Dimothenis Pty Ltd T/A KFC Vermont; Athu Holdings Pty Ltd T/A KFC Bondi; Turner Retail Pty Ltd (AG2010/14742)

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1 [2010] FWAA 8127 DECISION Fair Work Act 2009 s.185 Approval of enterprise agreement Dimothenis Pty Ltd T/A KFC Vermont; Athu Holdings Pty Ltd T/A KFC Bondi; Turner Retail Pty Ltd (AG2010/14742) KFC NATIONAL ENTERPRISE AGREEMENT 2010 Fast food industry COMMISSIONER RAFFAELLI SYDNEY, 20 OCTOBER 2010 Application for approval of the KFC National Enterprise Agreement [1] An application has been made for approval of an enterprise agreement known as the KFC National Enterprise Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a multi-enterprise agreement. [2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met. [3] The Shop Distributive and Allied Employees Association, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation. [4] The Agreement is approved and, in accordance with s.54, will operate from 27 October The nominal expiry date of the Agreement is 11 September COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code G, AE PR502935> 1

2 1. TITLE This agreement shall be known as the 'KFC National Enterprise Agreement la. ARRANGEMENT 1. TITLE... 1 la. ARRANGEMENT SCOPE DATE AND PERIOD OF OPERATION DEFINITIONS CONTRACTS OF EMPLOyMENT WEEKLY EMPLOYEE RATES OF PAY ALLOW ANCES HOURS AND ROSTERING OVERTIME MEAL BREAKS REST PAUSES PAYMENT OF WAGES SUPERANNUATION TRAINING PUBLIC HOLIDAyS ANNUAL LEAVE PAID PERSONAL / CARER'S LEAVE UNPAID LEAVE DEFENCE FORCES & COMMUNITY SERVICES LEAVE UNIFORMS REIMBURSEMENT OF TRAVELLING EXPENSES OTHER THAN DELNERY DRIVERS LONG SERVICE LEAVE COMPASSIONATE LEAVE P ARENTAL LEAVE AND FLEXIBLE WORK ARRANGEMENTS JURY SERVICE... '" TERMINATION OF EMPLOYMENT - WEEKLY EMPLOYEES ABANDONMENT OF EMPLOYMENT CONTINUITY OF EMPLOYMENT COPY OF AGREEMENT DISPUTES PROCEDURE DISCIPLINARY PROCEDURE SAFETy ACCIDENT PAy FACILITIES FLEXIBILITY TERM CONSULTATION TRADE UNION TRAINING LEAVE SEXUAL HARASSMENT UNION DELEGATE UNION RECOGNITION AND UNION MEMBERSHIP SIGNATURES SCHEDULE A: KFC PARTIES SCHEDULE B: DISABLED WORKERS SCHEDULE C: REDUNDANCY - WEEKLY EMPLOyEES... 37

3 2. SCOPE This agreement shall apply to the franchisees and their associated companies listed in the attached Schedule A, operating food outlets (other than Pizza Hut food outlets), and all employees as defined whether or not they are members of the Shop, Distributive and Allied Employees' Association. This agreement shall cover, amongst those employees covered by this agreement without limitation, employees in the employer's commissaries and home delivery call centres. The terms of this agreement shall prevail over the terms of any award or any order of Fair Work Australia that would otherwise apply. 3. DATE AND PERIOD OF OPERATION 3.1 This agreement shall take effect from the beginning of the first pay period commencing on or after 7 days date of approval by employees, and shall remain in force until 11 September By no later than six weeks prior to the expiry of the term of this agreement the employer and the Union will commence negotiations regarding the terms and conditions of employment which are to apply after the expiry of the term of this agreement. 4. DEFINITIONS The following definitions are to be applied in interpreting the subsequent provisions of this agreement unless the context indicates otherwise. Act Broken Shift Delivery Driver / s Employee/ s Employer/s FWA Shift Supervisor Spouse Unless the context provides otherwise, the Fair Work Act or any replacement to it. For full-time, part-time and part-time flex employees where the shift is interrupted for more than one hour. An employee engaged in the delivery of the employer's products to customers away from the employer's premises. All Team Members as defined but does not include employees classified as managers, trainee managers, cadet managers or employees in any other managerial position. The franchisees and their associated companies listed in the attached Schedule A operating food outlets (other than Pizza Hut food outlets). Fair Work Australia or its successors. An employee other than a manager (of any description) or a cadet manager, placed in charge of running of shifts. Includes a partner in a de facto relationship. 2

4 Team Member / s An employee principally engaged in one or more of the following activities: taking orders filling orders preparing food items selling food items delivering or organising the delivery of food items to customers or to the employer!s outlets. Trainee Employee/ s An employee with less than 6 months service who has not yet completed Cross Certified training. Where an employee is re-engaged by an employer covered by this agreement, all prior service shall be recognised. Union The Shop, Distributive and Allied Employees! Association. Weekly Employee/ s A full-time, part-time or part-time flex employee engaged on a weekly contract of employment. 5. CONTRACTS OF EMPLOYMENT All employees covered by this agreement shall be employed on either a full-time, part-time, part-time flex or casual basis as follows: 5.1 Full-time Employees Full-time employees will be engaged by the week and work 38 hours per week Full-time employees will not be engaged for less than 5 consecutive hours per shift excepting for meal breaks Full-time employees will be paid an ordinary hourly rate equal to the appropriate weekly rate divided by Part-time Employees A part-time employee shall mean an employee engaged on a weekly contract of service who works from week to week between 8 and 35 hours varying in accordance with operational requirements, for not less than three hours per shift rostered in accordance with the provisions of clause 8, Hours and Rostering. The foregoing may be varied so that part-time employees may be rostered for up to a maximum of 37 hours per week or 148 hours per 4 week cycle, to meet seasonal demands during December, January and over the Easter school holidays, or other periods agreed in writing with the Union Part-time employees will be paid at an ordinary hourly rate equal to the appropriate weekly rate divided by 38. 3

5 5.2.3 Part-time employees shall be eligible for other benefits under this agreement on a proportionate basis. In calculating entitlements pursuant to this subclause all ordinary hours of a part-time employee shall be included in the calculation The employer acknowledges the benefits of part-time employment over casual employment for both the employer and the employee. The employer is thereby committed to greater use of part-time employees. 5.3 Part Time Flex Employees - School-based Trainees Only A part time flex employee shall mean a school-based trainee employee engaged on the same basis as a part-time employee for all purposes of this agreement, except: 5.3.1(a) 5.3.1(b) Part-time flex employees shall be paid at the ordinary hourly rate equal to the appropriate weekly rate divided by 38 plus a 12.5 percent loading. The loading shall be payable for all purposes except for overtime and on public holidays [Explanatory note - the loading is not subject to penalty addition]. The 12.5 percent loading shall be in lieu of payment for Sick Leave and Annual Leave only. Part time flex employees shall be otherwise subject to the remaining sick leave and annual leave provisions of this Agreement In all other respects, part-time flex employees are subject to the provisions applicable to other part-time employees Existing employees at the date of this agreement coming into operation may, by agreement with the employer, change their employment status to become a part-time flex employee Existing part-time employees at the date of this agreement coming into operation who agree to convert to part-time flex employment shall be entitled to exhaust all accrued sick leave and annual leave on a paid basis until such time as those accrued entitlements are exhausted. 5.4 Casual Employees Casual employees will be engaged by the hour and will receive payment for a minimum of 21/2 consecutive hours per engagement (2 hours for an employee receiving the trainee rate). Casual employees will be paid at an ordinary hourly rate equal to the appropriate weekly rate divided by 38 plus a loading as indicated in the following table. Date Casual Loadin-. From commencement of agreement 21% From first pay period on or after 1 September % From first pay reriod on or after 1 September % 4

6 The casual rate shall be increased to a total of 200% for all work performed on the holidays referred to in clause 15, Public Holidays The provisions of the following clauses shall not apply to casual employees: Public holidays (except as to subc1auses 15.1, 15.2 and 15.3) Annual Leave Sick leave Paid Personal/Carer's Leave Defence Force leave Unpaid leave Compassionate leave (except for unpaid compassionate leave) Jury service (except as to unpaid jury service) Termination of employment - weekly employees Trade union training leave Redundancy and introduction of change - weekly employees Upon engagement employees will be informed by the employer of their basis of engagement i.e. full-time, part-time, part-time flex or casual At the employer's discretion, casual employees can be required to accept employment as part-time employees. Casual employees employed after the date of this agreement coming into operation may also be required to change their employment status to become a part-time flex employee. 5.5 National Employment Standards etc Inclusion of the National Employment Standards or other terms of the Act in this agreement does not render them a term of the individual contract of employment except where the legislation provides otherwise. 5.6 Savings Existing employees at the date of this agreement coming into operation shall not suffer a reduction in their ordinary hourly rate (including Sunday penalty) or any existing allowance solely as a result of the introduction of this agreement Existing employees as at 18 December 1998 who did not regularly work on Sundays, may have voluntarily elected in writing to work on Sundays at no additional penalty. Existing employees as at 18 December 1998 required to work on Sunday by the employer will, however, be entitled to the benefit of the savings provision in above Casual and part-time employees employed prior to 24 February, 1995 entitled to daily or weekly minimum engagements in excess of those prescribed in this agreement shall have those minimum engagements preserved without limit Existing employees will not be replaced by other employees earning a lower rate solely as a result of the introduction of this agreement. 5

7 5.6.5 Shift supervisors who prior to 12 December 2005, worked additional shifts performing normal Team Member duties and were paid at Shift Supervisor rates for performing such duties shall continue to receive that rate of pay. 6. WEEKLY EMPLOYEE RATES OF PAY 6.1 The minimum rates of pay will be the following percentages (Table A) of the rates prescribed for the appropriate classification in Table B. Table A % 15 years of age and under years of age years of age years of age years of age years of age years of age and over 100 f.f.p.p on or after f.f.p.p on or after the 1 July 2011 commencement of this agreement $ per week $ per week $ $ Note that if FWA hands down an additional wage increase such that the award rate exceeds the agreement rate, then the employer will be required to make up the difference. 6.2 Delivery Drivers Delivery drivers employed under the terms of this Agreement shall be paid those rates specified in Table A and Table B above. However, no delivery driver will be paid less than the 18 year old rate Where required to provide and maintain a suitable vehicle as part of their duties of delivering company products to customers, de lively drivers shall receive the following vehicle reimbursement amount as full compensation for the costs incurred - f.f.p.p on or after f.f.p.p on or after the 1 July 2011 commencement of this agreement $ per delivery $ per delivery 6

8 KFe NATIONAL ENTERPRISE AGREEMENT 2010 $1.69 $ Shift Supervisors Shift Supervisors shall be paid at 105% of the weekly rate for other than delivery drivers Where a Shift Supervisor is offered to work an additional shift or shifts by the employer to perform ordinary team member duties, the Shift Supervisor may, by agreement with the employer, accept to work the additional shift at the appropriate Team Member rate of pay. The operation of this paragraph is subject to the savings provision contained at clause Trainee employees other than delivery drivers shall be paid at 90% of the appropriate weekly rate. 6.5 Weekly rates in this clause shall be rounded to the nearest 10 cents. 6.6 Mobile Phones Delivery employees shall not be required to provide a mobile phone as part of their duties. Where it is mutually agreed between the manager and employee beforehand than an employee will use their own mobile phone as part of their duties, the employee will be reimbursed the cost of calls incurred on the employer IS behalf. 6.7 Mixed Functions Employees engaged for more than 2 hours during one day or shift on duties carrying a higher rate than their ordinary classification shall be paid the higher rate for such day or shift. If engaged for two hours or less during one day or shift the employee shall be paid the higher rate for the time worked only. 6.8 Extra rates in this agreement are in substitution for, not cumulative with, other rates arising under this agreement. 7. ALLOWANCES 7.1 Allowances will be calculated to the nearest 5 cents, except for the private kilometerage rate which shall be to the nearest cent. 7.2 Broken Shift Allowance Weekly employees engaged on a broken shift shall be paid the daily allowance specified in the table below. 7.3 Meal Allowance Employees required to work overtime for more than two hours on any day, without being notified on the previous day or earlier of such requirements to work overtime, 7

9 will either be supplied with a meal by the employer or be paid the meal money allowance specified in the table below. 7.4 First Aid Allowance Employees required by the employer to act as First Aid Attendants shall receive the additional flat payment specified in the table below for each day they are so required. Payment of the allowance will be subject to employees maintaining their qualification as required by the appropriate accrediting authority. Clause Allowance f.f.p.p on or after f.f.p.p on or the after 1 July commencement 2011 of this agreement 7.2 Broken Shift $ 3.75 $ Meal Allowance $ $ First Aid $ 2.35 $ Private (a) kilometerage $ 0.62 $ HOURS AND ROSTERING 8.1 All ordinary hours of work will be worked within a spread of eleven hours, inclusive of breaks, each day Monday to Sunday. 8.2 The maximum engagement an employee may be rostered on any shift shall be 10 hours exclusive of meal breaks. 8.3 All rosters for full-time employees shall provide for 152 hours over any 4 week cycle. 8.4 Rostered hours shall be worked on not more than 5 shifts in each week, provided that rostered hours may be worked on 6 shifts in one week if in the following week rostered hours are worked on not more than 4 shifts. An employee will only work more than 6 consecutive shifts over adjoining weeks at ordinary rates at the employee's election. 8.5 The maximum number of ordinary hours a full-time employee, or a part-time employee working extended seasonal hours in accordance with subclause 5.2.1, may be rostered to work in any week shall be 44 subject to the limitation in 8.3 above. 8.6 All employees must be rostered in such a way that they shall receive at least two consecutive days off each fortnight. 8.7 There shall be a minimum break of 10 hours between an employee's finishing time on one shift and commencing time on the next shift (including overtime). At the regular changeover of shifts (ie no more than once per week), 8 hours may be substituted for 10 hours. 8.8 The employer shall determine a roster setting out the hours to be worked by each fulltime, part-time and part-time flex employee in any week which shall be displayed 8

10 KFe NATIONAL ENTERPRISE AGREEMENT 2010 seven days in advance. Employees may be required to sign in acceptance of their weekly hours. The roster shall not be varied within the 7 day period other than by mutual agreement. 8.8 Employees who repeatedly fail to give sufficient notice to the employer of their inability to work a rostered shift will be subject to disciplinary action in accordance with clause 31 Disciplinary Procedure. 8.9 The employer shall notify employees of the start and finish dates of the roster cycle A casual employee not advised of a cancelled shift at least one hour before the employee was to commence work, shall receive a payment of 2 hours pay The employer shall take into account an employee's study commitments when rostering, consistent with the outlet's operational needs and the availability of other staff. 9. OVERTIME 9.1 Subject to the following, employees shall work reasonable overtime as required by the employer: An employee may refuse to work reasonable overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to: 9.2.1(a) 9.2.1(b) 9.2.1(c) 9.2.1(d) 9.2.1(e) any risk to employee health or safety; the employee's personal circumstances including any family responsibilities; the needs of the workplace or enterprise; the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and any other relevant matter. 9.2 The overtime shall be calculated on a daily basis and where possible be paid on the pay day for the week in which it was worked. In no case will the employee receive payment later than the following week. 9.3 The employer shall inform employees of the procedure for authorisation of overtime and employees shall not be paid at overtime rates unless so authorised. 9.4 Except where otherwise provided, authorised overtime shall be payable at time and one half of the ordinary rate for the first 2 hours and double the ordinary rate thereafter as follows: where an employee works more than 10 hours (excluding meal breaks) on any day. where an employee works in excess of 5 shifts per week (or 6 shifts or 4 shifts worked pursuant to subclause 8.4, Hours and Rostering, or more than 6 consecutive shifts over adjoining weeks other than by mutual agreement). 9

11 KFe NATIONAL ENTERPRISE AGREEMENT 2010 where a casual employee works in excess of 38 hours per week. where a full-time employee works in excess of 38 rostered hours per week (or up to 44 rostered hours per week if the employee is averaging their hours over a 4 week cycle). (Note - see the following limitation). where a full time employee works in excess of 152 hours in a 4 week cycle. where a part-time or part-time flex employee works in excess of 35 rostered hours per week. where a part-time or part-time flex employee works in excess of 148 hours per 4 week cycle when working additional hours to meet seasonal demands pursuant to subclause where an employee is required to work outside the spread of 11 hours on any day. where an employee is required to start work before they have completed an interval of at least 10 consecutive hours rest from their previous finishing time (or 8 hours at the regular changeover of shifts as provided in subclause 8.7 above). where an employee (other than a casual) works at times other than those for which the employee was rostered to work. 9.5 All overtime worked on a Sunday or public holiday shall be paid at double the ordinary time rate. 9.6 All work on a day that a weekly employee is rostered off shall be paid for at the rate of double time with a minimum payment as for three hours worked. 9.7 An employee called in to work overtime on a Sunday or public holiday that is not continuous with ordinary hours shall receive a minimum payment as for 3 hours worked. 9.8 Where a part-time employee or part-time flex employee is required to work beyond the employee's rostered finishing time in order to meet unforeseen operational and/ or staffing requirements, the first hour shall be paid for at the ordinary time rate of pay, the second hour shall be paid for at the rate of time and one half with double time for any hours worked thereafter. The provisions of this subclause shall only apply where the employee is rostered to work 8 hours or less on the shift. 9.9 Employees who are required to attend staff meetings outside their normal rostered hours shall be paid at ordinary rates with a minimum payment of 1 hour on each occasion. The employer may make use of this subclause on no more than 6 occasions in anyone establishment in anyone year By mutual agreement time off may be taken in lieu of payment for overtime provided that: 10

12 KFe NATIONAL ENTERPRISE AGREEMENT 2010 Time off shall be calculated at the penalty equivalent. The employee is entitled to a fresh choice of payment or time off on each occasion overtime is worked. Time off must be taken within one calendar month of the working of overtime, or it shall be paid out. 10. MEAL BREAKS 10.1 An employee who works more than 5 ordinary hours on any day shall receive an unpaid meal break of between 30 and 60 minutes duration An employee shall receive an additional unpaid meal break of between 30 and 60 minutes duration when they have worked a further 5 hours or more from completion of the previous meal break In lieu of the above unpaid meal break, a Shift Supervisor may be required to have a 20 minute paid crib break, which is to be taken according to operational requirements No meal break shall be given or taken within one hour of an employee's commencing or ceasing time. 11. REST PAUSES 11.1 Each employee who works more than 4 hours continuously on any day shall be allowed a paid rest pause of 10 minutes. The timing of this break shall be arranged by the employer when convenient for it to be taken An additional 10 minutes rest pause shall be provided when an employee works more than 8 hours on anyone shift In lieu of the above, Call Centre employees may have a 5 minute paid rest pause every two hours Except as provided in this subclause, no rest pause shall be given or taken within one hour of an employee's commencing or ceasing time or within one hour before or after any meal break. Where a part-time or part time flex or casual employee is required to work up to one hour beyond the employee's rostered finishing time in order to meet unforeseen operational or staffing requirements, a rest pause may be taken within one hour of the employee's ceasing time. 12. PAYMENT OF WAGES 12.1 Wages shall be paid fortnightly or weekly in arrears at the employer's option. 11

13 12.2 Payment may be made by Electronic Funds Transfer into a bank account nominated by the employer, or by cash or cheque at the employer's option The employer shall pay wages within three days of the end of each pay period Employees shall be supplied each pay period with a statement detailing the calculation of their wages and the deductions made from their wages. Information to be provided shall include annual leave balances where the employer's payroll system is able to provide this. 13. SUPERANNUATION 13.1 Employer obligations under the Superannuation Guarantee Act shall be met by monthly payment of contributions into the RE.S.T. Scheme. The employer will not permit employees to take superannuation contributions as wages The employer shall provide each employee upon commencement of employment with the appropriate membership application form(s) of RE.s.T. and shall forward the completed membership form(s) to RE.S.T. upon completion with the next monthly payment of superannuation contributions. 14. TRAINING 14.1 The employer will provide training to each employee. Employees are required to apply themselves conscientiously to training The employer shall keep a tracking sheet for each employee undertaking TEAM MEMBER TRAINING and CROSS CERTIFIED training which shall record the dates they commenced training and the employee's training status. The sheet shall be available to the employee upon request Employees will be issued with certificates at the successful completion of each stage of training Employees required by the employer to attend additional formal training sessions ou tside of ordinary hours will be paid ordinary time only. 15. PUBLIC HOLIDAYS 15.1 For the purposes of this agreement, the following days shall be public holidays: Christmas Day Boxing Day New Year's Day Australia Day Good Friday 12

14 Easter Saturday Easter Monday Anzac Day Labour Day or Eight Hour Day The Birthday of the Reigning Sovereign 15.2 When Chrisbnas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the following Monday. When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the following Monday or Tuesday respectively. When New Year's Day or Australia Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the next Monday Where throughout a State or Territory public holidays are declared or prescribed on days other than those set out in subclauses 15.1 and 15.2 above, those days shall constitute additional holidays for the purpose of this agreement Full-time, part-time and part-time flex employees who as part of their roster cycle work on a day on which any of the above holidays fall, and who are not required by the employer to work any part of their ordinary hours on such public holiday, shall be deemed to have worked the number of hours the employee would have worked had the day not been a holiday The employer and an employee may change the above days by mutual agreement, but not so as to reduce the employee's holiday entitlements under this clause Excepting where it has been agreed to change the day a holiday is observed, all work done on any of the holidays prescribed in this clause shall be paid at the rate of double time, with a minimum payment as for three hours. The casual rate shall be increased to a total of 200% for all work performed on the holidays referred to in this clause A full-time employee whose non-working day falls on a public holiday will receive by mutual agreement - (a) (b) (c) another day off in lieu to be taken within twenty-eight days of the holiday; an additional day's pay; or an extra day added to annual leave The above shall not apply to Anzac Day when it falls on a weekend Where a part-time or part-time flex employee regularly working 5 days per week is rostered on different days of the week so that the employee is required from time to time to work ordinary hours on the day of the week on which one of the above holiday falls, and the employee's rostered day off coincides with any of the above holidays prescribed in this clause, such employee shall receive one day's additional pay at ordinary rates on the next succeeding pay day. 13

15 15.9 Where an employee is absent from employment on the working day before or after a public holiday without reasonable excuse or without the consent of the employer, the employee shall lose the entitlement to payment for one public holiday for each day so absent In addition to the above holidays, full-time, part-time and part-time flex employees not required by the employer to work any part of the employee's ordinary hours on the first Tuesday in November or such other day as is agreed with the State Branch of the Union for a state, territory or locality shall be entitled to an additional holiday without loss of pay, which shall be known as the Union Picnic Day. Those full-time, part-time or part-time flex employees required to work on this day shall in lieu of the above provisions be permitted to take an alternative day off within 28 days or have an additional day to be taken with the employee's next period of annual leave but shall not in any circumstances, including termination or failure to take the day within tl1e required period, forfeit these entitlements For the purpose of this clause, 'day' shall mean the averaged number of daily hours worked by the employee in the four weeks immediately prior to the day on which the holiday falls. 16. ANNUAL LEAVE 16.1 All weekly employees will be entitled to leave of absence (including part-time flex employees) on full pay (except for part-time flex school-based trainee employees, whose rate is loaded for annual leave) equal to four working weeks (i.e. 152 hours for full-time employees and pro rata for part-time and part-time flex employees) exclusive of public holidays after 12 months continuous service (or earlier by agreement out of accrued entitlements) An employee's entitlement to paid annual leave accrues progressively during a year of service according to the employee's ordinary hours of work each completed 4 week period, and accumulates from year to year Employees taking annual leave shall be paid the wages the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on leave during the period of leave Where the number of hours worked by a part-time or part-time flex employee varies throughout the course of the year, entitlements to annual leave shall be calculated upon the average number of ordinary hours worked during the year of accrual An employee who is performing work at a higher grade prior to a period of annual leave and has the reasonable expectation of doing so after the period of the leave, should be paid for the period of leave at the higher grade rate on the basis that these are the wages the employee would have received had the employee not been on leave Where an employee has an entitlement to any public holiday under Clause 15, Public Holidays and this holiday falls within an employee's period of annual leave, there shall 14

16 KFe NATIONAL ENTERPRISE AGREEMENT 2010 be added to that period one day being an ordinary working day for each such holiday observed Should an employee not complete 12 months service the employee (other than parttime flex employees) shall on the termination of employment be entitled to pay on a pro rata basis at the rate of one thirteenth of a week's pay per completed week of service at ordinary time rates Any time in respect of which an employee is absent from work on approved paid leave shall count for the purpose of determining the right to or accrual of annual leave Annual leave shall be taken at a time mutually agreed upon by the employer and employee according to the needs of the business. In the absence of agreement it shall be taken at a time fixed by the employer. Annual leave shall be given and taken either in one consecutive period, or two periods which shall be of three weeks and one week respectively. However, if the employee and the employer agree, annual leave may be taken in some other combination (eg in single days), subject to the requirement that at least 3 weeks of the leave consist of periods of at least 5 consecutive days Annual leave shall be granted to and taken by the employee within a period of nine months from the day on which it became due, and the employee shall be given at least four weeks notice by the employer of the date that such leave will commence. Under no circumstances shall the employee forfeit the annual leave entitlement During a period of annual leave a weekly (other than part-time flex) employee will receive a loading of 171/2 percent of the weekly rate for each week taken. This loading does not apply to proportionate leave on termination Provided the employer receives adequate notice, annual leave of one week or more shall be paid in advance of the commencement of the leave Payment in lieu of annual leave shall not be made by the employer and not be accepted by the employee except in accordance with all requirements of this clause Cashing Out of Annual Leave Where a full-time team member has an annual leave entitlement in excess of 228 hours (or pro rata amount for part-time team members), the Company may, at the written request of the team member, pay to the team member an amount equal to the team member's ordinary rate of pay inclusive of leave loading, for his or her annual leave entitlement in excess of 228 hours and reduce the team member's annual leave entitlement accordingly This cashing out of annual leave shall be made so that the team member will have a minimum of 228 hours of annual leave entitlement (or pro-rata amount for part-time team members) remaining and will not affect the team member's right to reasonable rest and recreation. Pursuant to this requirement, prior to exercising the opportunity to receive payment out of untaken leave in accordance with these provisions, employees must have taken at least 2 weeks annual leave in that anniversary year. 15

17 Each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee. The employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. 17. PAID PERSONAL/CARER'S LEAVE 17.1 Amount ofleave For each year of service with the employer, an employee (other than a casual) is entitled to 10 days of paid personal/ carer's leave. Part-time and part-time flex employees shall receive a pro rata entitlement in accordance with subclause of Clause 5, Contracts of Employment Accrual of leave An employee's entitlement to paid personal/ carer's leave accrues progressively during a year of service according to the employee's ordinary hours of work each completed 4 week period, and accumulates from year to year. (Note that the initial implementation of the NES accrual provisions shall be in accordance with the NES transitional provisions and so that there is no loss or double-dipping of employee leave entitlements) Payment of leave An employee may take paid personal/ carer's leave at ordinary rates for the number of hours rostered to be worked by the employee on that day if the leave is taken: because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of (a) (b) a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member; or because a parent, spouse or child of the employee dies, in which case the total of compassionate leave and personal/ carer's leave may be up to a total of 5 days Where personal/carer's leave is exhausted, the employee may use annual leave by agreement with the employer Leave shall not be paid for any period that the employee is entitled to workers' compensation If the period during which an employee takes paid personal/ carer's leave includes a day or part-day that is a public holiday in the place where the employee is based for 16

18 work purposes, the employee is taken not to be on paid personalj carer's leave on that public holiday To enable the employer to efficiently conduct business and offer quality service to customers, it is required that employees give as much notice as possible that they will be absent from work on personalj carer's leave. In any event they shall notify their employer wherever reasonably practicable prior to their commencing time on the first day of absence and advise their anticipated date of return Supporting Evidence Requirements The employer may require an employee to produce reasonable proof satisfactory to the employer on occasions when an employee is absent from work on personalj carer's leave. Other than for the first two single day absences in anyone year, the employee may be required to produce a doctor's certificate stating the nature of the illness or injury to be entitled to personal / carer's leave where this is relevant In lieu of a medical certificate, the employer may accept a statutory declaration where it was impracticable for the employee to provide a medical certificate Disciplinary Process An employee who has clearly demonstrated a pattern of abuse of the use of his or her personal/carer's leave entitlements, including failing to observe the notice requirements under 17.7 or failing to submit supporting evidence as provided for in clause 17.8, may be subject to disciplinary action in accordance with clause 31 - Disciplinary Procedure. 18 UNP AID LEAVE 18.1 An employee (including a casual) may take unpaid carer's leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in , subject to the evidence requirements in An employee may take unpaid carer's leave for a particular permissible occasion as: a single continuous period of up to 2 days; or any separate periods to which the employee and his or her employer agree An employee cannot take unpaid carer's leave during a particular period if the employee could instead take paid personalj carer's leave Otherwise, employees may by agreement with the employer, take unpaid periods of leave of more than one week and up to 12 months without breaking their continuity of employment. All accrued entitlements, including long service, annual and sick leave and public holidays will be frozen from the date of commencing unpaid leave until the date of return. 17

19 19 DEFENCE FORCES & COMMUNITY SERVICES LEAVE 19.1 Defence Force Services Leave Subject to operational requirements, an employee, other than a casual, shall be allowed unpaid leave or paid leave using accrued annual or long service leave entitlements to attend Defence Forces Reserve approved training where the absence is reasonable having regard to all the circumstances Employees seeking to take Defence Force Services Leave must provide notice to the employer at least one month prior to the period of training. The notice should detail the start and finish dates for training. NOTE - see also the provisions of the Defence Reserve Service (Protection) Act Community Services Leave Employees carrying out of a voluntary emergency management activity shall be permitted to take unpaid leave, or paid leave using accrued annual or long service leave entitlements, where the absence is reasonable having regard to all the circumstances The provisions of Division 8 of Part 2-2 of the Act shall be used in interpreting the provisions of this sub-clause. 20 UNIFORMS 20.1 Where special uniform items are required to be worn by the employer they will be supplied by the employer to the employee in a good and clean condition and remain the property of the employer. The employer's replacement policy will ensure that uniforms are able to be maintained to a reasonable standard. Employees shall supply (except for pants) and wear pants, stockings, socks and shoes of a colour to be determined by the employer. Shoes shall have a rubber sole and full leather or vinyl upper Employees shall maintain all items in a clean, presentable and safe condition Where uniforms are supplied to an employee, a once only deposit of up to $35.00 (not exceeding the value of the uniform) shall be paid by the employee by means of $5.00 instalments withheld by the employer from the employee's wages during the first seven pay periods. This deposit shall be repaid to the employee on termination provided the uniforms issued to them are returned to the employer in good condition, fair wear excepted In lieu of such deposit, employers may withhold up to $35.00 (not exceeding the depreciated value of the uniform) from the termination payment due to any employee until such time as the employee returns any uniform in his or her possession in good condition, fair wear and tear excepted. 18

20 21 REIMBURSEMENT OF TRAVELLING EXPENSES OTHER THAN DELIVERY DRIVERS 21.1 Where at the employer's direction employees are required to temporarily transfer from one of the employer's establishments to another, they shall be entitled to the following: (a) Any additional fare costs for using public transport, or any additional costs for private kilometerage, calculated on the basis of the amount per kilometre set out in the table at clause 7, Allowances. (b) Payment of any additional travelling time at the ordinary time earnings rate except on Sunday and Public Holidays when payment shall be at time and one half. Provided that such payments shall cease when the employee has been permanently transferred to the establishment Where an employee agrees to use their private vehicle on Company business the allowance detailed in 21.1(a) above shall apply. 22 LONG SERVICE LEAVE 22.1 As per State or Territory legislation except as provided under clause 18 of this agreement. 23 COMPASSIONATE LEAVE 23.1 When a member of the employee1s immediate family (i.e. the employee's spouse, parent, step-parent, foster-parent, son-in-law, daughter in law, parent-in-law, grandparent, grandparent-in-law, child, foster-child, step-child, grandchild, brother or sister), former de-facto or a member of the employee1s household contracts or develops a personal illness that poses a serious threat to his or her life; or sustains a personal injury that poses a serious threat to his or her life; or dies; the employee shall be entitled to take compassionate leave for each such occasion, which shall not exceed three shifts. (Note extra leave may be available under the personalj carer's leave provisions upon the death of a parent, spouse or children of the employee) The employee may take compassionate leave if the leave is taken - 19

21 KFe NATIONAL ENTERPRISE AGREEMENT to spend time with the member of the employee's immediate family or household who has contracted or developed the personal illness, or sustained the personal injury; or after the death of the member of the employee IS immediate family or household referred to above A full-time, part-time or part-time flex employee shall be entitled to take paid leave for each such occasion. A casual employee's entitlement is to unpaid leave only The leave may be taken as a single continuous period of up to 3 days; or up to 3 separate periods of 1 day each; or any separate periods to which the employee and his or her employer agree If the occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists Proof of the occasion shall be provided by the employee to the satisfaction of the employer, together with proof of attendance in the case of a funeral outside Australia Upon the death of an aunt or uncle, a full-time, part-time or part-time flex employee shall be entitled to paid compassionate leave based upon ordinary time earnings which shall not exceed 1 shift for attendance at the funeral. Proof of such death shall be provided by the employee to the satisfaction of the employer There shall be no entitlement to leave under this clause where an employee is absent from work on another form of approved leave. 24 PARENT AL LEAVE AND FLEXIBLE WORK ARRANGEMENTS 24.1 Full-time employees, part-time employees, part-time flex employees and casual employees engaged on a regular and systematic basis who have at least twelve months continuous service shall be entitled to Parental Leave (unpaid Maternity, Paternity and Adoption Leave and the right to work part-time with the consent of the employer) in accordance with the National Employment Standards (NES), from the commencement of this agreement Disputes over an employers refusal of an employees request to work flexible hours or return to work on a part-time basis under the NES shall be dealt with in accordance with clause 30 - Disputes Procedure. 25 JURY SERVICE 25.1 A full-time or part-time or part-time flex employee shall be allowed leave when required to attend for jury service. During such leave, the employee shall be paid the 20

22 difference between the jury service fees received and the employee's ordinary time earnings (including loadings where applicable) as if working To receive payment, an employee shall provide to the employer: proof of their requirement to attend jury service, proof of actual attendance, proof of jury fees received for such service The employee shall give the employer notice of such requirement to attend as soon as practicable after having received notification to attend for jury service The employer will not require the employee to attend for duty before or after attending for jury service so that the period of jury service and working time combined would exceed 8 hours per day or 5 days per week. 26 TERMINATION OF EMPLOYMENT - WEEKLY EMPLOYEES 26.1 The employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given) An employer is required to give employees the following period of notice on termination, or the equivalent period of wages shall be paid in lieu: Length of service 1 year and less More than 1 year and up to 3 years More than 3 years and up to 5 years More than 5 years Notice entitlement 1 week 2 weeks 3 weeks 4 weeks Employees over the age of 45 years are entitled to one extra week's notice if they have more than 2 years of continuous service with the employer Employees are required to give the employer one week's notice, or the equivalent period of wages shall be forfeited Probationary employees may terminate or be terminated without notice by either party during the first calendar month of their employment Where the employer has given notice of termination to an employee, an employee shall be allowed up to one shift off without loss of pay for the purpose of seeking other employment. The time off shall be taken at a mutually agreeable time Nothing in this clause shall affect an employer's right to dismiss an employee without notice as set out in clause 30, Disciplinary Procedure in which case an employee shall be entitled to be paid only to the time of instant dismissal Payment in lieu of notice shall be calculated using an employee's weekly ordinary time earnings. 21

23 KFe NATIONAL ENTERPRISE AGREEMENT Termination pay shall be paid on the next pay day after termination The employer shall, when requested, provide to the employee a written statement specifying the period of their employment and the classification of or the type of work performed by the employee. 27 ABANDONMENT OF EMPLOYMENT Employees absent from work for a period of two consecutive days without the consent of the employer or without notification to the employer shall be deemed to have terminated employment without notice, unless the employee was unable, through no fault of his/her own, to notify the employer. The employer shall make reasonable efforts to contact the employee prior to treating the employment as terminated. 28 CONTINUITY OF EMPLOYMENT With regard to service related entitlements of employees provided in this agreement, service shall be deemed to be continuous upon the sale or transfer of a business from one employer party to another who continues to employ the particular employee. No severance or redundancy payments will be required to be made where the employee continues to be employed on no less advantageous conditions. 29 COPY OF AGREEMENT A copy of this agreement shall be provided to employees, one to each establishment. 30 DISPUTES PROCEDURE 30.1 Any grievance or dispute that arises shall wherever possible be settled by discussions at the workplace between the employee and the employee's direct manager or supervisor If the matter is not resolved at this level the matter will be further discussed between the employee, the union delegate (if one exists), the employee's manager and the Area or other relevant Manager If no agreement is reached, the relevant union official and delegate (if one exists) will discuss the matter with the employer's representatives Should the matter still not be resolved it shall then and only then be referred to FW A in accordance with the Act. Note this does not provide for arbitration other than by agreement of the parties to the dispute. 22

24 30.5 Whilst the above procedure is being followed work shall continue normally without bans or limitations At all times employees are allowed to choose to have a representative for the purposes of the above procedure. 31 DISCIPLINARY PROCEDURE 31.1 Formal disciplinary action for dealing with substandard performance or misconduct involving employees shall be in accordance with the following procedure: Counselling and Retraining Where an employee's performance is substandard in the employer's opinion, formal disciplinary action should only be undertaken after the employee has had the opportunity of counselling and/ or retraining and also a review of expected performance standards. In cases where an employee's performance continues to be substandard in the employer's opinion, the following steps will apply: Step One: Initial Warning Usually, an initial written or verbal warning will be issued in cases of continued substandard performance or minor misconduct. Step Two: Final Written Warning Usually, a final written warning will be issued in cases where substandard performance continues after the employee has previously received an initial warning, or for minor misconduct, or for serious misconduct where instant dismissal is not warranted. Step Three: Dismissal Dismissal will usually follow when the employee has failed to comply with the final written warning. Instant Dismissal The employer may dismiss an employee without notice for serious misconduct at work including but not limited to rudeness or abuse to customers, insubordination, dishonesty, drunkenness or being under the influence of illegal drugs, or in unauthorised possession of or misuse of drugs, in which case the employee shall be entitled to be paid up to the time of dismissal only All written warnings shall be placed on the employee's personnel file. The employee shall be requested to sign the warning. The employee shall be entitled to a copy of a warning upon request. 23

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