated national and local training and development activities

e. A work environment that is safe, equitable and fair

f. Consultative processes that promote open communication and quality decision making

Part C - Employment Conditions

(I) Salaries

11. Salaries

11.1 A salary increase of 3% is payable from 7 days after the date this Agreement is approved by Fair Work Australia or 1 July 2011, whichever is later. Further salary increases of 3% and 3% will be paid with effect from 1 July 2012 and 1 July 2013 respectively.

12. Commencing Salaries

12.1 Employees commencing with the Court, and existing employees who are promoted within the Court, will commence at the base salary point for the relevant classification unless a higher rate is authorised by the Registrar on the basis of qualifications, skills and experience. Where, at the time of engagement, an employee's salary is set at an incorrect rate, the Registrar may determine in writing, the payment of the employee's salary at the correct rate.

12.2 At the discretion of the Registrar, an employee moving to the Court whose salary in their previous agency (current salary) exceeds the rate to which the employee would be entitled under this agreement, the employee may be maintained on their current salary until such time as the employee is entitled to a higher rate under this agreement.

13. Salaries for Judges' Associates and Research Assistants

13.1 All Judges' Associates and Research Assistants are paid at the base of the FCS 5 (APS 5) level. This pay point acknowledges, and is in lieu of payment for, working additional hours, travelling outside work hours, undertaking remote hearings and being 'on call'. Judges' Associates and Research Assistants are not subject to salary advancement, should their employment extend beyond 12 months.

14. Salary Rates and Junior Rates

14.1 Attachment 1 details the salary rates payable to Court employees through this Agreement. Employees will have their salary paid fortnightly in arrears by electronic funds transfer to an approved financial institution account of their choice.

14.2 Supported salary rates and conditions of employment as set out in Attachment 2 will apply to an employee with a disability who is eligible for consideration under the supported wage system.

14.3 Junior rates of pay are a percentage of the minimum salary rate for a Federal Court Staff Level 1. They are:

  • under 18 years of age - 60%
  • at 18 years of age - 70%
  • at 19 years of age - 81%
  • at 20 years of age - 91% 

15. Salary on Reduction

15.1 Where an employee requests or agrees, in writing, to temporarily perform work at a lower classification level, the Registrar may determine in writing that the employee will be paid a rate of salary applicable to that lower classification level.

16. Categories of Employees; Non Ongoing & Irregular or Intermittent employees

16.1 Employees covered by this agreement are engaged in accordance with the Public Service Act 1999:

a. as an ongoing employee

b. as a non ongoing employee for a specified term or specified task

c. as an intermittent or irregular employee

16.2 The usual basis for engagement is as an ongoing employee unless, having regard to Section 22 of the Public Service Act and Clause 3.5 of the Public Service Regulations, the nature of the role or work warrants filling the position:

  • on a non ongoing basis for either a specified term or task, or;
  • on an irregular or intermittent basis.

16.3 Delegates will review the employment of non ongoing employees upon the renewal of their contracts to assess, among other things, whether the duties should be advertised for filling on an ongoing basis. The staff member will be advised accordingly of the outcome of this review and of any other relevant issues relating to their tenure. Typically engagement for a specified term or task as an intermittent or irregular employee will be to address a temporary increase in workload or a temporary need for particular skills.

16.4 Irregular or intermittent employees will receive a 20% loading on their pay in lieu of access to recreation, paid personal and other paid leave as provided for in Clause 54 of this Agreement, and public holidays.

16.5 Irregular or intermittent employees are entitled to a minimum payment of 4 hours when called in for duty.

16.6 Non-ongoing employees will be provided with at least two weeks' notice where their contract is due to expire and will not be renewed in circumstances where there may be a reasonable expectation that the contract may be renewed, e.g. where the person has had several extensions of contract. This would generally not apply in the case of Judges' Associates.

17. Performance-based Salary Progression

17.1 To recognise their performance and contribution to the Court, eligible employees who are not at the top of their salary range for the relevant classification will progress to the next point in that range after 12 months, subject to a rating of 'satisfactory' or better in their most recent performance appraisal.

18. Irregular or Intermittent Employees

18.1 Entitlement. Irregular or intermittent employees will progress to the next pay point in the relevant salary range every two years, subject to, or as otherwise provided by, the provisions at sub-Clauses 18.2, 18.3 and 18.5.

18.2 Salary Progress. Progress to the next salary point, where the employee is eligible, is to take place when the employee's contract is renewed. As renewal of contract is subject to satisfactory performance, progress is performance-based.

18.3 Irregular or intermittent employees who have worked the equivalent of 12 months or more full time in less than two years will progress to the next salary point subject to satisfactory work performance. Given the administrative difficulties in routinely monitoring the cumulative hours worked by irregular or intermittent employees, it is the responsibility of the employee to initiate progression via this mechanism.

18.4 District Registrars may exercise their discretion to give effect to the spirit of this provision where an employee may otherwise be unfairly disadvantaged.

18.5 District Registrars' Discretion. In special circumstances, District Registrars may exercise their discretion to re-engage Court Officers at a higher salary point, based on length of service, the range of duties undertaken, skills, relevant experience, performance and other relevant factors.

18.6 Access to e-mail. Irregular or intermittent employees will have a Federal Court e-mail address and access to a desk and are required to check their e-mail on each day they are employed.

18.7 Role of RCC. The local RCC will monitor employment conditions of Irregular or Intermittent employees to ensure that, as far as practicable within Registry resources, they have access to similar facilities to other staff and are not disadvantaged as a result of the nature of their employment.

19. Employer Superannuation Contributions

19.1 The Court will ensure all employees are fully informed about superannuation arrangements and options on commencement or recommencement of employment. The Court will make compulsory employer contributions as required by the applicable legislation and fund requirements.

19.2 Where employer contributions are to an accumulation superannuation fund the employer contribution will be 15.4% of the fortnightly superannuation contribution salary (or ordinary time earnings). This will not be reduced by any other contributions made through salary sacrifice arrangements. This clause does not apply where a superannuation fund cannot accept employer superannuation contributions (e.g. unable to accept contributions for people aged over 75).

19.3 Employer superannuation contributions will not be paid on behalf of employees during periods of unpaid leave that does not count as service, unless otherwise required under legislation.

19.4 The Registrar may choose to limit superannuation choice to complying superannuation funds that allow employee and/or employer contributions to be paid through fortnightly electronic funds transfer using a file generated by the Court's payroll system

20. Remuneration Packaging - Salary Sacrifice

20.1 Employees may sacrifice salary in line with Federal Court guidelines and consistent with taxation legislation.

20.2 Any additional administrative costs will be met by the employee on a user-pays basis.

20.3 Participation in salary packaging is voluntary and employees are encouraged to seek independent financial advice. As far as possible, the salary packaging provider will be required to offer employees presentations and/or information on the available options. Generally items available for salary packaging will be those that receive favourable taxation treatment (e.g., motor vehicle, additional superannuation).

20.4 Participation in salary sacrifice arrangements will not affect salary for any purpose unless specifically authorised or specified.

21. Assistance with annual public transport fares

21.1 The Court will provide funds for the purchase of yearly rail, bus, tram and ferry tickets (or combinations of them) for ongoing employees and long-term non-ongoing employees who require them. This will allow employees to take advantage of cheaper fares for annual tickets, without the need for a large outlay.

21.2 Employees will repay the cost over 12 months through fortnightly salary deductions from after tax salary. Any balance owing on cessation of employment will be repaid to the Court from final moneys.

22. Payment on Death

22.1 Where an employee dies, or the Registrar can reasonably presume an employee died on a particular date, the Registrar will authorise the payment of the amount of salary and other entitlements to which the former employee would have been entitled had they ceased employment on resignation or retirement. Payments will be made to the dependants or the partner of the former employee, or that employee's personal legal representative.

23. Resignation and Notice

23.1 Employees will provide at least two weeks' notice of resignation, with a pro-rata deduction from final moneys unless a shorter notice period is requested and agreed by the relevant District Registrar, or equivalent.

(II) Work Hours and Flexible Working Arrangements

24. Balancing Work and Private Lives

24.1 The Court acknowledges that employees have to balance their working life with other commitments, including family and the community. This is recognised through the provision of a range of flexible attendance arrangements and assistance programs.

24.2 When applying flexible attendance and working arrangements, assistance programs and other employment conditions the Court and its employees will consider the operational needs of the Court, the work performance of the employee, the impact on the Court's clients and other staff and the needs of the staff member concerned including their family responsibilities.

24.3 The District Registrar (or equivalent) may agree to extend conditions relating to family members to a person with whom a staff member claims a strong affinity where the staff member provides appropriate evidence of the relationship.

25. Hours of Duty

25.1 Ordinary Hours of Duty for full time employees are 73 hours 30 minutes over each two-week period, or 7 hours 21 minutes per day. For part time employees, hours of duty are those agreed in their part time work agreement or their terms of engagement.

25.2 Standard Day. For the purposes of recording leave absences, a standard day for full time employees is defined in the Definitions and Interpretations of this Agreement . These hours are used for administrative convenience and may not reflect the actual attendance patterns of employees - actual hours will be agreed between manager and employee, consistent with sub-Clause 25.1.

25.3 Unless otherwise agreed between the employee and their manager, the minimum span of daily attendance, including meal break, is the six hours between 10:00am and 4:00pm.

26. Patterns of Attendance

26.1 As far as possible, hours and patterns of attendance will be agreed by managers and their staff. Employees will not work:

  • more than ten hours ordinary time on any day; and
  • more than five consecutive hours without a meal break of at least 30 minutes.

without agreement between the employee and their manager.

26.2 The major consideration of the Court and its managers in determining the pattern of hours is the operational requirements of the work area. Other considerations include:

  • the impact upon clients;
  • the impact upon other employees of the work group; and
  • the personal needs of the employee

26.3 The parties agree to review flex and TOIL arrangements under this agreement with the aim of introducing revised arrangements in the Court's next Agreement. If practicable, any revised arrangements will be introduced earlier via a variation to the current Agreement.

27. Alternative Attendance Arrangements

27.1 An employee may request approval to perform their duties outside the normal bandwidth, e.g. on a Saturday or Sunday, in lieu of the equivalent period Monday to Friday. The main consideration in considering requests will be the effect on the Court's operations. Any hours worked on this basis will be considered to be 'ordinary hours' and will not attract additional duty rates, i.e. penalty and overtime rates.

28. Working from Home

28.1 Employees may, with the agreement of the Registrar, work from their homes. Arrangements will be subject to Court policy and will be based on the following principles:

  • home based work is voluntary and may be suggested by the Court or the employee
  • where overtime is undertaken from home payment will be for the time worked – there will be no minimum period for payment
  • home based work is neither a right nor an entitlement - each application will be considered on its merits, and
  • arrangements must satisfy operational, OH&S and security requirements, both nationally and locally, and not lead to significant additional resource requirements.

29. Recording Attendance

29.1 Employees are required to record their daily attendance in a manner advised by Registry management. The Court encourages and supports the electronic recording of attendance. Where attendance is recorded electronically, records must be available to managers where required, e.g. by retaining them in a shared computer directory.

30. Flextime Scheme

30.1 The Court's flextime scheme applies to full time Federal Court Staff Levels 1 to 6, and equivalent Legal designations, excluding employees working within Judges' chambers. Arrangements for part-time staff are outlined in Clause 37.9.

30.2 Flextime is a system of flexible work hours which enables employees and managers to vary working hours and attendance patterns.

30.3 Subject to the agreement of the manager, and subject to operational requirements, employees may use flextime leave in any combination of four half days in any settlement period.

30.4 The bandwidth of ordinary hours within which an employee may work is 7:00am to 7:00pm Monday to Friday, subject to the provisions of sub-Clause 25.1.

30.5 Employees are able to accumulate a maximum of 20 hours flextime credit at the end of any settlement period. Total flextime and Flexbank credits (Clause 30.6) will not exceed one week from one settlement period to the next. Where these credits exceed one week at the commencement of this Agreement, the manager and staff member will agree on arrangements to ensure that total credits do not exceed one week by 30 June 2012.

30.6 Flexbank. Flextime credits in excess of 20 hours are recorded and credited to that employee's flexbank. The granting of flexbank credits is subject to the approval of the manager. Flexbank credits may:

a. be accessed in blocks of between one to three days at any time.

b. be accessed in a single block of four or five days on one occasion each year (from 1 February to 31 January).

c. be accumulated to a maximum of five days.

30.7 Flextime Debits. Employees may carry over a maximum of ten hours flextime debit into the next settlement period. When the maximum debit is exceeded at the end of a settlement period, the period in excess of ten hours will be treated as leave without pay and an appropriate deduction made from the employee's pay. Alternatively, the employee may elect to have an equivalent deduction from recreation leave credits.

31. Flextime Credits/Debits on Cessation of APS Employment

31.1 Employees who cease employment in the Court are entitled to a payout of their accumulated flextime credit to a maximum of 20 hours. This payout does not include any period of flexbank credit.

31.2 Employees with a flextime debit at the time of their cessation in the Court will have the salary equivalent of that debit deducted from their final moneys. Flextime debits may be offset by any available flexbank credit.

32. Managing the Flextime System

32.1 Managers have a responsibility to minimise the extent all employees work exceptionally long hours. Where an employee is working excessive hours on an ongoing basis, the matter should be brought to the person's attention with the aim of agreeing how to reduce the person's hours to a reasonable level.

32.2 The manager may require an employee not to work hours in addition to ordinary hours when there is insufficient work, or when the work could be reasonably deferred to a later time.

32.3 Employees who do not comply with the flextime provisions may be directed to revert to working standard days as defined in this Agreement for a period specified by the manager.

32.4 Where flextime is sought and cannot be accessed within two settlement periods, the manager will, on request, advise the employee when the time can be accessed, in consultation with the employee.

33. Time off in Lieu for Federal Court Manager and Federal Court Legal Employees

33.1 Employees designated as Federal Court Manager Levels 1 and 2, and equivalent Legal designations, in the absence of access to the flextime scheme, may negotiate flexible working and attendance arrangements with their manager. The manager may approve days off between 1 February and 31 January, in recognition of one or more of the following:

a. significant additional hours spent working

b. substantial personal effort resulting in major achievements

c. consistently high levels of achievement

33.2 The scheme is not a replacement for flextime but will provide flexibility in work patterns and time off. Time off will be subject to the agreement of the manager but will not be unreasonably withheld. Time off will generally not exceed a single day. Requests to take time off in blocks of more than one day must be approved by the District Registrar (or the Registrar or Executive Director, Corporate Services).

33.3 Disagreements over access to time off may be referred to the Registrar.

33.4 The Court will develop a policy to accompany these provisions as soon as possible following commencement of this Agreement. The initial policy and each amendment of that policy may only be made or varied with the agreement of the NCC.

34. Time Off in Lieu (TOIL) for Judges' Staff

34.1 As they are not included within the Court's flextime scheme, the following arrangements will apply for Judges' staff including Judges' Executive Assistants, Associates and Research Assistants.

34.2 The accrual of TOIL of flextime is subject to the Judge being satisfied, on the basis of the record of time worked, that the time worked in excess of ordinary hours was a requirement of the Court. It is also subject to the proper maintenance by the employee of a time sheet, chambers' diary or other permanent record of times worked and attendance. These documents must be available for audit purposes where required.

34.3 Subject to the preceding sub-Clause, chambers' employees will accrue TOIL for time worked in excess of the ordinary hours of work, e.g. 73 hours 30 minutes, over a two-week period. The timing of granting of TOIL is subject to the discretion of the Judge. The maximum of time granted as TOIL must not exceed four days in any one calendar month, except as provided in sub-Clause 34.4.

34.4 Due to the exigencies of chambers' workload and the duration of Court hearings, it may not be practicable for TOIL to be granted within a reasonable period following its accrual. Subject to the convenience of the Judge, any accrued excess time which is not utilised pursuant to Clause 34.3, may be taken as TOIL in a block at an appropriate time up to a maximum of 12 days in each 12 month period from 1 February to 31 January.

Research Assistants who do not answer to a single Judge may seek approval for TOIL from:

  • a nominated Judge or Judges within the Registry;
  • some other person, nominated by the District Registrar, after consulting with local Judges; or
  • another person nominated by the Registrar

34.6 The Court affirms its commitment to employees balancing work and private lives, as stated in Clause 24.

35. Relief Arrangements for Judges' Executive Assistants

35.1 The guidelines issued by the Registrar on relief arrangements for Judges' Executive Assistants will continue to apply.

36. Overtime and Shiftwork

36.1 Rates of Overtime Payment. Employees may be directed to work reasonable overtime. Overtime is payable only to employees below the levels of Federal Court Manager Level 1 and equivalent Legal designations, and is payable at the rates of:

  • Monday to Saturday - time and a half for the first three hours and double time thereafter;
  • Sunday - double time; and
  • public holidays - time and a half for hours within standard hours and double time and a half for hours outside standard hours.

36.2 Overtime is payable only for additional directed work performed:

  • before 8:00am on normal working days
  • on normal working days where that work is after 6:00pm and after at least seven hours 21 minutes normal duty has been worked that day, and
  • on Saturdays, Sundays and public holidays.

36.3 For overtime which is not continuous with normal duty, except for a meal break, the minimum time period for which payment at the relevant rate will be made is four hours.

36.4 TOIL of Overtime Payment. Where the employee and the District Registrar agree, TOIL of the overtime payment may be granted. TOIL is calculated on the basis of the payment the person would have received for overtime, e.g. three hours overtime at time and a half would equate to four and a half hours TOIL.

36.5 Irregular or Intermittent Employees will be entitled to payment at the applicable overtime rate as specified in this Clause for any directed hours worked outside 8:00am to 6:00pm Monday to Friday.

36.6 Shiftwork. An employee will be considered to be a shift worker if rostered for an ongoing or fixed period to perform ordinary duty outside the period 6.30am to 6:00pm, Monday to Friday.

36.7 Shift Allowance. An employee who is rostered and performs ordinary duty on a shift, any part of which falls between the hours of 6:00pm and 6:30am Monday to Friday, will be paid an additional 15% of the employee's salary for that shift.

36.8 Rest Periods. Employees should have at least eight consecutive hours off duty between shifts.

37. Part Time Work

37.1 The Court is committed to the use of flexible work arrangements, including part time work and job sharing. The Court will ensure that staff are not unreasonably denied access to these arrangements having regard to the need to maintain service to Judges and Court users, the needs of other staff and the needs of the employee.

37.2 A part time employee is one whose regular hours of work over the two week settlement period are less than 73 hours 30 minutes and who is approved to be a part time employee on an ongoing basis or for a fixed period (each fixed period not to exceed two years) which is subject to review. Part time arrangements will strike an appropriate balance between the needs of the staff member, the requirements of the Court, the effect of arrangements on other staff and other relevant considerations. Part-time work arrangements will be set out in an agreement which will include the employee's hours of work, the duration of the agreement and other relevant details. At the expiry of this agreement, the employee may either return to full time employment or apply for a further period of part-time work.

37.3 A full time employee may request to work on a part time basis for a fixed period, subject to review and extension as agreed from time to time. Part time work agreements will be reviewed after two years. As much notice as possible will be given where the Court or the employee seek to vary the hours of part time work at the end of the fixed period. Delegates will not unreasonably decline applications and full reasons will be provided where applications are not approved. Where applications are not approved, the employee may seek a review of the decision under the relevant provisions of this agreement.

37.4 A fixed period part time employee who was previously full time may seek to revert to full time employment before the expiry of the fixed period of part time employment, by request in writing. Managers will not unreasonably oppose such a request. Where a request of this kind is declined, the employee will have the right to revert to full time hours as soon as otherwise practicable and no later than the expiry of the period for which part-time work was approved.

37.5 Part-time hours can be varied on a short term basis to facilitate access to training or other development opportunities.

37.6 The Court may establish permanent part time positions where the duties do not warrant full time employment or where there are difficulties attracting full time employees. Full time employees may express an interest in these jobs. Ongoing employees who are engaged to undertake part time duties will not be required to convert from part time work to full time work, or vary their hours, without their agreement. There is no need to re-advertise ongoing part-time time positions where an ongoing part-time employee and the District Registrar, or equivalent, agree to vary the hours of duty.

37.7 Remuneration and other entitlements for part time employees will be those applying to full time employees at the appropriate pro-rata rate. Allowances and reimbursements will be the same as those applying to full time employees. Where a part-time employee is requested and agrees to temporarily vary their pattern of work to include additional hours, this will be paid at normal time plus a loading of 15% to meet possible costs the employee may face such as fares and child care. Alternatively, TOIL of standard time may be granted or the employee may be directed to work overtime.

37.8 In rare circumstances it may be necessary to direct a part-time employee to work additional hours, as opposed to obtaining their agreement. In this case, overtime at a rate of time and a half will be paid for any additional hours worked between 8 am - 6 pm. Hours worked after 6 pm will attract payment of overtime in accordance with the provisions of Clause 36.

37.9 While part-time employees must nominate fixed hours, these may be varied informally and interpreted flexibly with the agreement of the manager, consistent with the Court's flextime guidelines. As far as possible, this flexibility will be reciprocal and will strike an appropriate balance between the personal needs of the employee and the work requirements of the Court. However, the hours formally agreed apply for the purpose of public holidays, leave and other entitlements.

(III) Allowances, Other Benefits and Entitlements

38. General

38.1 Allowances that are based on advice from an approved subscription service provider will be updated consistent with that advice, including the recommended date of effect where provided, unless the Registrar determines otherwise.

38.2 If the current approved subscription service provider ceases to provide this service in the life of this Agreement, the Registrar will determine any revised allowances in consultation with the NCC.

38. 3 Other allowances have been adjusted in most cases to account for increases over the life of this Agreement. Those allowances are set out at Attachment 3.

39. Overtime Meal Allowance

39.1 A meal allowance will be available to employees required to work paid overtime for a continuous period of at least one hour which extends over any of the following meal periods:

  • 7:00am to 8:30am, noon to 2:00pm, 7:00pm to 7:30pm, midnight to 1:00 am.

39.2 The amount of the allowance is based on, and updated in accordance with, current advice from the approved subscription service provider.

40. Higher Duties Allowance

40.1 Managers should have regard to Clause 87, and the needs of staff, when deciding whether to fill vacancies via higher duties arrangements. Employees required to work at a higher level than their classification, will be eligible for payment at the base rate of that higher classification. The HDA is payable on occasions when:

a. the temporary reassignment is one grade above the employee's classification and is for a period of at least five consecutive working days or a pattern of acting over a period of four or more weeks that would otherwise not attract payment, e.g.; to cover for the working arrangements of other staff. On such occasions, HDA will be payable from the first day of the temporary reassignment

b. the temporary reassignment is two or more classification levels above the employee's substantive classification. On such occasions, HDA will be payable from the first day, except that in the case of temporary reassignment to the designation of Federal Court Manager Level 1 or 2, or equivalent Legal designations, the temporary reassignment must be for a minimum period of five consecutive days

40.2 Employees are entitled to salary advancement to a higher increment point at the higher classification, subject to a rating of 'satisfactory' or better in their most recent performance appraisal, when they act at that higher classification for the equivalent of 12 months over a maximum of 24 months. This calculation of acting time in a higher classification will include all paid and unpaid periods of acting.

40.3 Employees who are required to undertake all or some of the work normally performed by another position for a period of at least 4 weeks may request payment of higher duties. Requests will be considered by the relevant District Registrar or manager having regard to the Court's Work Level Standards and other relevant considerations.

41. Temporary Performance in SES Positions

41.1 Where non-SES employees are required to temporarily perform work in Senior Executive Service positions for five or more consecutive working days, the Registrar will determine an appropriate allowance. A car and the option of cashing out its value will not be provided unless the Registrar determines otherwise.

42. On-Call Allowance

42.1 Being 'on call' for the purpose of this Clause means that the employee must be contactable outside standard work hours and available to report to the relevant workplace within a reasonable period. Employees receiving an allowance who are on leave and not required to be contactable must advise the Human Resources Section and are not eligible for payment where the period exceeds one week.

42.2 Where an Employee is Identified as Being 'On-Call' the Following Applies:

a. For ongoing periods, the employee is to be provided with a mobile phone and will receive a fortnightly 'On-Call Allowance' of $100 per fortnight.

b. The employee is to be offered the use of a mobile phone wherever practicable and where the period is two or more days, will receive a pro rata allowance based on the one tenth of the fortnightly rate for each day on call.

c. Where a mobile phone is not provided, home telephone rental is to be paid and work-related calls made by the employee will be reimbursed.

d. Where an employee to whom this sub-Clause refers, is required to attend for out of hours duty at the Court or other required workplace, payment will be at the appropriate overtime rate subject to a one hour minimum payment.

e. Cabcharge or cash advances will be provided to 'on-call' employees who may otherwise be temporarily out of pocket as a result of undertaking Court work out of hours.

f. Judges' Executive Assistants may also be paid On-Call Allowance as provided in the preceding paragraphs.

42.3 Staff receiving On Call Allowance will retain a record of out of hours telephone contact and call-ins to work. These will be subject to an annual review by the District Registrar, or equivalent, of whether the data substantiates the need for the staff member to be on call. For Judges' staff, this will be done by the District Registrar in consultation with the relevant Judge. Where a District Registrar directs that a staff member is no longer on call as a result of this review, the allowance will not be reintroduced without the agreement of the District Registrar.

43. Admiralty Marshals

43.1 On-Call Allowance for Admiralty Marshals is to commence with the arrest of the vessel and cease on its release unless the relevant District Registrar and the Marshal agree an earlier date is appropriate in the circumstances of a particular arrest.

43.2 Employees undertaking Admiralty Marshal work will be paid at the APS/FCS Level 6 (unless they would otherwise be paid at a higher level).

44. Allowance for First Aid Officers, Health and Safety Representatives, Fire Wardens and Harassment Contact Officers

44.1 An allowance of $35 per fortnight will be paid to an employee who undertakes one or more of the following roles:

  • First Aid Officer
  • Health and Safety Representative
  • Fire Warden
  • Harassment Contact Officer

Payment of the allowance will cease for continuous absences of over four weeks.

45. Language Allowance

45.1 The Court encourages its staff to utilise the full range of their skills and abilities in carrying out their work. To this end a language allowance will be payable where staff have cause to use foreign and indigenous language skills for work purposes. This will be paid at a rate of $20 per hour for the first hour or less and $10 an hour thereafter to a maximum of $50 per day. The Court's policy on the application of the allowance will continue to operate subject to any amendment to it.

46. Court Officer Uniforms

46.1 The existing policy on reimbursement for Court Officer uniforms will continue and may be varied from time to time in consultation with the NCC.

47. Damage to Clothing and Personal Effects

47.1 The Registrar may approve reimbursement to an employee for loss or damage to clothing or personal effects which occurs in the course of employment. In calculating the amount of reimbursement, an appropriate rate of depreciation, the circumstances of the loss or damage and the contribution of the employee to the loss or damage will be considered.

48. Relocation Assistance

48.1 Employees who permanently relocate to a different geographic location may, subject to the Registrar's approval, be reimbursed for all or some of the costs associated with transport and removal, sale and purchase of home, and temporary accommodation costs in the new location.

48.2 Relocation assistance on engagement or a move from other APS agencies may be approved by the Registrar and may include all or some of the costs referred to in the preceding Clause.

(IV) Leave and Public Holidays

49. Maternity, Adoption, Fostering and Parental Leave

49.1 Employees are entitled to Maternity Leave in accordance with the Maternity Leave (Commonwealth Employment) Act 1973. Employees may elect to spread payment for paid maternity leave over 24 weeks at half pay. Where an employee elects to take Maternity Leave at half pay, the second 12 weeks of leave does not count as service for any purpose.

49.2 An employee who is entitled to Maternity Leave under the Act will receive an additional two weeks paid Post Maternity Leave. This may be taken at half-pay but only two weeks will count as service.

49.3 a. An employee who is a parent, or has responsibility for the care of a child under school age or a child under 18 who has a disability, may request flexible working arrangements, including part-time hours. The employee is not eligible to make this request unless they have completed at least 12 months of continuous qualifying service (the Registrar may waive this requirement in exceptional circumstances).

b. A casual employee engaged for irregular or intermittent duties may only request flexible work arrangements if the employee:

  • is a long term casual employee immediately before making the request; and
  • has reasonable expectation of continuing employment on a regular and systematic basis.

Note: 'long term casual employee' is defined at s.12 of the Fair Work Act 2009

c. A request made in accordance with clause 49.3(a) must be in writing and set out details of the change sought and the reasons for the change. The Registrar will respond in writing to the request within 21 days and will only refuse on reasonable business grounds. Where the request is refused, the response will include reasons for the refusal.

d. For the purposes of this clause:

  • 'qualifying service' means service that is recognised for redundancy pay purposes;
  • 'casual' means an employee engaged on a irregular or intermittent basis.

49.4 Where the primary carer adopts or fosters a child of under 16 years, their entitlement to paid leave and leave without pay will be as if that person was covered by the Maternity Leave Act and this Clause.

49.5 On ending parental or maternity leave, an employee is entitled to return to:

  • the employee's pre-parental/maternity leave duties; or
  • if those duties no longer exists – an available position for which the employee is qualified and suited at the same classification and pay as applied pre-parental/maternity leave. Where this is not practical, other duties will be sought, with the redeployment, reduction and redundancy provisions applying to any placement.

For the purposes of this clause, duties means those performed:

  • if the employee was moved to safe duties because of the pregnancy – immediately before the move; or
  • if the employee began working part-time because of the pregnancy – immediately before the part-time employment began; or
  • otherwise – immediately before the employee commenced maternity or parental leave.

49.6 Supporting carers and other employees with no entitlement to paid maternity leave will be granted ten days paid leave associated with birth, adoption or fostering arrangements.

50. Portability of Accrued Recreation and Sick Leave Entitlements

50.1 Where an employee moves (including on promotion or for an agreed period) from another agency where they were an ongoing APS employee, the employee's unused accrued Annual leave and Personal/carers leave (however described) will be recognised, provided there is no break in continuity of service.

50.2 Where an employee is engaged as either an ongoing or non-ongoing APS employee immediately following a period of ongoing employment in the Parliamentary Service or the ACT Government Service, the employee's unused accrued Annual leave and Personal/carers leave (however described) will be recognised.

50.3 For the purposes of this clause:

  • 'APS employee' has the same meaning as the Public Service Act 1999
  • 'Parliamentary Service' refers to employment under the Parliamentary Service Act 1999

50.4 Where a person is engaged as an ongoing employee, and immediately prior to the engagement the person was employed as a non-ongoing APS employee, the Registrar may, at the employee's request, recognise any accrued Annual leave and Personal/carers leave (however described), provided there is no break in continuity of service. Any recognised Annual leave excludes any accrued leave paid out on separation.

51. Recreation Leave

51.1 Employees will receive a recreation leave credit of four weeks per full year worked. Recreation leave is accrued progressively. Employees may, with approval, use recreation leave any time after it has accrued.

51.2 Leave will not accrue for periods of leave without pay, which do not count as service, which total 22 or more working days within any one calendar year. Any adjustments to recreation leave credit will be made on 1 January in each year. Where an employee has insufficient leave to offset the amount of an adjustment for leave without pay, an equivalent amount will be deducted from salary.

51.3 There is no provision to advance recreation leave credit which has not accrued.

51.4 Managers will ensure employees use an appropriate amount of recreation leave each year in consideration of the welfare of employees and to ensure that the accrued liability for recreation leave for their work area is not excessive.

51.5 By 1 February each year, the Court will inform employees who are likely to exceed 50 days credit at 30 June. These employees, in consultation with their manager, have until 30 June to use any leave in excess of 50 days. Where employees retain a leave balance of over 50 days at 1 July, the Court may require the employee to take the leave credits in excess of 50 days.

51.6 The provisions of sub-Clause 51.5 also apply to part time staff, except that the limit on the amount of recreation leave is the amount of leave they would accrue after 30 months.

51.7 Staff with over 50 days' credits may elect to cash out 5 or 10 days credit when they take 10 or more consecutive days of recreation leave. Employees cashing out recreation leave are required to maintain a balance of at least 4 weeks in accordance with the requirements of section 93 of the Fair Work Act 2009.

52. Purchased Leave

52.1 Employees may elect to purchase up to 20 days additional recreation leave per year with the agreement of their manager in blocks of 5, 10, 15 or 20 days. The leave may be accessed in blocks of 5 or more days, also subject to their manager's agreement.

52.2 The recovery of salary for this leave will be averaged over a 12 month period.

52.3 Purchased leave periods count for service, but are not included in the calculation of recreation leave credit referred to in Clause 51.

52.4 Where an employee who has a purchased leave arrangement ceases employment with the Court, salary will be adjusted as follows:

a. where some or all of the purchased leave has been taken, the amount of salary still owing for that leave will be deducted; or

b. where the purchased leave has not been taken, any amount of salary which has already been deducted from the employee in anticipation of the leave will be refunded

52.5 Leave may not be purchased once an employee accrues over 50 days' recreation leave, unless otherwise agreed with the District Registrar (or equivalent).

53. Personal Leave

53.1 Personal leave includes sick, carer's and special leave and may be granted, subject to available credit, in the following circumstances:

a. where the employee is ill or injured; or;

b. to care for members of their family, or members of the employee's household, who are ill or injured; or;

c. to attend, or accompany a family member or members of the employee's household to, a registered medical practitioner or health practitioner.

53.2 Employees are credited annually with fully cumulative personal leave credits of 18 days full pay. This credit accrues on their day of engagement and on each anniversary of their engagement, subject to any adjustment for leave without pay which does not count as service.

53.3 Non ongoing employees on contracts of 12 months or less will receive a personal leave credit on engagement based on the length of their contract. Non ongoing employees who work for more than 12 months or are engaged on a contract of 12 or more months are entitled to the same personal leave entitlements as other employees. Unused credits from the first year of employment will be retained.

53.4 Where leave without pay which does not count as service has been granted in the accrual year, and totals 22 or more full day absences, the accrual will be reduced on a pro rata basis.

53.5 No more than three consecutive personal leave days may be taken without supporting medical evidence. Where over three days leave is taken without supporting medical evidence, the District Registrar (or equivalent) will determine whether it is appropriate to grant paid personal leave for the first three days, taking into account any statement or evidence provided by the employee.

53.6 A manager may request supporting evidence for any personal leave absence provided the request is not retrospective.

53.7 Medical evidence means a certificate provided by a:

a. registered medical practitioner, dentist, optometrist, optician, radiographer, physiotherapist, chiropractor or podiatrist; or

b. a health practitioner other than a doctor (e.g. naturopath, herbalist, homeopath, osteopath, iridologist, acupuncturist) if the employee has either been referred to that health practitioner by a doctor or obtains a doctor's endorsement that the treatment provided was desirable

53.8 Employees who are medically unfit for more than one day while on recreation leave or long service leave who produce a medical certificate may apply for personal leave. Recreation leave and long service leave will be re-credited to the extent of the period of personal leave granted.

53.9 In exceptional circumstances such as long periods of illness, the Registrar may grant additional paid personal leave where existing credits have expired.

53.10 All irregular or intermittent employees with a sick leave credit at the date of commencement of this Agreement are entitled to use that credit for future absences under this Clause until that credit is exhausted.

54. Other Leave and Miscellaneous Leave Types

54.1 To provide flexibility to managers and employees, the Registrar may grant leave of absence to an employee in appropriate circumstances for reasons not covered by other leave provisions including:

  • moving house
  • jury service
  • where required to attend legal proceedings
  • general training leave
  • blood donation
  • leave for delegates to undertake training provided by the union and represent union members from the Court in relevant union forums
  • studies
  • war service sick leave
  • adoption leave
  • participation in major sporting events
  • pre and post-natural disasters
  • days of religious, ceremonial or cultural significance including NAIDOC leave
  • accompanying a spouse on a posting,
  • any other purpose considered appropriate by the Court.

54.2 Leave may be granted:

a. for the period requested or for another period up to a maximum of 12 months with the option for extension

b. with or without pay

c. to count as service or, if it is without pay, to not count as service (for the purpose of the accrual of recreation leave, long service leave and personal leave), and

d. subject to conditions

54.3 The Registrar will provide an employee with a written advice of reasons for any decision to refuse leave.

54.4 Decisions on 'other' leave will be made with reference to the relevant Court policy.

54.5 Leave for ADF Reserve and Continuous Full Time Service or Cadet Force Obligations

a. An employee may be granted leave (with or without pay) to enable the employee to fulfill Australian Defence Force (ADF) Reserve and Continuous Full Time Service (CFTS) or Cadet Force obligations.

Note: The entitlement to leave for Reserve Service is prescribed under the Defence Reserve Service (Protection) Act 2001.

b. An employee is entitled to ADF Reserve leave with pay, for up to four weeks during each financial year for the purpose of fulfilling service in the ADF Reserve. These purposes include training and operational duty as required.

  • During the employee's first year of ADF Reserve service, a further two weeks paid leave may be granted to facilitate participation in additional ADF Reserve training, including induction requirements.
  • With the exception of the additional two weeks in the first year of service, leave can be accumulated and taken over a period of two years, to enable the employee to undertake training as a member of the ADF Reserves.
  • Employees are not required to pay their tax free ADF Reserve salary to the Court in any circumstances.

c. An employee who is an officer or instructor of cadets in a Cadet Force may be granted paid leave of up to three weeks each financial year to perform duties as an officer or instructor of Cadets. For these purposes 'Cadet Force' means the Australian Navy Cadets, Australian Army Cadets, or the Australian Air Force Cadets.

d. Defence Reserve leave counts as service for all purposes, except for unpaid leave to undertake Continuous Full Time Service (CFTS). Unpaid leave for the purpose of CFTS counts for all purposes except Annual leave.

e. Eligible employees may also apply for Annual leave, long service leave, leave without pay, top-up pay or they may use flextime or make up time for the purpose of fulfilling ADF Reserve, CFTS or Cadet Force obligations.

f. Employees are to notify supervisors at the earliest opportunity once the dates for ADF Reserve, CFTS or Cadet Force activities are known and/or changed.

54.6 Bereavement and Compassionate Leave. The Court will grant paid bereavement and compassionate leave of 3 days per occasion. This can be taken by employees in separate periods in accordance with the Fair Work Act. Irregular or intermittent employees will be granted unpaid bereavement/compassionate leave on the same basis.

54.7 Community Service Volunteer Leave (Including Participation in Emergency Activities). The Court will grant paid leave for activities including participation in emergency service activities, regular training, all emergency services responses, reasonable travel and recovery time and ceremonial duties.

55. Long Service Leave

55.1 An employee is eligible for long service leave in accordance with the Long Service Leave (Commonwealth Employees) Act 1976.

55.2 The minimum period during which long service leave can be taken is seven calendar days (at full or half pay). Long service leave cannot be broken with other periods of leave, except as otherwise provided by legislation.

56. Public Holidays and Christmas New Year

56.1 Employees will be entitled to the following public holidays:

  • New Year's Day (1 January);
  • Australia Day (26 January);
  • Good Friday;
  • Easter Monday;
  • Anzac Day (25 April);
  • The Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
  • Christmas Day (25 December);
  • Boxing Day (26 December);
  • Any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the Fair Work regulations from counting as a public holiday.

56.2 If under a state or territory law, a day or part day is substituted for one of the public holidays listed above, then the substituted day or part day is the public holiday.

56.3 The Registrar and an employee may agree on the substitution of a day or part day that would otherwise be a public holiday, having regard to operational requirements.

56.4 An employee, who is absent on a day or part-day that is a public holiday in the place where the employee is based for work purposes, is entitled to be paid for the part or full day absence as if that day or part-day was not a public holiday, except where that person would not normally have worked on that day.

Where a public holiday falls during a period when an employee is absent on leave (other than Annual or paid Personal/carers leave) there is no entitlement to receive payment as a public holiday. Payment for that day would be in accordance with the entitlement for that form of leave (e.g. if on long service leave on half pay, payment is on half pay).

56.5 Where Anzac Day, or another public holiday, falls on the weekend and a substitute day is gazetted, employees who are required to work on either day will be entitled to the relevant overtime rate payable under Clause 36 of this Agreement. Similarly, where an employee is required to work on Easter Saturday, payment will be at the overtime rate applicable to public holidays.

56.6 Where a public holiday falls on a day that is not regularly worked by a part time employee, that employee will not be entitled to payment for that day.

56.7 Where there is prior agreement between an employee and the District Registrar, a cultural or religious day of significance to the employee may be taken with pay and the time made up as agreed with the manager, without entitlement to payment for the additional duty.

56.8 Employees required to work interstate when there is a public holiday in their home state are entitled to TOIL or payment at the normal overtime rate, calculated on the basis of hours worked.

56.9 Leave Between Christmas and New Year - Subject to the following provisions for maintaining basic Registry operations between Christmas and New Year, employees will be provided with time off for the working days between Christmas and New Year's Day and will be paid in accordance with their ordinary hours of work. Where an employee is absent on leave, payment for the Christmas closedown provision will be in accordance with the entitlement for that form of leave, (e.g. if on long service leave half pay, payment is on half pay) .

56.10 There will be no deduction from Annual or Personal/carer's leave credits for the closedown days.

56.11 The Court will staff operations on the days between Christmas and New Year on a voluntary basis wherever possible but may require employees to work for one or more days to maintain its operations. An employee who is required to work for one or more days:

a. will be paid for each day worked as if it was worked on a normal working day for the employee; and

b. is entitled to take time off in lieu at a time within the following month convenient to the employee and agreed with the employee's manager.

(V) Travel

57. Travel Arrangements

57.1 Class of Travel. Employees travelling on official business within Australia are entitled to economy class travel. Where approval is sought in advance, the Registrar may approve a higher class of travel on the basis of a business case or health reasons where supporting medical evidence is presented. The Registrar may approve a higher class of travel for Judges' staff where this is also approved by a Judge pursuant to the Judges' Handbook, Federal Court of Australia.

57.2 Travelling Expenses. Employees whose travel includes overnight absence are entitled to meals and incidentals allowance comprising amounts for breakfast, lunch, dinner and incidentals. In addition, employees travelling overnight are entitled to an allowance for accommodation when the Court does not directly meet the cost of accommodation. Employees who stay in non commercial accommodation when travelling (e.g., with family or friends) will be paid an allowance of $40.00 for each night. The amount of meal, incidental and accommodation allowances is based on, and updated in accordance with, rates advised by an approved subscription service provider. No allowance is payable for travel on official business which is commenced and completed on the same day. Meal allowances are not paid when the Court provides the meal in question.

57.3 Method of Payment. The normal method of payment of allowances for travel will be in advance via direct credit to the employee's nominated account.

57.4 Out of Pocket Expenses. Where an employee incurs additional out-of-pocket expenses during travel, the Registrar may approve reimbursement. This includes same day travel where the employee incurs expenses they would otherwise not have to meet.

57.5 Additional Fares. Employees are entitled to the reimbursement of additional fares personally incurred whilst performing duty at a place other than their usual place of work. The Court's proposed travel policy will provide more detail on the application of this Clause.

57.6 Frequent Flyer points accumulated by employees as a result of travel on official business must be declared to the Court. These points may be used for official travel only and are not available for private use, or for flight upgrades except where business class travel has been approved by the Registrar.

57.7 Reunion Travel. Employees have a right to negotiate with the District Registrar (or equivalent) a return flight home after extended work-related absences. Normally this would be after 10 working days although shorter periods may be considered where there is minimal additional cost to the Court. Decisions will have regard to the circumstances of the case including the following factors:

a. The cost to the Court

b. The personal circumstances of the employee

c. The practicality of returning home

d. The length of the absence

57.8 OH&S Considerations. Travel arrangements will have regard to health and safety considerations including the duration of the staff member's working day, travel time to and from home and other relevant considerations. Unreasonable demands should not be placed on staff undertaking travel.

58. Child Care When Travelling

58.1 Where employees, who are the sole available carer of dependant children, are required by the Court to be away from their home base overnight, reimbursement of reasonable childcare costs that would otherwise not have been incurred, will be considered. Application for consideration, including an estimate of the cost involved, will be made prior to the finalisation of travel arrangements. Evidence of expenditure must accompany any claim for reimbursement.

59. Extended Absences

59.1 Where an employee is absent in excess of 21 continuous days, the option of moving to longer-term accommodation with kitchen facilities will be considered by the employee and their manager. Where this is not practicable, travel allowance will continue in accordance with Clause 57.

59.2 The Court will meet all reasonable additional costs to the employee associated with the absence, including additional accommodation, incidental expenses and additional food costs. These will be met as agreed by the employee and District Registrar.

59.3 Employees are entitled to comfortable, secure and clean accommodation within a reasonable distance of the workplace. The Court and the employee will be guided by the relevant subscription service rental ceilings but may exceed these if necessary. The Director Human Resources will provide guidance as necessary on appropriate standards and reimbursement arrangements.

60. Working and Camping in Remote Localities

60.1 Definition of Remote Hearing. Remote locality work may include but is not restricted to 'on country' hearings and work in remote locations that may involve the preservation of evidence, video taping trips, consent determinations, judgments and reconnaissance trips.

60.2 The District Registrar and the On Country Coordinator will agree, prior to the commencement of work in a remote locality, as to which of the provisions in this Clause will apply. Where there is any disagreement on entitlements, or need for guidance, the Native Title Registrar and Director Human Resources will be consulted. Decisions may be reviewed on completion of the hearing.

60.3 The parties to this Agreement recognise that employees may face arduous and exceptional circumstances on remote hearings. The parties also recognise that the Court's standard employment conditions may not be applicable to all aspects of remote hearings. To this end, this Agreement provides specific entitlements to employees working in remote localities and on remote hearings:

a. A 'Camping Allowance' of $75 per day. This recognises the discomfort, irregular hours and work demands employees may face when required to camp. It is not payable to an employee receiving an accommodation allowance.

b. A 'Hardship Allowance' of $30 per day where the employee is not entitled to receive Camping Allowance but is still subject to circumstances which may include discomfort, climatic extremes and extended travel. It may be payable where employees stay in tourist-style accommodation that, while having the minimum facilities, is not deemed entirely suitable.

c. Hours of Duty and Time Off in Lieu. As far as practicable, the Court will ensure that there are sufficient staff on remote hearings to allow staff to take a break while away from home. TOIL, flextime and the payment of overtime while an employee is working remotely will be as per the general provisions for staff where additional hours are worked. Staff will also be entitled to Remote Locality Leave consistent with this Clause in recognition of extended periods spent away from home. In recognition that an employee in a remote locality is unable to return to the Registry or go home at the end of a day's activities, they will be regarded as working a standard day if the day's sitting finishes early.

d. Remote Locality Leave. Where an employee works in a remote location for more than 7 but less than 14 days, they will be entitled to one day's leave for each seven consecutive days worked. An employee must work for a minimum of 3 hours to qualify for leave under this provision, which is in addition to other TOIL or flextime entitlements. Where an employee is in a remote location for 14 or more days, they are entitled to one day's leave for each seven consecutive days they are away from home under this provision, which is in addition to other TOIL or flextime entitlements.

e. Overtime is payable consistent with the overtime provisions in this Agreement where the employee is required to undertake work for the Court, including driving, before 8am or after 6pm. Overtime is not payable for passengers travelling in vehicles.

f. Higher Duties Allowance may be paid for single days for staff on remote hearings.

g. Clothing Allowance. Clothing and other expenses for personal items that are required for camping and work in remote localities, will be reimbursed up to a figure equal to the equivalent of a fulltime court officer's annual uniform allowance.

h. Minimum Classification Level. All employees undertaking Native Title work in a remote locality, other than Judges' Associates and Research Assistants, are entitled to be paid at a minimum of the FCS 6 level.

i. On Call Allowance. Is payable to employees undertaking the role of On Country Coordinator while 'on country' on a pro-rata basis, consistent with the 'on call' provisions in this Agreement.

j. First Aid Allowance Employees working in remote locations who possess a current Senior First Aid Certificate or higher will receive a First Aid Allowance for the relevant period if they are not already receiving the allowance.

60.4 Emergency Assistance for Employees. The parties covered by this Agreement recognise the difficulties an employee would have in organising travel as part of leave taken in an emergency. All reasonable assistance will be provided by the Court, which may include, for example, organising travel using the Court's travel contractor.

61. Motor Vehicle Allowance

61.1 Employees may be authorised to use a private motor vehicle for official travel where this is consistent with the Court's business needs.

61.2 Employees using a private motor vehicle for official purposes will be paid a motor vehicle allowance which will not exceed the cost of the relevant economy class airfare. The amount of the allowance is based on, and updated in accordance with, advices provided by an approved subscription service provider. More detailed information is available in the Court's Chief Executive Instructions.

62. Excess Travelling Time

62.1 Excess travel time is time spent on necessary travel, on Court related business away from an employee's usual place of work, over and above:

a. the employee's usual hours of duty for the day; and

b. the time usually spent traveling between their home and their usual workplace.

62.2 Non-Judges' staff at the FCS 1-6 levels may count excess travel time as flextime or may take it as TOIL on an hour for hour basis, subject to guidelines which will be issued from time to time. As far as possible, travel for FCS 1-3 staff will be within work hours.

Part D - Organisational Structures and Workforce Change

63. Responding to Changing Circumstances

63.1 Employees and the Court recognise the need for ongoing review of the Court's organisational structures to respond to changing responsibilities and circumstances, including funding, government initiatives and strategic priorities.

64. Change Management and e-Services Initiatives

64.1 Staff and the Court recognise that changes in the workplace over the life of this Agreement may require:

  • The acquisition of new skills
  • Changes to existing duties
  • Undertaking new duties and roles

64.2 To this end, the Court will ensure that:

  • Staff are consulted and have the opportunity to influence changes that affect them
  • As far as practicable, staff may choose to be represented in any review processes or changes affecting them
  • Staff are provided with appropriate training and development in a timely manner to accompany any changes

64.3 Staff agree to participate actively with the implementation of changes and undertake any associated training and development provided by the Court.

64.4 E-Services initiatives. The Court acknowledges the work already undertaken by staff in implementing e-Services and affirms its commitment to addressing any concerns and issues identified by staff and, where they choose, their representatives.

64.5 The Court and staff affirm their commitment to ensuring the successful ongoing implementation of e-Services initiatives, including the implementation of necessary changes to duties, the identification of savings and implementation of streamlined work practices where practicable.

64.6 Where e-Services initiatives have been implemented, the Court will agree on review arrangements with the NCC. Issues any review will focus on will include:

  • staff and workload issues
  • ongoing training needs
  • system improvements
  • achieving more efficient work practices

64.7 Career Paths, Workforce Planning, Staff Skills. The Court and its employees commit to the development of a Workforce Plan within the life of this Agreement. This plan will be developed in consultation with the NCC and will draw together issues such as career paths, recruitment and retention issues, training and skills development, Work Level Standards, measures to retain the skills and experience of mature aged workers, etc, into a comprehensive plan aimed at ensuring the Court's current and future workforce requirements are met.

64.8 The Court and staff acknowledge that flexibility in deploying staff to where they are required will be an important element in the Court's Workforce Plan, including the ability to readily move staff between roles and assign them new or varied duties, appropriate to their classification, in close consultation with the employee and ensuring they are appropriately trained for the role.

64.9 The provisions in Clause 64 of this Agreement relating to consultation are in addition to, and not intended to affect the operation of, the consultation provisions in Clause 97 of this Agreement.

65. Classification Reviews

65.1 The classification of any position will be reviewed where an employee, and where they choose, a representative chosen by the employee, presents a case supporting the need for a review.

65.2 Where agreement can not be reached on the appropriate classification of a position, the review processes in the Court's Work Level Standards (Clause 67) will be used, unless an alternative review process is agreed by the NCC. The Registrar (or the Registrar's delegate) will make the final decision in any review process.

66. Classifications and Qualifications

66.1 Attachment 1 includes details of the classifications and local designations that are used within the Court as well as their equivalent APS classifications.

66.2 With the exception of Federal Court Legal 1 and 2, no formal qualifications are prescribed for any of the classifications appearing in Attachment 1. However, the Registrar may determine that qualifications are desirable or essential for certain positions.

66.3 The Court will review its Work Level Standards in the first 12 months of this Agreement to address Federal Court Legal positions and how these are differentiated from Federal Court Staff and Federal Court Manager roles.

67. Work Level Standards

67.1 The Court's Work Level Standards (WLS) set out the standards, relevant skills, responsibilities and other characteristics used to ensure non-SES positions in the Court are classified at the correct level. The NCC will be consulted about any changes to the WLS and must agree to these before they are formalised.

68. Retirement Transition

68.1 The Court will assist staff approaching retirement through a variety of measures:

a. Assisting with retirement planning, e.g. - funding and allowing time off to attend agreed financial and lifestyle planning seminars to a total value of $500.

b. As far as practicable, accommodating requests to work on a part-time basis, if necessary by considering the option of job sharing.

68.2 The Court will also consider other options for accommodating the needs of staff approaching retirement on a case-by-case basis.

69. Excess Employees

69.1 The provisions of this Clause apply to all employees, with the exception of employees on probation and non ongoing employees. In applying the provisions relating to excess employees, the Court will have regard to any APS policy, including arrangements for the redeployment of excess employees across agencies.

69.2 The Court is committed to managing excess staff situations in a way that, as far as possible, takes the wishes and aspirations of affected staff into account. An excess employee is one who:

a. is substantively classified at a level where there is a greater number of employees than is necessary for the efficient and economical working of the Court

b. cannot be effectively used because of technological or other changes in the work methods of the Court or changes in the nature, extent or organisation of the functions of the Court, or

c. in situations where the duties usually performed by the employee at their locality are to be performed at a different locality and the employee is not willing to perform duties at the different locality, the Registrar has determined that the excess staff provisions of this Agreement apply to the affected employee.

70. Consultation on Excess Employees

70.1 The Registrar will advise employees as soon as practicable where it is likely that they may become excess and the reasons they are likely to become excess.

70.2 Discussions will be held with the employee to consider possible redeployment opportunities or whether voluntary retrenchment may be appropriate. The maximum period for these discussions is one month.

70.3 During this period the Registrar may also invite employees who are not excess to requirements to express an interest in voluntary retrenchment where this would allow potentially excess employees to be redeployed. Any swaps would be subject to the excess employee's ability to undertake the alternative duties effectively within a reasonable time.

70.4 Following these discussions, the Registrar will write to the employee, advising that they are potentially excess to requirement and may invite the employee to elect for voluntary retrenchment.

70.5 Potentially excess employees who are invited to elect for voluntary retrenchment will be given one month to consider (the consideration period) the offer of voluntary retrenchment and will be provided with the following details to assist with their decision:

a. the amount of severance pay, pay in lieu of notice and unused leave credits;

b. the taxation rules applying to the various payments; and

c. financial assistance (e.g. via reimbursement or direct payment to the service provider) up to a maximum of $800 for financial advice and a maximum of $1,200 for career counselling (or more if the service can not be found within these maxima)

70.6 Employees who decline an offer of voluntary retrenchment or do not respond to the offer may be identified as excess to requirements at the end of the consideration period. Only one offer of voluntary retrenchment will be made to an excess employee.

70.7 Employees may elect to accept an offer of voluntary retrenchment prior to the expiration of the consideration period. This will attract payment for the unexpired period of the consideration period in addition to any payment in lieu of notice (see Clause 70).

71. Period of Notice

71.1 Where an employee agrees to an offer of voluntary retrenchment the Registrar can approve the termination of that employee's employment under section 29 of the Public Service Act 1999. The employee will be given a Notice of Termination of 4 weeks, or 5 weeks for employees over 45 with at least five years continuous service. This period of notice will also apply to employees who are involuntarily terminated with the periods of notice being, as far as practicable, concurrent with the retention periods.

71.2 The employee or the Registrar may initiate an earlier termination date within the notice period. This will attract payment in lieu of notice for the unexpired portion of the notice period.

72. Severance Benefit on Voluntary Retrenchment

72.1 An employee who elects for retrenchment with a redundancy benefit and whose employment is terminated by the Registrar under s.29 of the Public Service Act 1999 (PS Act) on the grounds that he /she is excess to the requirements of the Court, is entitled to payment of a redundancy benefit of an amount equal to two weeks' salary for each completed year of continuous service, plus a pro-rata payment for completed months of service since the last completed year of service, subject to any minimum amount the employee is entitled to under the NES.

a. The minimum sum payable will be 4 weeks' salary and the maximum will be 48 weeks' salary.

b. The redundancy benefit will be calculated on a pro rata basis for any period where an employee has worked part-time hours during his or her period of service and the employee has less than 24 years full-time service, subject to any minimum amount the employee is entitled to under the NES.

72.2 Service for severance pay purposes means, subject to the following sub-Clauses:

a. service in the Court

b. Government service as defined in section 10 of the Long Service Leave (Commonwealth Employees) Act 1976

c. service with the Commonwealth (other than with a joint Commonwealth-State body corporate in which the Commonwealth does not have a controlling interest) which is recognised for long service leave purposes

d. service with the Australian Defence Forces

e. APS service immediately preceding deemed resignation under the repealed section 49 of the Public Service Act 1922 if the service has not been previously recognised for severance pay purposes, and

f. service in another organisation where the employee was transferred from the APS to that organisation with a transfer of function or the employee engaged by that organisation on work within a function is appointed as a result of the transfer of that function to the APS, and such service is recognised for long service leave purposes.

72.3 For earlier periods of service to count there must be no breaks between the periods of service, except where:

a. the break in service is less than one month and occurs where an offer of employment with the Court was made and accepted by the employee before ceasing employment with the preceding employer, or

b. the earlier period of service was with the APS and ceased because the employee was deemed to have resigned from the APS on marriage under the repealed section 49 of the Public Service Act 1922.

72.4 Any period of service which ceased:

a. through termination of the following grounds:

(i) the employee lacks or has lost an essential qualification for performing his or her duties;

(ii) non-performance or unsatisfactory performance of duties;

(iii) inability to perform duties due to physical or mental incapacity;

(iv) failure to complete an entry-level training course;

(v) failure to meet a condition imposed under sub-section 22(6) of the Public Service Act 1999; or

(vi) a breach of the Code of Conduct; or

b. on a ground equivalent to those listed under sub-paragraph 72.4.a above under the repealed Public Service Act 1922: or

c. through voluntary retirement at or above the minimum retiring age applicable to the employee; or

d. with the payment of a redundancy benefit or similar payment or an employer-financed retirement benefit

will not count as service for severance pay purposes.

72.5 Absences from work which do not count as service for any purpose will not count as service for severance pay purposes.

72.6 Salary for the calculation of the severance benefit will be determined by:

a. the employee's salary;

b. the salary of the higher position where the employee had been acting in a higher position for a continuous period of at least twelve months immediately preceding the date on which they were given the Notice of Retirement; and

c. other allowances in the nature of salary, including shift penalties.

73. Retention Periods

73.1.1 An excess employee who does not agree to be retrenched with the payment of a redundancy benefit will be entitled to the following period of retention:

  • 56 weeks where the employee has 20 years or more service or is over 45 years of age; or
  • 30 weeks for all other employees.

73.2 If an employee is entitled to a redundancy payment under the NES, the retention period at clause 1 will be reduced the employee's redundancy pay entitlement under the NES on termination, calculated as at the expiration of the retention period (as adjusted by this clause).

73.3 During the retention period, the Registrar will take reasonable steps to find alternative employment for the employee. Excess employees who apply for transfer to vacancies within the Court will be assessed in terms of their capacity to undertake the position effectively within a reasonable period, rather than in merit competition with other applicants, (unless there are other applicants for transfer who are excess staff of the Court).

73.4 The Registrar may, with four weeks' notice, reduce the excess employee's classification as a means of securing alternative employment for an excess employee. Where an excess employee is reduced in classification before the end of the appropriate retention period, the employee will continue to be paid at their previous level for the balance of the retention period.

73.5 During the retention period, the employee will take reasonable steps to find alternative employment, and actively participate in learning and development activities, trial placements or other arrangements aimed at obtaining a permanent placement. The excess employee may be provided with assistance in meeting reasonable travel and incidental expenses incurred seeking alternative employment, as well as reasonable paid leave.

73.6 Where the Registrar is satisfied that there is insufficient productive work available for the employee within the Court during the remainder of the retention period and that there is no reasonable redeployment prospects in the APS:

  • the Registrar may, (in consultation with and as far as practicable in agreement with the employee) terminate the employee's employment under s.29 of the PS Act; and
  • upon termination, the employee will be paid a lump sum comprising:

- the balance of the retention period (as shortened for the NES under sub-clause 73.2) and this payment will be taken to include the payment in lieu of notice of termination of employment, plus

- the employee's NES entitlement to redundancy pay.

73.7 An excess employee will not be terminated involuntarily:

a. if they have elected to accept an offer of voluntary retrenchment within the previous twelve months but the Registrar has refused to approve it.

b. if there are employees undertaking the same work at that level in the location who wish to accept voluntary retrenchment.

74. Engagement of Consultants

74.1 Occasions may arise where the Court needs to engage consultants to undertake specialist or urgent priority work. As a general principle, the Court will restrict the use of consultants to situations where employees either do not possess the relevant skills, or are not available due to other work requirements.

75. Outsourcing

75.1 In the event the Court decides, or is required, to outsource an existing function currently undertaken by employees of the Court, the provisions of relating to excess employees in this Agreement will apply to the affected employees, except where an employee resigns to accept employment with the successful tenderer.

75.2 The impact upon employees of any decision to outsource an existing Court function will be discussed through the consultative arrangements contained in this Agreement.

Part E - Performance Management Practices

76. Performance Management

76.1 The Court's performance management program is linked to the APS Values and Code of Conduct and APS Capability Framework. The program promotes skill development among employees and recognises the importance of individual and team performance. The program applies to all employees, although simpler arrangements may be used with non-ongoing and Irregular or Intermittent employees, recognising the nature of their employment with the Court. Managers will develop performance agreements with ongoing and long-term non ongoing employees and review these annually or more frequently, as required under the Performance Management Program.

76.2 In recognition of the different working arrangements within registries and chambers, there may be more than one program of performance management required within the Court.

76.3 The Court will review the current Performance Management Program in the first 12 months of this Agreement in consultation with the NCC. Any new program will be:

a. Fair for all employees and linked to the classification WLS;

b. Linked to learning and development initiatives and other processes that facilitate career development;

c. Consistently applied across all areas;

d. Subject to individual employee review rights;

e. Transparent, including appropriate reporting of outcomes to employees, while protecting individual privacy; and

f. Based on regular informal discussion and feedback, rather than relying solely on formal performance discussions.

77. Managing Underperformance

77.1 The following procedures do not apply to:

a. non ongoing employees

b. ongoing employees during the probation period

c. suspected breaches of the APS Code of Conduct

77.2 The Court's performance management cycle will be suspended until any action under these procedures is complete.

77.3 After a reasonable period of feedback and counselling, an employee whose work performance appears to be unsatisfactory will be issued with a formal warning setting out:

a. Details of the relevant standards for the employee's duties and how the employee has failed to meet those standards.

b. Details of how the employee's performance will be assessed.

c. Possible consequences if the employee does not attain and sustain an appropriate standard by the end of a three month assessment period.

77.4 The employee's manager or another person nominated by the District Registrar will review the employee's performance over a three month period. The employee will be provided with regular feedback on their performance during this period.

77.5 The manager or person nominated to undertake the assessment will provide a report to the decision maker (as nominated by the Registrar/District Registrar) at the end of the three-month period. Where the Registrar/District Registrar or other nominated decision maker finds that the employee has not met the required standard, they will advise the employee in writing of the finding, including a copy of the assessment report, and the action proposed, which may include:

  • Termination of employment.
  • Reduction in classification.
  • Reassignment of duties.
  • Some other appropriate action.

77.6 The employee will be given at least 14 days to respond to this proposal and the work assessment report. The Registrar/District Registrar will make his or her decision taking into account the work assessment report, any response by the employee and any other relevant issues and advise the employee in writing of their decision.

77.7 The impact of any medical condition which may affect the employee's performance will be thoroughly investigated and taken into account before a final decision is made. Subject to any medical advice, consideration will be given to whether invalidity or medical redeployment action might be more appropriate.

78. Absence Without Approval

78.1 Employees who are absent from duty without approval will receive no pay or other benefits under this Agreement. Absence without approval may also give rise to misconduct proceedings, and/or proceedings in accordance with the following clause.

79. Non Performance of Duties - Extended Absence Without Approval & Frequent Short Absences

79.1 Where an employee has been absent from duty without approval for a period of not less than five working days, that employee may be advised by the Registrar, by registered post to the employee's last known address, that their employment will be terminated unless within ten working days of the date of the advice being sent:

a. the employee returns to duty, or

b. the employee explains their absence to the satisfaction of the Registrar.

79.2 Where there is a pattern of frequent short periods of a day or more of unauthorised absence the Registrar may:

a. Seek an explanation from the employee

b. Where that explanation is not considered satisfactory, issue a written warning to the employee that their employment will be terminated if there are further absences without satisfactory explanation

c. Terminate the person's employment where there is a further absence or absences without satisfactory explanation

80. Probation

80.1 Employees who are engaged on an ongoing, or non ongoing basis from outside the APS will normally be required to undergo a period of six months probation or three months for non ongoing staff on a contract of six or less months. The Court's performance management scheme, as modified by this Clause, will be the basis for assessing whether probation has been successfully completed. Employees engaged by the Court on probation should be advised of the assessment criteria and method of assessment during the probation period.

80.2 At three months following engagement, an assessment against the performance agreement will be completed. If the employee is:

a. assessed as 'satisfactory' or better, the probation will continue; or

b. assessed as 'marginal' or 'unsatisfactory', the manager will recommend either the continuation of the probation or the termination of employment. Where appropriate, the manager will develop a plan to address any areas of performance deficiency with the employee.

80.3 Probation will be successfully completed for non ongoing employees on contracts of six months or less who are assessed as 'satisfactory' at the three month review.

80.4 For employees not covered by Clause 80.3, at six months following commencement of employment, a further assessment against the performance agreement will be completed. If the employee is:

a. assessed as 'satisfactory' or better, probation will be successfully completed and ongoing employment confirmed; or

b. assessed as 'marginal' or 'unsatisfactory', the manager will recommend the termination of employment, and will advise the employee in writing of the recommendation

80.5 A person's engagement cannot be terminated on the grounds of a failure to satisfy probationary condition if the termination occurs after the period of probation has expired. A notice of termination is not effective until it is communicated to and received by the employee, despite the fact that the instrument may be expressed as taking effect from an earlier date.

80.6 Any recommendation for termination of employment at any stage of the probationary period will be forwarded to the District Registrar. Any such recommendation must include copies of the written advice to the employee of the action proposed, and the invitation to the employee to provide a written comment to the District Registrar on the action proposed.

80.7 The employee may submit to the District Registrar, written comments upon any recommendation for termination of employment, within 14 days of receiving the advice referred to above.

80.8 Upon receipt of the recommendation of the manager, and taking into account any comments provided by the employee, the District Registrar may:

a. advise the employee that the probationary period has been successfully completed or

b. extend the probationary period up to a maximum of 6 months of continuous employment, or

c. terminate employment.

80.9 In the event of termination the employee will be entitled to a one-week period of notice. The District Registrar may terminate employment at any time within this notice period and pay the balance of the notice period as a lump sum.

81. Managing Misconduct

81.1 Misconduct is a breach of the Australian Public Service (APS) Code of Conduct.

81.2 Where misconduct may have occurred the following action will be taken:

a. The Registrar will consider whether the breach, if proven, could amount to misconduct.

b. If the Registrar believes the allegation could amount to misconduct, the Registrar will advise the employee in writing, within a reasonable time, providing details of the allegation and the sanctions that may be imposed under section 15 of the Public Service Act 1999.

c. The Registrar will appoint a person to investigate the allegation of misconduct (the Investigator) against terms of reference to be specified by the Registrar. The terms of reference will specify the person authorised to determine the matter (the Decision Maker). This may be the Investigator, the Registrar, the Registrar's delegate or another person. The Decision Maker and the Investigator will be unbiased.

d. The employee will be advised of the appointment of the Investigator and provided with details of the terms of reference of the investigation. During the investigation, the employee will be given the opportunity to admit or deny the allegation and to make a written and/or oral statement to the Investigator about the allegation.

e. On the conclusion of the investigation, a decision will be made whether there has been a breach of the Code of Conduct.

f. The employee will be provided with a copy of the report and, where a breach of the Code of Conduct has been found, details of sanctions or other action which may be taken. The employee will be given seven, or if agreed more, days to provide comments before a final decision is made.

g. At the expiry of the relevant period, the Decision Maker will consider any additional comments and determine a sanction.

h. The employee may be suspended by the Registrar pending investigation and a final decision, in accordance with APS regulations.

82. Employment Outside the Court

82.1 Employees are required to advise the Registrar of any outside employment. The Registrar or the Registrar's delegate may decide if there is any incompatibility between the employee's duties with the Court and any outside employment and may take appropriate action based on that decision where necessary.

Part F - National and Local Training and Development Initiatives

83. Implementing a National Training and Development Strategy

83.1 The parties covered by this Agreement are committed to building on improvements to the way training and development activities are co-ordinated nationally and locally. To this end the Court will continue with the following initiatives:

a. The Court National Training Program

b. A national training and development network comprising representatives from each Registry which will, among other things, assist in promoting training in their registries, assist in identifying national training priorities and assist in developing the national training strategy

c. National networks of staff from the Court's main operational areas to, among other things:

(i) identify national best practices;

(ii) identify common training needs and strategies to meet those needs;

(iii) examine the possibility of developing national training packages for the Court's staff (where needed, parts of the national training budget may be set aside to assist with this work, subject to NCC endorsement)

83.2 The Court will ensure equity of access to all staff, regardless of location, for learning and development opportunities.

84. Developing a Skilled Workforce

84.1 The Court and its employees acknowledge that participation in appropriate training and development activities are crucial to the development of a skilled workforce able to meet the current and future requirements of the Court and the wider needs of the APS.

84.2 The Court's Performance Management Program will maintain a strong emphasis on training and development.

84.3 Supported by the Court, employees will take responsibility for identifying areas where further development would be of benefit to themselves and the Court. Employees commit to participating in the National Training program, the Court's Performance Management Program and other training run within the Court.

84.4 The Court will provide appropriate training to its ongoing staff including in house training, the National Training Program, information sessions, external courses and conferences. Staff will be provided and expected to attend approximately 5 days' training over the life of this Agreement. Part-time ongoing staff will be provided with training commensurate with their attendance.

84.5 Staff employed on a non ongoing or irregular or intermittent basis will be provided with training appropriate to their role, tenure and other relevant factors.

84.6 Employees are expected to take responsibility for identifying areas where further development would be of benefit to themselves and the Court. These will be reflected in the employee's development plan, which will be developed as part of the Court's Performance Management Program. Employees will maintain a record of training undertaken for review as part of the performance management process.

84.7 District Registrars will identify at the beginning of each financial year that part of their budget dedicated to training and development activities. District Registrars will also prepare an annual training and development program, having regard to any national priorities and the local training and development needs of employees. The input of the RCC will be sought before the program is finalised annually.

84.8 District Registrars will report annually to the Registrar detailing achievements and activities against the training and development program. A copy of this report will be provided to the NCC.

85. Studies Assistance

85.1 The Court is committed to encouraging its employees to pursue study to develop their skills and knowledge in areas of need identified by the Court and has developed a studies assistance policy to this end. This policy may be reviewed from time to time, in consultation with the NCC.

85.2 Generally studies assistance will only be provided for ongoing staff although consideration will also be given to requests from long term intermittent staff.

85.3 The Court will review the Studies Assistance policy within 12 months of commencement of this Agreement and will address among other things whether assistance adequately addresses cost of studies.

86. Professional Membership Fees

86.1 The Court recognises the benefits of membership of professional organisations and will reimburse membership fees where:

a. membership of a professional association is required under State or Territory laws for an employee to undertake their responsibilities for the Court; or

b. membership of a professional association is relevant to the employee's job and there is a demonstrable benefit to the Court.

86.2 Renewal of membership for employees will be considered on a year by year basis.

86.3 Generally professional membership fees will only be paid for ongoing staff although consideration will also be given to requests from long term non-ongoing staff.

87. Temporary Placement Opportunities

87.1 The Federal Court of Australia is committed to management practices which promote workplace diversity and, among other things, use relief opportunities to enhance the personal and professional development of ongoing employees. As far as practicable, relief and acting opportunities will be shared between staff on an equitable basis unless the Court's business needs necessitate a different approach.

87.2 Periods of temporary reassignment are not to be split for the purpose of avoiding payment of higher duties allowance.

87.3 Periods of relief generally fall under three categories; short, medium and long term. The method of selection may vary, but generally would involve:

a. short-term (up to three months) - direct nomination by local management (calling for expressions of interest may be used if this will enhance equality of opportunity or as a means of fostering local or national mobility);

b. medium-term (three to six months) - calling for expressions of interest across the Court and assessment of applications by the manager; and

c. long-term (over six months) - vacancy circular across the Court and normal selection committee assessment arrangements but where 'merit' includes potential for development as a key factor. If advertisement in the Gazette is considered necessary the normal merit selection criteria only are to apply. Where appropriate the opportunity might be shared by two or more applicants.

87.4 District Registrars wishing to provide development opportunities to local staff may fill vacancies of up to 6 months from applicants from within the Registry without the need to advertise nationally.

88. Inter-Registry Mobility

88.1 The Court acknowledges the benefits of mobility and will promote inter-Registry mobility and temporary placements by providing a central pool of funds for meeting associated costs and encouraging the advertising of temporary vacancies nationally, where appropriate. The Court will review the relevant policy as necessary, in consultation with the NCC.

Part G - Working Environment and Environmental Initiatives

89. Valuing Workplace Diversity and Balancing Work and Personal Responsibilities

89.1 The Court and its employees agree:

a. to respect and value the diversity of its workforce; and

b. to ensure that our behaviour and treatment of others is always fair and equitable and free from all forms of discrimination.

89.2 The Court will accommodate the needs and circumstances of all its employees as far as practicable. Specific measures include, but are not limited to, the following:

  • Where employees apply for recreation leave during school holidays to have it declined for operational reasons, the Court will subsidise child care costs up to $25 a day for each child attending school, subject to proof the expense occurred
  • Where staff are required to vary their hours and incur an expense as a result, the District Registrar or equivalent will consider reimbursement subject to evidence of expenditure
  • Providing advice and, where practicable, assistance on arrangements for a phased retirement (Also see Clause 68)
  • Providing advice on adjusting working conditions to best meet personal needs, e.g. leave arrangements accompanying maternity leave
  • Ensuring training activities and meetings are organised to accommodate the work patterns of all staff - as far as possible
  • Considering alternative options where existing employment conditions do not take the individual circumstances of staff into account
  • Making decisions on applications for leave and other entitlements quickly (as far as possible within seven days) and ensuring staff are kept informed of the status of unresolved applications and requests
  • Providing employees with options for having adverse decisions reviewed informally

89.3 The Court will develop information/training sessions on bullying and harassment to complement its Workplace Harassment policy and raise staff awareness of bullying/harassment issues in the first 12 months of this Agreement. These sessions will include all management as well as employees.

90. Ensuring Equity of Treatment Among Registries

90.1 The Court recognises that the relative remoteness and small size of some registries may create special collective and individual needs. The Court is committed to ensuring:

a. Equity of access to training and development.

b. Inclusion in all communication.

c. Opportunity to be represented in forums and networks.

d. Equitable treatment for all staff, based on their personal circumstances.

90.2 The Court will ensure that appropriate funding is available for these purposes.

90.3 Darwin Registry. Government agencies in general have retained such provisions recognising Darwin's remoteness and other local issues. In recognition of the historical factors and the need for the Court to retain parity with government employers in the region the Court will provide the following work and family-oriented conditions to staff and their dependants based in Darwin, for the life of this agreement:

a. One annual return air flight interstate for staff members where there are compelling family reasons to do so.

b. Return air flights interstate for medical emergencies where appropriate local treatment is not available in regard to a staff member or a staff members immediate family.

c. Return air flights interstate for bereavement involving immediate family of a staff member or a staff member's spouse/partner.

d. Additional paid leave to cover travel undertaken under the preceding points.

The District Registrar will approve local arrangements and, if necessary forms, for applying for these entitlements, where necessary clarifying concepts such as 'compelling reasons'.

90.4 Where staff relocate to the Darwin Registry, the Registrar may in special circumstances agree to supplement conditions available in this Agreement. These may also be made available to existing staff, who relocate to Darwin Registry, in appropriate circumstances. This sub-clause will not be used to create new employment conditions. Flexibility Agreements under Clause 4 of this Agreement will be used to formalise any arrangements made under this sub-clause.

90.5 The Court will review these entitlements at the expiry of this Agreement to ensure they remain appropriate.

91. Child and Dependant Care

91.1 The Court will continue to provide emergency child and dependant care rooms or facilities in each Registry.

91.2 The Court will also provide a 'homework room' or similar appropriate facilities for staff with school aged children, as far as this is practicable within local accommodation constraints.

92. Occupational Health and Safety, Security and Accommodation

92.1 The parties will work cooperatively to maintain a safe workplace that is free from bullying and harassment. OH&S and protection from bullying and harassment will be facilitated the Court's Health and Safety Management Arrangements, as agreed with the NCC under sub-section 16(3)(c) of the Occupational Health & Safety Act 1991, and reviewed from time to time.

92.2 The OH&S arrangements will include:

  • processes for continuing consultation with employee representatives on OH&S matters;
  • agreed Designated Work Groups and arrangements for conducting elections for Health and Safety Representatives;
  • terms of office for Health and Safety Representatives and processes for extending the term;
  • access for employee representatives to Designated Work Groups and Health and Safety Representatives lists;
  • establishment and continuation of Health and Safety Committees as necessary;
  • facilities, training, allowances and support for employees involved; and
  • Dispute Settling Procedures which include access to the Fair Work Australia consistent with this Agreement.

92.3 The Court and staff acknowledge the ongoing need to upgrade accommodation and security arrangements in the interests of both staff and people using the Court.

92.4 The Court will communicate proposals and consult with staff and the NCC, or as appropriate RCCs, on the introduction of new or upgraded accommodation and measures to promote a more secure work environment. Staff will have the opportunity to influence these decisions.

92.5 Staff commit to be flexible with the introduction of these changes, for example over issues such as temporary accommodation/relocation, attendance times, work patterns, etc. The Court will seek to minimise any disruption or inconvenience to staff and will be flexible in ensuring that arrangements best accommodate the needs of staff. In designing new accommodation, the Court will have regard to existing standards of accommodation.

92.6 Remote Hearing OHS. Remote hearing co-ordinators are responsible for ensuring that safe work practices and conditions on remote hearings are maintained. Where problems or possible concerns are identified, the co-ordinator should address the issue or, if this is not practicable, refer it to the District Registrar and/or Native Title Registrar.

92.7 Small Workers Compensation Claims. The Court has developed a policy providing for reimbursement for small claims of up to $100 where the person would otherwise have an entitlement for compensation. This aims to avoid the need for compensation claims for small one-off amounts. This does not affect the right of the employee to subsequently lodge a compensation claim.

93. Employee Assistance Program

93.1 Employees and members of their families have access to the Court's Employee Assistance Program for personal or work related problems.

94. Health and Well-Being of Employees

94.1 The Court is committed to measures that will promote a healthy and productive workforce. To this end it will:

  • Offer annual influenza injections to all employees
  • Offer annually a basic medical screening (as provided by Health Services Australia) to all employees
  • Provide funds for the payment of yearly gym, fitness/yoga class or similar membership for ongoing employees and long-term non-ongoing employees on request. This will allow employees to take advantage of cheaper rates for annual membership, without the need for a large outlay. Employees will repay the cost over 12 months through fortnightly salary deductions from after tax salary. Any balance owing on cessation of employment will be repaid to the Court from final moneys. The Court may review the existing policy on arrangements, which operate on the basis that there is no cost, or FBT liability, to the Court.

94.2 District Registrars will continue to consult with staff and local RCCs on health and fitness issues and, subject to this consultation, will maintain existing healthy lifestyle and healthy workplace initiatives over the life of this Agreement.

95. Use of Taxis After Hours

95.1 Overtime. Where an employee is directed to work after 7:00pm, the Court will provide Cabcharge for the journey home of that employee, subject to prior approval by the relevant manager. More detailed arrangements are available in the Court's Chief Executive Instructions as apply from time to time.

95.2 Unfamiliar Locations. Staff travelling interstate who are staying in an unfamiliar area and have concerns regarding their personal safety may also use a taxi for work-related travel, subject to seeking prior approval where practicable.

96. Environmental Initiatives

96.1 The Court will continue to implement practical measures in consultation and collaboration with staff and their representatives to reduce its carbon footprint, promote environmental sustainability, minimise the unnecessary consumption of resources and reduce operational and administrative costs through a range of improved workplace practices. These measures will be oversighted nationally by the NCC with RCCs oversighting local initiatives. The Court's Environmental Initiatives policy will continue to operate over the life of this agreement, subject to any amendments to it.

Part H - Consultative & Dispute Resolution Processess

97. Effective Communication and Consultative Committees

97.1 The parties covered by this Agreement agree to the continuation of RCCs in all Registries of the Court and the re-nomination/election of members of the NCC as soon as practicable after commencement of this Agreement. Representatives on these Committees will comprise:

  • employees (nominated and/or elected)
  • the Community and Public Sector Union
  • management representatives

97.2 NCC representatives will be offered training in how to undertake their role effectively within 3 months of their appointment.

97.3 Frequency of Meetings. The NCC and RCCs will meet at least three times annually and as far as possible, RCCs will meet a month before the NCC.

97.4 Communicating effectively - The Court and its employees acknowledge the need for effective communication, consultation and the sharing of information at all levels of the organisation. The Court will ensure all staff are:

  • Informed and have access to information
  • Involved in decision making process that affect them as far as practicable
  • Informed of Court initiatives, achievements and proposals
  • Encouraged to provide feedback and share knowledge with other staff

97.5 The Court acknowledges the important role regular team meetings play in meeting these objectives. These will generally occur monthly although arrangements may need to be adapted to meet the needs of particular groups of staff. Agendas for team meetings will include an update on Court events as well as workplace communication.

97.6 Workplace communication will be included in the training provided to managers in the Court's National Training Program and may also be offered by external providers if required.

97.7 The provisions in Clause 97 of this Agreement relating to consultation are in addition to, and not intended to affect the operation of, the consultation provisions in Clause 100 of this Agreement.

98. National Consultative Committee

98.1 The NCC will undertake a consultative and reporting function. It will consult, review and report to the Registrar and Executive Director, Corporate Services on the progress and implementation of initiatives identified in this Agreement including but not limited to:

a. Application of the Enterprise Agreement

b. Classification and organisation reviews

c. Workplace Diversity, OHS and related policies

d. Implementation of technological initiatives and changes

e. The training and development needs of staff

f. Enhancements to the Performance Management Program

g. Workplace environment issues in Chambers, e.g. TOIL

h. The development and review of Work Level Standards

i. The operation of temporary placement arrangements

j. Design and implementation of organisation reviews

k. Operation of RCCs

l. Arrangements for child and dependent care

98.2 The NCC will have the authority to set up sub committees and commission reports through the subcommittees or the RCCs on the progress of the implementation of this Agreement and issues relating to achieving 'best practice'. Such issues may include:

a. Ensuring that the quality of service delivery to the Court's clients is maintained;

b. Workplace Diversity, OHS and related policies

c. Ensuring access and equity issues are considered

d. Ensuring participative work practice principles are adhered to.

98.3 The NCC will provide the reports and resultant recommendations to the Registrar and/or Executive Director, Corporate Services for consideration and action.

98.4 The provisions in Clause 98 of this Agreement relating to consultation are in addition to, and not intended to affect the operation of, the consultation provisions in Clause 100 of this Agreement.

99. Regional Consultative Committees

99.1 RCCs will continue to operate, consistent with a charter which may be revised from time to time in consultation with the NCC. The role of RCCs includes communicating with the NCC and providing a forum for discussion and consultation on local issues including:

a. OH&S and Workplace Diversity

b. Local classification and work organisation issues.

c. Local training issues and priorities.

d. Local HR issues and employee concerns.

e. Monitoring issues relating to irregular or intermittent employees including access to appropriate facilities, e.g. a place to store personal items safely and securely.

f. Ensuring that emergency care rooms and arrangements are properly maintained, consistent with any guidelines issued by the OHS Committee.

99.2 Frequency of Meetings. The NCC and RCCs will meet at least three times annually and as far as possible, RCCs will meet a month before the NCC.

99.3 The provisions in Clause 99 of this Agreement relating to consultation are in addition to, and not intended to affect the operation of, the consultation provisions in Clause 100 of this Agreement.

100. Consultation on Major Changes

100.1 This clause applies where a decision is made to introduce major changes in a work area that are likely to have significant effects on employees, other than where provision is already made elsewhere in this enterprise agreement regarding a specific major change. This clause is in addition to, but not inconsistent with, other clauses in this Agreement relating to workplace consultation.

100.2 Where a definite decision is made to introduce major changes in program, organisation, structure or technology that are likely to have significant effects on employees, the Registrar must notify the employees who are likely to be affected by the proposed changes and their representatives, if any.

100.3 Significant effects include:

a. termination of employment;

b. changes in the composition, operation or size of the Court's workforce or in the skills required;

c. the elimination or diminution of job opportunities, promotion opportunities or job tenure;

d. alteration in hours of work;

e. the need to retrain employees;

f. the need to relocate employees to another workplace; and

g. the restructuring of jobs.

Registrar to Discuss Major Changes

100.4 The Registrar must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in sub clause 100.2, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

100.5 The discussions must commence as early as practicable after a definite decision has been made to make the changes referred to in sub clause 100.2.

100.6 For the purposes of such discussion, the employees concerned and their representatives, if any, are to be provided in writing all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees. The Registrar is not required to disclose confidential or commercially sensitive information to the employees.

100.7 The Court will provide employees and their representatives, including unions, with a bona fide opportunity to influence the decision maker prior to a decision being made. Any feedback must be considered in the decision making process and employees and their representatives, including unions, will be advised of the outcome of the process, including how their feedback was considered in the decision making process.

101. Resolution of Agreement Disputes

101.1 If a dispute relates to a matter arising under this agreement, or the NES, the parties to the dispute must first attempt to resolve the matter at the workplace level by discussions between the employee or employees concerned and the relevant supervisor/manager.

101.2 If a resolution to the dispute has not been achieved after discussions have been held in accordance with sub clause 101.1, the parties to the dispute will endeavor to resolve the dispute in a timely manner either through discussions with more senior levels of management where appropriate or through alternative dispute resolution methods.

101.3 If discussions at the workplace level do not resolve the dispute, and all appropriate steps have been taken in accordance with sub clauses 101.1 and 101.2, a party to the dispute may refer the matter to Fair Work Australia.

101.4 Fair Work Australia may deal with the dispute in 2 stages:

a. Fair Work Australia 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 Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

i. arbitrate the dispute; and

ii. make a determination that is binding on the parties.

Note: If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009. Therefore, an appeal may be made against the decision.

101.5 The Court or an employee who is a party to the dispute may appoint another person, organisation or association to accompany and/or represent them for the purposes of this term.

101.6 Resolution of disputes is to occur in good faith by following the same principles as the good faith bargaining requirements at section 228 of the Fair Work Act 2009.

101.7 While the parties are trying to resolve the dispute using the procedures in this term:

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 Registrar 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.

101.8 The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.

101.9 Policies and Guidelines subject to Dispute Resolution Process

a. The operation of this Agreement is supported by policies, procedures, and guidelines that as amended from time to time, will continue to apply to all employees. These policies and guidelines provide employees and managers with a more comprehensive understanding of provisions and conditions relating to their employment and responsibilities as employees and managers.

b. If there is any inconsistency between the policies, procedures and guidelines and the terms of this Agreement, the express terms of this Agreement will prevail.

c. All directions, policies, procedures and guidelines which support the operation of this Agreement may be made or varied from time to time following consultation with employees and their representatives, and will apply in the form they are in as at the time of any relevant action/decision. Where the policy, procedure or guideline materially impacts employees, the workplace or their access to the conditions or entitlements the policy, procedure or guideline may only be made or varied in consultation with, and as far as practicable the agreement of, the parties covered by this Agreement (except with regard to the policy provided for in Clause 33).

d. Policies, procedures and guidelines cannot alter employees' conditions or entitlements contained in this Agreement.

e. Disputes over the content, application or interpretation of any policies, procedures or guidelines which support the operation of this Agreement will be subject to the Dispute Resolution procedures of this Agreement.

f. Guidelines, policies and procedures shall be published on the Court intranet.


 

102 Signatures of employer and bargaining representatives

102.1 The Federal Court Enterprise Agreement 2011 – 2014 has been made and approved under the Fair Work Act 2009.

…………………………………………………………. …………….(date)

Registrar

Federal Court of Australia

Bargaining representatives

…………………………………………………………. …………….(date)

National President

Community and Public Sector Union

……………………………………………………………………. ………………(date)

……………………………………………………………………. ………………(date)

……………………………………………………………………. ………………(date)

 

Attachment 1

Federal Court Salary Rates (Non legal)

COURT
DESIGNATION
APS
Classification
CURRENT
SALARY RATE
Date of
Commencement

(+3%)
WEF
01/07/2012
(+3%)
WEF
01/07/2013
(+3%)
Federal Court Staff Level 1 APS Level 1 39450 40633 41852 43108
40775 41998 43258 44556
41880 43136 44430 45763
43598 44906 46253 47641
Federal Court Staff Level 2 APS Level 2 44646 45985 47365 48786
45876 47252 48670 50130
47078 48490 49945 51443
48303 49752 51245 52782
49509 50994 52524 54100
Federal Court Staff Level 3 APS Level 3 50853 52379 53950 55568
52173 53738 55350 57010
53502 55107 56760 58463
54885 56532 58228 59975
Federal Court Staff Level 4 APS Level 4 56681 58381 60132 61936
58480 60234 62041 63902
60003 61803 63657 65567
61540 63386 65288 67247
Federal Court Staff Level 5 APS Level 5 63218 65115 67068 69080
65197 67153 69168 71243
67033 69044 71115 73248
Federal Court Staff Level 6 APS Level 6 68279 70327 72437 74610
69977 72076 74238 76465
71893 74050 76271 78559
75509 77774 80107 82510
78432 80785 83209 85705
Federal Court Manager Level 1 Executive Level 1 87390 90012 92712 95493
94380 97211 100127 103131
Federal Court Manager Level 2 Executive Level 2 100746 103768 106881 110087
106296 109485 112770 116153
114245 117672 121202 124838
118070 121612 125260 129018

Federal Court Salary Rates (Legal)

COURT
DESIGNATION
APS
CLASSIFICATION
CURRENT
SALARY RATE
Date of
Commencement
(+3%)
WEF01/07/2012(+3%) WEF01/07/2013(+3%)
Federal Court Legal 1 APS Level 3 57095 58808 60572 62389
  APS Level 3 60588 62406 64278 66206
  APS Level 4 64496 66431 68424 70477
  APS Level 5 68327 70377 72488 74663
  APS Level 6 72973 75162 77417 79740
  APS Level 6 77009 79319 81699 84150
  APS Level 6 81002 83432 85935 88513
  Executive Level 1 92087 94850 97695 100626
  Executive Level 1 99077 102049 105110 108263
  Executive Level 1 110992 114322 117752 121285
Federal Court Legal 2 Executive Level 2 128581 132438 136411 140503
  Executive Level 2 133620 137629 141758 146011

Notes:

1. Federal Court Legal designations equivalent to Federal Court Staff Levels 1 to 6 refer to Federal Court Legal 1 (pay points 1 to 7). Progression between different classification levels (e.g.; FCS/APS Level 3 to FCS/APS Level 4) within this band requires work to be available at the higher level, a satisfactory or better standard of work performance and the Registrar's written approval to progression. Alternatively, a competitive selection process may be conducted.

2. Federal Court Legal designations equivalent to Federal Court Manager Levels 1 and 2 refer to Federal Court Legal 1 (pay points 8 to 10) and Federal Court Legal 2.

3. Double lines are advancement barrier points within Federal Court Manager Level 2 and Federal Court Legal 1 salary ranges. Progression beyond these barriers requires work to be available at the higher level, a satisfactory or better standard of work performance and the Registrar's written approval to progression. Alternatively, a competitive selection process may be conducted.


Attachment 2 - Supported Wage Payments for Employees with a Disability

Employees Eligible for a Supported Wage

1. These provisions define the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this Agreement. In the context of these provisions, the following definitions will apply:

supported wage system - means the Commonwealth Government system to promote employment for people who cannot work at full wages because of a disability, as documented in 'supported wage system: Guidelines and Assessment Process'.

accredited assessor - means a person accredited by the managing unit established by the Commonwealth under the Supported Wage System to perform assessments of an individual's productive capacity within the Supported Wage System.

disability support pension - means the Commonwealth pension scheme to provide income security for persons with a disability as provided for under the Social Security Act 1991, as amended from time to time, or any successor to that scheme.

assessment instrument - means the form provided for under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System.

 

Eligibility Criteria

2. Employees covered by these provisions will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this Agreement, because of the effects of a disability on their productive capacity and who meet the impairment criteria test for a Disability Support Pension.

3. These provisions do not apply to any existing employee who has a claim against the Court which is subject to the provisions of worker's compensation legislation or any provision of this Agreement relating to the rehabilitation of employees who are injured in the course of their employment.

4. These provisions also do not apply to employers in respect of their facility, program, undertaking, service or the like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider and sheltered employer to people with disabilities who are in receipt of or who are eligible for a Disability Support Pension, except with respect to an organisation which has received recognition under section 10 or section 12A of the Disability Services Act 1986, or if a part only has received recognition, that part.

Supported Salary Rates

5. Employees to whom these provisions apply will be paid the applicable percentage of the salary prescribed by this Agreement for the class of work which the person is performing according to the following schedule:

Assessed Capacity (para. 6) Percentage (%) of Prescribed Salary
10%* 10
20% 20
30% 30
40% 40
50% 50
60% 60
70% 70
80% 80
90% 90

* note - where a person's assessed capacity is 10%, they will receive a high degree of assistance and support.

Assessment of Capacity

6. For the purpose of establishing the percentage of the salary rate to be paid to an employee under this Agreement, the productive capacity of the employee will be assessed in accordance with the Supported Wage System and documented in an assessment instrument.

Lodgement of Assessment Instrument

7. All assessment instruments under the conditions of these provisions, including the appropriate percentage of the wage under this Agreement to be paid to the employee, will be:

  • lodged by the Court with Fair Work Australia, and
  • agreed and signed by the parties to the assessment.

Review of Assessment

8. The assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonable request for such a review. The process of review will be in accordance with the procedures for assessing capacity under the Supported Wage System.

Other Employment Conditions

9. Where an assessment has been made, the applicable percentage will apply to the wage only. Employees covered by these provisions will be entitled to the same terms and conditions of employment as all other workers covered by this Agreement paid on a pro rata basis.

Workplace Adjustment

10. Where a person is employed under these provisions, the Registrar will take reasonable steps to make changes in the workplace to enhance the employee's capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.

Trial Period

11. In order for an adequate assessment of the employee's capacity to be made, the Registrar may employ a person under these provisions for a trial period not exceeding 12 weeks, except that in some cases, additional work adjustment time (not exceeding four weeks) may be needed.

12. During that trial period the assessment of capacity will be undertaken and the proposed wage rate for a continuing employment relationship will be determined.

13. The minimum amount payable to the employee during the trial period will be no less than $71 per week. This amount will be updated as required.

14. Where the Registrar and the employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of the assessment under paragraph 6.


Attachment 3 - Federal Court Allowances

Allowance Incidence EA Reference Amount at commencement $
On Call Fortnightly 42 100
First Aid, HCO, Fire Warden OHS Rep Fortnightly 44 35
Language First hour Hourly Per Day 45 201050

Attachment 4 - Principles for Workplace Delegates

The Court recognises employee representational rights and workplace delegate rights in accordance with government policy, and will provide facilities and resources available for delegates to use on a reasonable basis.

The role of union workplace delegates is to be respected and facilitated.

The Court and workplace delegates must deal with each other in good faith.

The rights of union workplace delegates and recognised representatives include but are not limited to:

  • the right to be treated fairly and to perform their role as workplace delegate without any discrimination in their employment;
  • recognition by the Court that endorsed workplace delegates speak on behalf of their members in the workplace;
  • the right to participate in collective bargaining on behalf of those who they represent, as per the Fair Work Act;
  • the right to reasonable paid time to provide information and seek feedback from employees in the workplace;
  • reasonable paid time off to represent to represent union members in the Court at the relevant union forums;
  • reasonable access to Court facilities for the purpose of carrying out work as a delegate and consulting with workplace colleagues and the union, subject to Court policy and protocols;
  • reasonable paid time during normal working hours to consult with colleagues in the workplace;
  • reasonable access to appropriate training in workplace relations matters including training provided by a union;
  • the right to consultation, and access to relevant information about the workplace and the Court;
  • the right to reasonable paid time to represent the interests of members to the employer and industrial tribunals;
  • reasonable paid time to attend delegate meetings and meet with union staff and officials in the workplace.

The Court will seek to facilitate official union communication with employees by means that may include:

  • use of e-mail as a means of communicating with employees and other means of information sharing including written materials, electronic billboards and access to websites; and
  • group or individual meetings between employees and their representatives.

In exercising their rights, workplace delegates and the union will consider operational issues, departmental policies and guidelines and the likely effect on the efficient operation of the Court and the provision of services by the Commonwealth.