Kmart Australia Ltd Agreement 2012

[2012] FWAA 7357
DECISION
Fair Work Act 2009
s.185—Enterprise agreement
Kmart Australia Limited
(AG2012/5509)
KMART AUSTRALIA LTD AGREEMENT 2012
Storage services
COMMISSIONER GAY
MELBOURNE, 27 AUGUST 2012
Application for approval of the Kmart Australia Ltd Agreement 2012.
[1]
An application has been made for approval of a single-enterprise agreement known as
the Kmart Australia Ltd Agreement 2012 (the Agreement). The application was made
pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kmart Australia Limited.
[2]
Kmart Australia Limited has provided a signed written undertaking as to the queries I
had expressed. I am satisfied the undertaking meets my concerns.
[3]
In accepting the undertaking I have also accepted that it is not likely to either cause
financial detriment to an employee or result in substantial changes to the Agreement
(s.190(3)). I note that under s.191 of the Act the undertaking is taken to be a term of the
Agreement. A copy of the undertaking is attached to the Agreement.
[4]
I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are
relevant to this application for approval have been met.
[5]
The Australian Workers Union (AWU) and the Shop Distributive and Allied
Employees Association (SDA), being bargaining representatives for the Agreement, have
given notice under s.183 of the Act that they wish to be covered by the Agreement. In
accordance with s.201(2) of the Act I note that the Agreement covers them.
[6]
The Agreement is approved and, in accordance with s.54 of the Act, will operate from
3 September 2012. The nominal expiry date of the Agreement is 30 April 2016.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code O, AE896430 PR528409>
1
Note - this agreement is to be read together with an undertaking given by the employer. The undertaking is
taken to be a term of the agreement. A copy of it can be found at the end of this agreement.
PART 1 -APPLICATION AND OPERATION
1 ~TITLE
This Agreement shall be known as the Kmart Australia Ltd Agreement 2012.
2 ~ARRANGEMENT
PAGE
PART 1-APPLICATION AND OPERATION OF AGREEMENT .........•.................................................................................. 1
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2
3
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TITLE ..................................................................................................................................................................................... 1
ARRANGEMENT ..................................................................................................................................................................... 1
INCIDENCE AND PARTIES BOUND .......................................................................................................................................... 3
0BJECTIVES ............................................................................................................................................................................ 4
DURATION ............................................................................................................................................................................. 5
DEFINITIONS .......................................................................................................................................................................... 6
PART 2- WAGES, ALLOWANCES AND RELATED MATTERS ............................................................................................ 8
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8
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WAGES .................................................................................................................................................................................. 8
FIRST AID ............................................................................................................................................................................ 15
TRANSPORT, DRIVERS AND ALLOWANCE ............................................................................................................................ 16
LOCATION ALLOWANCE ...................................................................................................................................................... 18
PART 3- EMPLOYMENT RELATIONSHIP AND HOURS OF WORK ................................................................................ 19
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TERMS OF EMPLOYMENT ..................................................................................................................................................... 19
HOURS OF WORK ................................................................................................................................................................. 25
PART 4- ROSTERING, BREAKS AND OVERTIME ............................................................................................................... 27
13
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15
ROSTER CONDITIONS ........................................................................................................................................................... 27
0VERTIME ........................................................................................................................................................................... 32
MEAL BREAKS AND TEA BREAKS ....................................................................................................................................... 35
PART 5- LEAVE AND PUBLIC HOLIDAYS ............................................................................................................................. 37
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PUBLIC HOLIDAYS ............................................................................................................................................................... 37
ANNUALLEAVE .................................................................................................................................................................. 43
LONG SERVICE LEAVE ......................................................................................................................................................... 46
PERSONAL LEAVE ............................................................................................................................................................... 47
PRE-NATALLEAVE .............................................................................................................................................................. 51
COMPASSIONATELEAVE ..................................................................................................................................................... 52
BLOOD DONOR LEAVE ....................................................... , ................................................................................................ 53
COMMUNITY SERVICE LEAVE AND OTHER LEAVE ............................................................................................................... 54
PARENTAL LEAVE AND REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS ..................................................................... 57
INTRODUCTION OF CHANGE ................................................................................................................................................ 69
REDUNDANCY ..................................................................................................................................................................... 70
DISPUTES RESOLUTION PROCEDURE ....................................................................................................... ··· ......................... 73
PART 7- COMPANY AND TEAM MEMBER'S DUTIES, WORKPLACE SAFETY & RELATED MATTERS .............. 75
28
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32
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34
SUPERANNUATION ............................................................................................................................................................... 75
ACCIDENT PAY .................................................................................................................................................................... 78
RETAIL TRAINEESHIPS ......................................................................................................................................................... 79
DRESS AND PRESENTATION STANDARDS ............................................................................................................................. 80
PROTECTIVE CLOTHING ....................................................................................................................................................... 81
POSTING OF AGREEMENT AND FAIR WORK INFORMATION STATEMENT .............................................................................. 82
SAVINGS PROVISIONS ...................................................................................................................... ··········· ......................... 83
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37
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39
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42
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INDNIDUAL FLEXIBILITY TERM ........................................................................................................................................... 87
WORKPLACE SAFETY .......................................................................................................................................................... 88
GUIDELINES CONCERNING SECURITY PROCEDURES ............................................................................................................ 91
INTERACTIONWITHTHENES ..................................................................................................................................... 93
TRADE UNION TRAINING LEAVE ............................................................................................................................... 93
UNION RECOGNITION AND MEMBERSHIP ............................................................................................................................ 94
UNION DELEGATES ............................................................................................................................................................. 95
UNION NOTICE BOARD ........................................................................................................................................................ 95
PAID UNION MEETINGS ....................................................................................................................................................... 95
SIGNATORIES TO THE KMART AUSTRALIA LTD AGREEMENT 2012 ..................................................................................... 96
PART 8 -APPENDICES ................................................................................................................................................................. 97
APPENDIX A- CONCILIATION AND ARBITRATION ...............................................................................•........................................ 97
APPENDIX B- ALPHABETICAL INDEX ................................................................................................................................ 101
3 ~INCIDENCE AND PARTIES BOUND
3.1.
This Agreement shall be binding upon:
(a) Kmart Australia Limited; and
(b) The Shop Distributive and Allied Employees' Association in respect of team members,
whether members of the Union or not, who are employed by Kmart ("Kmart Stores")
throughout Australia but excluding K Auto Service Centres, in the classifications contained
in this Agreement; and
(c) The Australian Workers Union (QLD Branch) with respect to team members, whether
members of the AWU or not, who are employed by Kmart stores in Queensland within the
boundaries commencing at the sea-coast at 24 degrees 30 minutes of south latitude, thence
by that parallel of latitude bearing tme west to 151 degrees of each longitude, thence by
that degree of longitude bearing tme south to 25 degrees of south latitude; thence by that
parallel of latitude bearing tme west to the western border ofthe State of Queensland;
thence by the western border ofthe state, bearing tme north to 22 degrees 30 minutes of
south latitude; thence by that parallel oflatitude bearing tme east to 147 degrees of east
longitude; thence by that degree of longitude bearing true north to 22 degrees of south
latitude; thence by that parallel of latitude bearing true east to the sea-coast; thence by the
sea-coast southerly to the point of commencement and including the islands adjacent to the
Coast within that area excluding the Local Government Areas of Rockhampton and
Gladstone, but excluding K Auto Service Centres, in the classifications contained in this
Agreement.
3.2.
It is agreed that team members employed within retail stores in management pay ranged
positions equivalent to or greater than pay range 11, as appointed or promoted, are not covered
by the tenns and conditions of this Agreement.
3.3.
Subject to the requirements of the Fair Work Act 2009, this Agreement shall operate in
complete substitution of any Award (including any Modern Award and the General Retail
Industry Award 2010) or Agreement, whether state or federal, previously covering such team
members as are provided for within the classifications contained herein.
4 - OBJECTIVES
4.1.
The ongoing development of a supportive relationship between team members and Kmart built
on commitment to trust and mutual respect.
4.2.
The achievement ofthe competitive requirement of increased customer service at a lower cost
through enhanced productivity and efficiencies within the workplace.
4.3.
The creation of a flexible work environment that recognises the changing needs ofthe customer
and which enables team members to work to the level of their skills, training and capabilities.
4.4.
To communicate and consult with team members encouraging them to participate and become
involved in matters that have an impact on their environment and positions within the
organisation.
4.5.
To provide more stable and secure employment for all team members with the objective of
minimal turnover and long term employment.
4.6.
To provide a healthy, safe and harmonious working environment. In working towards the
achievement of this objective, Kmart and the Union shall honour the provisions in relation to
Workplace Safety as set out in clause 37.
4.7.
Equal Employment Opportunity, Workplace Harassment and Discrimination
4. 7.1 It is the intention of Kmart to comply with all relevant legislation to provide equal
opportunity for every team member in all spheres of employment, and an environment in
which team members may work without distress or interference caused by harassment,
including sexual harassment and discrimination
4.7.2 Kmart also undertakes to periodically review a nationally applicable equal opportunity
policy and grievance procedures, in conjunction with the Union.
4.7.3 It is the intention ofKmart to provide all team members access to a copy of each policy
and appropriate training in the principles and procedures in relation to equal opportunity
including, discrimination, harassment and sexual harassment
4.7.4 Kmart and the Union agree that duly authorised officers of each organisation, or their
representatives, shall meet on a 6 monthly basis or more frequently if agreed during the
life of the Agreement, to discuss, monitor and review equal opportunity and harassment
matters or concerns, in relation to team members covered by this Agreement.
5 -DURATION
5.1. This Agreement will come into effect seven days after the date it is approved by Fair Work
Australia and will remain in force until Apri130, 2016.
5.2. It is agreed that there shall be a no-extra claims commitment dui-ing the life of this Agreement.
6 - DEFINITIONS
6.1. Permanent Team Member
Shall mean either a full-time or part-time team member.
6.2.
Casual Team Member
Shall mean a person engaged on an hourly basis to work when available and as required by
Kmart.
6.3. Ordinary Hourly Rate
The ordinary hourly rate of pay for full-time and part-time team members shall be 1/38th of the
appropriate weekly rate contained in clause 7. The ordinary hourly rate of pay for casual team
members shall be 1/38th of the appropriate weekly rate contained in clause 7 plus 20%.
6.4. Continuous Service
Continuous service shall, for the purpose of annual leave and personal leave accruals (include
all service with Kmart from the date of engagement, but shall not include in any anniversary
year of accrual:
(a)
Unauthorised absences of more than one week, and
(b)
Authorised unpaid absences (including unpaid absences due to sickness) of more than one
week, but excluding any period of community services leave in accordance with the NBS
Continuous service shall for the purpose of determining eligibility for parental leave, requests
for flexible working arrangements, calculation of termination notice and severance pay shall
include all service with Kmart from the date of engagement, but shall not include in any
anniversary year of accrual any unauthorised absences.
6.5
FWA
Means Fair Work Australia.
6.6
NES
Means the National Employment Standards contained in the Fair Work Act 2009.
6.7
Union
Union shall mean the Shop Distributive and Allied Employees' Association (SDA) and the
Australian Workers Union (QLD Branch) in respect to the area of coverage specified in subclause 3.1 of this Agreement.
6.8
Systematic Cleaning
Systematic cleaning shall not mean cleaning duties incidental to a team member's duties.
Incidental cleaning shall include dusting of shelves and stock, the sweeping up of packaging
materials within the general work area, the cleaning of implements and fixtures used and the
cleaning (including vacuum cleaning) of the immediate work area. Incidental cleaning shall not
include the wet washing of floors, the cleaning of toilets, sweeping of pavement areas excepting
incidental to sales promotion activities, the cleaning of exterior windows other than for the
removal of occasional defacements, the cleaning of electrical and plumbing vents, electrical
conduits and pipe work.
6.9
Key Operational Periods
Key Operational Period shall mean in each year:
(a)
The commencement of the 4 week cycle prior to the last Monday in October to the
cessation of the 4-week cycle following the last Sunday in February; and
(b)
The commencement of the 4 week cycle prior to the half yearly stock take to the
cessation of the 4-week cycle following the last Sunday in July.
Key Operational Period shall also mean 2 consecutive 4-week cycles during which a store refit
is undertaken. Store refit means the refurbishment of a store involving the use of shop fitters in
accordance with specified refurbishment drawings/plans, but does not mean an occasional
change in the layout or format of a store. During the life of this Agreement no more than one
(1) Key Operational Period will operate per store for a refit.
6.10 De facto Partner
Has the same meaning as set out in the Fair Work Act 2009.
PART 2- WAGES, ALLOWANCES AND RELATED MATTERS
7" WAGES
7.1. Rates ofPay
7.1.1 Effective from the first pay period to commence on or after the dates shown below.
Extended
trade
stores*
1 May
2012
1 Nov
2012
1 May
2013
1 Nov
2013
1 May
2014
1 Nov
2014
1 May
2015
1 Nov
2015
Level3
Retail
Assistant
Level2
Retail
Assistant
Levell
Retail
Assistant
$769.70
$782.90
$796.10
$809.30
$822.50
$835.70
$848.90
$862.10
$717.20
$729.50
$741.80
$754.10
$766.40
$778.70
$791.00
$803.30
$699.70
$711.70
$723.70
$735.70
$747.70
$759.70
$771.70
$783.70
1 May
2012
1 Nov
2012
1 Nov
2013
1 May
2014
1 Nov
2014
1 May
2015
$764.90
$778.10
$791.30
$804.50
$817.70
$830.90
$844.10
$857.30
$712.80
$725.10
$737.40
$749.70
$762.00
$774.30
$786.60
$798.90
$695.40
$707.40
$719.40
$731.40
$743.40
$755.40
$767.40
$779.40
Nonextended
trade
stores**
Leve13
Retail
Assistant
Leve12
Retail
Assistant
Levell
Retail
Assistant
1 May
2013
1 Nov
2015
*"Extended Trade Stores" are stores which may legally trade 5 nights per week and/or where
general Sunday trading legally commences. "General Sunday Trading" shall mean trading on
all Sundays throughout the year except Easter Sunday and Public Holidays.
**Non-extended trade stores are stores which may legally trade less than 5 nights per week.
7 .1.2 Rates of Pay Principles in relation to trading hours
a)
b)
c)
Rates of pay are to prevail for legal trading ability.
When changes to legal trading ability occur, the rate of pay will change.
Where the change results in a reduction in the rate of pay, no team member will
sustain a reduction in their rate of pay. However, the subsequent increases in pay as
provided under the terms of the Agreement will absorb any additional amount.
d)
Where a change results in an increase in the rate of pay, team members will receive
the increased rate of pay from the commencement ofthe following pay cycle.
7.1.3 The Level2 and Level 3 rates as defined shall be at the proportion of 102.5% and 110%
respectively in relation to the Level 1 rate of pay.
7.1.4 Junior Rates are as follows:
20yo
100.0%
19 yo
80.0%
18 yo
67.5%
17 yo
55.0%*
16 yo & below
50.0%
*Increases to 57.5% from first pay period to commence on or after 1 May 2014.
7 .1.5 The junior proportions shown above shall not apply where a team member is performing
supervision work in accordance with the provisions of sub-clause 7.3 of this Agreement
or level 3 clerical work.
7.1.6 Standing down of team members
The Company may stand down a team member without pay if the team member cannot be
usefully employed because of any strike, breakdown iri machinery, or stoppage of work
by any cause for which the Company cannot reasonably be held responsible provided
that:
(a)
each period for which useful work cannot be perfonned extends beyond 2 days
before the stand down occurs;
(b)
a team member stood down does not lose entitlements to benefits of a public
holiday which falls during the stand down period;
(c)
when calculating entitlements for continuity of employment, annual leave, personal
leave and long service leave, any such time shall be counted as time worked.
7 .1. 7 Recovery of overpayments
a) In the event that K.mart inadvertently makes an overpayment of remuneration to a
team member and the entitlement to that remuneration is governed by this
Agreement, K.mart shall have the right to recover such overpayment in accordance
with this sub-clause.
b) K.mart must advise the team member in writing of the amount of the overpayment and
the reason and circumstance of the overpayment.
c) K.mart and the employee may agree on the amount to be recovered from each periodic
pay of the employee, the number of periodic pays that will be affected by the
recovery action and the usual amount of pay that the employee will receive whilst
the recovery action occurs. The agreement shall be in writing, however an
employee will not unreasonably withhold their agreement.
d) An employee may dispute any overpayment recovery claim. If no agreement is
reached, the matter must be dealt with under the Dispute Settlement Procedure of
this Agreement. Any resolution of a dispute about an overpayment recovery claim
must have regard to all the circumstances of the case and may determine the
amount, if any, ofthe overpayment to be recovered and the method and timing of
any recovery of an overpayment.
7.2.
Classification Definitions
Level 3 - A Retail Assistant employed at this level shall perform Payroll Clerk duties or shall
provide supervision in accordance with sub-clause 7.3 of this Agreement. Payroll Clerk duties
shall include the operation and application of a wage and salary system to calculate wages and
maintain records.
Level 2 - A Retail Assistant employed at this level shall perform non-payroll clerical duties
(excluding returns and repairs related work) or shall perform as a Specialist Retail Assistant.
Clerical duties performed at this level shall include general clerical routines not related to
payroll duties. A Specialist will have completed the credentialed training and shall perform the
range of specialist duties. The following positions shall be deemed to be Level 2 Specialists:
Mini-Lab Specialist and Self-Serve Checkout Specialist.
Level 1 - A Retail Assistant employed at this level shall perform sales, replenishment and
returns/repairs related duties. Retail Assistants may not be engaged to carry out systematic
cleaning duties as defined.
A team member may be required to perform any function or work in any area at their
classification level provided those duties are within the skill,competence and training of the
team member.
Classification Payment principles
•
•
•
7.3.
Team members performing duties in a higher level will receive payment at the higher rate
for actual hours worked (based upon rostered hours) whilst performing such duties, except
team members providing supervision who will be paid in accordance with sub-clause 7.3 of
this Agreement
If a team member works regular rostered hours in another area of lower classification, they
will be paid the lower rate. If the team member is requested to work on an ad hoc basis in a
lower classification, they will continue to receive their normal (higher) rate.
New adult team members with no relevant retail experience may be paid an "introductory
rate" equivalent to 95% of either the Level 1 rate or the Level 2 rate for new clerks. This
"introductory rate" shall apply for a maximum period of up to 3 months of service
following the commencement of their employment.
Supervision
7.3 .1 Where a team member temporarily performs in a management position they will be paid
an allowance 10% above the Level 1 Retail Assistant's rate for full-time and part-time
team members and at the Levell Retail Assistant's rate plus 30% for casual team
members.
7.3.2 The need for such temporary perfonnance will be at management's detennination.
Temporary perfonnance in a management position will generally apply for one week or
more.
7.3.3 In exceptional circumstances, for periods of less than 1 week, payment for temporary
perfonnance will be on the following basis:
-For a period ofless than 4 hours the team member shall be paid on an hourly basis, and
-For a period of 4 hours or more payment shall be made for the entire shift.
The provisions of this clause shall also apply in the following circumstances:
a)
A team member is providing supervision during a Line Manager's period ofleave; or
b)
A team member is perfonning supervision duties at the checkout area ie Front End
Supervisor; or
c)
A team member who is canying keys and opening the store for replenishment
purposes until a Manager anives at the store.
7.4.
Payment of Wages
7.4.1 Kmart shall pay wages weekly or fortnightly in anears, by either cash or by payment into
a bank account, building society account or credit union account nominated by the team
member. In the case of fortnightly pay such payment shall be made not later than
Wednesday of the following pay cycle and not later than 3 days after the end of the pay
cycle; provided that where a public holiday falls on a Monday or a Tuesday prior to pay
day, wages shall be paid no later than Thursday in that week. In the case of weekly pays
such payment shall be made not later than Thursday and not later than 3 days after the
end of the pay week.
7.4.2 For the purposes of this Agreement, the pay week shall run from Monday to Sunday
inclusive. Provided that payment for work performed which commences prior to
midnight on Sunday night and continues into Monday, shall be paid as part of the week in
which the shift commences.
7.4.3 In the case ofpermanent team members the wage paid will be calculated as an average of
the wage for the 4 week roster cycle. For the purposes of averaging of pays, for full-time
team members the average payment shall reflect 38 hours and for part-time team
members the average payment shall reflect the contract hours of the team member.
7.4.4 Where the pay cycle or the pay day is changed so that team members receive a smaller
pay or a later pay at the point of change than they have been accustomed to receive,
Kmart shall pay the relevant number of days' pay in advance. The advance payment shall
be phased out at a rate, which the individual team member elects over a maximum period
of five months. Provided that a team member may elect to change to the new pay system
immediately without an advance payment by Kmart.
7.5.
Pay Advices
7.5 .1 Pay advices given to team members shall include details of a team member's current
annual leave and long service leave entitlements. Where entitlements are not shown, the
team member shall be provided with the entitlement details upon request.
7.5.2 Time off in lieu records will be retained at the store and the team member may review
their entitlement details by request.
7.5.3 Superannuation information is provided on a monthly basis on the pay advice.
7.5.4 Kmart may provide pay advices to team members in an electronic form however
where Kmart makes a decision to do so Kmart must issue pay slips to workers
securely and confidentially and team members must be able to access and print
their pay slips in private at the store. Kmart will consult with the union prior to
implementing any change to the provision of electronic pay advices.
7.6.
Supported Wage
The terms as prescribed in this clause shall apply with respect to employment of team members
under the Supported Wage principles.
7.6.1 Workers Eligible for a Supported Wage
This Clause defines the conditions which will apply to team members who because of the
effects of a disability are eligible for a supported wage under the terms of this Agreement. In
the context of this Clause, the following definitions will apply:
a)
"Supported Wage System" means the Commonwealth Government system to
promote employment for people who cannot work at full Agreement wages because
of a disability, as documented in [Supported Wage System: Guidelines and
Assessment Process].
b)
"Accredited Assessor" means a person accredited by the management unit established
by the Commonwealth under the Supported Wage System to perform assessments of
an individual's productive capacity within the Supported Wage System.
c)
"Disability Support Pension" means the Commonwealth pension scheme to provide
income security for persons with a disability as provided under the Social Security
Act 1991, as amended from time to time, or any successor to that scheme.
d)
"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.
7.6.2
Eligibility Criteria
a)
Team members covered by this Clause 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 team member is engaged under this Agreement, because of the effects of a
disability on their productive capacity and who meet the impairment criteria for
receipt of a Disability Support Pension.
b)
The Clause does not apply to any existing team member employed by Kmart who has
a claim against Kmart which is subject to the provisions of workers' compensation
legislation or any provision of this Agreement relating to the rehabilitation of team
members who are injured in the course of their current employment.
c)
The Agreement does not apply to Kmart in respect of their facility, programme,
undertaking service or the like which receives funding under the Disability Services
Act 1986 and fulfils the dual role of service provider and sheltered Company to
people with disabilities who are in receipt of or are eligible for a disability support
pension, except with respect to an organisation which has received recognition under
s.l 0 or under s.12A of the Act, or if a part only has received recognition, that part.
7.6.3 Supported Wage Rates
Team members to whom this Clause applies shall be paid the applicable percentage of the
minimum rate of pay prescribed by this Agreement for the class of work which the person is
performing, according to the following schedule:Assessed Capacity
% of Prescribed
Agreement Rate
10%*
20%
30%
40%
50%
60%
70%
80%
90%
10%
20%
30%
40%
50%
60%
70%
80%
90%
The minimum amount payable shall be not less than $75.00 per week. Adjustments to the
minimum amount payable will automatically be increased to reflect any increases flowing from
any Supported Wage decision that may apply during the life of the Agreement.
*Where a person's assessed capacity is 10%, they shall receive a high degree of assistance and
support.
7.6.4 Assessment of Capacity
·For the purpose of establishing the percentage of the Agreement rate to be paid to a team
member under this Agreement, the productive capacity of the team member will be assessed in
accordance with the Supported Wage System and documented in an assessment instrument by
either:
a)
Kmart and a union party to the Agreement, in consultation with the team member or,
if desired by any of these;
b)
Kmart and an accredited Assessor from a panel agreed by the parties to the
Agreement and the team member
7.6.5 Lodgement of Assessment Instrument
a)
All assessment instruments under the conditions of this Clause, including the
appropriate percentage of the Agreement wage to be paid to the team member, shall
be lodged by Kmart with the Registrar of the Industrial Relations Commission.
b)
All assessment instruments shall be agreed and signed by the parties to the
assessment, provided that where the union is not a party to the assessment, it shall be
referred by the Registrar to the union by certified mail and shall take effect unless an
objection is notified to the Registrar within 10 working days.
7.6.6 Review of Assessment
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 or review shall be in accordance
with the procedures for assessing capacity under the Supported Wage System.
7.6.7 Other Terms and Conditions of Employment
Where an assessment has been made, the applicable percentage shall apply to the wage rate
only. Team members covered by the provisions of this Clause will be entitled to equal tenns
and conditions of employment as all other workers covered by this Agreement, paid on a
proportionate basis.
7.6.8 Workplace Adjustment
When K.mart wishes to employ a person under the provisions of this Clause, reasonable steps
shall be taken to make changes in the workplace to enhance the team member's capacity to do
the job. Changes may involve re-design of the job duties, working time arrangements and work
Organisation in consultation with other workers in the area.
7.6.9 Trial Period
a)
In order for an adequate assessment of the team member's capacity to be made, K.mart
may employ a person under the provision of this Clause for a trial period not
exceeding 12 weeks, except that in some cases additional work adjustment time (not
exceeding 4 weeks) may be needed.
b)
During the trial period the assessment of capacity shall be undertaken and the
proposed wage rate for a continuing employment relationship shall be determined.
c)
The minimum amount payable to the team member during the trial period shall be no
less than $75.00 per week.
d)
Work trials should include induction or training as appropriate to the job being
trialed.
e)
Where Kmart and the team member wish to establish a continuing employment
relationship following the completion ofthe trial period, a further contract of
employment shall be entered into based on the outcome of assessment under subclause 7.6.4, Assessment of Capacity.
8 ~FIRST AID
8.1. Kmart will provide and continuously maintain adequate first aid kits for use of team members
in all locations.
8.2. Team members engaged under the tenns of this Agreement and directed by Kmart to perform
first aid activities, shall, upon their request, be reimbursed the cost of receiving Hepatitis A
and/or B immunisation.
8.3. Where Kmart appoints a qualified team member to perform first aid duties, they shall be
entitled to an additional allowance in accordance with the following table effective from the
first pay period to commence on or after the dates shown below:
Daily
Weekly
Maximum
8.4
1/5/2012
$1.87
1111/2012
$1.90
115/2013
$1.93
1/11/2013
$1.96
115/2014
$1.99
1/11/2014
$2.02
115/2015
$2.05
1111/2015
$2.08
$11.20
$11.39
$11.58
$11.77
$11.96
$12.15
$12.34
$12.53
Where Kmart no longer requires an appointed qualified team member to perfo;rm first aid
duties, Kmart shall notify the team member in writing that the team member is no longer
required to perform first aid duties. In these circumstances the first aid allowance will cease
being paid to the team member from the date of notification.
9-
TRANSPORT, DRIVERS AND ALLOWANCE
9.1
Transport Allowance
9.1.1
Where a team member is temporarily transferred from one store to another, they shall be
entitled to the following:
Any additional fare costs for using public transport, or
Any additional cost for private mileage will be calculated on the basis of cents per
kilometre for vehicles of 1600cc or under, between 1601cc-2600cc or 260lcc and over
in accordance with the guidelines from the Australian Taxation Office (A.T.O.). Rate
adjustments are effective from the first pay period to commence on or after any rate
adjustment is made by the ATO.
9.1.2 Where a team member agrees to use their private vehicle on company business, the
transport allowance shall apply.
9.1.3
A team member shall also be entitled to payment of additional travelling time at the
ordinary time earnings rate except on Sundays and Public Holidays when payment shall
be at time and a half.
Provided such payments shall cease when the team member has been permanently
transferred to the store.
Where a team member works additional hours beyond their rostered shift without
having been provided with either 24 hours' notice or notice before the completion of the
previous shift, and they are unable to obtain their regular form of transport home, Kmart
shall arrange at its own cost, an alternative safe form of transport for the team member.
9.2
Driver's Allowance Offsite Reserves
Suitably qualified team members required to drive trucks between off-site reserves and stores
shall be paid an additional amount of 64 cents per hour, whilst engaged on driving and related
duties, to a maximum of $24.43 per week.
Provided that a team member who is permanently required to perform driving and related duties
shall be paid such allowance during annual leave.
9.3
Forklift Driver's Allowance
Where Kmart requires a team member to obtain a Forklift Licence or renew a Forklift Licence,
the cost of any training and the cost of the Licence will be paid for by Kmart.
Where a team member, who is located at an offsite, is required to operate a Forklift for a
majority of a shift the team member will be paid the Level 2 rate of pay for the entire shift.
Where a team member, who is located at an offsite, is required to operate a Forklift for a
minority of a shift the team member will be paid the Level 2 rate of pay for the time so worked
calculated to the nearest 15 minutes.
Where a team member, located at a store, is required to operate a Forklift for 1 hour or more the
team member will be paid the Level 2 rate of pay for the time so worked calculated to the
nearest 15 minutes.
10-
LOCATION ALLOWANCE
The following district allowances shall be paid in addition to the rates prescribed in clause 7- Wages:
Darwin
Alice Springs
$16.60 per week
$9.30 per week
The provisions of General Order 911 of the Western Australian Industrial Relations Commission with respect
to location allowances shall apply to the team members engaged under the terms of this Agreement in
Karratha, Ka1goorlie, Port Hedland and any other location specified in that General Order as amended from
time to time.
PART 3- EMPLOYMENT RELATIONSHIP AND HOURS OF WORK
11-
TERMS OF EMPLOYMENT
11.1
Full-time Employment
11.1.1 A full-time team member shall be hired by the week (subject to sub-clause 11.5) to work
152 hours over a 4 week cycle with an average of 3 8 hours per week or 160 hours over a
4 week cycle in accordance with sub-clause 13.10.2.
11.1.2 The minimum daily engagement shall be 4 consecutive hours.
11.1.3 A full-time team member who is ready, willing and available to work the number of
hours prescribed herein as a week's work shall be paid the full weekly wage prescribed
in clause 7.
11.2
Part-time Employment
11.2.1 A part-time team member shall be hired by the week to work an agreed base number of
hours (contract hours) between a minimum of36 hours and a maximum of 144 hours
over a 4 week cycle.
11.2.2 The maximum ordinary hours worked in any week shall be 38.
11.2.3 The minimum ordinary hours worked shall be 9 hours per week or 36 hours averaged
over a 4 week cycle.
11.2.4 Subject to sub-clause 13.12, the minimum daily engagement shall be 3 consecutive
hours.
11.2.5 A part-time team member shall be paid the rates of pay prescribed in clause 7 on a prorata basis.
11.2.6 A part-time team member's hours may be increased within the span of ordinary hours in
clause 12 on a temporary basis during any 4 week cycle, provided the team member
agrees and provided the total hours do not exceed the maximum hours prescribed
elsewhere in this Agreement. The additional hours worked will be paid at ordinary time
plus 15%. Provided that additional hours worked during a period where a penalty
applies, the part-time team member shall receive the penalty plus the 15% payment.
The 15% payment shall be calculated on the ordinary hourly rate in accordance with
clause 7 of this Agreement.
Any extra hours paid with a loading on this basis will not be taken into account when
calculating leave entitlements other than long service leave as provided by state or
territory legislation or by clause 18. The meal allowance in clause 14.5 does not apply to
additional hours worked under this sub-clause.
11.2. 7 A part-time team member's contract hours may only be reduced under the following
conditions:
a)
2 weeks notice of such reduction is given to the team member concerned or, if the
team member disagrees, 4 weeks notice is provided in lieu of 2 weeks;
b)
the maximum reduction in any anniversary year shall be 20% ofthe contract hours
worked, and
c)
hours shall not be reduced below the minimums elsewhere stated in this Agreement.
A part-time team member whose hours have been reduced shall be given first
opportunity to restore hours to the previous level when operational requirements permit.
Sub-clause 11.2.7 shall not apply to those part-time team members employed in Victoria
as at 1 November, 1994. Where hours must be reduced in Victoria due to trading
difficulties part-time team members will be offered the option of reduced hours or
redundancy.
11.2.8
11.3
11.4
Casual Employment
11.3 .1
A casual team member shall be hired by the hour to work when available to a maximum of
152 hours per 4 week cycle.
11.3.2
Subject to clause 13.11 and 13.12, the minimum daily engagement shall be 3 consecutive
hours.
11.3.3
Except as provided in clauses 12, 14 and 16 for each hour worked, a casual will be paid the
appropriate hourly rate plus 20% of the ordinary hourly rate.
11.3 .4
Casual team members are not entitled to paid public holidays except where worked (clause
16), paid personal leave (clause 19), paid annual leave (clause 17), , parental leave (except
as provided in clause 24.15), blood donor leave (clause 22), leave of absence (sub-clause
23.2), defence forces leave (sub-clause 23.3),emergency services leave (sub-clause 23.4)
and termination of employment (clause 11.5).
Limited Tenure Team Members
11.4.1
Kmart shall have the right to engage team members on a Limited Tenure basis as either fulltime or part-time team members provided that such periods of Limited Tenure shall:
a)
not be less than one month provided that the minimum engagement may be one (1)
week where the sole purpose is the replacement of a team member on annual leave or
long service leave or an unpaid leave of absence; and
b)
not be more than 12 months' duration; unless the limited tenure is to replace a team
member who has taken parental leave in accordance with clause 24; and
c)
Run consecutively by agreement with the team member.
A team member shall not be worked on consecutive Limited Tenure contracts for a
period exceeding 12 months (unless the limited tenure is to replace a team member who
has taken parental leave in accordance with clause 24);
A team member shall not be disadvantaged in respect to their personal s leave
entitlement by virtue of working consecutive limited tenure contracts.
11.5
11.4.2
Prior to commencement of a period of Limited Tenure, the team member shall be
advised in writing ofthe nature of the work, the hours to be worked, the proposed
weekly earnings and the commencing and ceasing dates of their Limited Tenure
employment.
11.4.3
Limited tenure contracts for team members already in the employ ofKmart may be
tenninated in accordance with the ceasing date specified in the limited tenure contract or
at an earlier time by the provision of 1 week's notice by either party. An exception is
where a team member was exclusively hired to carry out work under a limited tenure
contract, in which event, the employment may be te1minated in accordance with the
ceasing date of employment specified in the limited tenure contract or at an earlier time
by the provision by either party of notice in accordance with the provisions of subclause 11.5, Termination ofEmployment.
11.4.4
Limited Tenure employment shall be voluntary for existing team members and if
applicable, the savings provision of this Agreement shall continue to apply.
11.4.5
A team member who accepts change to Limited Tenure shall not be disadvantaged in
respect to their terms and conditions of employment.
11.4.6
Where Limited Tenure is offered and accepted by persons already in the employ of
Kmart, those team members are not team members 'engaged under a contract of
employment for a specified period oftime' as referred to in s.386(2) ofthe Fair Work
Act 2009.
11.4.7
Where a team member varies their employment contract to a Limited Tenure contract,
such a team member shall, at the conclusion of the Limited Tenure period, revert to a
position of employment which is no less advantageous to the team member than that
which existed immediately prior to the Limited Tenure contract.
11.4.8
A temporary weekly team member shall receive all the benefits which apply to a weekly
team member and shall be paid a proportionate annual leave entitlement at the time of
termination.
Termination of Employment
11.5 .1
Excluding casuals, in order to terminate the employment of a team member, except in
cases of serious misconduct which will lead to summary dismissal, Kmart shall give to
the team member the following notice period:
Period of
Notice
1 week
Less than 1 year
2 weeks
1 year but less than 3 years
3 weeks
3 years but less than 5 years
4weeks
5 years and over
Team members over 45 years with a minimum of 2 years'
service shall be entitled to one extra week's notice.
Period of Continuous Service
11.5.2
For the purpose of this sub-clause continuous service shall be calculated in accordance
with clause 6.4 of this Agreement.
11.5 .3
Payment in lieu of the notice prescribed as in sub-clause 11.5 .1 shall be made if the
appropriate notice period is not given
11.5.4
Where Kmart has given notice to a team member of intended termination, the team
member shall be allowed time off without loss of pay for a cumulative period of up to 8
hours for the purpose of seeking other employment. Such time off shall be taken at
times that are convenient to the team member after consultation with their manager.
11.5.5
Where notice of termination is given by Kmart to a team member, it shall be given to
the team member in writing. The written notice must specify, how much notice is being
given and the date of termination. The date of termination specified in the written
notice cannot pre-date the notice date. The notice shall also set out if the notice is to be
worked, compensation paid in lieu or partly worked and compensation partly paid in
lieu.
11.5.6
Payment in lieu of notice shall include all amounts the team member would have been
entitled to for the hours the team member would have worked during the minimum
notice period, including any applicable overtime, penalty rates and allowances.
11.5.7 Team member Termination
a)
In the case of termination by a team member, other than a casual, the following minimum
notice shall be given by the team member:
Period of Continuous Service
Probationary team member
Not more than 1 year
More than 1 year
Period of Notice
None
1 week
2 weeks
b) Where it is mutually agreed between the store manager and the team member, notice of
termination may be reduced to one week. If it is not mutually agreed then team members
terminating are required to give the same period of notice as provided in clause 11.5.7 (a).
c)
At the team member's request, and Kmart's discretion, part or all of the period of notice
may be waived by Kmart and the team member paid up to the date of termination.
d) At Kmart's discretion, payment in lieu of notice may be made by Kmart.
11.6 Probationary Period
11.6.1
Kmart may engage full-time and part-time team members on a probationary basis for a
period not exceeding 3 months.
11.7 Certificate of Service
Kmart shall, upon receipt of a request from a team member, provide to the team member a
written statement specifying the period of his or her employment and the classification of or the
type of work performed by the team member.
11.8 Abandonment of Employment
Where a team member is absent from work for a continuous period exceeding three working days
without the authorisation of Kmart and without reasonable cause, Kmart will provide in writing to
the team member notification that failure to contact Kmart within seven working days with a
satisfactory explanation for the absence will result in Kmart regarding the team member as having
abandoned their employment and the company will consider the team member's employment at an
end.
11.9
Team members working at multiple locations (other than temporary transfers):
11.9.1
All team members will be engaged at a base store. Kmart may engage a team member to
work at locations other than their base store without the payment of a travel allowance
and/or travel time, provided that work on any one shift shall be performed in the one
location.
11.9 .2
When a part-time or casual team member works an additional shift under clause 13.11,
the additional shift may also be worked at a different location without the payment of a
travel allowance and/or travel time.
11.9 .3
The work locations where the team member is prepared to work will be nominated by the
team member at the commencement of employment and may include additional locations
by agreement between Kmart and the team member. Team members engaged before the
commencement of this Agreement may also agree to work at locations other than their
base store provided the team member nominates the stores where they are prepared to
work before the team member commences working in more than one location. Nominated
stores must be within a 15km radius of the team member's place of residence.
11.9.4
The base store and agreed additional work locations will be recorded in the team
member's employment records.
11.9.5
Where a team member's personal circumstances change, for reasons such as a change of
address or travel atTangements, the team member may vary their nominated stores.
11.9.6
Where a permanent team member's contracted hours increase as a result of accepting
hours at additional locations and a team member varies their nominated locations or the
team member no longer wishes to work at additional locations, the team member's total
contracted hours may reduce accordingly.
11.9.7
A team member may only nominate additional locations for the purpose of this clause if
the additional locations are within a 15km radius of the team member's place of
residence.
11.9.8
This clause shall only operate from the time when Kmart has the operational capacity to
administer the arrangement.
12- HOURS OF WORK
12.1
The span of ordinary hours for the beginning and ending of work shall be:
Day
Monday to Friday
Saturday
Sunday
(where legal to trade)
Sunday permanently trading 24 hour
stores (where legal to trade)
Time of
Starting
6.00 am
6.00 am
7.00 am
Time of Finishing
6.00 am
lO.OOpm
Midnight
10.00 pm
7.00pm
Ordinary hours of work may be rostered on any day at any time. Where work is performed
outside the above span of hours, the penalties outlined elsewhere in this clause shall apply.
Span of Hours
Monday to Friday 6 am to Midnight
Saturday 6 am to 8 pm
Saturday 8 pm to 10 pm
Sunday 7 am to 7 pm where legal to trade
(this Sunday span ofhours shall also
apply during refurbishment programs as
detailed below).
Sunday 6 am to 10 pm where legal to
trade - permanent 24 hour stores only
Monday to Friday 12.01 am to 6 am
Saturday 12.01 am to 6 am and 10 pm to
Midnight
Sunday 12.01 am to 7 am and 7 pm to
Midnight
Sunday 12.01 am to 6 am and 10 pm to
Midnight - pennanent 24 hour stores
only
Sunday 7 am to 7 pm where not legal to
trade
Penalties
Permanent
Nil
Nil
25%
50%
Penalties and
Loadings
Casual
20%
20%
45%
70%
50%
70%
30%
50%
50%
70%
100%
120%
100%
120%
100%
120%
12.2 Ordinary Hours - Refurbishment Stores
12.2.1 In stores where it is not legal to trade, the above 7am to 7pm period on a Sunday is only
to be applicable during store refurbishments in the following circumstances:
a)
b)
c)
d)
Refurbishment means involving a major capital expenditure and will not cover relays
and other minor work in a store;
Kmart must give one month's written notice to the appropriate Branch of the SDA;
it shall only apply for a set period of 8 weeks for a store; and
work will be voluntary for all team members.
12.3 Escorts to cars
12.3.1
Team members completing their shift at a late time (after dark) may:
a)
b)
12.3.2
be encouraged to leave the store in the company of other team members to give
an element of security through numbers;
request an escort to their car after finishing work, regardless of (a).
A request from the team member as in (b) above, shall not unreasonably be refused by
Krnart.
12.4 Attendance at Trade Nights
12.4.1 Team members may from time to time be offered opportunities to attend trade nights
run by suppliers as a means of further enhancing their product knowledge. Attendance
at trade nights however is voluntary and any decision to attend shall be at the discretion
of the team member.
12.4.2 Due to the voluntary nature of attendance at trade nights, no payments and allowances
shall apply.
PART 4- ROSTERING, BREAKS AND OVERTIME
13 -ROSTER CONDITIONS
13.1
Days per 28 Day Roster Cycle- Full-time and Part-time Team Members
13.1.1
No full-time or part-time team member shall be rostered to work more than 20 days in
any 28 day roster cycle, except in circumstances in accordance with clause 13 .1.2 or
13.2.3.
13.1.2
All existing full-time team members currently working 19 days per 28 day roster cycle
as at the date oflodgement of this Agreement shall retain their working cycle of 19 days
per 28 day roster cycle, unless they otherwise agree to work 20 days per 28 day roster
cycle.
13.1.3
Where practicable, a full~time team member on a 19 day start shall be given the
preference to take their non-working day in conjunction with annual leave or to move
their non-working day so that it adjoins a period of annual leave.
13 .1.4
No full-time team member shall be engaged on more than one shift per day.
13.2
Days per Week- All Team Members
13.2.1 Subject to 13.2.3 full-time and part-time team members rostered hours shall be worked
on not more than 5 days in each week, provided that rostered hours may be worked on 6
days in one week if in the following week rostered hours are worked on not more than 4
days.
13 .2.2 A casual team member shall work a maximum of 5 days in any week unless by
agreement, a team member is willing to work 6 days.
13.2.3 A part-time team member may work up to 6 days in each week by mutual agreement,
provided the team member makes a request to do so in writing. A team member working
up to 6 days in a week must be rostered at least two consecutive days off in each
fortnight. A team member having made a request to work up to 6 days in a week may
withdraw from this arrangement at any time.
13.3
Consecutive Days Off- Full-time, Part-time and Casual Team Members
13.3.1 Full-time and part-time team members (subject to 13.2.3) shall be given at least two
consecutive days off in each week, or three consecutive days off in a fortnight with
another day off that stands alone
13.3.2 Rostered hours for full-time, part-time and casual team members shall be worked on not
more than 6 consecutive days, however a casual employee may be rostered to work
more than 6 consecutive days provided that the team member has made a written request
to Kmart.
13.3.3 The requirement in sub-clause 13.2.1 for two consecutive days off each week (or 3 in a
fortnight) does not apply where Kmart makes a change to an employee's regular roster
and this requirement cannot be met in the week or fortnight at the time of the roster
change.
13.4
Sundays- Full-time and Part-time Team Members
13.4.1 In shops which can lawfully trade on a Sunday, full-time and part-time team members
may be asked to work a maximum of 3 Sundays in 4 unless otherwise agreed, provided
that on the Sunday they do not work they receive a three day break including Saturday.
By agreement between Kmart and the team member, a team member may work 4
Sundays in a 4 week cycle.
13.5
Maximum Weekly Hours- All Team Members
13.5.1 The maximum hours a team member may be rostered to work in any week shall be 48
hours for a full-time team member and 38 hours for a part-time team member except as
provided in clause 13.5.4.
13.5.2 A full-time team member's roster shall provide for 152 hours over 4 weeks with an
average of 38 hours per week except as provided in clause 13 .1.2.
13.5.3 A part-time team member's maximum ordinary hours worked shall be 144 averaged
over a 4 week cycle except as provided in clause 13.5.4.
13.5.4 During Key Operational Periods, a part-time team member's ordinary hours may be
increased up to 48 hours in any one week and to a maximum of 152 hours in the
appropriate four week cycle.
13.5.5 A casual team member's ordinary hours shall not exceed 38 hours in any week,
excepting during the Key Operational Periods where a casual team member may work a
maximum of 48 hours in any week to a maximum of 152 hours in a 4 week cycle.
13.6
Hours per Shift- All Team Members
13.6.1 A team member may be rostered to work up to a maximum of9 hours on any day
provided that a team member may be rostered up to a maximum of 10.5 hours on not
more than one day in a week.
13.6.2 At the team member's request and with agreement by Kmart, a team member may be
rostered to work up to a maximum of 10.5 hours on more than one day in any week.
13.6.3 The above daily maximums shall be exclusive of meal breaks.
13.7
Break Between Shifts- All Team Members
13.7.1 A 10 hour break will be observed between the completion ofwork (including overtime)
on one shift and the commencement ofwork (including overtime) on the next shift.
13.8
Rosters- Full-time and Part-time Team Members
13.8.1 Rosters shall be set on a regular basis and may be changed by 7 days' written notice or
at shorter notice by mutual consent. Should a team member disagree with any roster
change they shall be provided with a minimum 14 days' written notice in lieu of the 7
days. As far as practicable, rosters shall be set by mutual agreement.
13.8.2 Subject to sub-clause 13.8.1 a team member shall be provided with a regular roster,
which will not be subject to frequent variations from one cycle to another.
13.8.3 A team member's roster may not be changed with the intent of avoiding payment of
penalties, loadings or other benefits applicable. Should such circumstances arise the
team member shall be entitled to such penalty, loading or benefit as if the roster had
not been changed.
13.8.4 When establishing or changing rosters, Kmart shall take into consideration the family
responsibilities and the safe transport home of the team member. Family responsibilities
in relation to a team member means the responsibilities of the team member to care for
or support a dependent child of the team member or any other immediate family
member who is in need of care and support. Immediate family is defined in clause 19 of
this Agreement.
13.8.5 A part-time tea member shall be given stability in their regular roster pattern over 4
week cycles and shall not be subject to constant roster changes in successive cycles.
13.8.6 Subject to the provisions of sub-clause 13.8 roster changes, including one off roster
changes can occur at any time by mutual agreement.
13.8.7 Where a team member works in a 24-hour trade store and is rostered to work at the time
clocks are wound forward for daylight savings the team member will work an additional
1 hour after their rostered finishing time. Where a team member is rostered to work at
the time the clocks are wound back for daylight savings, a team member will finish
lhour earlier than their rostered finishing time. A team member is only entitled to be
paid for hours actually worked.
13.9 Registers- All Team Members
13.9.1 A team member who is rostered to work on registers for more than 8 hours on any one
day shall upon notice to Kmart at least 48 hours prior, be provided with alternative
duties so that the total time spent on registers shall not exceed 8 hours in any one day.
13.10 Flexible Rosters for Full-time Team Members on 19 Day Starts (employed prior to
lodgement of the Kmart Ltd. National Agreement 2006)
13.10.1 On a voluntary basis, a full-time team member on a 19 day start may transfer their nonworking day from the four week roster cycle during the Christmas Key Operational
Period, provided that the non-working day is then taken at a time the team member
nominates either in the 4 week roster cycle prior to or post the 4 week Christmas
operational period.
Where Kmart wishes the team member to transfer their non-working day, it will discuss
this with the team member and the team member shall respond no later than 30
November in that year.
This election shall then apply for the Christmas trading period. Only one non-working
day can be transferred under this clause.
13.1 0.2 A team member may elect to work 160 hours over 20 starts per 4 week cycle for a
period of 5 consecutive roster cycles and accumulate 5 days to be taken as a week off or
added to a period of annual leave.
Such requests shall be in writing and the application is to be made by the team member
as part of the leave application process adopted by Kmart. Provided that the hours in
excess of 152 hours over the 4 week roster cycles up to 160 hours shall be paid at the
ordinary time rate of pay at the time the accrued week is taken. Where the 5 days are
adjoined to a period of annual leave, the 5 days shall not attract the annual leave loading
with respect to these days.
In this sub-clause the Christmas Key Operational Period shall mean the three weeks
prior to Christmas and the one-week after Christmas.
13.11 Additional Shifts- Part-time and Casual Team Members
13.11.1 Part-time and casual team members may be engaged on an additional shift commencing
in any 24-hour period provided that:
a)
b)
c)
d)
e)
f)
g)
There are no more than two engagements commencing in any 24-hour period a
minimum of3 hours' work shall apply for the original rostered shift and 2 hours
for the additional shift.
A minimum break of not less than two hours shall apply between the original shift
and the additional shift;
The maximum hours of work per day as prescribed within this Agreement shall
apply;
For part-time team members, the additional shift of work shall attract the 15% flex
up loading;
Where a second engagement occurs in any 24-hour period, a 10 hour break will be
observed between the cessation of work on that second shift and the
commencement of the next shift; and
The arrangement shall be on a voluntary basis where the team member may
revoke the agreement to work an additional shift at any time.
An additional shift worked in accordance with this sub-clause does not constitute
an additional start when calculating the maximum number of starts permitted by
this Agreement.
13.12 Shorter Shifts for Training Activities- Part-time and Casual Team Members
13.12.1 For the purposes of designated training activities as advised to the Union, part-time and
casual team members may be engaged with a minimum of 2 consecutive hours per day
on a maximum of 6 occasions per calendar year. Such hours shall not be used as a split
shift. Attendance at such training sessions shall be voluntary.
13.13. Casual rostered hours not to be reduced after travel to work commences
13.13 .1. A casual team member who has been rostered to work a specified number of hours on
a day and whose hours are reduced, other than by the initiation of the team member,
shall be paid for the full number of hours specified.
13.13.2. Sub-clause 13.13.1 does not apply in circumstances where:
(a)
(b)
(c)
the casual team member has been notified before commencing to travel to work
that there is a reduction in the hours required to be worked: or
the casual team member has otherwise, at anytime, agreed to a reduction in hours;
or
the casual team member does not attend work on a particular day or otherwise
ceases working before the rostered end time for reasons other than Kmart seeking
to reduce the casual team member's rostered hours.
13.13.3. For the circumstances listed in Sub-clause 13.13 .2, the casual team member will only
be paid for the actual hours worked.
14-0VERTIME
14.1 Km.art may require a team member to work reasonable overtime at appropriate overtime rates
other than on a public holiday and subject to the savings provisions in this Agreement.
14.2 A team member shall be entitled to the payment of overtime when:
14.3
a)
A permanent team member is required to work before or after their rostered shift,
except for a part-time team member who has been offered and has accepted additional
hours of work in accordance with sub-clauses 11.2.6 and 13.11.
b)
A full-time team member works in excess of 48 hours in any week or in excess of 152
hours in any 4 week cycle provided that a team member who works 160 hours in
accordance with the provisions contained within sub-clause 13.10.2, overtime shall
not apply until the team member works in excess of 160 hours in any 4 week cycle.
c)
A part-time team member works in excess of 3 8 hours in any week or in excess of
144 hours in any 4 week cycle, except during Key Operational Periods where a parttime team member's ordinary hours, may be increased up to 48 hours in any one
week and to a maximum of 152 hours in the appropriate four week cycle.
d)
A casual team member works in excess of 3 8 hours in any week except during Key
Operational Periods where a casual team member works in excess of 48 hours in any
week or at any time in excess of 152 hours over a 4 week cycle.
e)
A team member works in excess of 5 days in any week (or in excess of 6 days in
accordance with sub-clause 13.2.3).
f)
A full-time or part-time team member is required to work a non-rostered shift (except
for either the circumstances provided for in sub-clause 13.8.1 or for a part-time team
member who has been offered and has accepted additional hours of work in
accordance with sub-clauses 11.2.6 and 13.11).
g)
A full-time team member works in excess of 20 days in any 4 week cycle excepting
in circumstances in accordance with sub-clause 13 .1.2 or for existing full-time team
members who work in excess of 19 days in any 4 week cycle in accordance with subclauses 13.1.2 and 13.10.2.
h)
A part-time team member works in excess of 20 days in any 4 week cycle, (unless the
team member has agreed to work up to 6 days in accordance with sub-clause 13.2.3,
in which case the team member works in excess of22 days in a 4-week cycle.)
i)
A team member works in excess of 9 hours (excluding meal breaks) on any shift,
provided that a team member may work up to 10.5 hours in accordance with subclause 13.6 without the payment of overtime.
Overtime shall be Paid at the Following Rates
a)
Monday to Saturday:
Full-time, part-time and casual team members - first 2 hours 150% and 200%
thereafter
b)
Sunday:
Full-time, part-time and casual team members- 200%
c)
Public Holiday:
Full-time, part-time and casual team members - 250%
14.4
d)
Each day shall stand alone, ie. overtime shall be treated on a daily basis and shall be
non-cumulative.
e)
The minimum engagement for a period of overtime as a separate shift shall be 3 hours
for all team members.
Time Off In Lieu of Overtime
By agreement with Kmart a team member may elect to take time off in lieu of overtime provided:
14.5
a)
any such agreement is in writing,
b)
the time off shall be calculated at the overtime equivalent,
c)
the team member shall be entitled to a fresh choice of payment or time off on each
occasion overtime is worked,
d)
time off must be taken either 28 days prior to working the overtime or within 28 days
after the working of the overtime, or shall be paid out. At the request of the team
member, this may be extended to 56 days.
Meal Allowance
A team member required to work more than one hour of overtime after their rostered time of
ending work, where less than 24 hours' notice of such overtime has been given, shall be paid a
meal allowance as described below. Where a team member is rostered to work an additional day
as overtime and it continues for more than 5 hours, the team member shall be entitled to a meal
allowance, except if they have received 24 hours' notice of the requirement to work such
overtime.
Meal allowance effective from the from the first pay period to commence on or after the dates
shown below:
1/5/2012
1111/2012
115/2013
1/11/2013
115/2014
1/11/2014
115/2015
1/11/2015
$12.76
$12.98
$13.20
$13.42
$13.64
$13.86
$14.08
$14.30
14.6
14.7
Where a team member has not been granted a minimum often hours between ending work in one
day, including any overtime worked, and the commencement of work on the subsequent day,
including any overtime worked, the team member shall be paid overtime until such time as a ten
hour break is observed. The rate of overtime shall be time and one half for the first two hours
and double time thereafter.
Reasonable Overtime
a)
Subject to clause 14.7 (b), Kmart may require a team member to work reasonable
overtime in accordance with the provisions of this clause.
b)
A team member may refuse to work ove1iime in circumstances where the working of such
overtime would result in the team member working hours which are unreasonable having
regard to:
i)
ii)
iii)
iv)
v)
any risk to team member health and safety;
the team member's personal circumstances including any family responsibilities;
the needs of the workplace or enterprise;
the notice (if any) given by Kmart of the overtime and by the team member of his
or her intention to refuse it; and
any other relevant matter.
15.
MEAL BREAKS AND TEA BREAKS
15.1
Unpaid Meal Break
15.1.1
No team member shall work for more than five hours continuously without an unpaid
meal break.
15.1.2
Meal breaks shall be between 45 to 60 minutes. Meal breaks may be reduced to 30
minutes with the agreement of the team member.
15 .1.3
Unless mutually agreed no meal break shall be given or taken within two (2) hours of
the team member's commencing time or within one (1) hour ofthe team member's
ceasing time.
15 .1.4
Notwithstanding the meal break entitlement provided for in sub-clause 15 .1.1 the
following provision may apply on a voluntary basis to a team member working a
shift of no more than 6 hours:
a)
A team member may request and with the consent ofK.mart work up to 6
ordinary hours and forego the meal break until the shift is concluded. Such
agreement will be recorded in writing.
b) In cases where such an arrangement is entered into, the team member shall take
their rest period at least 2 hours prior to concluding work.
c) A team member may revoke their request to work up to 6 hours. At the end of 2
weeks' notice, clause 15.1.1 above shall apply to that team member.
d) This provision will not be used by Kmart to disadvantage team members who
wish to work up to 6 hours with a meal break.
e) Unpaid meal breaks do not count as hours worked by a team member. For
example for the 38-hour week worked by a a full-time team member the meal
breaks required under this clause do not count as time worked towards the 38
hours.
15.2 Paid Meal Breaks
15.2.1 Instead of the unpaid meal break provided in clause 15.1, a team member whose
entitlement to a meal break in accordance with sub-clause 15.1.1 falls between the hours
of midnight and 6.00am, shall be entitled to a paid meal break of 30 minutes.
15.3 Paid Tea Breaks
15.3.1 One paid tea break of 15 minutes shall be provided when a team member works 4 hours
or more.
An additional paid tea break of 15 minutes shall be provided when a team member
works:
- 7 hours or more in Victoria, Tasmania, Queensland and Northern Territory
- More than 8 hours elsewhere
15.3 .2 The 15 minute break is inclusive of all walking time to and from the tea room or any
other location where a team member takes their paid tea break.
15.3.3 The taking of a tea break shall be at a time mutually agreed upon by the parties. If the
work period includes a meal break, the tea break is to be granted in that portion of the
work period which is greater. Unless mutually agreed no tea break falling within a work
period of 3 hours or more shall be given or taken within one hour of the team members
commencing or ceasing time or within one hour before or after any meal.
15.3.4 All tea breaks shall be deemed as time worked.
15.3.5 When a team member is working an additional shift in accordance with sub-clause
13.11, each shift of work on the day shall be treated separately towards the granting of a
tea break in accordance with this clause. That is, the total hours of the two shifts of
work (the rostered and the additional shifts) shall not serve to determine the granting of
paid tea breaks.
PART 5 -LEAVE AND PUBLIC HOLIDAYS
16
PUBLIC HOLIDAYS
16.1
General Public Holidays
A team member, other than a casual shall be entitled, without loss of pay, to Public Holidays as
observed in each State or Territory as follows:
•
•
•
•
•
•
•
•
•
•
16.2
New Years Day
Australia Day
Good Friday
Easter Saturday (except Tasmania)
Easter Monday
Anzac Day
Queens Birthday (Birthday of Sovereign)
Labour Day (8 Hour Day)
Christmas Day
Boxing Day (Proclamation Day)
State and Territory Public Holidays
The following days shall be taken in addition to the days named above or in lieu of where
stated:
Victoria- In addition, Melbourne Cup Day. Provided that where a local day is declared or
prescribed in the locality outside the metropolitan area and Melbourne Cup Day is not declared
or prescribed in the locality then the local day shall be taken as a Public Holiday in lieu of
Melbourne Cup Day. Where two half local days are declared or prescribed in a locality outside
the metropolitan area in lieu of Melbourne Cup Day and a team member is rostered to work
both these days the team member may elect to take a single full-day public holiday on one of
the half day public holidays (In such a case the employee has elected to substitute the other half
day public holiday and no further entitlement applies) in lieu of the two half day public
holidays.
Western Australia- in addition, Foundation Day.
Northern Territory- in addition, Picnic Day.
South Australia - in addition, Adelaide Cup Day.
Tasmania- in lieu of Easter Saturday, Show Day and in addition Hobart Regatta Day (south of
Oatlands) or Recreation Day (where Hobart Regatta Day is not observed).
New South Wales- the first Tuesday ofNovember in any year. Such day shall be treated as an
additional day off or pay in lieu. However work on this day shall not attract public holiday
penalty rates.
Australian Capital Territory - in addition, Canberra Day and Family & Community Day.
Family & Community Day shall be treated as an additional day off or pay in lieu. However
work on this day shall not attract public holiday penalty rates.
Queensland - in addition, Exhibition Day or the appropriate regional show day.
16.3 Additional Public Holidays
A team member, other than a casual, shall be entitled without loss of pay to an additional public
holiday within a State or Territory or locality, when such Public Holiday is 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.
Where in a State or Territory, public holidays are declared or prescribed in addition to the days
specified in sub-clauses 16.1 and 16.2, those days shall constitute additional public holidays for
the purpose of this Agreement and work performed on such public holidays shall attract public
holiday penalty rates.
Where in a locality, public holidays are declared or prescribed in addition to the days specified
in sub-clauses 16.1 and 16.2, those days shall be treated as additional paid time off or pay in
lieu, but work performed on these days shall not attract public holiday penalty rates. If declared
or prescribed, this shall include Newcastle and the Northern Territory show days and Port Pirie
Picnic Day.
16.4 Substitute Public Holidays
If a public holiday or part public holiday is substituted to another day or part day by a law of a
State or Territory the substituted day or part day is a public holiday and the original day or part
day is not a public holiday.
16.5 Christmas Day Loading Where Substitution Occurs
In the case of Christmas Day where substitution occurs, in accordance with sub-clause 16.4
(and 25 December has not otherwise been declared or prescribed a public holiday), work on the
25th December shall attract an additional loading of half a normal day's wage for a full day's
work in addition to the Saturday/Sunday rate and the team member shall also be entitled to the
benefits of the substituted Public Holiday.
16.6 Where a Store Does Not Open for Trade on a Public Holiday
Where a store does not open for trade on a Public Holiday, and a team member would have
been rostered to work on such a day, they shall be entitled to the day off with pay for the hours
normally rostered to work including any applicable penalties (excluding the public holiday
penalty).
16.7 Where a Store Opens for Trade on a Public Holiday
Where a store opens for trade on a Public Holiday, team members who would normally be
rostered to work on the Public Holiday, may elect to work the day or part thereof and shall be
paid the public holiday penalty for time so worked. Provided that when a team member
chooses not to work they shall be entitled to the day off with pay for the hours normally
rostered to be worked including any applicable penalty (excluding the public holiday penalty).
16.8 Non Working Days
a)
A full-time team member whose non-working day falls on a Public Holiday, shall be paid
by mutual agreement either:
(i)
payment of an additional day's wages; or
(ii)
addition of one day to the team member's annual holidays; or
(iii)
another day may be allowed off with pay to the team member within twenty-eight
days after the Public Holiday falls, or during the week prior to the Public Holiday.
The additional day off shall be granted on the day before or after the Public
Holiday or attached to other consecutive days off. At the election of the team
member, the team member may take the day off with pay within fifty-six days
after the public holiday falls instead of within twenty-eight days.
b)
For the purpose of sub-clause 16.8 (a) (i), (ii), or (iii) for full-time team members working
19 days in a 4 week cycle, "day" shall mean 8 hours. Provided that where a full-time
team member works 20 days in accordance with sub-clause 13.1.2, "day" shall mean 7.6
hours.
c)
A part-time team member shall be entitled to the provisions of sub-clause 16.8 (a) (i), (ii)
or (iii), where the team member is rostered so they do not work their ordinary hours on
the same days each week (an alternating roster) and the public holiday falls on a day on
which the team member works in any week of their roster cycle.
d)
A part-time team member shall be entitled to the provisions of sub-clause 16.8 (a) (i), (ii)
or (iii), where the team member is rostered to work 20 starts over a 4 week cycle or where
the team member is contracted to work a minimum of 32 hours per week, and their non
working day falls on a Public Holiday.
e)
For the purposes of sub-clause 16.8 (c) and (d) for part-time team members, "day" shall
mean the average number of hours rostered per day for the part-time team member in the
4 week cycle prior to the public holiday.
f)
Where an additional day is declared or prescribed for the public holidays specified in subclauses 16.1, 16.2 and 16.3, the non-working day provisions above shall not apply to the
additional public holiday.
16.9 Absences from work
Kmart may require an employee who fails to attend for a rostered shift the day before and/or the
day after a public holiday to provide documentary evidence in the form of a medical certificate
or statutory declaration in accordance with clause 19.2.11.
16.10 Voluntary Work
A team member cannot be required, but may elect to work on any Public Holiday as provided
for in this clause.
16.11 Rates of Pay
a)
All full-time, part-time and casual team members working on a Public Holiday shall be
paid at the rate of250% of the ordinary hourly rate of pay prescribed in clause 7 Wages
with a minimum payment as for 3 hours' work.
b) Provided that a team member working on a public holiday subject to sub-clauses 16.2 (the
first Tuesday in November (NSW) and Family & Community Day (ACT), 16.3 and 16.6,
shall be paid in accordance with sub-clauses 16.2 (the first Tuesday in November and ACT
Family & Community Day), 16.3 and 16.6 of this clause.
c)
A team member may elect to take time in lieu of the rate specified in sub-clause 16.11(a)
provided the following conditions are met:
(i)
the time to be taken in lieu shall be agreed in writing before the team member makes
the election. If agreement cannot be reached the team member is entitled to the rate
ofpay specified in 16.11(a);
(ii) the time in lieu shall be taken on the basis that a team member that works on a public
holiday may take an equivalent number of hours off elsewhere as time in lieu,
provided Kmart shall pay the team member 150% for the hours worked on the public
holiday;
(iii) the team member shall be entitled to a fresh choice of payment at 250% or time off in
lieu and payment of 150% on each occasion a public holiday is worked.
(iv) time off in lieu must be taken either 28 days prior to working the public holiday or
within 28 days after the working of the public holiday, or shall be paid out. At the
request of the team member, this may be extended to 56 days.
16.12 Half-Day Public Holidays
The following principles shall apply when an additional day is declared or prescribed as a
public holiday and that day is a half-day public holiday (excluding circumstances in Victoria
where a team member elects to take a single full day public holiday on one of the half day
public holidays for Melbourne Cup Day in lieu of the two half-day public holidays in
accordance with Clause 16.2).
For a holiday from noon onwards:
a) A team member who is normally rostered only before noon then no benefit applies.
b) A team member who is normally rostered only to work from or after 12 noon then the
entire shift is a public holiday.
c)
A team member who is normally rostered on a day shift then the part of the shift which
occurs from 12 noon shall have the benefits of a public holiday apply.
d)
When a team member's non working day occurs on a half public holiday then a benefit for
that holiday in accordance with the principles contained within sub-clause 16.8 shall apply.
e)
If the half-day is a locality day then this provision shall apply in conjunction with the
provisions of sub-clause 16.3 above.
Provided that similar principles will apply if a half-day holiday occurs in the morning.
16.13
New Years Eve and Christmas Eve (if not a public holiday)
Work after 6.00 p.m. on Christmas Eve and New Year's Eve will be subject to the following
provisions:
a)
Team members not wishing to work beyond 6pm shall advise Kmart at least 4 weeks
prior to Christmas Eve or New Years Eve.
b)
Kmart shall then seek volunteer replacements.
c)
If insufficient volunteers are obtained then Kmart shall have the right to direct the
working of a team member's normal roster so that a reasonable staffing level is reached.
d)
In cases of permanently rostered staff not wanting to work at these times they shall be
rostered to work on another day or time in the 4 week cycle as part of their ordinary rates
of pay.
This sub clause does not apply where New Years Eve and/or Christmas Eve are
public holidays.
16.14
Easter Sunday (if not a public holiday)
a)
In stores which are permittedto open, work on Easter Sunday shall be voluntary for Fulltime and Part-time team members. Team members not wanting to work on this day shall
be rostered to work their hours at some other time during the 2 or 4 week roster cycle
and shall be paid the appropriate ordinary rate of pay.
Team members shall give Kmart at least 2 weeks' notice if they do not wish to work on
Easter Sunday.
b)
Permanent team members rostered to work in a store which is not permitted to open on
Easter Sunday shall be given the day off with pay at the ordinary time earnings rate,
exclusive of any penalty payment.
This sub clause does not apply where Easter Sunday is a public holiday.
16.15
Shifts worked over two days (Permanent Team Members):
(a)
Where the majority of a team member's rostered shift falls on a public holiday, the entire
shift shall be regarded as the public holiday;
(b)
Where a team member is rostered for a shift with an equal number of hours on the public
holiday and on the day before the public holiday the entire shift shall be treated as a
public holiday;
(c)
(d)
(e)
(f)
Where a team member is rostered for a shift with an equal number of hours on the public
holiday and the day after the public holiday the entire shift shall be treated as a public
holiday;
Subject to sub-clause 16.15(e) if the minority of a shift falls on a public holiday the team
member is entitled to have that part of the shift that falls on the public holiday treated as a
public holiday (hours off without loss) and the remainder of the shift treated as a normal
shift.
If a team member works two consecutive shifts so that the first shift ends the morning of a
public holiday and the next shifts commences on the same night; only one shift will be
treated as the public holiday not both, i.e the majority shift on the public holiday will then
be the public holiday shift.
If both shifts have equal hours on the public holiday and non-public holiday only one of
the two shifts shall be a public holiday shift.
17
ANNUALLEAVE
17.1 Period of Leave
For each year of continuous service:
(a)
(b)
(c)
Full-time team members (other than shift workers) are entitled to 4 weeks of annual
leave (152 hours); and
Full-time shift workers* are entitled to 5 weeks of annual leave (190 hours); and
Part-time team members shall be entitled to annual leave on a pro-rata basis. Where the
number of hours worked vary throughout the course of the year, the entitlements to
annual leave shall be calculated upon the average number of rostered hours worked
during the year of accrual excluding additional hours worked pursuant to sub-clause
11.2.6 and 13.11.
A team member's entitlement to annual leave accrues progressively during each year according
to the ordinary hours of work and accumulates from year to year.
*Shift workers, for the purpose of this sub-clause, are seven day a week shift workers who are
regularly rostered to work on Sundays and public holidays in a store where shifts are
continuously rostered 24 hours a day for seven days a week.
17.2
Time of Taking Leave
The taking of annual leave will be by mutual agreement, within a period not exceeding 12
months from the date it becomes due. Under no circumstances shall a team member forfeit
their annual leave entitlement.
Where there is no agreement annual leave shall be taken in one period of 4 weeks. Under these
circumstances, a minimum period of 4 weeks' notice shall be given by Kmart with the team
member being advised of more than one option of the time period in which the leave is to be
taken.
When detennining annual leave for team members, Kmart shall, where practicable, take into
account the family matters of the team member.
17.3 By mutual agreement annual leave may be taken in two or three separate periods, of not less
than 5 days.
Notwithstanding the above provision annual leave may be taken in single days up to a
maximum of 5 single days per year at the request of a team member. Upon exhaustion of the
initial 5 single days of annual leave, at the request of the team member, the team member may
extend their use of single days of annual leave for up to a further 5 single days per year from
any annual leave accrued above 4 weeks.
17.4 If the team member and Kmart agree, annual leave may be taken wholly or partly in advance
before the team member has become entitled to the annual leave.
17.5 By written request to Kmart, a team member may take their annual leave in periods other than
those specified for above provided the request is able to be accommodated within the
operational needs of Kmart.
17.6 Payment for Period of Leave
(a) Before going on fully accrued leave a team member will be paid the amount of wages they
would have received in respect of the period of annual leave plus a loading of 17 Y2% for up
to 152 hours leave per anniversary year or pro-rata for part-time team members.
(b) Before going on leave that has not fully accrued a team member will be paid the amount of
wages they would have received in respect of the period of annual leave taken but not the
17.5% annual leave loading Ifthe team member subsequently accrues a full-year annual
leave entitlement the team member will be paid an amount equivalent to 171/2% of the
wages paid for the leave previously taken.
(c) A team member may elect not to receive this payment in advance and receive it as per the
normal pay cycle during the period of leave.
17.7 Payment will not be made in lieu of annual leave, except in accordance with sub-clause 17.9 or
17.11.
17.8 Annual Leave Exclusive of Public Holidays
Where any public holiday for which the team member is entitled to payment under this
Agreement occurs during any period of annual leave taken by a team member under this clause,
the period of the leave shall be exclusive of that public holiday and the public holiday is not
deducted from the team member's annual leave entitlement.
17.9 Payment of Annual Leave on Termination
Any accrued or pro-rata annual leave entitlement will be paid upon termination of employment.
The 17 Y2% loading referred to in sub-clause 17.6 will apply to fully accrued leave on
termination but does not apply to proportionate leave payable upon termination.
Where the employment of a team member is terminated before the team member has completed
one year of employment, the sum paid to the team member will be 1/12 of the ordinary pay for
that period of employment.
17.10 Annual Leave Credit from Other Leave
17.10.1 If the period during which a team member takes paid annual leave includes a period of
personal leave (including compassionate leave) or a period of absence on community
services leave the team member is taken not to be on paid annual leave for that period
of that other leave or absence.
17.11 Cash out of annual leave in certain circumstances
17.11.1 A team member is entitled to cash-out an amount of annual leave credited to the team
member if:
(a)
(b)
(c)
The team member provides Kmart with a written request to cash-out the
amount of annual leave; and
The amount paid by Kmart to the team member in lieu of annual leave is at a
rate no less than the hourly ordinary time rate the team member is entitled to
at the time of the request; and
Kmart authorises the team member to cash-out the leave and provides a
copy of the written agreement to the team member.
17.11.2
A team member is not entitled to cash-out, during any 12 month period, an amount
that is greater than 76 hours of annual leave for full-time team members (pro rata
for part-time team members).
17.11.3
Kmart will only authorise any team member's written request to cash-out annual
leave if:
a) The above requirements have been or will be met; and
b) The team member has credited to them at the time ofthe request at least 5
weeks of annual leave (pro rata for part-time team members); and
c) A request by the team member is a request to cash-out either an amount of
annual leave in blocks of either 38 hours or 76 hours (to cash out an amount of
7 6 hours a team member must have a minimum of 6 weeks' leave accrued at
the time of the request) for full-time employees or equivalent pro-rata hours
for part-time employees; and
d) A written request provided by the team member to Kmart must be provided in
either in February or August of any year (requests cannot be made in both
February and August of the same year) not both); and
e) The request is the only request made by the employee in the previous 12
months.
17.11.4
At Kmart's discretion, and in special circumstances, Kmart may authorise a
request to cash-out annual leave received at other times of the year provided the
other requirements of this clause have or will be met.
17.11.5
Kmart will pay annual leave loading of 17.5% in addition to any amount paid for
cashed out annual leave in accordance with this clause.
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18.
LONG SERVICE LEAVE
18.1 Team members are entitled to long service leave in accordance with the relevant State or
Territory legislation.
In addition, team members will be entitled to access long service leave on the basis of double
time at half pay subject to the team member and Kmart reaching mutual agreement. Provided
that, the team member shall not accrue any more leave than they would have had they taken
long service leave on normal pay. Such requests shall not be unreasonably refused.
18.2 During a period of long service leave a full-time team member working 19 starts in a 28 day
roster cycle in accordance with sub-clause 13.1.2 does not accrue an RDO during a period of
long service leave. If the team member partly works during a 4-week cycle and is on long
service leave for the remainder of the 4-week cycle, the team member will continue to be
entitled to any hours already worked toward the RDO. Such hours shall be taken off by the
team member at a time of mutual agreement.
19.
PERSONAL LEAVE
19.1
Immediate family member
For the purposes of this clause, immediate family member shall mean a spouse (including a
fanner spouse), de facto partner (including a fanner de facto partner), child (including step or
foster), parent (including a step-parent), grandparent, grandchild or sibling of the employee; or
a child (including step or foster), parent, grandparent, grandchild or sibling of a spouse (or
former spouse) or de facto partner (or fanner de facto partner) of the employee.
19.2
Entitlement to Personal Leave
19 .2.1 A team member, other than a casual, is entitled to personal leave in circumstances where
the team member cannot attend work as rostered due to:
(a) a personal illness, or injury affecting the team member (personal purposes); or
(b) the need to provide care or support to a member ofteam member's immediate
family or household who requires care or support because of a personal illness or
injury or an unexpected emergency affecting that immediate family or household
member (carer's purposes).
The entitlement to personal leave to provide care or support to an immediate family
or household member is on the basis that the team member seeking such leave is the
most suitable person, in the circumstances, to provide such care or support.
19.2.2 A full-time team member is entitled to 76 hours of paid personal leave (pro-rata for parttime team members) that is accrued during the first year of employment and credited
thereafter upon the anniversary of each year of continuous service.
19 .2.3 For part-time team members the personal leave entitlement in the first year of
employment will be accrued upon the team member's contract hours at the time of
engagement. For each year thereafter, the entitlement will be based upon the average
contract hours of the team member in the preceding completed year.
19.2.4 Where a team member has taken 76 hours of personal leave in an anniversary year for
carer's purposes, an additional 7.6 hours of paid leave (pro rata for part-time team
members) may be accessed. This paid leave is not deducted from the team member's
personal leave accrual and is not available for personal purposes. This 7.6 hours does
not accrue from year to year.
19.2.5 Payment whilst on paid personal leave will be at the team member's ordinary time
earnings for the hours normally rostered to work, excluding any penalties.
Notification and Documentation Requirements-Where personal leave is for personal
purposes
19.2.6 Kmart and the Union are committed to ensuring that personal leave is only utilised in
cases of genuine need. The misuse of personal leave will lead to counselling for the
team member.
19.2.7 A team member may take up to 2 days' personal leave in any one year without a
medical certificate or a statutory declaration. Upon written notice by Krnart other
claims for personal leave may need to be supported by a medical certificate from a
registered medical practitioner or a statutory declaration.
19.2.8 Where a team member has taken 2 days' personal leave in any one year without a
medical certificate or a statutory declaration, Krnart will deal with such cases on a case
by case basis and shall not provide written notice under clause 19 .2. 7 unless the team
member demonstrates a recurring pattern of absenteeism.
19.2.9 Where a full-time or part-time team member accesses less than half of the annual
personal leave entitlement from the previous anniversary year, the team member may
not be requested to provide proof of absence until 4 days' absence on account of illness
or injury has occurred. For the purposes of this provision, each anniversary year shall
stand alone.
19.2.10Entitlement to all personal leave claimed will be dependent on notification to the Store
manager or manager on duty of the inability to attend for duty and the possible
recommencement time. Such notification should be provided as soon as is reasonably
practicable.
19.2.11 Notwithstanding any contrary provisions in this clause Krnart may require the
production of documentary evidence in the form of a medical certificate or a statutory
declaration where a team member is absent either the day before and/or the day after a
public holiday as set out in sub-clause 16.9.
19.2.12 Upon reporting back to work after personal leave, the team member will report to their
line manager.
19.2.13 Upon request, a team member shall be entitled to information regarding their accrued
personal leave entitlements.
Notification and Documentation Requirements: Where personal leave is for carer's
purposes and for unpaid carer's leave
19.2.14 The team member will provide Krnart with notice as soon as is reasonably practicable
of their intention to take personal leave, a satisfactory explanation of the reason for the
leave and the estimated duration of absence.
19.2.15 Reasonable proof of absence may be required by Krnart to grant payment for personal
leave taken to care or support immediate family or household members.
19.3
Unpaid Carer's Leave
19.3.1 A team member (including a casual team member) is entitled to a period of up to 2 days
unpaid carer's leave for each occasion that a member of the team member's immediate
family or household requires care and support due to that person being ill, injured or
affected by an unexpected emergency.
19.3 .2 A pennanent team member is not entitled to unpaid carer's leave if during a particular
period they could instead take paid personal leave.
19.3.3 Only 1 day ofunpaid carer's leave is available in conjunction with leave accessed under
sub-clause 19.2.4.
19.4
Requests for flexible working arrangements (Carer's)
19.4.1 An eligible team member who has responsibility for the care of an elderly parent or
spouse (or defacto partner) whom suffers from a disability or long term serious illness or
injury that prevents them from caring for themselves, may make a request to Kmart for a
change in working arrangements to assist the team member to care for the elderly parent
or spouse (defacto partner).
19.4.2 Permanent team members are able to make such a request iftheyhave completed 12
months continuous service with Kmart immediately before making the request. A casual
team member is able to make such a request ifthe team member is a long term casual
with an ongoing expectation of continuing employment with Kmart on a regular and
systematic basis. A long term casual employee is a casual employee that has been
employed by Kmart on a regular and systematic basis for a sequence of periods of
employment during a period of at least 12 months.
19 .4.3 A request must be in writing and set out the details of the change sought and the reason
for the change. Kmart will provide the team member with a response in writing within
21 days to the request stating if Kmart grants or declines the request. In the event that
Kmart refuses the request Kmart's written response will include reasons for the refusal.
19.5
Personal emergencies
19.5 .1 Where a team member has a pressing domestic emergency that requires the team
member's immediate attention, a full-time team member may access up to 7.6 hours
(pro rata for part-time team members) of their personal leave to attend to the emergency.
An emergency includes situations such as a house fire, burst water pipes or a burglary at
the team member's primary residence and where the team member's attendance is
required to deal with emergency services or permit access by state emergency services
members or emergency repair service personnel.
19.5.2 However an emergency does not include situations where a team member could
otherwise deal with a situation before or after their rostered hours of work, or where it is
simply a matter of convenience or preference for the team member to attend a situation.
Where the emergency situation has been addressed the team member is required to
attend work for the remainder of their shift, if practical. The team member will only
have deducted from their personal leave the hours they were absent from work.
19.5.3 A team member maybe required to provide evidence ofthe emergency that would
satisfy a reasonable person of the emergency situation in order for payment to be made
under this sub-clause.
19.5.4 A team member able to access leave under sub-clause 23.5 of this Agreement cannot
also access leave under this clause for the same situation.
2.0.
PRE-NATAL LEAVE
20.1
Pregnant Team Member
20.1.1 A full-time or part-time pregnant team member may access personal leave for the purpose
of attending medical appointments associated with the pregnancy.
20.2 Team Member Whose Partner is Pregnant
20.2.1 A full-time or part-time team member may access paid personal leave up to 22.8 hours
(pro-rata for part-time team members) for the purpose of attending medical
appointments with their pregnant spouse.
20.3 Notification and Attendance
a)
b)
c)
d)
Proof of such attendance may be required to be produced upon request by Kmart.
Where possible, team members should attempt to organise appointments during nonworking hours, or if during working hours, as close as possible to the beginning or ending
of their ordinary working hours.
The team member is to provide reasonable notice to Kmart of the requirements to take this
leave; and
Personal/carer's leave used for the purpose of attending medical appointments associated
with pregnancy will be deducted from the team member's accrued entitlement based on the
actual time taken to attend each appointment.
21
COMPASSIONATE LEAVE
21.1
Compassionate leave is a period of leave during times ofbereavement or to spend time with an
immediate family member or household member with a personal illness or injury that poses a
serious threat to life.
21.2 Entitlement due to Death
22.1.1 Full-time, part-time and casual team members are entitled to compassionate leave for
each occasion when a member of the team member's immediate family or household
dies. Permanent team member entitlements are included in sub-clause 22.1.3 and casual
team members are entitled to 2 days compassionate leave.
22.1.2 Immediate family is defined in clause 19.1 of this Agreement.
22.1.3 Upon the death of a permanent team member's:
(a) Spouse (including a de facto partner), father, mother, stepfather, stepmother, child
(including adopted, step or foster children), sister and brother, a team member is
entitled to paid compassionate leave to a maximum of five (5) shifts including the
day of the funeral;
(b) Parent-in-law (including de facto partner's parent), grandparent, grandparent-inlaw, (including de facto partner's grandparent) grandchild, brother-in-law (including
de facto partner's brother), sister-in-law (including de facto partner's sister), son-inlaw (including a de facto partner's son), daughter-in-law (including a de facto
partner's daughter), aunt, uncle, niece or nephew, a team member is entitled to paid
compassionate leave to a maximum of three (3) shifts including the day of the
funeral;
(c) Former spouse (including former de facto partner) or spouse from whom the team
member is separated, a team member is entitled to paid compassionate leave to a
maximum of three (3) shifts including the day ofthe funeral;
(d) Upon the death of a member of the team member's household, paid compassionate
leave to a maximum of two (2) shifts;
(e) Upon the death of other close relatives not otherwise covered by this clause or the
NBS, paid compassionate leave to a maximum of one (1) shift to attend the funeral
may be approved by Kmart.
22.1.4 Compassionate leave may be taken as a single continuous period of leave or as separate
shifts ofleave, except leave under sub-clause 21.1.3(e) which must be taken as a single
shift.
22.1.5 Where the death of a relative detailed in paragraphs 21.1.3(a)-(c) occurs interstate or
outside of Australia and the team member attends the funeral, the team member shall be
entitled to receive an additional unpaid period of compassionate leave, which shall not
exceed two shifts.
22.3
Entitlement Due to Serious Illness/Injury
22.3.1 Full-time, part-time and casual team members are entitled to a period of2 shifts of
compassionate leave (either as a continuous period or as single shifts of leave) for the
purposes of spending time with a member of the team member's immediate family (as
defined in clause 19.1) or a member of the team member's household who has
contracted or sustained a personal illness/injury that poses a serious threat to his or her
life. Team members may access this entitlement for each occasion of serious
illness/injury.
22.3.2 Compassionate leave taken pursuant to subclause 21.2.1 can be taken at any time while
the illness or injury persists.
22
22.4
Payment whilst on compassionate leave for pennanent team members will be at the team
member's ordinary time earnings for the hours normally rostered to be worked excluding any
penalties. Compassionate leave for casual team members is unpaid.
22.5
Proof of the illness, injury or death shall be required to be produced, when requested by Kmart.
BLOOD DONOR LEAVE
22.1 A team member other than a casual shall be entitled to up to two hours' paid leave on any one
occasion for the purposes of donating blood. A maximum of four separate absences per
calendar year shall be allowed.
22.2 Absences shall be arranged by mutual agreement between the team member and K.mart.
22.3 Upon request, proof of such attendance will be required to be produced.
22.4 Team members should attempt to organise the donation of blood during non-working hours.
23
COMMUNITY SERVICE LEAVE AND OTHER LEAVE
23.1
Community Services Leave
23.1.1
A team member who is engaged in an eligible community service activity is
entitled to be absent from work for a period which comprises the time when the
team member is engaged in the activity, reasonable travelling time associated with
the activity and reasonable rest time immediately following the activity, provided
the team's members absence is reasonable in all the circumstances (the
reasonableness requirement does not extend to jury service).
23.1.2
An eligible community service activity is:
(i)
Jury Service (including attending for jury selection); and
(ii)
A voluntary Emergency Management Activity; and
(iii)
Any other activity prescribed in the Fair Work Regulations.
23.1.3
The NBS sets out when a team member engages in a voluntary Emergency
Management Activity.
23.1.4
All team members, including casual team members are eligible for Community
Services Leave; however Community Services Leave is unpaid (other than for
permanent team members on Jury Service and as set out in sub-clause 23.2Emergency Services Leave).
23.1.5
A team member required to attend for Jury Service during their rostered hours of
work will not suffer any loss of income in respect ofthe ordinary hours they
would have worked had they not been on Jury Service.
23.1.6
While on Jury Service a team member will not be required to attend work until the
completion of Jury Service.
23.1.7
A team member on a roster including weekend work shall be given time off
without loss of pay so that the combination of consecutive jury and work days
does not exceed 5 days per week.
23.1.8
A team member required to attend for jury service during a period of annual leave
will, upon producing satisfactory evidence of attendance, be credited with annual
leave for the period for which jury service was attended.
23.1.9
Notice and evidence
(a)
A team member who wants to take Community Services Leave must provide
Kmart with notice, which must be given as soon as practicable (which may
be at a time after the leave has started) by the team member to the team
member's manager. The team member must also advise their manager of
the period, or the expected period, of the absence.
23.2
23.3
(b)
If required by Kmart, a team member who has given notice of the taking of
Community Services Leave must give the Kmart evidence that would satisfy
a reasonable person that the absence has been or will be because the team
member is engaging in an eligible community services activity.
(d)
In respect to jury service Kmart may also require the team member to give
to Kmart evidence that would satisfy a reasonable person that the team
member has taken all reasonable steps to obtain any amount of jury service
pay to which the team member is entitled and of the total amount of jury
service pay (if any) that has been paid or is payable to the team member for
the period.
(d)
IfKmart requires the team member to provide evidence for the taking of
jury service, the team member is not entitled to payment for jury service
unless the evidence has been provided.
Emergency Services Leave
(a)
A team member, other than a casual, involved in recognised voluntary services
including SES and fire fighting shall be entitled to paid time off to attend to emergency
situations which may affect the community as a whole.
(b)
It shall be the responsibility of the team member to keep Kmart informed about the time
off needed to attend to emergency duties.
(c)
To receive payment, a team member shall provide Kmart proof of attendance at the
emergency situation.
(d)
Paid time off for attendance at emergencies in the local area shall not be unreasonably
restricted nor accessed, and shall be limited to a maximum of 3 days per situation.
(e)
Paid time off for attendance to emergencies that are not local shall be limited to a
maximum of 5 days per annum, but may be increased, and depending on the nature of
the emergency (e.g. major bush fire) subject to Kmart approval.
Leave of Absence
23.3.1
Subject to Kmart's approval, a team member, other than a casual, with more than 1 year
of continuous service, may take a period of authorised unpaid leave of absence of one
week's duration or more, and such absence shall not break the continuity of employment
for the team member concerned provided that:
a)
the maximum period of absence on any one occasion does not exceed 3 months;
b)
all outstanding paid leave entitlements the team member is eligible to apply for,
are taken prior to the period of absence;
c)
a leave of absence application is made by the team member as a part of the leave
application process adopted by Kmart; and
23.4
23.5
23.3.2
Any or all of the provisions in sub-clause 23.3.1 may be waived by agreement between
K.mart and the team member.
23.3.3
The operation ofthe above sub-clauses 23.3.1 and 23.3.2 shall not be applied
retrospectively.
23.3.4
Where a team member takes approved leave of absence, all entitlements to annual leave,
personal leave and long service leave are frozen from date of commencement until the
date of return of such leave.
23.3.5
This clause may be used by a team member to attend to their study commitments.
Where this clause is used for this purpose, clause 23.3.1 (a) does not apply and under
clause 23.3.1 (c), the team member will be required to provide at least four weeks'
notice.
23.3.6
Clause 23.3.1 (b) also does not apply except where a team member has an annual leave
entitlement of more than four weeks. Where the team member has an annual leave
entitlement of more than four weeks, the team member will use any accrued leave
greater than four weeks before taking a leave of absence.
Defence Force Service Leave
24.4.1
A team member, other than a casual, shall be allowed leave ofup to a maximum of2
weeks per calendar year to attend Defence Forces Reserve approved training camps.
24.4.2
During such leave, team members who are required to attend full-time training shall be
paid an amount equal to the difference between the payment received in respect of their
attendance at camp and the amount of ordinary time earnings they would have received
for working ordinary time during that period.
24.4.3
To receive payment, a team member shall provide Kmart proof of attendance and proof
of Defence Forces Reserve rate of pay and total payment received for the time spent in
training.
24.4.4
Team members seeking to take defence force services leave must provide notice to
K.mart at least one month prior to the period of training. The notice should detail the
start and finish dates for training.
Natural Disaster Leave
Where a "yellow alert" is announced for cyclones, or there is flooding or bush fires which pose a
genuine threat to a team member's property or creates a need for a team member to care for their
children, team members shall be allowed to leave work. In such circumstances, permanent team
members will be able to access up to 3 days per year, non-cumulative, paid leave.
Kmart agrees that, where a time has been set for moving from a yellow alert to red alert, the store
will close one hour before the red alert comes into force, unless otherwise directed by the State
Emergency Services or other emergency services body.
Upon the threats caused by the natural disaster subsiding (outlined two immediate paragraphs
above), team members shall return to work.
2,4
PARENTAL LEAVE AND REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS
24.1 The parental leave provisions of this clause apply to full-time and part-time team members, and
only apply to eligible casual team members as per 24.16 of this clause.
24.2 Nature of Leave
Parental Leave is unpaid leave.
24.3 Definitions
a)
Birth-related leave means unpaid leave associated with the birth of a child of a team
member or the team member's spouse or team member's de facto partner where the team
member has or will have the responsibility for the care of the child.
b)
Adoption-related leave means leave associated with the placement of a child with a team
member for adoption where the team member has or will have the responsibility for care
of the child.
c)
The day of placement in relation to the adoption of a child means the earlier of the day the
on which the team member first takes custody of the child for the adoption or the day on
which the team member starts any travel that is reasonably necessary to take custody of
the child for adoption.
d)
Child means a child of the team member under school age except for adoption of a child
where 'child' means a person under school age who is placed with the team member for
the purposes of adoption, other than a child or step-child of the team member or of the
spouse of the team member or a child who has previously lived continuously with the
team member for a period of 6 months or more.
e)
In relation to birth-related leave, spouse includes a de facto partner or former spouse.
f)
In relation to adoption-related leave, spouse includes a de facto partner but does not
include a former spouse.
g)
Former position means the position held by a team member immediately before
proceeding on leave or part-time employment under this clause whichever first occurs or,
in the case of a team member transferred to a safe job in accordance with sub-clause
24.5(f), the position held immediately before such transfer. If such position no longer
exists and there are other positions available for which the team member is qualified and
the duties of which the team member is capable of performing, the former position shall
mean a position as nearly comparable in status and pay to that of the position first
mentioned in this definition.
h)
For the purpose of this clause continuous service shall be calculated in accordance with
clause 6.4 of this Agreement.
24.4
Basic Entitlement
a) Except as provided in paragraph (b) hereof, after 12 months' continuous service, a team
member is entitled to a total of 104 weeks' parental leave on a shared basis in relation to the
birth or adoption of their child.
b) Provided that, if a team member has 6 months' continuous service, the team member will be
entitled to a combined total of 26 weeks' parental leave in accordance with the provisions of
this clause. Additional leave may be considered by Kmart upon application by the team
member in accordance with clause 23.3, leave of absence.
c) Parental leave, whether it is birth-related and/or adoption-related leave is to be available to
only one parent at a time, in a single unbroken period, except where both parents may
concurrently take an unbroken period of up to 8 weeks at the time of the birth or placement of
the child.
d) Birth-related and/or adoption-related leave may start at any time within 12 months after the
date ofbirth or day ofplacement of a child ifthe team member has a spouse or de facto
partner who is not a team member and the spouse or de facto partner has a responsibility for
the care of the child for the period between the date of birth or placement of the child and the
start ofthe date ofleave.
e) If the leave is birth-related for a female team member who is pregnant with, or gives birth the
period ofleave may start up to 6 weeks before the expected date ofbirth of the child and
must not start later than the date of birth of the child.
f)
Where both parents intend to take birth-related leave, one parent's period of leave must start
first on either the date of the birth of the child or for a female team member who is pregnant
with or gives birth to a child the period of leave may start up to 6 weeks before the expected
date of birth of the child, the second parent's period ofleave must start immediately after the
end of the first parent's period ofleave.
g) If the leave is adoption-related leave, the period ofleave must start on the day of placement
of the child.
h)
24.5
Where both parents intend to take adoption-related leave, one parent's period of leave must
start on the day of placement of the child and the second parent's period ofleave must start
immediately after the end of the first parent's period ofleave.
Birth-Related Parental Leave -Notice and Evidence Requirements
a)
A team member must provide notice to Kmart in advance of the expected date of
commencement ofparentalleave. The notice requirements are:
(i)
at least 10 weeks prior- advise Kmart of the expected date of birth (included in a
certificate from a registered medical practitioner stating that the team member is
pregnant) specifying the intended start and end dates of the leave; and
(ii)
at least 4 weeks prior -to the date on which the team member proposes to
commence parental leave, confinn the period ofleave to be taken, advise ifthere
are any changes to the intended start and the intended end date of the leave.
b)
When the team member gives notice under sub-clause 24.5(a)the team member must also
provide a statutory declaration stating particulars of any period of parental leave sought
by their spouse or de facto partner and that for the period of parental leave they will not
engage in any conduct inconsistent with their contract of employment.
c)
A team member will not be in breach of this clause if failure to give the stipulated notice
is occasioned by the birth of the child occurring earlier than the expected date.
d)
Where a pregnant team member continues to work within the 6 week period immediately
prior to the expected date of birth, or where the pregnant team member elects to return to
work within 6 weeks after the birth of the child, Kmart may require the team member to
provide a medical certificate stating that she is fit to work on her normal duties.
If in the opinion of the medical practitioner, the team member is fit to work, the medical
certificate may contain a statement of whether it is inadvisable for the team member to
continue in her present position for a stated period because of:
(i)
(ii)
illness, or risks arising out of the pregnancy; or
hazards connected with the position.
Where such a certificate is issued, Kmart may require the team member to start a
continuous period ofbirth-related leave as soon as reasonably practicable, ifthe team
member:
(1)
(2)
does not give Kmart the requested certificate within 7 days after the request; or
within 7 days after the request for the certificate, gives Kmart a medical
certificate stating that the team member is unfit for work.
e) Unpaid Special Maternity Leave
(i)
(ii)
(iii)
(iv)
Where the pregnancy of a team member not then on birth-related parental leave
terminates after 28 weeks other than by the birth of a living child, the team member may
take special maternity leave and personal leave of such periods as a registered medical
practitioner certifies is necessary.
Where a team member is suffering from an illness not related to the direct consequences
of the confinement, a team member may take any paid personal leave to which she is
entitled in lieu of, or in addition to, special maternity leave.
Where a team member not then on birth-related parental leave suffers illness related to
her pregnancy, she may take any paid personal leave to which she is then entitled and
such further special maternity leave as a registered medical practitioner certifies as
necessary before her return to work. The aggregate of paid personal leave, special
maternity leave and parental leave, including parental leave taken by a spouse or de
facto partner, may not exceed 104 weeks.
A team member must provide Kmart with notice of the taking of unpaid special
maternity leave as soon as practicable (which may be at a time after the leave has
started). The notice must advise of the period or expected period of the leave.
(v)
A team member's entitlement to 24 months of unpaid birth-related parental leave is
reduced by the amount of any unpaid special maternity leave taken by the team member
while she was pregnant.
f)
Transfer to a safe job
(i)
Where a team member is pregnant and, in the opinion of a registered medical
practitioner, the team member is fit for work but it is inadvisable for the team
member to continue at her present position because of illness or risks arising out of
the pregnancy or hazards connected with that position, the team member will, if
Kmart deems it reasonably practicable after being provided with the required notice
and evidence, be transferred to a safe job at the rate and on the conditions attaching
to that job with no other change to the team member's terms and conditions of
employment.
(ii)
If the transfer to a safe job is not practicable, the team member may take, or Kmart
may require the team member to take, a period of paid leave immediately in
accordance with the following:
(1)
the entitlement to leave is in addition to any other leave entitlement the team
member has; and
(2)
the period ofleave ends at the earliest of whichever the following times is
applicable:
•
•
•
24.6
the end of the period stated in the medical certificate;
if the team member's pregnancy results in the birth of a living child-the end
of the day before the date ofbirth;
if the team member's pregnancy ends otherwise than with the birth of a
living child-the end of the day before the end of the pregnancy.
Adoption Related Leave
a)
The team member will notify Kmart at least 10 weeks in advance of the date of
commencement of adoption leave and the period of leave to be taken. A team member
may commence adoption leave prior to providing such notice where, through
circumstances beyond the control of the team member, the adoption of a child takes
place earlier.
b)
Before commencing adoption leave, a team member will provide Kmart with a
statutory declaration stating:
(i)
the team member is seeking adoption leave to become the primary care-giver of
the child; and
(ii)
particulars of any period of adoption leave sought or taken by the team member's
spouse and de facto partner; and
(iii) that for the period of adoption leave the team member will not engage in any
conduct inconsistent with their contract of employment.
24.7
c)
Kmart may require a team member to provide confirmation from the appropriate
government authority of the placement.
d)
Where the placement of a child for adoption with a team member does not proceed or
continue, the team member will notify Kmart immediately and Kmart will nominate a
time not exceeding 4 weeks from receipt of notification for the team member's return
to work.
e)
A team member will not be in breach of this clause as a consequence of failure to give
the stipulated periods of notice if such failure results from a requirement of an
adoption agency to accept earlier or later placement of a child, the death of a spouse or
de facto partner, or other compelling circumstances.
f)
A team member seeking to adopt a child is entitled to unpaid leave for the purpose of
attending any compulsory interviews or examinations as are necessary as part of the
adoption procedure. The team member and Kmart should agree on the length of the
unpaid leave. Where agreement cannot be reached, the team member is entitled to take
up to 2 days' unpaid leave. Where paid leave is available to the team member, Kmart
may require the team member to take such leave i.nstead.
Return to Work After Cancellation of Parental Leave
Where a team member has commenced parental leave and loses their child during the period of
leave a team member may return to work at any time, as agreed between Kmart and the team
member provided that time does not exceed 4 weeks from the recommencement date desired by
the team member.
24.8
Variation of Period of Parental Leave
a) Where a team member has originally applied for less than 104 weeks' leave, the team
member may extend their leave up to an aggregate of 104 weeks' by providing Kmart 4
weeks' notice.
b) A team member may shorten their period of leave by agreement with Kmart, by giving not
less than 4 weeks' notice.
24.9
Parental Leave and Other Entitlements
a)
A team member may in lieu ofor in conjunction with parental leave, access any annual leave
or long service leave entitlements which they have accrued subject to the total amount of
leave not exceeding 104 weeks. Ifthe team member does so, the taking ofthe other paid
leave does not break the continuity of the period of unpaid parental leave.
b) A team member is not entitled to take paid personal/carer's leave or compassionate leave
whilst on unpaid parental leave.
24.10 Returning to Work After a Period of Parental Leave
a)
A team member will notify of their intention to return to work after a period of parental
leave at least 4 weeks prior to the expiration of the leave.
b)
A team member is able to return on fewer hours than their contracted hours prior to going
on parental leave, for a period up to the child's 2nd birthday (or 2nd anniversary of
placement), as provided for in 24.14 of this clause.
Provided that, the hours and rosters to be worked will be agreed between Kmart and the
team member.
c)
A team member will be entitled to the position that they held immediately before
proceeding on parental leave. In the case of a team member transferred to a safe job
pursuant to sub-clause 24.5(f), the team member will be entitled to return to the position
they held immediately before such transfer.
d)
Where such position no longer exists but there are other positions available that the team
member is qualified for and is capable of performing, the team member will be entitled to
a position as nearly comparable in status and pay to that of their former position.
Kmart will consider the family responsibilities of the team member who is returning to
work when considering the team member's roster.
24.11 Right to Request
a)
In addition to clause 24.1 0, a team member entitled to parental leave pursuant to the
provisions of clause 24.4 may request Kmart to return from a period of parental leave on
fewer hours than their contracted hours prior to going on parental leave until the child
reaches school age, to assist the team member in reconciling work and parental
responsibilities.
b)
Kmart shall consider the request having regard to the team member's circumstances and,
provided the request is genuinely based on the team member's parental responsibilities,
may only refuse the request on reasonable grounds related to the effect on the workplace
or Kmart's business. Such grounds might include cost, lack of adequate replacement staff,
loss of efficiency and the impact on customer service.
c)
The team member's request and Kmart's decision made under 24.11 (b) must be recorded
in writing.
d)
Where a team member wishes to make a request under 24.11 (b) such a request must be
made as soon as possible but no less than seven weeks prior to the date upon which the
team member is due to return work from parental leave.
24.12 Voluntary Casual Work Whilst on Parental Leave
a)
b)
By agreement between the team member and Kmart, a team member may be engaged on
a casual basis during periods of parental leave.
Hours worked as a casual team member under this Clause:
(i)
will be paid at the appropriate casual hourly rate;
(ii)
will not be included for the purposes of accruing any leave entitlements with the
exception of long service leave;
(iii)
will count as service for the purposes of long service leave accrual. A team
member's long service leave date will be altered by the number of starts worked
casually whilst on parental leave;
(iv)
will not extend the period of parental leave beyond the approved period ofleave;
(v)
a team member's status (full-time, part-time) will not be changed as a result of
working during parental leave as provided by this clause.
24.13 Replacement Team Members
a)
A replacement team member is a team member specifically engaged or temporarily
promoted or transferred, as a result of a team member proceeding on parental leave.
b)
Before Kmart engages a replacement team member Kmart must inform that person of the
temporary nature of the employment and of the rights of the team member who is being
replaced.
24.14 Part-time Work
The following provisions apply to full-time and part-time team members only.
a)
b)
c)
Entitlement
(i)
A team member may work part-time in one or more periods at any time from the
date of birth of the child until the child's 2nd birthday or, in relation to adoption,
from the date of placement ofthe child until the 2nd anniversary of the placement.
(ii)
By agreement, a female team member may also work part-time in one or more
periods while she is pregnant where part-time employment is, because of the
pregnancy, necessary or desirable.
·
(iii)
A team member may work part-time in relation to a gradual return to full-time work
on return from parental leave until the child's 2nd birthday (or 2nd anniversary ofthe
child's placement in the case of adoption).
Return to former position
(i)
Following a period of part-time employment as provided for in sub-clause 24.14, a
team member has the right to retum to his or her former position.
(ii)
Nothing in (a) hereof shall prevent Kmart from permitting the team member to
return to his or her former position after a second or subsequent period of part-time
employment.
Effect of part-time employment on continuous service
Commencement of part-time work under this clause, and return from part-time work to
full-time work under this clause, shall not break the continuity of service or employment.
d)
Pro-rata entitlements
Subject to the provisions of this clause and the matters agreed to in accordance with
paragraph (b) hereof, part-time employment shall be in accordance with the provisions of
this Agreement that shall apply pro-rata.
e)
Part-time work agreement
(i)
Before commencing a period of part-time employment under this clause the team
member shall advise Kmart:
(1)
that the team member wants to work part-time; and
(2)
the period of part-time employment.
(ii)
f)
The team member and Kmart shall then agree:
(1)
upon the hours to be worked by the team member, the days upon which they will
be worked and commencing times for the work; and
(2)
upon the classification applying to the work to be performed.
(iii)
The terms of this agreement may be varied by consent, or in accordance with the
rostering principles contained in clause 13, Rostering Principles- Permanent Team
members.
(iv)
The terms of this agreement or any variation to it shall be put in writing and
retained by Kmart. A copy of the agreement, and any variation to it, shall be
provided to the team member by Kmart.
(v)
The terms of this agreement shall apply to the part-time employment.
Termination of employment
(i)
The employment of a part-time team member under this clause, may be terminated
in accordance with the provisions of this Agreement but may not be terminated by
K.mart because the team member has exercised or proposes to exercise any rights
arising under this clause or has enjoyed or proposes to enjoy any benefits arising
under this clause.
(ii)
Any termination entitlements payable to a team member whose employment is
terminated while working part-time under this clause, or while working full-time
after transferring from part-time work under this clause, shall be calculated by
reference to the full-time rate of pay at the time of termination and by regarding all
service as a full-time team member as qualifying for a termination entitlement
based on the period of full-time employment and all service as a part-time team
member on a pro-rata basis.
g)
Extension of hours of work
Kmart may request, but not require, a team member working part-time under this clause
to work outside or in excess of the team member's ordinary hours of duty provided for in
accordance with paragraph (e) hereof.
h)
Nature of part-time work
Where possible, a team member returning to work part-time under this provision shall
perform the work of his or her former position.· Where this is not possible, the work shall
be work otherwise performed under this Agreement.
i)
Inconsistent Agreement provisions
A team member may work part-time under this clause irrespective of any other provision
of this Agreement which limits or restricts the circumstances in which part-time
employment may be worked or the terms upon which it may be worked including
provisions prescribing a minimum or maximum number of hours a part-time team
member can work.
j)
Replacement team member
(i)
A replacement team member is a team member specifically engaged as a result of
a team member working part-time under this clause.
(ii)
A replacement team member may be employed part-time. Subject to this clause,
paragraphs (d) to (f) and paragraph (i) hereof apply to the part-time employment
of a replacement team member.
Before Kmart engages a replacement team member under this clause, Kmart shall inform
the person of the temporary nature of the employment and of the rights of the team
member who is being replaced.
k)
Unbroken service as a replacement team member shall be treated as continuous service
for the purposes of sub-clause 24.14.
24.15 Eligible Casual Team Members
a)
A casual is entitled to parental leave in accordance with the provisions ofthis clause
provided that:
(i)
They are employed on a regular and systematic basis for an ongoing period of
employment for at least 12 months immediately preceding when the team member
proposes to proceed on parental leave and who, but for an expected birth or an
expected placement of a child, would have a reasonable expectation of continuing
engagement by Kmart on a regular and systematic basis, and
(ii)
have, but for the pregnancy or the decision to adopt, a reasonable expectation of
ongoing employment.
For the purposes of this sub-clause, a regular casual shall mean a casual who has had at
least 1 start per fortnight.
b)
On return from parental leave, the casual team member shall be engaged as a casual team
member in accordance with clause 11.3, Casual Team members, of the Agreement.
c)
Nothing in this clause shall operate to vary the nature of employment of the casual team
member or affect the team member's rights or entitlements following return from parental
leave in accordance with this clause.
d)
Without limiting clause 24.15 (a) for the purposes of this clause, a casual team member is
also an eligible casual team member if:
(i)
(ii)
(iii)
(iv)
(v)
the team member was engaged by Kmart on a regular and systematic basis for a
sequence of periods during a period (the first period of employment) ofless than 12
months; and
at the end of the first period of employment, the team member ceased, on Kmart's
initiative, to be so engaged by Kmart; and
Kmart later again engaged the team member on a regular and systematic basis for a
further sequence of periods during a period (the second period of employment) that
started not more than 3 months after the end of the first period of employment; and
the combined length of the first period of employment and the second period of
employment is at least 12 months; and
the team member, but for an expected birth or an expected placement of a child,
would have a reasonable expectation of continuing engagement by Kmart on a
regular and systematic basis.
24.16 Communication during Parental Leave
Where a team member is on parental leave and a definite decision has been made to introduce
significant change at the workplace, Kmart shall take reasonable steps to:
a)
make information available in relation to any significant effect the change will have on
the status or responsibility level of the position the team member held before
commencing parental leave; and
b)
provide an opportunity for the team member to discuss any significant effect the change
will have on the status or responsibility level of the position the team member held before
commencing parental leave.
c)
The team member shall take reasonable steps to inform Kmart about any significant
matter that will affect the team member's decision regarding the duration of parental
leave to be taken, whether the team member intends to return to work and whether the
team member intends to request to return to work on a part-time basis.
d)
24.17
24.18
The team member shall also notify Kmart of changes of address or other contact details
which might affect Kmart' s capacity to comply with clause 25.16 (a), 25.16 (b) and 25.16
(c).
Requests for flexible working arrangements
(a)
An eligible team member who is a parent, or who has responsibility for the care, of a
child may make a request to Kmart for a change in working arrangements to assist the
team member to care for the child if the child is under school age or is under 18 years of
age and has a disability.
(b)
Permanent team members are able to make such a request if they have completed 12
months continuous service with Kmart immediately before making the request. A casual
team member is able to make such a request if the team member is a long term casual
with an ongoing expectation of continuing employment with Kmart on a regular and
systematic basis. A long term casual employee is a casual employee that has been
employed by Kmart on a regular and systematic basis for a sequence of periods of
employment during a period of at least 12 months.
(c)
A request must be in writing and set out the details of the change sought and the reason
for the change. Kmart will provide the team member with a response in writing within 21
days to the request stating if Kmart grants or declines the request. In the event that Kmart
refuses the request Kmart's written response will include reasons for the refusal.
Top-up Payments-Government Paid Parental Leave Scheme
24.18.1
Where a team member is eligible for unpaid parental leave and eligible to payments
under the Federal Government's Paid Parental Leave Scheme (PPL Scheme), Kmart
will make up the difference, if any, between the payment made to the team member
under the PPL Scheme and the team member's ordinary hourly rate of pay (exclusive
of any penalties) for the ordinary hours that would have been worked by the team
member but for the team member being on unpaid parental leave.
24.18.2
Where a team member receives a payment under the PPL Scheme that exceeds the
amount the amount that the team member would have been paid for their ordinary
hours at their ordinary hourly rate no top up payment becomes due under this clause.
24.18.3
The top up of the PPL Scheme under this clause operates to a maximum of 18 weeks
with the team member receiving a top up only for the period under the PPL Scheme
that the team member is entitled to PPL payments.
24.18.4
For the purposes of this clause ordinary hours means for a:
(a) Full-time team member 38 hours;
(b) Part-time team member their agreed contract hours; and
(c) Casual team member the average hours worked per week, calculated over a 6
month period immediately prior to the team member proceeding on unpaid
parental leave.
If before proceeding on unpaid parental leave if a team member who was
transferred to a safe job and worked less hours then the hours worked prior to the
safe job are the team member's ordinary hours for the purpose of this clause.
24.18.5
Ordinary hourly rate has the meaning given in clause 6.3 of this Agreement.
24.18.6
Payment of the top up will only be made by Kmart once the government has
advised Kmart that PPL is payable for a team member, Kmart has been advised
of the amount payable and the Government has reimbursed Kmart the cost of the
PPL Payment. If the government subsequently advises Kmart that a team
member has become ineligible to PPL payments and this results in monies paid
that a team member is not entitled to under this clause Kmart will seek to recover
the overpayment in accordance with 7.1. 7 of this Agreement.
24.18.7
The purpose of the entitlement provided under this clause is to ensure that team
members going on unpaid parental leave who have an entitlement to payment
under the PPL Scheme receive at least their ordinary time rate for their ordinary
hours for a period up to 18 weeks. Team members already receiving an
equivalent of their ordinary time of pay (or more) because they are receiving
various payments either under this Agreement or otherwise do not also receive a
top up under this clause.
24.18.8
Payments made by Kmart under this clause do not constitute paid leave, and
annual leave and personal leave do not accrue during unpaid parental leave .
24.18.9
Amendments to the PPL Scheme
(a) If amendments are made to the PPL Scheme reducing the amount payable under
the PPL Scheme the amount payable under this clause shall not increase. The
payments made under the PPL Scheme at the time of approval of this Agreement
by FWA shall provide the basis for the top up, subject to any increases under this
Agreement and or the Federal Minimum Wage from time to time.
(b) If amendments are made to the PPL Scheme increasing the amount payable
under the PPL Scheme (other than increases in the Federal Minimum Wage) the
amount payable under this clause will reduce to preserve only a top up to the
team member's ordinary hourly rate (exclusive of penalties) for the hours that
would have been paid to the team member but for the team member being on
unpaid parental leave.
(c) If the PPL Scheme is abolished or Kmart becomes required by law to provide
paid parental leave Kmart's obligation to make top up payments under this
clause will cease.
PART 6- COMMUNICATION, CONSULATION AND DISPUTE RESOLUTION
25
INTRODUCTION OF CHANGE
25.1
Notification
25.1.1 Where Kmart has made a definite decision to introduce major changes in production,
program, organisation, structure or technology that are likely to have significant effects
on team members, Kmart shall notify the team members who may be affected by the
proposed changes and the Union.
25.1.2 "Significant effects" include tennination of employment, major changes in the
composition, operation or size of Kmart's workforce or in the skills required; the
elimination or diminution of job opportunities, promotion opportunities or job tenure;
the significant alteration of hours of work; the need for retraining or transfer of team
members to other work or locations and the restructuring of jobs. Provided that where
the Agreement makes provision for alteration of any of the matters referred to herein,
the alteration shall be deemed not to have significant effect.
25.2
Discussion
25.2.1 Kmart shall discuss with the team members affected and the Union, inter alia, the
introduction of the changes referred to in sub-clause 25 .1.1 hereof, the effects the
changes are likely to have on team members, measures to avert or mitigate the adverse
effects of such changes on team members and shall give prompt consideration to matters
raised by the team members and/or the Union in relation to the changes.
25.2.2 The discussions shall commence as early as practicable after a definite decision has been
made by Kmart to make the changes referred to in sub-clause 25.1 hereof.
25.2.3 For the purposes of such discussion, Kmart shall provide in writing to the team members
concerned and the Union, all relevant information about the changes including the
nature of the changes proposed, the expected effects of the changes on team members
and any other matters likely to affect team members, provided that Kmart shall not be
required to disclose confidential infonnation the disclosure ofwhich would be harmful
to Kmart's interests.
26 REDUNDANCY
Excluding casuals, a team member being made redundant shall receive the provisions as contained below:
26.1
Discussions Before Terminations
a)
Where Kmart has made a definite decision that it no longer wishes the job the team member has
been doing to be done by anyone and this is not due to the ordinary and customary turnover of
labour and that decision may lead to tennination of employment, Kmart shall hold discussions
with the team members directly affected and with the Union.
b)
The discussions shall take place as soon as is practicable after Kmart has made a definite
decision which will invoke the provision of sub-clause (a) hereof and shall cover, inter alia, any
reasons for the proposed terminations measures to avoid or minimise the terminations and
measures to mitigate any adverse effects of any terminations on the team members concerned.
c)
For the purposes of the discussion Kmart shall, as soon as practicable, provide in writing to the
team members concerned and the union, all relevant information about the proposed
terminations including the reasons for the proposed terminations, the number and categories of
team members likely to be affected, and the number of workers normally employed and the
period over which the terminations are likely to be carried out. Provided that K.mart shall not
be required to disclose confidential information the disclosure of which would be inimical to
Kmart's interests.
26.2
Transfer to Lower Paid Duties
Where a team member is transferred to lower paid duties for reasons set out in sub-clause l(a)
hereof the team member shall be entitled to the same period of notice of transfer as he/she
would have been entitled to if his/her employment had been terminated, and Kmart may at its
option make payment in lieu thereof of an amount equal to the difference between the former
ordinary time rate of pay and the new lower ordinary time rates for the number of weeks of
notice still owing.
26.3
a)
b)
Transmission of Business
Where a business is before, on or after the date of this Agreement, transmitted from an
employer (in this sub-clause called "the transmitter") to another employer (in this sub-clause
called "the transmittee") and a team member who at the time of such transmission was a team
member of the transmitter in that business becomes a team member of the transmittee:
(i)
the continuity of the employment of the team member shall be deemed not to have been
broken by reasons of such transmission; and
(ii)
the period of employment which the team member has had with the transmitter, or any
prior transmitter, shall be deemed to be service of the team member with the transmittee.
In this sub-clause "business" includes trade, process, business or occupation and includes part
of any such business and "transmission" includes transfer, conveyance, assignment or
succession whether by agreement or by operation oflaw and "transmitted" has a corresponding
meaning.
26.4
Time Off Work During Notice Period
a)
During the period of notice of termination given by Kmart a team member shall be allowed up
to one day's time off without loss of pay during each week of notice for the purpose of seeking
other employment.
b)
If the team member has been allowed paid leave for more than one day during the notice period
for the purpose of seeking other employment, the team member shall, at the request ofKmart,
be required to produce proof of attendance at an interview or he/she shall not receive payment
for the time absent. For this purpose a statutory declaration will be sufficient.
26.5
Notice to Centrelink
Where a decision has been made to terminate team members in the circumstances outlined in subclause 26.1 hereof, Kmart shall notify Centrelink thereof as soon as possible giving relevant
infonnation including the number and categories of the team members likely to be affected and the
period over which the terminations are intended to be carried out.
26.6
Severance Pay
In addition to the period of notice prescribed for ordinary termination in clause 11.5 of this Agreement
a team member whose employment is terminated for reasons set out in sub-clause 26.1 hereof shall be
entitled to the following amount of severance pay in respect of a continuous period of service.
Period of Continuous
Service
Less than 1 year
1 year and less than 2 years
2 years and less than 3 years
3 years and less than 4 years
4 years and less than 5 years
5 years and less than 6 years
6 years and over
Severance Pay under 45 years of age
Severance Pay 45 years of age and over
nil
4 weeks
7 weeks
10 weeks
12 weeks
14 weeks
16 weeks
nil
5 weeks
8.75 weeks
12.5 weeks
15 weeks
17.5 weeks
20 weeks
"Weeks' pay" means the ordinary time rate of pay for the team member concerned.
Provided that the severance payments shall not exceed the amount which the team member would have
earned if employment with Kmart had proceeded to the team member's normal retirement date.
For the purpose of this clause, continuity of service shall be calculated in the manner prescribed by
sub-clause 6.4 of this Agreement.
26.7
Team Member Leaving During Notice Period
A team member whose employment is terminated for reasons set out in sub-clause 26.1 hereof may
terminate his/her employment during the period of notice and, if so, shall be entitled to the same
benefits and payments under this clause had he/she remained with Kmart until the expiry of such
/
notice. Provided that in such circumstances the team member shall not be entitled to payment in lieu
of notice.
26.8
Superannuation Benefits
Where a team member who is terminated receives a benefit from a superannuation scheme, he/she shall
only receive under sub-clause 6 the difference between the severance pay specified in that sub-clause
and the amount of the superannuation benefit he/she receives which is attributable to employer
contributions only.
If this superannuation benefit is greater than the amount due under sub-clause 6 then he/she shall
receive no payment under that sub-clause.
The provisions of this clause shall not apply to benefits received under an Award based
Superannuation Scheme.
26.9
Incapacity to Pay
Kmart, in a particular redundancy case, may make application to the Commission to have the general
severance pay prescription varied on the basis of Kmart' s incapacity to pay.
26.10
Alternative Employment
Kmart, in a particular redundancy case, may make application to the Commission to have the general
severance pay prescription varied ifKmart obtains acceptable alternative employment for a team
member.
26.11
Team Members Exempted
Clause 26 shall not apply where employment is terminated as a consequence of misconduct, in the case
of casual team members or team members engaged for a specific period of time or for a specified task
or tasks.
26.12
Team Members with Less Than 1 Year's Service
Clause 26 shall not apply to team members with less than one year's continuous service and the general
obligation on Kmart should be no more than to give relevant team members an indication of the
impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable
to facilitate the obtaining by the team members of suitable alternative employment.
27 DISPUTES RESOLUTION PROCEDURE
27.1
Defined Terms
In this clause 27 and Appendix A:
27 .1.1 "Party" means Kmart or a team member or team members involved in the dispute and
"Parties" means both or all of them;
27 .1.2 "Dispute" means any matter concerning the application of the terms of Agreement (not
merely whether the Agreement applies at all) or matters arising from the Agreement or
matters arising in the workplace which pertain to the employment relationship but does
not include a matter or claim that:
a)
b)
c)
would constitute an additional claim pursuant to clause 5.2 or;
relates to matters in respect ofwhich a team member (or former team member)
has an immediate right to make a legal claim pursuant to legislation pertaining to
termination of employment; or
relates solely to a team member's immediate right to make a legal claim pursuant
to legislation pertaining to equal opportunity or unlawful discrimination
complaints.
27.1.3 Dispute also means disputes about the NBS.
27 .1.4 "Team Member Representative" means a fellow team member from the same work
location or, if relevant, a representative of a union who is party to this Agreement.
27.2
Dispute Resolution Procedure
The following procedure for the avoidance or resolution of disputes between Kmart and team
members covered by this Agreement shall apply.
27.2.1
In the first instance, the dispute shall, wherever possible, be discussed by the affected
team member and the manager at the work location concerned, with the joint intent of
achieving a satisfactory outcome.
27.2.2
If the dispute remains unresolved, an appropriate representative ofKmart, will assist in
resolving the dispute. The team member may appoint a Team Member Representative
to represent the team member in relation to the dispute.
27.2.3
Should the dispute still remain unresolved, a senior representative ofKmart or another
suitably authorised representative ofKmart must become involved. The team member
and/or their Team Member Representative shall meet as required with Kmart
representative.
27.2.4
Until the dispute is resolved, but subject to clause 27.2.7, all work shall continue in
accordance with the practices existing prior to the matter in dispute arising, or other
agreed arrangements. No Party shall be prejudiced as to the final settlement by the
continuance or deferment of the work in accordance with this clause.
27.3
27 .2.5
Clause 27 .2.4 is subject to Kmart's responsibility to provide a safe and healthy working
environment.
27.2.6
If after the steps in clauses 27.2.1 to 27.2.4 have been followed and, subject to clause
27.2.6, the dispute (or part of it) is still unresolved after having followed all of the
above steps, a Party may refer the dispute to Fair Work Australia ("FWA") for
resolution through conciliation in the first instance. If the dispute cannot be resolved
by conciliation the dispute may then proceed to arbitration by FWA. An arbitrated
decision of FWA may be the subject of an appeal by leave of a Full Bench of FWA in
accordance with clause 1.6 of Appendix A.
27 .2. 7
A dispute may also be referred to FWA for conciliation and arbitration in accordance
with clause 27.2.6 by agreement between the Parties even ifthe relevant dispute (or
part of it) has not progressed through the steps outlined in clauses 27 .2.1 to 27 .2.4.
27.2.8
Appendix A sets out the powers and functions exercisable by FWA in dealing with a
dispute by conciliation, arbitration and on appeal. Appendix A also sets out various
procedural matters which must be followed by the Parties in relation to a dispute (or a
part of it) referred to FWA.
Conduct of the Parties
27.3.1
In order to facilitate this dispute resolution procedure:
a)
b)
c)
the Party with the dispute must notify the other Party at the earliest opportunity of
the problem;
throughout all stages of the procedure all relevant facts must be clearly identified
and recorded; and
sensible time limits must be allowed for completion of the various stages of
discussion. However, the Parties must co-operate to ensure that the dispute
resolution procedure is carried out as quickly as possible.
PART 7- COMPANY AND TEAM MEMBER'S DUTIES, WORKPLACE SAFETY &
RELATED MATTERS
28 SUPERANNUATION
28.1
Kmart shall be and remain a participating employer of the Retail Employees Superannuation
Trust (REST) and shall participate in accordance with the Fund Trust Deed.
28.2
Kmart shall contribute monthly to REST on behalf of each eligible team member the following
levels of contributions: From 1 July, 2002 - 9% of ordinary time earnings
An eligible team member is one who: a)
Earns $450 or more in ordinary time earnings in any month; and
b)
In the case of a team member aged below 18 years, works at least
30 hours per week.
Ordinary time earnings shall be calculated in accordance with subsection 6(1) of the
Superannuation Guarantee (Administration) Act 1992.
28.3
Kmart shall provide each team member upon commencement of employment with the
appropriate membership application form(s) of REST and shall forward the completed form(s)
to REST within 14 days of the team member returning completed forms to Kmart.
28.4
(i)
A team member may make personal contributions to REST in addition to those made
byKmart.
(ii)
A team member who wishes to make such additional contributions must authorise
Kmart in writing to pay into the Fund, from the team member's wages, a specified
amount in accordance with the REST Trust Deed and Rules.
(iii)
Upon receipt of written authorisation from the team member, Kmart shall commence
making monthly payments into the Fund on behalf of the team member following
receipt of the authorisation.
(iv)
A team member may vary his or her additional contributions by a written authorisation
and Kmart shall alter the additional contributions within 14 days of receipt of the
authorisation.
(v)
Additional team member contributions to REST requested under this sub-clause shall
be expressed in whole dollars.
(vi)
The ability to opt in and out of the fund as provided within the Superannuation
Guarantee (Administration) Act 1992 (as amended) and the applicable regulations
shall not apply and team members employed under the terms of this Agreement are not
--··--------·--·--------------
eligible to elect another superannuation fund into which the team member's employer
contributions are paid.
28.5
28.6
An existing team member employed at the commencement of this Agreement who was eligible for
superannuation contributions paid under the Coles Myer Occupational Superannuation Award
[Print K2517] shall continue to receive such contributions.
Ability to Salary Sacrifice by Company Authorisation
28.6.1
This clause provides for a team member to request an alternative system for the payment
of wages. It is intended that the flexibility provided by this clause will be of benefit to
team members without imposing additional costs on Kmart.
28.6.2
Flexible Remuneration
a)
A team member may, by mutual agreement with Kmart:
ii. participate in a salary sacrifice program in relation to Superannuation or any
other benefit agreed to by Kmart; and
iii. request to receive wages payable in accordance with this Agreement, minus
the amount diverted into contributions under this program.
b)
A team member whose request is accepted by Kmart, will receive the benefit and
wages prescribed under this clause in lieu of wages and other Amounts payable
under this Agreement.
(i) Any request under subclause 28.6.2 above will be in the form prescribed by
Kmart.
(ii) A team member who takes any paid leave shall receive the benefit and
wages prescribed under this clause in lieu of wages and other amounts
payable under this Agreement.
(iii) Any other Agreement payment, including termination payments, calculated
by reference to the team member's wages as provided in this Agreement will
be calculated by reference to the total of wages and benefits provided in
clause 7, Wages unless this clause specifically provides otherwise.
(iv) Each team member participating in benefits available under this clause shall
receive written confirmation of relevant information including the post
arrangement gross wage rates, net wage rates and any other payment that
may be affected by the arrangement.
(v) Written confirmation as specified in subclause 28.6.2(b )(iv) above shall be
provided upon any adjustment to pre-arrangement wage rates under this
Agreement or reclassification.
(vi) For all other purposes, after taking into account the deductions made in
accordance with subclause 28.2 above a team member shall not receive less
than the rate specified in clause 7, Rates of Pay, of this Agreement for the
relevant classification for the team member.
28.6.3
28.6.4
Changes to Flexible Remuneration
a)
Kmart may amend the provisions of benefits under the program covered by this clause
in the event of changes in State or Federal legislation.
b)
In the event that amendment to these remuneration arrangements is to be implemented,
Kmart will provide team members with notice of not less than 2 months unless the
amendments arise from circumstances outside Kmart's control, in which case, a shorter
notice period may apply.
Contributions
a)
A team member may choose to vary the amount of their contribution at 3 monthly
intervals.
29
ACCIDENT PAY
29.1
This clause shall only apply to the state of Victoria.
29.2
If following an injury a team member receives compensation under the applicable State
legislation, then that compensation payment shall be increased by Kmart to the amount of the
usual weekly rate for the average rostered hours worked by the team member at the time of the
accident. This payment made by Kmart will be limited to a maximum of 39 weeks.
29.3
The provisions of this clause shall not apply in respect of any injury during the first 7
consecutive days (including non-working days) of incapacity.
30
RETAIL TRAINEESHIPS
30.1
This agreement allows for the employment of trainees. A trainee is an employee undertaking a
traineeship under a training contract approved by a relevant state or territory training authority
which meets the requirements of a training package developed by the relevant Industry Skills
Council and which leads to an AQF certificate level qualification.
Such trainees will be employed and paid under the wages (including junior rates) and
conditions set out in this Agreement, providing that the wage rate applicable will only be paid
for hours worked.
31
DRESS AND PRESENTATION STANDARDS
31.1
When at work team members shall be dressed in a neat, tidy and business like manner at all
times.
31.2
Team members shall at all times dress in accordance with Kmart's Teamwear Policy.
31.3
Kmart will continue to consult with the Union on the practical implementation of tax
deductable Teamwear and on any changes it may propose to Kmart's Teamwear Policy.
32.
PROTECTIVE CLOTHING
32.1
Suitable protective clothing and/or accessories shall be provided to team members who are
required to perform duties which may lead to excessive soiling or damage to clothing or instances
where the provision of such clothing and/or accessories is necessa1y for Kmart to meet its
obligations to provide a safe work environment for team members. Such protective clothing shall
remain the property of Kmart.
32.2
Items of protective clothing detailed in this clause shall be laundered by Kmart at Kmart's expense.
33.
POSTING OF AGREEMENT AND FAIR WORK INFORMATION STATEMENT
33.1
An up-to-date copy of this Agreement shall be posted and maintained by Kmart in a
prominent place accessible to all team members.
33.2
Kmart will provide new team members with a copy of the Fair Work Information Statement,
in accordance with the NES, as soon as practicable after a new team member commences
employment with Kmart.
34.
SAVINGS PROVISIONS
It is agreed between the parties that these savings provisions supersede any other savings provisions
which were applicable within the Kmart National Award 1994, or any subsequent Agreement, prior to
the implementation of this Agreement.
34.1
No team member will move to a lower hourly rate of pay for their current roster, applicable at
the time of commencement of the Agreement. This provision will include ordinary time
earnings and over-time for current regular patterns of work.
34.2
Subject only to the provisions of sub-clause 11.2. 7, no permanent team member shall suffer a
reduction in ordinary time earnings as a result of the implementation of this Agreement.
34.3
Part-time team members engaged prior to 1 November 1994 who are entitled to a minimum of
12 rostered hours per week (48 hours averaged over 4 weeks) or a higher minimum shall have
this minimum provision maintained.
34.4
Casual team members may be converted to part-time employment under the terms and
conditions of this Agreement provided that:
i)
the change from casual to part-time is voluntary and recorded in writing, and
ii)
casual team members converting to part-time shall have continuity of employment for
all purposes where they have previously been regularly employed.
34.5
Casuals who have accrued sick leave entitlements prior to 1 November 1994 shall retain such
accrued entitlements and may take paid sick leave until the entitlements are exhausted (subject
to the requirements of sub-clause 19 .2).
34.6
Part-time employees in Victoria and Western Australia who were rostered to work less than an
average of 36 hours over a 4-week period shall be permitted to retain their existing hours.
34.7
Part-time employees in Tasmania, South Australia, NT and ACT whose contract hours at the
commencement of this Agreement are in excess of an average of 36 hours per week shall be
pennitted to retain their existing hours as their maximum hours and these hours are not subject
to the payment of overtime under this Agreement.
34.8
The minimum engagement for casual employees engaged in Tasmania prior to 1 November
1994 shall remain 4 hours from Monday to Friday and 2 Hours on a Saturday.
34.9
Employees on a premium hour roster in NSW at the time of the implementation of this
Agreement shall, retain existing rosters and classification as a full-time employee and receive
all pay rises under this Agreement.
34.10 Sunday work
The requirement to work on Sunday as a part of a team member's roster of work shall operate
under the following arrangements:
a)
b)
Team members engaged prior to 1 November 1994 and who at that time were not working
Sunday as a part of their regular roster shall not be required to work on Sunday unless they
agree to do so.
Team members engaged prior to 1 November 1994 and who were working Sunday as a part of
their regular roster may continue to be required to work on Sunday.
c)
Where trading on Sunday becomes legal during the life of this Agreement, team members
engaged at the commencement of this Agreement shall not be required to work on Sunday as a
part of their regular roster unless they agree to do so.
d)
Where trading on Sunday becomes legal during the life of this Agreement, team members
engaged after the commencement of this Agreement shall not be required to work on Sunday
as a part of their regular roster unless they agree to do so.
e)
Where trading on Sunday becomes legal during the life of this Agreement, team members
engaged after the commencement of Sunday trading may be required to work on Sunday as a
part of their regular roster.
f)
Where a team member protected by this clause transfers at his/her own request to a store
where Sunday trading is already lawful and they are advised that they may be required to
work on a Sunday, the team member will not have the right to refuse to work on Sundays at
the new store.
g)
Where a team member transfers at Kmart's request from a non-Sunday trading store to another
store where Sunday trading is already lawful, the team member will retain the right to refuse
to work on Sunday at the new store.
34.11
Existing Level 1 team members and Level 2 clerical team members shall not be replaced by
new team members paid at a lower rate for the sole purpose of reducing labour cost.
34.12
Savings Provision - Change to Span of Hours
Team members employed as at 1st May 1998 who did not work beyond the span of hours as
prescribed in the Kmart Australia Ltd Award 2001 may volunteer to work between 10.00 pm
and 6.00 am Monday to Saturday inclusive. Provided that such team members currently
rostered to work between 10.00 pm and 6.00 am Monday to Saturday inclusive may continue to
be required to do so.
34.13
Work rostered between 6.00 pm and 10.00 pm Saturday shall be voluntary for all team
members employed by Kmart prior to November 1, 1994.
34.14
Classification Changes 2012-Savings Provision for team members
34.14.1
Existing Team members working in roles which have been reclassified with a lower
percentage as a result of the implementation of this Agreement will have their
existing rate of pay (paid immediately before the commencement of this
Agreement) saved and under the terms of this Agreement and will receive an
increase of 50% of the lower classification wage increase on a six monthly basis
until such time as the rate paid to the team member is exceeded by the wage paid
for the lower classification in clause 7.1 of this Agreement. From that time such
team members will be paid in accordance for the rate of pay for their classification
as set out in clause 7.1 of this Agreement.
Extended
trade
stores*
Level3
Retail
Assistant
moving to
Level2
Level2B
Retail
Assistant
moving to
Level2
Level2A
Retail
Assistant
moving to
Levell
Nonextended
trade
stores*
Level3
Retail
Assistant
moving to
Level2
Level2B
Retail
Assistant
moving to
Level2
Level2A
Retail
Assistant
moving to
Levell
34.14.2
Team member that commence employment with Kmart once this Agreement is in
operation shall be paid in accordance with the rates specified in clause 7.1 ofthis
Agreement.
34.14.3
The adult rates for such team members are set out below:
1 May
2012
1 Nov
2012
1 May
2013
1 Nov
2013
lMay
2014
lNov
2014
1 May
2015
1 Nov 2015
$762.65
$768.80
$774.95
$781.10
$787.25
$793.40
$799.55
$805.70
$728.25
$734.40
$754.10
Level2A
Rate
$766.40
Level2A
Rate
$778.70
Level2A
Rate
$791.00
Level2A
Rate
$803.30
Level2A
Rate
$710.90
$716.90
$735.70
Levell
Rate
$747.70
Levell
Rate
$759.70
Levell
Rate
$771.70
Levell
Rate
$783.70
Levell
Rate
1 May
2012
1 Nov
2012
1 May
2013
1 Nov
2013
1 May
2014
1 Nov
2014
lMay
2015
1 Nov 2015
$757.85
$764.00
$770.15
$776.30
$782.45
$788.60
$794.75
$800.90
$723.75
$729.90
$749.70
Level2A
Rate
$762.00
Level2A
Rate
$774.30
Level2A
Rate
$786.60
Level2A
Rate
$798.90
Level2A
Rate
$731.40
Levell
Rate
$743.40
Levell
Rate
$755.40
Levell
Rate
$767.40
Levell
Rate
$779.40
Levell
Rate
$706.50
34.14.4
$712.50
Classifications impacted by the reclassification of some roles under this Agreement
are:
(a)
(b)
Mini-Lab Specialist (formerly Level2B reclassified to Level2 under the
terms of this Agreement); and
Returns and Repairs Clerk (formerly Level2A reclassified to Levell
under the terms ofthis Agreement).
34.14.5
Self-Serve Checkout Team Leaders were not formerly classified but will be
recognised as Self-Serve Checkout Specialists and paid at Level2 under this
Agreement. Where a team member was being paid a higher rate of pay as a SelfServe Checkout Team Leader before the operation of this Agreement the team
member will be entitled to a saved rate in accordance with this clause.
34.14.6
Casual team members are entitled to be paid saved rates only if they worked regular
and systematic hours as a Mini-Lab Specialist, a Returns and Repairs Clerk or as a
Self Service Checkout Team Leader for a period of at least 3 months prior to the
operation of this Agreement and if the team member continues to work such hours
once this Agreement is operational. Other hours worked by such a casual will be
paid at the appropriate rate of pay in clause 7.1 of this Agreement.
34.14.7
Under this Agreement certain specialists formerly recognised under the Kmart Ltd
Australia Agreement 2009, are no longer recognised as specialists. Any team
member who at the commencement of this Agreement continues to be paid a Level
2 rate as a Cosmetics Assistant, Asset Protection Officer, Garden Assistant or Paint
Assistant they will continue to receive that rate. If the need for the position no
longer exists the team member's rate will be saved until the saved rate is absorbed
by the new classification rate. Where a saved rate is already in operation nothing in
this sub-clause serves to extend that savings period.
35..
INDIVIDUAL FLEXIBILITY TERM
35.1.1
Kmmi and a team member covered by this agreement may agree to make an individual
flexibility arrangement to vary the effect of one or more of the following matters:
(a)
(b)
(c)
(d)
(e)
Arrangements about when work is performed;
Overtime rates;
Penalty rates;
Allowances;
Leave loading;
to meet the genuine needs ofKmart and the team member.
35.1.2
The arrangement must be genuinely agreed to by the Kmart and employee.
35.1.3
Kmmi must ensure that the tenns of the individual flexibility arrangement:
(a) are about permitted matters under s.172 of the Fair Work Act 2009; and
(b) are not unlawful terms under s.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.
35.1.4
Kmart must ensure that the individual flexibility arrangement:
(a) is in writing;
(b) includes Kmart' s company name and the name of the team member; and
(c) is signed by an authorised representative ofKmart and the team member and ifthe
employee is under 18 years of age, a parent or guardian of the team member must also
sign the agreement.
35.1.5
The individual flexibility arrangement must include details of:
(a) the terms ofthe enterprise agreement that will be varied by the arrangement;
(b) how the arrangement will vary the effect of the terms;
(c) how the team member will be better off overall in relation to the terms and conditions
of his or her employment as a result of the arrangement; and
(d) state the day on which the arrangement commences.
35.1.6
The Company must give the team member a copy of the individual flexibility agreement
within 14 days after it is agreed to.
35.1.7
Kmart or the team member may terminate the individual flexibility arrangement by giving
no more than 28 days written notice to the other party to the arrangement or if Kmart and
team member agree, in writing at any time.
36.
WORKPLACE SAFETY
Workplace Safety
36.1
Objective
Kmart, its team members, and the Union are committed to achieving and maintaining healthy
and safe working conditions in all K.mart workplaces. This goal can best be achieved by
developing a comprehensive approach to managing health and safety with joint involvement of
management, team members, their elected Occupational Health and Safety Representatives and
the Union. This approach shall have the following objectives:
36.2
a)
to control workplace hazards at their source;
b)
to reduce the incidence and costs of occupational injury and disease; and
c)
to provide an injury management system for team members affected by occupational
injury or illness.
Consultation
To ensure the effective elimination, minimisation and management of risks to health and, safety
in the workplace, the following consultative mechanisms shall need to be maintained:
36.3
a)
the election of Health and Safety Representatives in accordance with relevant legislative
requirements;
b)
an Occupational Health and Safety committee with equal representation of management
and team members;
c)
consultative procedures for the resolution of occupational health and safety issues; and
d)
a six monthly meeting shall be held by the National Secretary of the Union, and the
General Manager Human Resources ofKmart, or their authorised representatives, to
discuss national or state-wide issues in the workplace which affect health and safety.
Occupational Health and Safety Training
Kmart and the Union are committed to enabling all team members to receive appropriate
occupational health and safety training. Occupational Health and Safety Representatives shall
be given paid leave to attend appropriate occupational health and safety training courses as
stipulated in state legislation, and/or as approved by Kmart and the Union.
Where an issue arises regarding attendance at training programs, this shall be resolved by
taking the matter through the Dispute Resolution Procedures in clause 27.
Kmart shall provide induction and on the job training to all team members on Kmart's
occupational health and safety policy, particular hazards associated with the job, control
measures applicable to these hazards and procedures for reporting and preventing hazards in the
workplace.
36.4
Injury Management
Kmart shall maintain a process for the injury management of team members affected by
occupational injury and illness which aims to return these team members to their pre-injury
status within the community, their families and employment.
Injury management incorporates medical treatment and a multi-disciplinary range of skills
necessary in the management of an injury or illness. This process shall include early
intervention with appropriate, adequate and timely services based on needs assessed by the
treating doctor, other health professionals and/or Injury Management Coordinator as agreed
with the team member.
The process shall be managed in a consultative framework including the injured team member,
treating doctor, Kmart, the rehabilitation provider, where appropriate, and as requested by the
team member, the Union.
36.5
Change to Equipment or Work Practices
a)
Where any proposed changes to equipment, substances or work practices may
reasonably be expected to affect team member health and safety, Kmart shall consult
with:
(i)
the team members concerned;
(ii)
the health and safety representatives of the team members concerned; and
(iii) any health and safety committee established in the workplace, to identify and
resolve potential health and safety problems. Change shall not occur until
identified risks are controlled.
36.6
b)
Where the issue is beyond store control and/or affects stores on a state wide or national
basis, these matters shall be managed at a national or state level, rather than store
specific, in the fonn of a pilot or trial. The Union shall also be notified. National
implementation of changes shall not occur until identified risks are controlled.
c)
As far as practicable consideration shall be given to the health and safety implications of
store design and purchasing of equipment.
Renovations
a)
As soon as practicable after a decision is made to renovate a store, Kmart shall notify:
•
•
•
•
the Safety Committee;
The Safety Representative;
the team members affected; and
the appropriate branch of the Union.
___ I
b)
c)
36.7
Kmart shall take appropriate action to minimise or where possible eliminate any risks
to team member health and safety during renovations. Team members shall co-operate
with Kmart directions during renovations to minimise risks within the workplace.
Where an issue or disagreement arises regarding the renovations, such issue or
disagreement shall be resolved by taking the matter through the Dispute Resolution
Procedure in clause 27.
Application of State Laws
Nothing in this clause must operate to remove, lessen diminish, or otherwise effect in any way
whatsoever:
36.8
a)
the obligations and duties ofKmart, it's team members or the Union, under any
applicable law relating to workplace health and safety; or
b)
the rights and duties of any persons or authority who has any power relating to the
monitoring, implementation, inspection, enforcement or prosecution of any matter
arising under such laws; or
c)
the operation and application of such laws.
Risk Identification, Assessment And Control
a)
Kmart must take all practicable steps to ensure all hazards likely to cause injury are
identified and assessed. Kmart shall do this through store hazard inspections, accident
investigations, state based and national collection and analysis of accident statistics.
b)
All team members must take all practicable steps to identify and report hazards to
Management.
c)
The hazards identified shall be assessed and controlled in the following manner by the
Store Manager ensuring that risks are assessed and control measures developed and
implemented in consultation with;
d)
36.9
(i)
the team members concerned;
(ii)
any health and safety representatives for the team members concerned; and
(iii)
any health and safety committee established in the workplace.
Where the issue is beyond store control and/or affects stores on a state-wide or national
basis, the risk assessment process shall be coordinated by Kmart's National Office with
input sought from team members and where appropriate the Union, to formulate and
implement agreed control measures.
Hand sanitiser
Kmart will provide hand sanitiser for team member use in stores. Hand sanitiser will be located
at the front end of the store.
37.
GUIDELINES CONCERNING SECURITY PROCEDURES
37.1
Preamble
The following guidelines are designed to deal with the industrial relations difficulty that arises where
security measures are taken by Kmart concerning a team member suspected of dishonest practices.
They should be honoured in the spirit rather than in the letter. They should have application in normal
situations but it ought to be understood that, if abnormal situations arise making it impossible for them
to be adhered to, the Union will accept, in place of the guidelines, such protective measures as are
within the spirit of the guidelines but which may not be embraced within their written terms.
The guidelines have no relevance to the questioning of staff in the ordinary course of employment
concerning security matters unconnected with any liability by the team member whose assistance is
being sought by the security personnel.
37.2
Basis of Guidelines
a)
The Union recognises that Kmart has the right to protect their property, interests and effects and
have the right to establish and maintain proper security precautions towards this end.
b)
The Union recognises that such security precautions will include, at times, the employment of
trained security personnel, charged with the responsibility of carrying out security
investigations in a responsible manner.
c)
The Union unreservedly states that it does not condone or countenance dishonesty, or any other
fonn of malpractice, in the industty.
d)
The Union recognises that their members have an obligation under their employment contracts
to cany out their duties in fidelity to Kmart's interests and that members of the Unions will at
all times act to protect the property, interests and effects ofKmart against theft or dishonesty by
any person.
e)
Within these general principles the Union is concerned to ensure that a proper regard is paid to
their member's particular interests and liberties and, to this end, agree to these guidelines as
normally regulating security matters touching the employment of their members.
37.3
Stafflnterviews
a)
When Kmart is trying to discover whether, or by whom, an offence or breach of company
security has been committed Kmart is entitled to question any team member, whether suspected
or not, from whom useful information may be obtained.
b)
As soon as Kmart has reasonable grounds for suspicion that a team member has committed an
offence Kmart will ask such team member whether he or she will agree to be questioned in
connection therewith and upon such agreement being forthcoming, he or she shall caution the
team member before putting to him or her any questions, or further questions, relating to that
offence.
The caution shall be in the following tenus:-
-
----
-----------------------------~---------~
------
--
-------------- ---
-------~----------
--------------------------------------- -------------- -------------------------- ----------------- --------------
-
/
"You are not obliged to say anything unless you wish to do so but what you say may be put into
writing and given in evidence."
After the giving of the above caution, Kmart shall then bring to the team member's attention the
right under these guidelines to ask for the attendance of a nominated team member who is
immediately available to be present as a witness during the course of the interview.
c)
Kmart may object to the presence of any particular person as a witness at such interview if there
is a reason to believe that the witness may be in some way involved in the subject matter of the
interview. The attendance of a team member as a witness at a security interview shall be on the
understanding that the witness will not reveal to any person not involved in the interview what
has taken place or been said in the course of such interview and that the witness shall not
interrupt or frustrate the course of the interview.
d)
During the course of any such interview management or security personnel shall conduct
themselves in a courteous manner toward the team member being interviewed.
e)
Where a security investigation involves a team member remaining at K.mart's premises, or
elsewhere at K.mart's direction, outside of the team member's ordinary working time, such team
member shall be paid overtime in accordance with the Agreement, for all time so spent.
f)
As a general principle team members who have been interviewed with regard to a security
matter should not be transferred to another work place, have a change of duties or sustain any
disciplinary action until the security investigation has been completed. However, in the spirit
of these guidelines it is acknowledged that there may be circumstances in which it may be
desirable to transfer a team member, or change his or her duties. In such a case maximum care
is to be exercised by Kmart so as to prevent any odium attaching to the team member as a result
of the transfer or change in duties.
37.4 Cash Shortages
a)
Team members whose duties involve the handling of money shall not be held responsible for
the repayment of any shortages which may occur unless such team member has sole access to
such money.
b)
This provision shall not affect K.mart's right to take such disciplinary or legal action as Kmart
considers necessary.
37.5 Security Checks of Bags, Parcels and/or Lockers
a)
Kmart is entitled to conduct routine security checks of staff bags and/or parcels at points of exit
and entry used by staff.
b)
Individual security checks ofbags, parcels and/or lockers shall not take place unless the team
member concerned is present, or alternatively that the team member has given permission for
such search to take place in his or her absence.
c)
Where a search or check is to take place in the team member's absence, the team member may
nominate some other responsible team member to be present during such proposed search or
check.
37.6
Carrying of Moneys
Team members involved in the responsibility of carrying moneys belonging to Kmart, to or
from a bank or other institution shall be accompanied at such times by a responsible fellow
team member. Kmart shall not require a team member to have money chained, handcuffed or
fastened to a team member's person, unless such fastening is engaged to the team member with
a quick-release mechanism.
37.7
Staff Entrances and Exits
Kmart may require team members to use staff entrances and exits while entering or leaving the
store during such times as the team member is rostered to work. Kmart shall not require a team
member to use staff entrances and exits in a store when a team member wishes to enter the store
as a customer on rostered days off, or during periods of annual or long service leave or other
leave.
38.
INTERACTION WITH THE NES
This Agreement does not exclude the NES or any provision of the NES. Where this Agreement
contains terms that are supplementary or ancillary to the NES, terms that have the same or substantially
the same effect as the NES or tenns that are expressly permitted to be included in this Agreement, the
interaction between the terms of this Agreement and the provisions of the NES are governed by the
Fair Work Act 2009. Nothing in this clause has the effect oflessening any entitlement in this
Agreement that is supplementary or ancillary to the NES.
39.
TRADE UNION TRAINING LEAVE
39.1
Paid Leave:
a)
Kmart will pay a Union Delegate in accordance with the roster they would have worked whilst
the delegate is attending a Trade Union Training Course conducted by or under the auspices of
the Australian Trade Union Training Authority, or by the Union.
b)
Each store will provide up to a maximum of five (5) days paid leave per store per annum, noncumulative.
c)
An additional 5 days Trade Union Training Leave per store will be available for training new
delegates where the standard 5 days per store has been exhausted. For the purpose of this subclause, a new delegate shall mean a delegate who has not completed the introductory delegates
course but shall not include specific issues training, for example, enterprise bargaining.
d)
At each store, the maximum number of team members attending a course for the purpose of
trade union training leave shall be two except where trade union training leave is utilised for the
purpose of training on new enterprise agreements where more delegates may be released for
this purpose.
e)
An additional one (1) day paid leave per delegate will be provided for training on new
enterprise agreements provided that a further one (1) day training can be utilised from the 5
days paid leave referred to in paragraph (b).
f)
In consultation between K.mart and the Branch Secretaries or their representatives, additional
paid leave will be provided for training on key legislative changes.
g)
Each application to attend a training course and receive full pay during the consequent absence
must be in writing and endorsed by either a state or federal official of the Union.
h)
Kmart shall not be required to pay the cost of travel to and from the place where such courses
are conducted and/or any accommodation costs during such leave.
i)
On completion of the course the team member shall provide, upon request, proof satisfactory to
Kmart of their attendance at the course.
39.2 Unpaid Leave
a)
With prior arrangement at store level, a Union Delegate may be released from their
employment duties for up to five (5) days per calendar year, to participate in Union activities
associated with membership recruitment.
b)
Delegates so released from their duties shall be on leave without pay.
c)
The company may refuse to grant Unpaid Leave if it would impact negatively on the operation
of the business. Provided that requests for Unpaid Leave shall not be unreasonably refused by
the company.
39.3 To access Trade Union Leave, at least four weeks' notice shall be given to the Store Manager.
39.4 Leave granted pursuant to this clause shall count as service for all purposes of the Agreement.
39.5 Leave will not be granted during key operational periods defined in the Agreement.
40.
UNION RECOGNITION AND MEMBERSHIP
40.1.
For the duration of the Agreement, Kmart recognises the Union as being the Union that may
have representation of team members covered by this Agreement (the SDA nationally
except for the coverage area of Queensland specified in clause 3.1(c) and in that case the
AWU (QLD Branch) and this representation will extend to all terms and conditions of
employment, whether those terms and conditions are subject to this Agreement or not.
40.2
Kmart recommends to team members covered by this Agreement wishing to join the
appropriate Union, that they be members of the SDA nationally except for the coverage
area of Queensland specified in clause 3.l(c) and in that case the AWU (QLD Branch).
Team members who do not wish to be members of the union will not have their
employment prejudiced in any way by their decision.
40.3
All new team members covered by the Agreement, shall upon induction, be given an
application form to join the Union and any appropriate literature provided by the union.
40.4
Kmart undertakes upon authorisation to deduct union membership dues, as levied by the
Union in accordance with its rules, from the pay of team members who are members of the
SDA or A WU (QLD Branch). Such monies collected shall be forwarded to the SDA or
AWU at the beginning of each month together with all necessary infonnation to enable the
reconciliation of crediting of subscriptions to members' accounts.
41.
42.
UNION DELEGATES
41.1
A team member who is credentialled by the Union as Union Delegate ("Union Delegate")
shall, upon notification to Kmart, be recognised as the accredited representative of the Union.
41.2
A Union Delegate shall have the right to discuss work related matters of concern of any team
member or to convey information relating to the workplace to team members, provided that
the Union Delegate does not unduly interfere with the work in progress, and that they initially
follow the Dispute Resolution Procedure in Clause 27.
41.3
A Union Delegate shall be allowed a reasonable period oftime during working hours to
interview an authorised official of the Union, provided it does not unnecessarily interrupt the
operations ofthe store.
41.4
The period of time is expected to be no greater than half an hour. The time spent in
discussions between the Union Delegate and the authorised Union official shall be devoted to
legitimate union business.
41.5
The Union Delegate shall not be unreasonably denied access to a telephone to contact the
Union officer to progress enquires on behalf of a member on work related matters.
41.6
The Union Delegate shall have the right to place notices on the section of the notice board
designated for their use within the store. Provided that such notices are authorised by the
Union and deal with legitimate union matters.
41.7
Kmart shall introduce to a Union Delegate, all new team members as soon as is reasonably .
practicable.
UNION NOTICE BOARD
42.1
43..
Kmart shall provide in each store a notice board (of reasonable dimensions) or section of a
notice board, for the display of union notices authorised by the Branch Secretary of the Union.
PAID UNION MEETINGS
43.1
Kmart shall provide the Union with one paid meeting of30 minutes duration per team
member, per store, in each half year, on the following basis;
c) dates, times and fonnat of meetings to be mutually agreed
between the Store Manager and the Union;
d) normal store operations are to be maintained at all times;
e) meetings are non-cumulative and non-transferable between stores; and
f) meetings may be linked to lunch or tea breaks.
(
44.
SIGNATORmS TO THE KMART AUSTRALIA LTD AGREEMENT 2012
Susan Tonks, as General Manager, Human
'Resources, of Kmart Australia Ltd, who is
duly authorised to sign this workplace
agreement on behalf of Kmart Australia
Ltd
Ian Blandthom, as Assistant
National Secretary of The Shop
Distributive and Allied
Employees' Association, who is
duly authorised to sign this
workplace agreement pursuant to
the rules of the Shop, Distributive
and Allied Employees'
Association
Kmart Australia Ltd
The Shop Distributive and Allied
Employees Association
6th Floor, 53 Queen Street
MELBOURNE VIC 3000
690 Springvale Road
Mulgrave VIC 3170
Date
~\, S""'
1rr17
· \2-
William Ludwig, as State
Secretary of the Australian
Workers' Union of Employees,
Queensland, who is duly
authorised to sign this workplace
agreement pursuant to the rules of
the Australian Workers' Union of
Employees, Queensland
The Australian Workers' Union
of Employees, Queensland
12th Floor, 333 Adelaide Street
BRISBANE
3000
QfD
;8
Date
Km$:1:' Australia-Ltd Agreeniynt 2012 ., : - -.-
.-'
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·-: .
2012
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PART 8- APPENDICES
APPENDIX A- CONCILIATION AND ARBITRATION
Representation
Once a dispute has been referred to FWA, any Party may be represented in proceedings before FWA by a
legal practitioner. A team member may be represented in proceedings before FWA by a Team Member
Representative instead of a legal practitioner.
Conciliation
1.1
Conciliation process
1.1.1
If a dispute is referred for conciliation, FWA shall do everything that appears to it to be right
and proper to assist the Parties to agree on tenns for the settlement of the dispute. In doing so,
FWA may make suggestions and conduct an initial assessment of the dispute.
1.1.2
The action that may be taken by FWA under this clause 1.1 includes, without limitation:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
U)
1.2
arranging conferences of the Parties presided over by FWA;
meeting or otherwise discussing the dispute with one or more of the Parties in order to
conciliate dispute;
arranging for the Parties to confer among themselves at conferences (with or without the
presence of FWA);
making an interim recommendation or assessment in relation to all or any matters in dispute;
hearing submissions from the Parties as to the facts or issues pertaining to the dispute;
conducting the conciliation at any place;
adjourning the conciliation to any time and place;
conecting, amending, or waiving any error, defect or irregularity, whether in substance or form;
allowing the amendment, on such terms as it considers appropriate, of any application or other
document relating to any proceeding; and
generally giving all direction and do all such things as are necessary or expedient for the speedy
and just conciliation of the matter in dispute.
Completion of conciliation process
1.2.1
a)
b)
A conciliation proceeding before FWA shall be regarded as completed when:
the Parties have reached agreement for the settlement of the whole of the dispute; or.
whether or not the Parties have reached agreement for the settlement of part of the dispute:
(i) FWA is satisfied that there is no likelihood that, within a reasonable period, conciliation, or
further conciliation, will result in agreement, or further agreement, by the Parties on terms
for the settlement of the dispute or any matter in dispute; or
(ii) the Parties to the dispute have informed FWA that there is no likelihood of agreement, or
further agreement, on the dispute and FWA does not have a substantial reason to refuse to
regard the conciliation proceeding as completed.
Arbitration
1.3
1.4
1.5
Proceeding to Arbitration
1.3 .1
When a conciliation proceeding before FWA in relation to a dispute is completed but the
dispute has not been fully settled, FWA shall proceed to deal with the dispute, or the matters
remaining in dispute, by arbitration.
1.3.2
In arbitration proceedings under this Agreement, unless all the Parties agree, evidence shall not
be given, or statements made, that would disclose anything said or done in a conciliation
proceeding under this Agreement (whether before FWA or at a conference arranged by FWA)
in relation to the dispute that remains unsettled.
At Arbitration
1.4.1
In dealing with a dispute, FWA shall, where it appears practicable and appropriate, encourage
the Parties to agree on procedures in respect of those arbitration proceedings by discussion and
agreement.
1.4.2
If, in accordance with clause 1.4.1, the Parties are unable to come to an agreement on
procedures in respect of the arbitration proceedings, FWA will be entitled to determine its own
procedures for the arbitration proceedings.
Arbitration Powers of FWA
1.5 .1
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
1)
m)
n)
o)
The powers of FWA in arbitrating a dispute shall include the following:
taking evidence on oath or affirmation;
making a decision in relation to all or any matters in dispute;
hearing and determining the matter in dispute;
giving a direction, in the course of, or for the purpose of, the hearing or determination of the
matter in dispute;
referring any matter to an expert and accepting the expert's report as evidence;
directing, in so far as it has power to do so, that Parties be joined or struck out;
summoning before it persons in respect of whom the Parties to this Agreement can reasonably
procure attendance, the Parties to the Agreement, the witnesses or any other person whose
presence FWA considers would help in the hearing or determination of the matter in dispute
and compel the production before it of documents and other things for the hearing and
determination of the matter in dispute;
making an interim finding in relation to all or any matters in dispute;
hearing submissions from the Parties as to the facts or issues pertaining to the dispute;
conducting the arbitration at any place;
adjourning the arbitration to any time and place;
correcting, amending, or waiving any error, defect or irregularity, whether in substance or form;
allowing the amendment, on such terms as it considers appropriate, of any application or other
document relating to any proceeding;
generally giving all direction and do all such things as are necessary or expedient for the speedy
and just hearing and determination of the matter in dispute; and
inform itself in any matter that it thinks fit.
1.5 .2
Any decision of FWA dealing with a dispute (or any matter that remained in dispute) by
arbitration shall include reasons for the decision and shall be in writing, dated and given to the
Parties on the day that it is delivered.
Appeals
1.6
Appeals to the Full Bench ofFWA
1. 6.1
Where the dispute (or any matter that remained in dispute) has been arbitrated and a decision
given under clause 1.5 .2, either Party may appeal the decision to a Full Bench of FWA, with the
leave of the Full Bench, within 21 days of the date of the arbitrated decision. A Full Bench of
FWA will have all of the powers as outlined in clause 1.5.1 and shall have the power to
confinn, quash, dismiss or vary the decision ofFWA.
1.6.2
The Full Bench of FWA may grant leave to appeal under clause 1.6.1 if, in its opinion, the
matter is of such importance that leave should be granted.
1.6.3
An appeal under clause 1.6.1 may be instituted by either Party.
1.6.4
For the purposes of an appeal under clause 1.6.1, a Full Bench of FWA may:
a)
b)
admit further evidence; and
direct a member of the Full Bench to provide a report in relation to a specified matter.
1.6.5
The appeal process set out in this clause 1.6 is intended to be comprehensive of all rights of
appeal.
1.6.6
The Parties agree to exclude the operation of any legislation (other than the Fair Work Act
2009) applicable to arbitration agreements in relation to rights of appeal. For the avoidance of
doubt, the Parties wish to exclude rights of appeal to any court and rights to refer a question of
law to a court pursuant to such legislation.
1.6.7
The Parties will:
a)
b)
ifFWA makes an arbitrated decision and an appeal is not lodged under clause 1.6.1 abide by
and give full effect to the arbitration decision; and
if an appeal is lodged under clause 1.6.1, abide by and give full effect to the decision of the Full
Bench of FWA in detennining the appeal.
FWA generally
1. 7
Guidelines to FWA in the exercise of its powers, functions and discretions
1. 7.1
a)
b)
c)
d)
In the exercise of its powers, functions and discretions in this Agreement, FWA must ensure
that:
it has regard to the objects of this Agreement;
the matters are set down for hearing as soon as possible;
the rules of natural justice and procedural fairness are applied and that relevant legislation is
complied with;
it has regard for the operating arrangements which apply at Kmart;
e)
f)
the hearing of the matter be concluded as soon as reasonably possible; and
it acts according to equity, good conscience and the substantial merits of the case, without
regard to technicalities and legal forms.
APPENDIX B -ALPHABETICAL INDEX
Clause Name
Accident Pay
Annual Leave
Arrangement
Blood Donor Leave
Compassionate Leave
Community Services Leave
Definitions
Disputes Resolution Procedure
Dress and Presentation Standards
Duration
First Aid
Individual Flexibility Term
Interaction with the NES
Guidelines Concerning Security Procedures
Hours of Work
Incidence and Parties Bound
Introduction of Change
Jury Service and Other Leave
Location Allowance
Long Service Leave
Meal Break and Tea Breaks
Objectives
Overtime
Paid Union Meetings
Parental Leave and Top Up PPL Scheme
Personal Leave
Posting of Agreement and Fair Work information Statement
Pre-Natal Leave
Protective Clothing
Public Holidays
Redundancy
Retail Traineeships
Roster Conditions
Savings Provisions
Signatories to the Agreement
Superannuation
Tenns ofEmployment
Title
Transport, Drivers and Forklift Drivers Allowance
Trade Union Training Leave
Clause
Page No
29
17
2
22
21
23
6
27
31
5
8
35
38
37
12
3
25
23
10
18
15
4
14
43
24
19
33
20
32
16
26
30
13
34
45
28
11
1
9
39
78
43
1
53
52
54
6
73
80
5
15
87
93
91
25
3
69
19
18
46
35
4
32
95
57
47
82
51
81
37
70
79
27
83
96
75
19
1
16
93
,·
Union Delegates
Union Notice Board
Union Recognition and Membership
Wages
Workplace Safety
Appendices
Conciliation and Arbitration
Alphabetical Index
41
42
40
7
36
Appendix A
Appendix B
95
95
94
8
88
97
101
16 August 2012
Commissioner Gay
Fair Work Australia
11 Exhibition Street
Melbourne Vic 3000
Dear Commissioner Gay
In respect to the operation of the Kmart Australia Ltd Agreement 2012, Kmart undertakes:
•
That the first sentence of clause 7.2 point 2 of the Agreement is not intended to and
will not be used to unilaterally reduce a team member’s rate of pay by directing a
team member to work lower level duties when the team member has been contracted
to work their ordinary hours at a higher classification. However this does not prevent
a team member accepting, or Kmart offering, an increase in a team member’s
contracted hours of work where the additional hours of work are classified and paid in
accordance with a lower level classification;
•
Level 1 and Level 2 adult team members to whom an introductory rate applies under
clause 7.2 point 3 will be paid the minimum wage rates applicable by law as required
by the Fair Work transitional legislation, despite anything to the contrary in this
Agreement. Should a any team member on an introductory rate become covered by
a modern award during the life of this Agreement the team member will be entitled to
be paid whichever is highest of the introductory rate set out in this Agreement and the
minimum rate of pay applicable as required by s.206 of the Fair Work Act 2009; and
•
Team members cashing out an amount of annual leave in accordance with clause
17.11 of the Kmart Australia Ltd Agreement 2012 will be paid no less than the full
amount that would have been payable to the team member had the team member
taken the leave the team member has forgone under sub-clause 17.11.5.
These undertakings will constitute terms of the Kmart Australia Ltd Agreement 2012.
Yours sincerely
Susan Tonks
General Manager Human Resources