Your questions answered

Sherryl Saunders is an industrial officer for IEUA-QNT and Lisa James is an organiser for the IEUA NSW/ACT Branch. They answer your industrial and legal questions as they relate to state laws and regulations.

Dear Sherryl

I am an assistant at a community kindergarten which is managed by a voluntary committee. I am sometimes asked to attend the kindergarten outside my designated working hours, including on weekends, to attend fetes, open days, working bees and the like. Do I have to attend? If so, should I be paid extra for my attendance?

Carol

Dear Carol

The answer to your question depends on whether the requirement to attend events outside your ordinary working hours is provided for in your collective agreement. If your collective agreement states that you are required to attend, then you must do so. It should also state that you will be paid for attendance at such events.

It is more likely that the kindergarten’s collective agreement is silent on attendance at events held outside ordinary working hours. As a general rule, if the employer mandates an employee’s attendance at such events, the employee should be appropriately compensated, either through additional remuneration or by time off in lieu. Most collective agreements provide for overtime rates for directed work performed by assistants outside ordinary working hours.

Where there is no collective agreement, the Children’s Services Award applies. Overtime rates for work performed outside an employee’s ordinary hours of work, including on weekends, are specified in the Award and there is also provision for time off in lieu instead of payment of overtime, where the employer and employee agree.

If the employer does not wish to pay employees to attend events outside their ordinary working hours, then employees cannot be compelled to attend. Attendance by an employee would then be on a voluntary basis.

Sherryl

Dear Tina

I am a four year trained university qualified teacher in my fifth year of employment with a privately owned long day care centre. I work 40 hours per week and take an RDO either every month or I can accumulate up to five days at a time and take them as a block. I am very happy with this arrangement as it allows me to accrue my annual leave to more than four weeks per year. Before I start a family, my husband and I are planning a three month overseas trip in late 2019. Currently I have nine weeks annual leave accrued, but recently my employer has requested I take some annual leave as soon as possible. Can my employer direct me to take annual leave when I don’t need to or want to?

Donna

Dear Donna

Unfortunately, your employer can direct you to take any accrued annual leave if the amount is considered to be excessive. Under the federal Educational Services (Teachers) Award 2010, Schedule B – Hours of Work and Related Matters clause B.6.4 (b), for teachers employed in early childhood services operating for at least 48 weeks per year, excessive leave is considered to be more than eight weeks.This award applies if you are not covered by a collective agreement.

However, this award provision does not negate the opportunity to discuss your overseas plans with your employer and try and reach an outcome that is acceptable to both of you. Remember, any agreement between you and your employer should be in writing.

If an amicable outcome cannot be reached in regard to reducing the excess annual leave, your employer, under clause B.6.4 (b), can direct you in writing to take one or more periods of paid annual leave. However, the employer’s request cannot result in your remaining annual leave being less than six weeks. You cannot be compelled to take the directed paid annual leave with less than eight weeks notice, or after 12 months has passed from the time of the request. For further advice contact your IEU Organiser.

Tina