Domino`s Pizza Agreement 2009

Transcription

[2010] FWAA 3945
DECISION
Fair Work Act 2009
s.185—Approval of enterprise agreement
AV Staff Pty Ltd T/A Domino's Pizza
(AG2009/23822)
SDA - DOMINOS PIZZA AGREEMENT 2009 (AV STAFF PTY LTD)
Fast food industry
COMMISSIONER ASBURY
BRISBANE, 28 MAY 2010
Application for approval of the SDA - Domino's Pizza Agreement 2009 (AV Staff Pty Ltd).
[1]
An application has been made for approval of an enterprise agreement known as the
SDA - Domino's Pizza Agreement 2009 (AV Staff Pty Ltd) (the Agreement). The application
was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AV
Staff Pty Ltd trading as Domino’s Pizza.
[2]
On 28 April 2010, the Employer provided an undertaking as follows:i.
Notwithstanding the provisions of the clause 3 of the Agreement, the National
Employment Standards (NES) will operate from 1 January 2010 with respect
to employees covered by the Agreement;
ii.
The grievance procedure in clause 29 of the Agreement is a process by which
disputes about matters arising under the Agreement and in relation to the
National Employment Standards (NES) will be settled. Employees may be
represented at any stage of the grievance procedure;
iii.
Clause 50 of the Agreement does not provide an entitlement to enter premises
other than in accordance with Part 3-4 of Chapter 3 of the Fair Work Act 2009
(Cth).
These undertakings form part of the Agreement and are contained on the file in relation to this
matter.
[3]
The Shop Distributive and Allied Employees’ Association being a bargaining
representative for the Agreement, has given notice under s.183 of the Act that it wants the
Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement
covers the organisation.
[4]
On the basis of the material before me, 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.
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[2010] FWAA 3945
[5]
The Agreement is approved and will operate from 4 June 2010 until 3 June 2013.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code J, AE878036 PR997425>
2
Fair Work Act 2009 (Cth)
Date of Approval
2009
SDA - Domino's Pizza Agreement 2009 (AV
Staff Pty Ltd)
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SDA - DOMINO'S PIZZA AGREEMENT 2009 (AV STAFF PTY LTD)
1.
TITLE
This Agreement shall be known as the SDA-Domino's Pizza Agreement 2009 (AV StaffPty Ltd).
2.
ARRANGEMENT
CLAUSE
CLAUSE NUMBER
ANNUAL LEAVE
26
ANTI DISCRIMINATION
56
ARRANGEMENT
2
40
BLOOD DONOR LEAVE
CARER'S LEAVE
42
11
CASUAL EMPLOYEES
CHANGE AND REST ROOMS
17
39
COMMUNITY SERVICE LEAVE
COMPASSIONATE LEAVE (INCLUDING BEREAVEMENT LEAVE) 28
CONSULTATIONIINTRODUCTION OF CHANGE
45
CONTRACT OF EMPLOYMENT
30
DATE AND PERIOD OF OPERATION
3
DEFENCE FORCES SERVICES LEAVE
38
DEFINITIONS
5
EMPLOYEES EQUIPMENT
20
ESCORTS TO CARS
4
FIRST AID KIT
3
GRIEVANCE PROCEDURE
29
HIGHER AND LOWER DUTIES
9
HOURS
12
INCIDENCE AND PARTIES BOUND
4
INDIVIDUAL FLEXIBILITY AGREEMENT
6
LEAVE OF ABSENCE
37
LIMITATION OF WORK
21
LOCATION ALLOWANCES
8
LONG SERVICE LEAVE
34
MEAL BREAKS
15
MEAL MONEY
16
NATURAL DISASTER LEAVE
41
NO REDUCTION
52
44
OCCUPATIONAL HEALTH AND SAFETY
OVERTIME
14
PARENTAL LEAVE
35
PART TIME EMPLOYMENT
10
32
PAYMENT OF WAGES
36
PRE-NATAL LEAVE
PROTECTIVE CLOTHING
19
PUBLIC HOLIDAYS
25
RECORDS
48
REDUNDANCY
46
RE-NEGOTIATION OF AGREEMENT
55
ROSTERS FOR FULL TIME AND PART TIME EMPLOYEES
13
SDA- Domino's PizzaAgreement 2009 (AV Staff Pty Ltd)
2
SAVINGS
SICK LEAVE
SUPERCESSION OF AGREEMENT
SUPERANNUATION
SUPPORTED WAGES
TERMINATION OF EMPLOYMENT
TITLE
TRAVELLING FACILITIES
UNION RECOGNITION AND MEMBERSHIP
UNIFORMS AND LAUNDERING
WAGES
53
27
54
33
47
31
2
22
49
18
7
SCHEDULES
LIST OF EMPLOYERS
WAGE RATES
NATIONAL EMPLOYMENT STANDARDS (NES)
3.
A
B
C
DATE AND PERIOD OF OPERATION
This Agreement will operate 7 days after the date of approval by Fair Work Australia
(FWA) for a period not exceeding 3 years. Schedule C reflects Sections 59 to 131 of the
Fair Work Act 2009 (Cth). These Sections in full represent the National Employment
Standards (the "NES") which under the Act are intended to apply from 1 January 2010.
The parties have agreed to have these sections of the NES apply from the date of
operation of this Agreement.
4.
INCIDENCE AND PARTIES BOUND
This Agreement shall be binding on AV Staff Pty Ltd and the Shop Distributive and
Allied Employees' Association and shall apply to all Employees of AV Staff Pty Ltd in all
States and Territories of Australia in the classifications in this Agreement whether
members of the Union or not.
5.
DEFINITIONS
5.1
"Domino's Store" shall mean an establishment which is operated by AV Staff Pty Ltd
which is wholly or predominantly engaged in the receipt of orders for or the
preparation, sale, serving or delivery of food from a standardised menu and shall
include any commissary where food is prepared or partially prepared.
"Domino's Pizza" or the "Employer" means AV Staff Pty Ltd ACN 140 511 842.
5.2
"Retail Food Employee Level I" or "Level I" shall mean an Employee engaged in a retail
food establishment who is in the first six months of employment and who is gaining the
skills required of a Retail Food Employee Level II.
5.3
"Retail Food Employee Level II" or "Level II" shall mean an Employee with not less than
six months service with the Employer who is engaged to assist with the following:
5.3.1
preparation, assembly, cooking or packing of product for sale,
SDA - Domino's Pizza Agreement 2009 (AV Staff Pty Ltd)
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5.3.2
the maintenance of the work area at a standard of cleanliness as determined by
the Employer,
5.3.3
the cleaning of cooking utensils, cutlery and glassware,
5.3.4
the performance of customer service functions including the taking of orders by
any means, the entering of information onto a computer,
5.3.5
the receipt of monies or other duties involving customer contact except the
delivery of product to the customer outside the retail food establishment.
5.3.6
the distribution or use of promotional material;
5.3.7
this Level II also applies to Manager in Training or Assistant Manager whilst so
appointed in writing by their Employer and is subject to the Employer's specific
criteria in regard to proficiency; performance review and progression to a higher
level.
5.4
"Retail Food Employee Level III" or "Level III" shall mean an Employee appointed in
writing by their Employer to have responsibility for the management of a store and is
subject to the Employer's specific criteria in regard to proficiency; performance review
and progression to a higher Level.
5.5
"Daily Spread of Shift" shall mean the time that elapses from the Employee's actual
starting time to the Employee's actual finishing time for the day or for the shift.
5.6
"Domino's Pizza" shall mean AV Staff Pty Ltd.
5.7
"Out Side Job" shall mean work that is performed away from an Employee's usual place
of work.
5.8
"Union" or "SDA" shall mean the Shop Distributive and Allied Employees' Association.
6.
INDIVIDUAL FLEXIBILITY AGREEMENT
6.1
An Employer and Employee covered by this Agreement may agree to make an individual
flexibility arrangement to vary the effect of terms of the Agreement if:
6.1.1 (a)
The Agreement deals with the following matter:
(i)
time off in lieu as referred to in Subclause 14.5.
6.1.2
The arrangement meets the genuine needs of the Employer and Employee in
relation to the matter mentioned in Subclause 6.1.1 (a); and
6.1.3
The arrangement is genuinely agreed to by the Employer and Employee.
6.2
The Employer must ensure that the terms ofthe individual flexibility arrangement:
6.2.1
are about permitted matters under section 172 of the Fair Work Act 2009 (Cth);
and
SDA- Domino's Pizza Agreement 2009 (AV Staff Pty Ltd)
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6.2.2
are not unlawful terms under section 194 of the Fair Work Act 2009 (Cth); and
6.2.3
result in the Employee being better off overall than the Employee would be if no
arrangement was made.
6.3
The Employer must ensure that the individual flexibility arrangement:
6.3.1
is in writing; and
6.3.2
includes the name of the Employer and Employee; and
6.3.3
is signed by the Employer and Employee and if the Employee is under 18 years
of age, signed by a parent or guardian of the Employee; and
6.3.4
6.3.5
includes details of:
(i)
the terms of the enterprise agreement that will be varied by the
arrangement; and
(ii)
how the arrangement will vary the effect of the terms; and
(iii)
how the Employee will be better off overall in relation to the terms and
conditions of his or her employment as a result of the arrangement; and
states the day on which the arrangement commences.
6.4
The Employer must give the Employee a copy of the individual flexibility arrangement
within 14 days after it is agreed to.
6.5
The Employer or Employee may terminate the individual flexibility arrangement:
6.5.1
6.5.2
by giving no more than 28 days' written notice to the other party to the
arrangement; or
if the Employer and Employee agree in writing -
at any time.
7.
WAGES
7.1
The minimum ordinary rates of wage payable to Employees covered by this Agreement
shall be as set out in Schedule B. It is to be noted that Safety Net adjustments applied
by the Minimum Wage Panel of Fair Work Australia on or about 1 July in each year
shall be applied to the rates of wages set out in Schedule B in the manner described in
Schedule B. Save that where any Employee is paid in excess of their minimum
classification rate, for example an "over Agreement payment", then the safety net
increases may be absorbed at the Employer's discretion.
7.2
No Junior Employee will move to a lower junior percentage rate as a result of the
approval of this Agreement. No employee will suffer a reduction in ordinary time wages
and conditions if the employee is employed in the same position as (or a position
comparable to) the position they were employed in immediately before this Agreement
comes into operation.
7.3
For the purpose of complying with the mmimum payment requirements of this
Agreement the employer is entitled to offset any amounts paid under the employee's
contract of employment against any amounts required to be paid under this Agreement.
For the purposes of this clause all payments made over a period of 6 months pursuant
to the contract of employment may be taken into account for the purpose of limiting
any payment due under this Agreement to whatever may be the deficiency between the
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Agreement entitlements for an employee for the same 6 month period against the
aggregate entitlement under the employee's contract of employment for the same
period.
8.
LOCATION ALLOWANCES
In addition to the rates prescribed in Schedule B of this Agreement, an Employee shall
be paid a Location Allowance in accordance with the General Order of the Western
Australian Industrial Relations Commission, or in relation to the Northern Territory
$16.60 for Darwin and $9.30 for Alice Springs.
9.
HIGHER OR LOWER DUTIES
9.1
Any Employee performing work for two hours or more on any day on duties carrying a
higher prescribed rate of wage than that in which the Employee is ordinarily engaged
in, shall be paid the higher wage for the time so employed. Provided that where an
Employee is engaged for more than half of one working day of eight hours or more (or
shift) on duties carrying a higher rate, the Employee shall be paid the higher rate for
the whole day or shift.
9.2
Any Employee, who is temporarily required to perform duties carrying a lower
prescribed rate of wage, shall do so without any loss of pay.
10.
PART TIME EMPLOYEES
10.1
A part-time Employee shall mean a permanent Employee engaged on a weekly basis
who works regularly from week to week for not less than three consecutive hours per
shift.
10.2
A part time Employee shall mean a permanent Employee engaged on a weekly contract
of service, who works regularly from week to week for:
10.2.1
not less than three or more than ten consecutive ordinary hours per shift;
10.2.2
not less than nine or more than 30 ordinary hours per week over five days of the
week.
10.3
Subject to the limitations on daily and weekly hours for part time Employees as
prescribed by Subclauses 10.1 and 10.2, the number of ordinary hours to be worked on
anyone day by a part time Employee may be increased and/ or decreased by agreement
between the Employer and the Employee without payment of overtime or the
requirement of an Employer to pay for any hours originally rostered but not worked.
10.4
Part time Employees shall be paid at the ordinary time rate of pay of one thirty-eighth
of the full time weekly rate of pay for the appropriate classification as set out in
Schedule B of this Agreement.
Provided that this rate shall be increased to double time for all work performed on the
holidays referred to in Clause 25 (Public Holidays) of this Agreement.
10.5
Overtime for part-time Employees
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Overtime as prescribed in Clause 14 (Overtime) of this Agreement will be paid for all
time worked by a part-time Employee beyond:
10.5.1
ten ordinary hours per day, or
10.5.2
thirty ordinary hours per week, or
10.5.3
five days per week, or
10.5.4
at times other than those which the Employee is rostered to work.
10.6
A part time Employee shall be eligible for:
10.6.1
pro rata annual leave,
10.6.2
sick leave and carer's leave in accordance with Clauses 27 and 42 and Schedule
C of this Agreement,
10.6.3
compassionate leave, and
10.6.4
payment in lieu of public holidays on which the Employee usually works.
In calculating the pro-rata entitlements of a part time Employee pursuant to this sub-
clause, all ordinary hours worked by the Employee, shall be included in the calculation.
11.
CASUAL EMPLOYEES
11.1
A casual Employee shall mean an Employee engaged on an hourly contract of service.
11.2
A Casual Employee will be engaged for a minimum of 2 consecutive ordinary hours per
shift and up to a maximum of 10 ordinary hours per shift.
11.3
Subject to Subclause 11.9, casual Employees shall not work more than 38 ordinary
hours per week on not more than 5 days of the week.
11.4
Casual Employees must be paid in accordance with the appropriate table of rates in
Schedule B.
11.5
Public holidays and casual Employees
The hourly rate of pay shall be increased to double time for all work performed on the
public holidays referred to in Clause 25 (Public Holidays) of this Agreement.
11.6
Overtime and casual Employees
Casual Employees shall be entitled to overtime as set out in Clause 14 (Overtime) of
this Agreement.
11.7
Travel time and casual Employees
Where a casual Employee is required to work at a location that is of a greater distance
from their residence than their usual place of work, they will be entitled to claim any
additional travelling time as part of their shift. These wages shall be forwarded to the
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Employee within seventy two hours of completion of the pay week
Employee was employed.
ill
which the
In addition, all excess fares incurred by the Employee in traveling to and from the place
of engagement and the job shall be paid by the Employer.
11.8
The provisions of Clause 37 (Leave of Absence) shall not apply to a casual Employee.
11.9
Notwithstanding the provisions of Subclause 11.3, a casual Employee may request to
work on six days in anyone week or twelve days in any fortnight in ordinary hours.
12.
HOURS
12.1
The ordinary hours of work are thirty-eight per week.
more than 10 ordinary hours per day.
12.2
A permanent Employee must not work ordinary hours on more than 10 days in a twoweek period. Each Employee shall be entitled to four uninterrupted full days off duty
per fortnight.
12.3
Notwithstanding the provisions of Subclause 12.1, in cases where full-time Employees
are rostered over a 19 day, four week cycle, up to forty ordinary hours may be worked
in a week provided that the total number of ordinary hours in any four week cycle shall
not exceed 152.
13.
ROSTERS FOR FULL TIME AND PART TIME EMPLOYEES
13.1
A roster of the working hours of each full time and part time Employee shall be
exhibited in the office of each store and in such other place by the Employer, so as it
may be conveniently and readily seen by the Employee employed.
13.2
The roster shall show:
An Employee must not work
13.2.1
the name, classification and type of employment of each Employee,
13.2.2
the daily hours to be worked by each Employee and the breaks in shift to be
taken.
13.3
The roster and "time and wage records" shall be open for inspection to a duly accredited
representative of the Union for the purpose of ensuring compliance with this
Agreement.
13.4
Rosters shall show the working hours of Employees for at least one week in advance of
the date of the roster, and may only be altered on account of sickness of an Employee,
or by mutual consent between the Employee and the Employer concerned.
13.5
In exceptional and unforeseen circumstances a roster may be altered with a minimum
of three days' notice to the Employees concerned. Provided that any such alterations to
the roster must be only the minimum necessary changes to deal with the exceptional
and unforeseen circumstances.
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13.6
When compiling rosters, the Employer shall have regard to:
13.6.1
whether or not an Employee has safe transport home; and
13.6.2
his or her family responsibilities.
14.
OVERTIME
14.1
Overtime for Levels I and II will be paid in the following circumstances:
14.1.1
times other than those which the Employee is rostered to work;
14.1.2
beyond ten hours in anyone day;
14.1.3
beyond ten days in anyone fortnight, unless Subclause 11.9 applies;
14.1.4
beyond thirty-eight hours in anyone week (except in the case of an Employee
rostered over a 19 day, four week cycle as provided by Subclause 12.3 in which
case the limit to weekly ordinary hours shall be forty in any week and 152 hours
in the four week cycle).
14.2
Overtime rate
All overtime worked shall be paid as follows:
Monday to Saturday 12 noon:
time and a half for the first two hours and
double time thereafter.
From 12 noon Saturday & all day Sunday:
double time
14.3
All work carried out on an Employee's rostered day off shall be paid for at the rate of
double time with a minimum payment for three hours' work.
14.4
Notwithstanding anything contained in this clause, where a part time Employee is
requested to work overtime in order to meet unforeseen operational and/ or staffmg
requirements, the first hour of such overtime shall be paid for at the ordinary time rate
of pay, with the rest of the overtime to be paid as described in Subclause 14.2.
14.5
An Employee and their Employer may make an Individual Flexibility Agreement,
pursuant to Clause 6, in relation to time off with pay being allowed in lieu of payment
for overtime. Such time off must be agreed between the Employee and their Employer.
14.6
Time off shall be allowed subject to:
14.6.1
time off for each hour or part thereof being equivalent to the overtime rate that
otherwise would have been paid.
14.6.2
the period for taking time off being agreed at the time of arranging the overtime
and shall be no later than four weeks after the overtime is worked.
14.7
Make-up Time
9
An Employee may elect, with the consent of their Employer, to work 'make-up time',
under which the Employee takes time off ordinary hours, and works those hours at a
later time, during the spread of ordinary hours provided in the Agreement.
15.
MEAL BREAKS
15.1
Where an Employee is engaged for more than 5 hours on anyone day they will be
entitled to an unpaid meal break of 30 minutes duration. Such meal break will be
taken between the commencement of the second and the commencement of the fifth
hour after commencing ordinary hours of work.
15.2
Where there is agreement between the Employer and an individual Employee, the
Employee may take the meal break 30 minutes prior to ceasing work.
15.3
Where an Employee in Level I or II is instructed to work through the meal break, the
meal break shall be treated as time worked and the Employee shall be paid at the rate
of time plus 50% until such meal break is taken. An Employee appointed in writing as a
Manager in Training, Assistant Manager or Store Manager may take their meal break at
any time during their shift without payment of the penalty prescribed in Clause 15 so
as to ensure continuity of work.
15.4
In calculating the casual rate of pay the 50% shall be paid in addition to the loaded
casual rate of pay.
15.5
The meal break mentioned in Subclause 15.1 may be converted to a 15 minute paid
break subject to:
15.5.1
the shift being no longer than 6 consecutive hours long,
15.5.2
and it is at the express request of the Employee concerned
15.6
An Employee who works 4 hours or more is entitled to a paid 10 minute rest break. An
Employee who works 8 hours or more is entitled to an additional paid 10 minute rest
break.
16.
MEAL MONEY
Any Employee who is required to work overtime for more than two hours on any day,
without being notified on the previous day or earlier of the requirement to work
overtime, will be supplied with a meal by the Employer or be paid $9.25 meal money.
This allowance shall be adjusted by 3.5% a year on the anniversary of this Agreement in
each of2010, 2011 and 2012.
17.
CHANGE AND REST ROOMS
The Employer shall provide adequate change and rest rooms where such are reasonably
practicable.
18.
UNIFORMS AND LAUNDERING
After the date of operation of this Agreement, new Employees may be required to
purchase uniforms. Where an Employee has purchased a uniform the Employer will
withhold an up-front deposit of $12 in the first week and $5.00 per week for the next
10
four weeks from the new Employee's wages. On termination an Employee may return
their uniforms to the Employer and receive a $32.00 refund. The uniform will be
returned in a clean condition and the Employer will accept fair wear and tear.
Alternatively, the Employer may deduct the $32.00 from the final pay of an Employee
who has not returned the uniform in a clean condition subject only to fair wear and
tear.
19.
PROTECTIVE CLOTHING
19.1
Employees who are required to wash dishes, clean toilets or otherwise handle
detergents, acids, soaps or any injurious substances shall be supplied, free of charge,
with rubber gloves.
19.2
Where Employees are unable to avoid their clothing becoming wet or dirty, the
Employer shall supply them with suitable protective clothing free of charge.
19.3
Where conditions of work are such that Employees are unable to avoid their feet
becoming wet, they shall be supplied by the Employer, free of charge, with suitable
protective footwear.
19.4
All articles supplied shall remain the property of the Employer and shall be returned
when required, in good order and condition, fair wear and tear excepted.
19.5
Any dispute in respect to the application of this clause will be dealt with by the dispute
resolution clause.
20.
EMPLOYEES' EQUIPMENT
All knives, choppers, tools, brushes, towels, and other utensils, implements and
material which may be required to be used by the Employee for the purpose of carrying
out his or her duties, shall be supplied by the Employer free of charge.
21.
LIMITATION OF WORK
21.1
No Employee shall be required to climb ladders or any substitute therefore unless
appropriately attired.
21.2
No Employee shall be required to clean out toilets within the Employer's establishment
unless it has been determined that the toilets are vacant and arrangements are made to
ensure that the toilets are not in use during the cleaning period.
21.3
Employees required to carry or lift shall do so in accordance with the Occupational
Safety and Health Regulations issued by the respective state and territory Occupational
Health & Safety laws, regulations and codes of practice.
22.
TRAVELLING FACILITIES
22.1
Where an Employee is detained at work until it is too late to travel by the last ordinary
bus, train or other regular public conveyance to the Employee's usual place of
residence, the Employer shall provide proper conveyance free of charge.
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22.2
If an Employee is required to start work before the first means of public conveyance
described earlier is available to convey the Employee from his or her usual place of
residence to the place of employment, the Employer shall provide conveyance free of
charge.
22.3
The provisions of this clause do not apply to an Employee who usually has his or her
own means of conveyance.
23.
FIRST AID KIT
In each establishment the Employer shall provide and continuously maintain at a place
easily accessible to all Employees an adequate First Aid Kit.
24.
ESCORTS TO CARS
Wherever possible, the Employer shall arrange for an Employee to be safely escorted to
his or her car or other mode of transport, provided that by doing so, no Employee is left
alone in a store.
25.
PUBLIC HOLIDAYS
25.1
The following days shall be allowed as paid holidays for full time and part time
Employees:
Christmas Day
Boxing Day (Proclamation Day in SA)
New Year's Day
Australia Day
Labour Day
Good Friday
Easter Sunday
Easter Monday
Anzac Day
Sovereign's Birthday
State Foundation Day (WA)
Melbourne Cup Day (VIC, ACT)
Newcastle Show Day (Newcastle NSW)
Canberra Day (ACT)
Adelaide Cup Day (SA)
Show Holiday (Qld)
Regatta Day (Tas)
Darwin Show Day (NT)
25.2
The paid holidays set out above hereof, shall be regarded as falling on the days upon
which they are proclaimed or gazetted under State Holidays Acts or equivalent.
25.3
Any Employee in Level I or II who works on any of the public holidays prescribed in this
clause shall be paid at the rate of double time, with a minimum payment for two hours.
25.4
Where a full-time or part-time Employee's non work day coincides with any of the
holidays prescribed in this clause, the Employee shall receive one day's additional pay
at ordinary rates from the Employer on the next succeeding payday.
25.5
Work on any public holiday will be voluntary for permanent Employees.
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26.
ANNUAL LEAVE
Annual leave shall be as per Schedule C, subject to the following subclauses.
26.1
An Employee before going on leave shall be paid the wages that would have been paid
in respect of the ordinary time the Employee would have worked had the Employee not
been on leave during the relevant period.
26.2
During a period of annual leave an Employee shall receive a loading of 17.5 per cent
calculated on the Employee's ordinary rate of wage.
26.3
If any public holiday proclaimed as per Subclause 25.1 (Public Holidays) of this
Agreement, falls within an Employee's period of annual leave, there shall be added to
the period of leave one day being an ordinary working day for each holiday proclaimed.
26.4
During any twelve month period of continuous service an Employee whose employment
is terminated shall, be paid their accrued annual leave entitlements in accordance with
Schedule C.
26.5
An Employee whose employment terminates after the completion of any qualifying
period and who has not been allowed the leave prescribed in this clause in respect of
that period, shall be paid in lieu of that leave in accordance with the provisions of this
clause.
26.6
Any time in respect of which an Employee is absent from work, except time for which
the Employee is entitled to claim sick leave, public holidays, annual leave or
compassionate leave as prescribed by this Agreement, shall not count for the purpose of
determining his or her right to annual leave.
26.7
In special circumstances, and by mutual consent of the Employee, the Employer and
the Union, annual leave may be taken in not more than two periods, provided that
neither of such periods shall be less than one week.
26.8
Annual leave shall be granted to and taken by the Employee within three months of the
day on which it became due, and the Employee shall be given at least two weeks' notice
by the Employer of the date that annual leave will commence.
26.9
Notwithstanding the provisions of this clause, an Employee may elect, with the consent
of the Employer, to take annual leave in single day periods not exceeding five days in
any calendar year at a time or times agreed between them.
26.10 An Employee and Employer may agree to defer payment of the annual leave loading in
respect of single day absences, until at least 5 consecutive annual leave days are taken.
27.
SICK LEAVE
Sick leave is as per Schedule C, subject to the following subclauses.
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27.1
Entitlement to payment shall accrue at the rate of 76 hours per year for a full time
Employee and at the rate of 0.0417 hours for each hour worked by a part time
Employee.
27.2
Where an Employee has used their entitlement to sick leave the Employee is entitled to
take unpaid sick leave in advance and to be paid for that sick leave when the Employee
becomes entitled to further paid sick leave.
27.3
To be entitled to payment in accordance with this clause the Employee shall, as soon as
reasonably practicable, advise the Employer of his or her inability to attend for work,
the nature of the illness or injury and the estimated duration of the absence. Provided
that such advice, other than in extraordinary circumstances shall be given to the
Employer within 24 hours of the commencement of the absence.
27.4
Illness or injury during annual leave
27.4.1
Subject to Subclause 27.4, an Employee who suffers personal ill health or injury
during the time when he or she is absent on annual leave may, subject to
Schedule C, apply for and the Employer shall grant paid sick leave in place of
paid annual leave.
If the Employee cannot return to work on the next working day following the
annual leave because of the illness or injury the Employee is obliged to advise
the Employer accordingly as prescribed in Subclause 27.3.
27.4.2
Application for replacement of annual leave shall be made within seven days of
resuming work and shall be supported by a medical certificate.
27.4.3
Replacement of paid annual leave by paid sick leave shall not exceed the period
of paid sick leave to which the Employee was entitled at the time he or she
proceeded on annual leave and shall not be made for a fractions of a day.
27.4.4
Where paid sick leave has been granted by the Employer in accordance with the
above provisions, that portion of the annual leave equivalent to the paid sick
leave shall be replaced by the paid sick leave and the replaced annual leave may
be taken at another time mutually agreed to by the Employer and the Employee;
or
(i) failing agreement, it shall be added to the Employee's next period of leave;
or
(ii) paid out if the employment is terminated.
27.4.5
Payment for replaced annual leave shall be at the rate of wage applicable at the
time the leave is subsequently taken. Where an Employee has been paid annual
leave loading on their annual leave the Employee cannot claim a further payment
of annual leave loading on the replaced annual leave when they subsequently use
that replaced annual leave .
27.4.6
The provisions of this clause with respect to payment do not apply to Employees
who are entitled to payment under applicable Workers' Compensation and
Rehabilitation Legislation.
28.
COMPASSIONATE LEAVE (INCLUDING BEREAVEMENT LEAVE)
14
28.1
The provisions of Schedule C apply.
29.
GRIEVANCE PROCEDURE
29.1
Consistent with the objectives, philosophies and intent of this Agreement, the following
procedure shall be utilised to ensure that all Employee grievances are dealt with
appropriately:
29.2
In the first instance, the matter shall, wherever possible, be discussed by the concerned
Employee and their immediate supervisor with the purpose of achieving a satisfactory
outcome.
29.3
If the grievance or dispute is not resolved in the first instance, the Employee or the
Employee's representative - may refer the matter to the next higher level of
management for discussion. Such discussion should, if possible, take place within 48
hours of the request by the Employee or the employee's representative.
29.4
Should the issue remain unresolved, an official from the Union and a senior
representative of the Employer will become involved.
29.5
Either party should not unreasonably delay each stage of the grievance procedure.
Should the next level representative of either the Union or Employer not be available for
more than 5 working days the matter may be referred to the next level of management
or union for resolution.
29.6
Until the matter is determined, all work shall continue in accordance with the status
quo that existed prior to the matter in dispute arising, or by other agreed arrangements
unless the grievance poses a threat to health or life of the Employee concerned or other
Employees. No party shall be prejudiced as to the final settlement by the continuance
or deferment of the work in accordance with this subclause.
29.7
If the matter still remains unresolved following the above procedure, either party may
refer it to Fair Work Australia for conciliation and/or arbitration. Where this happens
and an Employee has been suspended on pay the Union and the Employer must agree
on the action to be taken with regards to the suspension.
29.8
An Employee will be given an opportunity to have a union delegate/official present
during any counselling or dispute resolution meeting.
29.9
An Employee may be suspended from work on full pay while the grievance or dispute is
being resolved.
30.
CONTRACT OF EMPLOYMENT
30.1
An Employee will be engaged as a full time, part time or casual Employee and will be
advised in writing of the status she/he is employed at the time of hiring.
15
30.2
An Employee will present themselves for work in a clean, neat and tidy manner to the
standards set out in the Domino's Pizza "New Employees' Orientation" handbook. They
will not be late for the commencement of their shift. The Employer must provide the
New Employees' Orientation handbook to all new Employees.
31.
TERMINATION OF EMPLOYMENT
31.1
Permanent Employees
31.1.1
Should the Employer wish to terminate a permanent Employee, the Employer
shall give the Employee written notice of the day of termination and, the following
period of notice shall be provided:
Period of Continuous Service
Period of Notice
Not more than 3 months
More than 3 months but not more than 1 year
More than 1 year but not more than 3 years
More than 3 years but not more than 5 years
More than 5 years
1 week
1 week
2 weeks
3 weeks
4 weeks
31.1.2
Employees over 45 years of age with 2 or more years' continuous service at the
time of termination, shall receive an additional week's notice.
31.1.3
Where the relevant notice is not provided, the Employee shall be entitled to
payment in lieu. Provided that employment may be terminated by part of the
period of notice and part payment in lieu.
31.1.4
Payment in lieu of notice shall be calculated using the Employee's weekly
ordinary time earnings.
31.1.5
The period of notice in this clause shall not apply in the case of dismissal for
conduct that justifies instant dismissal, including refusal or neglect to obey
instructions or for misconduct or if after receiving notice of termination such
Employee does not carry out his or her duties in the same manner as he or she
did prior to such notice.
31.1.6
Notice of termination by Employee
1 week's written notice shall be necessary for an Employee to terminate his or
her engagement or the forfeiture of 1 week's pay by the Employee to the
Employer in lieu of notice not given.
31.2
Casual Employees
The giving or receiving of 1 hour's notice may terminate the employment of a casual
Employee.
31.3
Grievance Procedures
In the event of a dispute arising from the operation of this clause, the matter shall be
dealt with in accordance with the provisions of Clause 29 (Grievance Procedure) of this
Agreement.
32.
PAYMENT OF WAGES
16
32.1
The Employer may elect to pay Employees in cash, by cheque or by means of electronic
funds transfer to a financial institution in the name of the Employee. The day that the
funds transfer is lodged at the bank shall be deemed to be the date of payment.
32.2
Payment shall be made within three days of the last day of the pay period. Payment to
the Employee by cash or cheque shall be made during the Employee's ordinary working
hours.
32.3
No change shall be made to the method or frequency of payment to Employees without
first giving those Employees and the union at least four weeks' notice of the change.
32.4
Employees whose day off falls on pay day and who are paid by cash or cheque, shall be
paid their wages upon written request from the Employee to the Employer, prior to the
Employee taking the day off.
32.5
An Employee who lawfully terminates employment or is dismissed, shall be paid all
wages due to the Employee by the Employer on the day of termination of employment,
or within twenty four hours following such termination.
32.6
At the time of being paid each Employee shall be issued with a statement by the
Employer showing the gross wages and allowances and all deductions made.
32.7
The Employer may elect to pay Employees weekly or fortnightly in accordance with this
Clause 32.
32.8
An Employer who wishes to introduce a fortnightly pay system shall pay an additional
week's wages in the last weekly pay before the change to fortnightly pays to be repaid
by equal fortnightly deductions made from the next and subsequent pays over the next
10 weeks.
33.
SUPERANNUATION
33.1
The provisions of this clause shall be read in conjunction with and shall complement
the provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth).
33.2
Defmitions.
33.2.1
"Fund" shall mean the Retail Employees Superannuation Trust (REST) or such
other "Approved Superannuation Fund" as may be provided for by the Employer.
Preference will be given to REST.
33.2.2
"Ordinary Time Earnings" shall mean the base classification rate, plus additional
rates such as, in charge rates, shift penalties and (if any) over agreement
payments, together with any other all purpose allowance or penalty payment for
work in ordinary time and shall include in respect to casual Employees the
appropriate casual loadings as prescribed by this Agreement. It shall exclude
any payment for overtime worked.
33.2.3
"Employees' shall mean Employees whose employment
Agreement.
IS
regulated by this
17
33.2.4
"Trustee" - shall mean the Trustee of the fund.
33.2.5
"Approved Superannuation Fund"- shall mean a superannuation fund which
complies with the Occupational Superannuation Standards Act 1987 (Cth) or any
Act that may replace it.
33.3
Quantum
33.3.1
Each Employer bound by this Agreement shall make application to participate in
the Fund and must contribute to the Fund in respect of all eligible Employees an
amount equal to the percentage as set out below, of each Employee's weekly
ordinary time earnings.
33.3.2
The minimum percentage applicable to the Employer shall be as set down in the
provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth).
33.4
Cessation of Contributions
The obligation of the Employer to contribute to the Fund in respect of an Employee
shall cease on the last day of the Employee's employment with the Employer.
18
33.5
Eligibility
The Employer shall be required to make contributions accordance with this clause in
respect of each Employee except where:
33.5.1
an Employee earns less than $450.00 in any calendar month, or
33.5.2
an Employee who is aged less than 18 years of age and works 30 hours or less
per week.
33.6
Employee contributions
Employees who may wish to make contributions to the Fund, additional to those being
made by the Employer pursuant to Subclause 33.3, hereof, shall be entitled to
authorise the Employer to pay into the Fund from the Employee's wages amounts
specified by the Employee. Employee contributions to the Fund requested under this
subclause shall be made in accordance with the rules of the Fund.
Frequency of Payment
The Employer shall pay contributions together with Employee's deductions to the Fund
in the following manner:
33.6.1
In respect of full time and part time Employees payments shall be made monthly
for pay periods completed in the month, and
33.6.2
In respect of casual Employees payments shall be made monthly for pay periods
completed every three months.
Provided that payments may be made at other times and in such other manner
as agreed in writing between the Trustees of the Fund and the Employer.
34.
LONG SERVICE LEAVE
34.1
The Long Service Leave provistons of each State and Territory's Industrial Laws are
hereby incorporated and shall be deemed to be part of this Agreement.
34.2
At the Employee's request, long service leave may be taken at double leave at half pay.
35.
PARENTAL LEAVE
Parental leave is as per Schedule C and the additional subclause below.
35.1
In the case of a multiple birth, a male Employee will be entitled to take up to one
month's paternity leave at the time of the birth.
36.
PRE NATAL LEAVE
Up to 24 hours' unpaid leave will be available to pregnant Employees and their
partners, to attend medical appointments associated with the pregnancy.
37.
LEAVE OF ABSENCE
19
Employees who are permitted to take an approved period of unpaid leave of up to three
months' duration, will not have their continuity of service broken by virtue of the leave
but such leave shall not count as service for leave accrual purposes.
38.
DEFENCE FORCE SERVICES LEAVE
38.1
A full-time or part-time Employee will be allowed leave of up to 2 weeks maximum per
calendar year to attend to Defence Forces Reserve approved training camps.
38.2
During such leave, Employees will be paid an amount equal to the difference between
the payment received in respect of their attendance at the camp and the amount of
ordinary time earnings they would have received had they worked during that period.
38.3
The Employee must provide proof of attendance and payment received for the time
spent in training.
38.4
An Employee seeking to take such leave must provide at least one month's prior notice.
39.
COMMUNITY SERVICE LEAVE
Community service leave is as per Schedule C but is also subject to the following
additional subclauses.
39.1
Full time and part time Employees involved in recognised voluntary services including
SES and fire fighting services shall be entitled to paid time off at ordinary time rates to
attend to emergency situations.
39.2
It shall be the responsibility of the Employee to keep the Employer informed about the
time off needed to attend to emergency duties.
39.3
To receive payment, an Employee must provide proof of attendance at the emergency
situation.
39.4
Paid time off for attendance at emergencies in the local area will not be unreasonably
restricted nor accessed.
39.5
Paid time off for emergencies that are not local will be limited to two days but may be
increased depending upon the nature of the emergency.
40.
BLOOD DONOR LEAVE
40.1
A full time or part time Employee who is absent during ordinary working hours for the
purpose of donating blood, will not suffer any deduction of pay, including any
allowances and penalty payments the Employee would have received had they been at
work, up to a maximum of two hours on each occasion and subject to a maximum of
four separate absences each calendar year.
40.2
An Employee must attempt to donate blood outside working time. If that is not possible,
the Employee must arrange for such leave to be taken on a day suitable to the Manager
and be as close as possible to the beginning or end of the ordinary working hours.
20
40.3
The Employee must first provide proof of attendance, and of the duration, to the
satisfaction of the Manager.
40.4
The Employee must notify his or her Manager as soon as possible, of the date and time
upon which they are requesting to take such leave.
41.
NATURAL DISASTER LEAVE
41.1
Where a yellow alert is announced for cyclones, flooding, earthquake or bush fires,
Employees with children will be allowed to leave work to care for their children sent
home from school. Time away from work is unpaid and will only apply during the
school term.
41.2
An Employee is entitled to up to 2 days' paid leave if there is a reasonable and justified
reason that an Employee is unable to attend work due to a natural disaster.
42.
CARER'S LEAVE
Carer's Leave is as per Schedule C, but subject to the following additional subclauses.
42.1
The Employee shall, wherever practicable, give the Employer notice prior to the absence
of the intention to take leave, the name of the person requiring care and their
relationship to the Employee, the reasons for taking such leave and the estimated
length of absence. If it is not practicable for the Employee to give prior notice of
absence, the Employee shall notify the Employer by telephone of such absence at the
first opportunity on the day of absence.
42.2
Unpaid Leave for Family Purposes
An Employee may elect, with the consent of the Employer, to take unpaid leave for the
purpose of providing care to a family member who is ill.
42.1
Grievance Procedure
In the event of any dispute arising in connection with any part of this clause, such a
dispute shall be processed in accordance with the dispute settling provisions of this
Agreement.
43.
BONE MARROW DONOR LEAVE
43.1
An Employee who is absent during ordinary working hours for the purpose of donating
bone marrow, or for the purpose of undertaking a blood test as part of the process of
becoming a registered bone marrow donor, will not suffer any deduction of pay up to a
maximum of:
43.1.1
2 hours on not more than two occasions per year for the purpose of blood testing
as part of the process of becoming a registered bone marrow donor; and
43.1.2
three days on any occasion that a bone marrow donation is given.
43.2
In relation to blood testing as part of the process of becoming a registered bone marrow
donor the Employee must arrange for the absence from work to be on a day suitable to
21
the Employer and the absence must be as close as possible to the beginning or end of
the Employee's ordinary working hours.
43.3
In relation to bone marrow donations the Employee must provide the Employer with as
much notice as is possible of requested bone marrow donation.
43.4
So far as is possible the Employee must make arrangements for a bone marrow
donation so as to minimise the absence from work.
43.5
Proof of attendance of the Employee at either blood test or bone marrow donation and
the duration of respectively the blood test or the bone marrow donation must be
provided to the Employer.
44.
OCCUPATIONAL HEALTH AND SAFETY
44.1
Objective
The Employer, Employees and the Shop Distributive and Allied Employees' Association
are committed to achieving and maintaining healthy and safe working conditions in all
Employer workplaces. This goal can best be achieved by developing a comprehensive
approach to managing health and safety with joint involvement of management,
Employees, their elected Occupational Health and Safety Representatives and their
union.
This approach will have the following objectives:
44.1.1
to control workplace hazards at their source,
44.1.2
to reduce the incidence and costs of occupational injury and disease,
44.1.3
to provide a rehabilitation system for workers affected by occupational injury or
illness.
44.2
Consultation
To ensure the effective elimination, minimising and management of risks
workplace the following consultative mechanisms will need to be addressed.
ill
the
44.2.1
The election of Health and Safety Representatives.
44.2.2
The establishment of an Occupational Health and Safety Committee with equal
representation of management and workers.
44.2.3
Establishment of consultative procedures for the resolution of occupational
health and safety issues.
44.3
Training
44.3.1
Occupational Health and safety representatives will be given paid leave to attend
trade union approved occupational health and safety courses to a maximum of 5
days per annum.
44.3.2
The Employer will provide induction and on the job training to all Employees on
Employer occupational health and safety policy, particular hazards associated
22
with the job, control measures applicable to each hazard and procedures for
controlling and preventing hazards in the workplace.
44.4
Occupational Health and Safety Program
44.4.1
The Employer will collect, collate and analyse statistics on the incidence of
injury/illness in the workplace.
44.4.2
The Employer will conduct regular workplace inspections to identify hazards and
monitor compliance with all regulatory standards. These will be carried out with
the involvement of Occupational Health and Safety Representatives and
committees.
44.4.3
The Employer will take prompt action to deal with any health and safety
problems.
44.5
Application of State Laws
Nothing in this clause must operate to remove, lessen, diminish, ameliorate or
otherwise affect in any way whatsoever:
44.5.1
an Employer's or Employee's obligations and duties under any applicable law
relating to workplace health and safety; or
44.5.2
the rights and duties or 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
44.5.3
the operation and application of such laws.
45.
INTRODUCTION OF CHANGE
45.1
Employer's Duty to Notify
45.1.1
Where the Employer has made a decision to introduce major changes in
production, program, organisation, structure or technology that are likely to have
significant effects on Employees, the Employer shall notify both the Employees
who may be affected by the proposed changes and the Union.
45.1.2
"Significant effects" include termination of employment, major changes in the
composition, operation or size of the workforce or in the skills required, the
elimination or diminution of job opportunities, promotion opportunities or job
tenure, the alteration of hours of work, the need for retraining or transfer of
Employees to other work or locations and the restructuring of jobs.
45.2
Employer's Duty to Discuss Change
45.2.1
The Employer shall discuss with the Employees affected and the Union inter alia,
the introduction of the changes referred to above, the effects the changes are
likely to have on Employees, measures to avert or mitigate the adverse effects of
such changes on Employees and shall give prompt consideration to matters
raised by the Employees and/ or the Union in relation to the changes.
23
45.2.2
The discussions shall commence as early as practicable after a definite decision
has been made by the Employer to implement the changes referred to above.
45.2.3
For the purposes of such discussions, the Employer shall provide in writing to
the Employees concerned and the Union, all relevant information about the
changes including the nature of the changes proposed, the expected effects of the
changes on Employees and any other matters likely to affect Employees provided
that the Employer shall not be required to disclose confidential information the
disclosure of which would be detrimental to the Employer's interests.
46.
REDUNDANCY
46.1
Discussions Before Terminations
46.1.1
Where the Employer has made a defmite decision that the Employer no longer
wishes the job the Employee has been doing to be done by anyone and this is not
due to the ordinary and customary turnover of labour the decision may lead to
termination of employment. In such circumstances, the Employer shall hold
discussions with the Employees directly affected and with the Union.
46.1.2
The discussions shall take place as soon as is practicable and shall cover
amongst other matters the reasons the proposed terminations are required,
measures to avoid or minimise the terminations and measures to mitigate any
adverse effects of any terminations on the Employees concerned.
46.1.3
For the purposes of the discussion the Employer shall, as soon as practicable,
provide in writing to the Employees concerned and the Union, all relevant
information about the proposed terminations including the reasons for the
proposed terminations, the number and categories of Employees likely to be
affected, and the number of workers normally employed and the period over
which the terminations are likely to be carried out.
46.1.4
Provided that the Employer shall not be required to disclose confidential
information the disclosure of which would be detrimental to the Employer's
interests.
46.2
Transfer to lower paid duties
Where an Employee is transferred to lower paid duties for reasons set out immediately
above, the Employee shall be entitled to the same period of notice of transfer as they
would have been entitled to if they had been terminated. And, the Employer may 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.
46.3
Severance Pay
In addition to the period of notice provided in Clause 31 (Termination of Employment) a
permanent Employee whose employment is terminated for reasons set out above shall
be entitled to the following amount of severance pay in respect of a continuous period of
service:
24
Period of continuous service
Severance Pay
Aged under 45
Severance Pay
Aged over 45
Less than 1 year
1 year but less than 2 years
2 years but less than 3 years
6 years and more
Nil
4 weeks'pay
7 weeks'pay
10 weeks' pay
12 weeks' pay
14 weeks' pay
16 weeks' pay
Nil
5 weeks'pay
8.75 weeks' pay
12.5 weeks' pay
15 weeks' pay
17.5 weeks' pay
20 weeks' pay
"Weeks' pay" means the ordinary time rate of pay for the Employee concerned.
Provided that the severance payments shall not exceed the amount which the Employee
would have earned if employment with the Employer had proceeded to the Employee's
normal retirement date.
46.4
Employee Leaving During Notice
An Employee whose employment is terminated for reasons set out in Subclause 46.1,
may terminate his or her employment during the period of notice and, if so, shall be
entitled to the same benefits and payments under this clause had she/he remained
with the Employer until the expiry of such notice. Provided that in such circumstances
the Employee shall not be entitled to payment in lieu of notice.
46.5
Alternative Employment
The Employer in a particular redundancy case may make application to the Fair Work
Australia to have the severance pay prescriptions varied if the Employer obtains
acceptable alternative employment for an Employee.
46.6
Time Off During Notice Period
46.6.1
During the period of notice of termination given by the Employer, an Employee
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.
46.6.2
If the Employee has been allowed paid leave for more than one day during the
notice period for the purpose of seeking other employment, the Employee shall,
at the request of the Employer, be required to produce proof of attendance at an
interview or they shall not receive payment for the time absent. For this purpose
a statutory declaration will be sufficient.
46.7
Transmission of Business
46.7.1
Where a business is before or after the date of this Agreement, transmitted from
one Employer (in this subclause called "the transmittor") to another Employer (in
this subclause called "the transmittee") and an Employee who at the time of such
transmission was an Employee of the transmitter in that business becomes an
Employee of the transmittee:
(i)
The continuity of the employment of the Employee shall be deemed not to
have been broken by reason of such transmission;
and
25
46.8
(ii)
The period of employment which the Employee has had with the transmitter
or any prior transmitter shall be deemed to be service of the Employee with
the transmittee.
(iii)
In this subclause "business" includes trade, process, business or
occupation and includes part of any such business and "transmission of
business" includes transfer, conveyance, assignment or succession whether
by agreement or by operation of law and "transmitted" has a corresponding
meaning.
Employees with Less Than One Year's Service
This clause shall not apply to Employees with less than one year's, continuous service
and the general obligation on the Employer should be no more than to give relevant
Employees 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 Employees of suitable alternative employment.
46.9
Employees Exempted
This clause shall not apply where employment is terminated as a consequence of
conduct that justifies instant dismissal, including malingering, inefficiency or neglect of
duty. In the case of casual Employees, or Employees engaged for a specific period of
time or for a specified task or tasks or where the termination is due to the ordinary and
customary turnover of labour.
47.
SUPPORTED WAGES
47.1
This clause defines the conditions that will apply to Employees who because effects of a
disability are eligible for a supported wage under the terms of this Agreement. In the
context of this clause, the following defmitions will apply:
47.1.1
"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 Handbook.
47.1.2
"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.
47.1.3
"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 (Cth), as amended from time to time, or any successor to that
scheme.
47.1.4
"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.
47.2
Eligibility Criteria
47.2.1
This clause covers Employees who are unable to perform the range of duties to
the competence level required within the class of work for which the Employee is
engaged under this Agreement, because of the effects of a disability on their
26
productive capacity and who meet the impairment criteria for receipt of a
Disability Support Pension.
(The clause does not apply to any existing Employee who has a claim against the
Employer which is subject to the provisions of workers' compensation legislation
or any provision of this Agreement relating to the rehabilitation of Employees
who are injured in the course of their current employment).
47.2.2
47.3
The Agreement does not apply to Employers in respect of their facility, program,
undertaking, service or the like which receives funding under the Disability
Services Act 1986 (Cth) and fulfils the dual role of service provider and sheltered
Employer 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 the Act, or if a part only has received recognition for
that part.
Supported Wage Rates
Employees 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 (Subclause 4.l(iv)
10%*
10%
20%
20%
30%
30%
40%
40%
50%
50%
60%
60%
70%
70%
80%
80%
90%
90%
(Provided that the minimum amount payable shall not be less than $71.00 per week).
*
47.4
Where a person's assessed capacity is 10 per cent, they shall receive a high
degree of assistance and support.
Assessment of Capacity
For the purpose of establishing the percentage of the Agreement rate to be capacity of
the Employee will be assessed in accordance with the Supported Wage System and
documented in an assessment instrument by either:
47.4.1
the Employer and the Union, in consultation with the Employee or, if desired by
any of these,
47.4.2
the Employer and an accredited assessor from a panel agreed by the parties to
the Agreement and the Employee.
47.5
Lodgement of Assessment Instrument
47.5.1
All assessment instruments under the conditions of this clause, including the
appropriate percentage of the Agreement wage to be paid to the Employee, shall
be lodged by the Employer with the Registrar of the Industrial Relations
Commission.
27
47.5.2
47.6
All assessment instruments shall be agreed and signed by the parties to
assessment, provided that where a Union which is party to the Agreement, is
a party to the assessment, the assessment be referred by the Registrar to
Union by certified mail and shall take effect unless an objection is notified to
Registrar within ten working days.
the
not
the
the
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 of review
shall be in accordance with the procedures for assessing capacity under the Supported
Wage System.
47.7
Other Terms and Conditions of Employment
Where an assessment has been made, the applicable percentage shall apply to the wage
rate only. Employees covered by the provisions of the clause will be entitled to the
same terms and conditions of employment as other workers covered by this Agreement
paid on a pro-rata basis.
47.8
Workplace Adjustment
An Employer wishing to employ an Employee under the provisions of this clause shall
take reasonable steps to make changes in the workplace to enhance the Employee's
capacity to carry out the duties. Changes may involve redesign of job duties, hours of
work and work organisation in consultation with other workers in the area.
47.9
Trial Period
47.9.1
In order for an adequate assessment of an Employee's capacity to be made, an
Employer may employ a person under the provisions of this clause for a trial
period not exceeding 12 weeks, except that in some cases additional work
adjustment time (not exceeding four weeks) may be needed.
47.9.2
During the trial period the assessment of capacity shall be undertaken and the
proposed wage rate for a continuing employment relationship shall be
determined.
47.9.3
The minimum amount payable to the Employee during the trial period shall be
no less than $71.00 per week.
47.9.4
Work trials should include induction or training as appropriate to the solution
being trialed.
48.
RECORDS
The Employer shall maintain all records as required by the Fair Work Act 2009 (Cth)
and any Regulations made in accordance with that Act.
49.
UNION RECOGNITION AND MEMBERSHIP
49.1
For the duration of this Agreement the Employer recognises that Employees who are
covered by this Agreement may be represented by the SDA. This representation may
extend to all terms and conditions of employment whether fixed terms are subject to
this Agreement or not
28
49.2
It is the policy of the Employer that it shall recommend that all its Employees subject to
this Agreement shall join the SDA. Accordingly, the Employer undertakes to positively
promote union membership, both to existing Employees and at the point of recruitment
in the case of new Employees, by recommending that all Employees join the SDA
49.3
All existing Employees and all new Employees at the point of recruitment shall be given
an application form to join the SDA with any appropriate literature provided by the
SDA.
49.4
The Employer undertakes upon authorisation by an Employee to deduct union
membership dues, as levied by the SDA in' accordance with its rules, from the pay of
Employees who are members of the SDA and who, sign a deduction authority. Such
monies shall be forwarded to the SDA at the beginning of each month together with all
necessary information to enable the reconciliation and crediting all subscriptions to
members
49.5
In an effort to promote a positive industrial relations climate, the Employer and the
SDA shall meet on a quarterly basis to review issues affecting the matters covered by
this agreement and other issues affecting the Employer and SDA membership.
49.6
The Employers shall make available the Union video at all New Employees' Orientation
classes and in all stores.
50.
UNION VISITS
50.1
On notifying the Employer or its representative an accredited representative of the
Union is entitled to meet a worker during non peak times or the meal period or to view
any work on the business premises of the Employer, but shall not interfere in any way
with the carrying out of such work.
51.
POSTING OF AGREEMENT AND UNION NOTICES
51.1
The Employers shall exhibit a copy of this Agreement, on the business premises of each
establishment in a place where each Employee may conveniently and readily view it.
51.2
The Branch Secretary of the SDA, or any other duly accredited representative of the
SDA, shall be permitted to post notices relating to SDA business in a place where each
Employee may conveniently and readily view them.
52.
NO REDUCTION
No Employee shall be disadvantaged as a result of the registration of this Agreement
providing that their working arrangements remain unchanged.
53.
SAVINGS
53.1
No existing Employee is to have their existing rates reduced because of the operation of
this agreement.
53.2
An existing Employee on a higher rate must not be replaced by an Employee receiving a
lower rate of pay. Any dispute as to the operation of this provision must be processed in
accordance with the Grievance Procedure.
29
54.
SUPERSESSION OF AGREEMENT OR AGREEMENTS
This Agreement shall apply to the exclusion of all other Agreements or Agreements
subject to minimum classification rates in the applicable Modern Award.
55.
RE-NEGOTIATION OF AGREEMENT
The Employer and the Union must meet six months prior to the expiration of this
Agreement to commence negotiations for a replacement Agreement. If the pay rates
contained within this Agreement are greater than those contained in the relevant
Award, then the conditions of this Agreement will continue to apply to the affected
Employees, until the rates of pay contained within the relevant Award become greater.
56.
ANTI-DISCRIMINATION
56.1
It is the intention of the respondents to this Agreement to achieve the principal object
set out in the Fair Work Act 2009 (Cth) by helping to prevent and eliminate
discrimination on the basis of race, colour, sex, sexual preference, age, physical or
mental disability, marital status, family responsibilities, pregnancy, religion, political
opinion, national extraction or social origin.
56.2
Accordingly, in fulfilling their obligations under the Grievance Procedure, the respective
Employers must make every endeavour to ensure that neither the Agreement provisions
nor their operation are directly or indirectly discriminatory in their effects.
56.3
Nothing in this clause is to be taken to affect;
56.3.1
Any different treatment (or treatment having different effects) which is specifically
exempted under the Commonwealth and/ or State anti-discrimination legislation
and/or the Fair Work Act 2009 (Cth); or
56.3.2
An Employee, Employer or registered organization, pursuing matters of
discrimination in any state or federal jurisdiction, including by application to the
Human Rights and Equal Opportunity Commission.
30
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PAGE 5
Schedule A
Intentionally left blank
32
Schedule B
Applicable Wage Rates
1.
TO APPLY FROM THE FIRST PAY PERIOD ON OR AFTER THE DATE OF
APPROVAL OF THE AGREEMENT BY EMPLOYEES
A.
Permanent Employees
Victoria/New South Wales/South Australia/Tasmania/Northern Territory/Australian
Capital Territory
Level I
649.30
17.09
17.09
13.67
11.96
10.25
8.54
8.54
662.55
17.44
17.44
13.95
12.20
10.46
8.72
8.72
728.81
19.18
19.18
15.34
13.43
11.51
9.59
9.59
(98%)
Level II
(100%)
Level III
(110%)
Western Australia
Levell
592.60
15.59
15.59
12.48
10.92
9.36
7.80
7.80
Level II
609.90
16.05
16.05
12.84
11.24
9.63
8.03
8.03
Level III
644.50
16.96
16.96
13.57
11.87
10.18
8.48
8.48
Levell
547.71
14.41
14.41
12.25
10.81
9.37
7.93
7.93
Level II
574.20
15.11
15.11
12.84
11.33
9.82
8.31
8.31
Level III
594.53
15.65
15.65
13.30
11.73
10.17
8.61
8.61
Queensland
33
B.
Casual Employees
Capital Territory
Levell
(98%)
20.50
20.50
16.40
14.35
12.30
10.25
10.25
Level II
(100%)
20.92
20.92
16.74
14.65
12.55
10.46
10.46
Level III
(110%)
23.01
23.01
18.41
16.11
13.81
11.51
11.51
Western Australia
Level I
18.71
18.71
14.97
13.10
11.23
9.36
9.36
Level II
19.26
19.26
15.41
13.48
11.56
9.63
9.63
Level III
20.35
20.35
16.28
14.25
12.21
10.18
10.18
Level I
17.73
17.73
15.07
13.30
11.52
9.75
9.75
Level II
18.59
18.59
15.80
13.94
12.08
10.22
10.22
Level III
19.24
19.24
16.36
14.43
12.51
10.58
10.58
Queensland
34
2.
TO APPLY FROM 1 JULY 2010
In addition to the rates below, the Safety Net adjustment as determined by the
Minimum Wage Panel of Fair Work Australia will be paid. For Employees in Victoria,
New South Wales, South Australia, Tasmania, Northern Territory and the Australian
Capital Territory, the Safety Net adjustment shall be applied so as to maintain the
relativities that are expressly identified in the table below. More specifically, the full
dollar amount of the Safety Net adjustment will be paid to Level II, with Level I to
receive 98% of that amount and Level III to receive 110% of that amount. For
Queensland and Western Australia, the full dollar amount of the Safety Net adjustment
shall be applied to each Level of Employee.
A.
Permanent Employees
Capital Territory
Level I
649.30
17.09
17.09
13.67
11.96
10.25
8.54
8.54
662.55
17.44
17.44
13.95
12.20
10.46
8.72
8.72
728.81
19.18
19.18
15.34
13.43
11.51
9.59
9.59
(98%)
Level II
(100%)
Level III
(110%)
Western Australia
Levell
594.08
15.63
15.63
12.51
10.94
9.38
7.82
7.82
Level II
615.44
16.20
16.20
12.96
11.34
9.72
8.10
8.10
Level III
645.20
16.98
16.98
13.58
11.89
10.19
8.49
8.49
Level I
558.17
14.69
14.69
12.49
11.02
9.55
8.08
8.08
Level II
586.88
15.44
15.44
13.13
11.58
10.04
8.49
8.49
Level III
606.82
15.97
15.97
13.57
11.98
10.38
8.78
8.78
Queensland
35
B.
Casual Employees
Capital Territory
The casual loading for each of these States and Territories is as follows:
1 July 2010 - 21 % (the table below includes this loading)
1 July 2011 - 22%
1 July 2012 - 23%
Levell
20.68
20.68
16.54
14.47
12.41
10.34
10.34
21.10
21.10
16.88
14.77
12.66
10.55
10.55
23.21
23.21
18.57
16.24
13.92
11.60
11.60
(98%)
Level II
(100%)
Level III
(110%)
Western Australia
The casual loading for this State is as follows:
1 July 2010 - 21 % (the table below includes this loading)
1 July 2011 - 22%
1 July 2012 - 23%
Levell
18.92
18.92
15.13
13.24
11.35
9.46
9.46
Level II
19.60
19.60
15.68
13.72
11.76
9.80
9.80
Level III
20.54
20.54
16.44
14.38
12.33
10.27
10.27
SDA - Domino's PizzaAgreement 2009 (AV Staff Pty Ltd)
36
Queensland
The casual loading for this State is as follows:
1 July 2010 - 23.4% (the table below includes this loading)
1 July 2011 - 23.8%
1 July 2012 - 24.2%
Level I
18.13
18.13
15.41
13.59
11.78
9.97
9.97
Level II
19.06
19.06
16.20
14.29
12.39
10.48
10.48
Level III
19.71
19.71
16.75
14.78
12.81
10.84
10.84
37
Schedule C
NOTES
(1) THIS SCHEDULE C REPRESENTS EXTRACTS FROM THE NATIONAL
EMPLOYMENT STANDARDS (NES) FROM SECTIONS 59-131 OF THE FAIR WORK
ACT 2009 (CTH) (THE "ACT")
(2) NOTHING IN THE AGREEMENT PROPER IS INTENDED TO DISPLACE A
MINIUMUM STANDARD UNDER SCHEDULE C BUT IF SO THEN THE MINIMUM
STANDARD APPLIES TO THE EXTENT OF THE DISPLACEMENT
(3) ANY OTHER MINIMUM STANDARD PROVIDED FOR BY THE NES IN OTHER
SECTIONS OF THE ACT SHALL APPLY
Part 2-2 - The National Employment Standards
Division 1 - Introduction
59
Guide to this Part
This Part contains the National Employment Standards.
Division 2 identifies the National Employment Standards, the detail of which is set out in Divisions 3 to 12.
Division 13 contains miscellaneous provisions relating to the National Employment Standards.
The National Employment Standards are minimum standards that apply to the employment of national
system employees. Part 2-1 (which deals with the core provisions for this Chapter) contains the obligation for
employers to comply with the National Employment Standards (see section 44).
The National Employment Standards also underpin what can be included in modem awards and enterprise
agreements. Part 2-1 provides that the National Employment Standards cannot be excluded by modem
awards or enterprise agreements, and contains other provisions about the interaction between the National
Employment Standards and modem awards or enterprise agreements (see sections 55 and 56).
Divisions 2 and 3 of Part 6-3 extend the operation ofthe parenta11eave and notice oftennination provisions
of the National Employment Standards to employees who are not national system employees.
60
Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national
system employer.
Division 2 - The National Employment Standards
61
The National Employment Standards are minimum standards applying to employment of
employees
(1)
This Part sets minimum standards that apply to the employment of employees which
cannot be displaced, even if an enterprise agreement includes terms of the kind referred
to in subsection 55(5).
38
Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as
provisions of the National Employment Standards.
39
(2)
The minimum standards relate to the following matters:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
G)
(3)
maximum weekly hours (Division 3);
requests for flexible working arrangements (Division 4);
parental leave and related entitlements (Division 5);
annual leave (Division 6);
personal/carer's leave and compassionate leave (Division 7);
community service leave (Division 8);
long service leave (Division 9);
public holidays (Division 10);
notice of termination and redundancy pay (Division 11);
Fair Work Information Statement (Division 12).
Divisions 3 to 12 constitute the National Employment Standards.
Division 3-Maximum weekly hours
62
Maximum weekly hours
Maximum weekly hours ofwork
(1)
An employer must not request or require an employee to work more than the following
number of hours in a week unless the additional hours are reasonable:
(a)
(b)
for a full-time employee - 38 hours; or
for an employee who is not a full-time employee - the lesser of:
(i)
38 hours; and
(ii) the employee's ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2)
The employee may refuse to work additional hours (beyond those referred to in paragraph
(l)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3)
In determining whether additional hours are reasonable or unreasonable for the
purposes of subsections (1) and (2), the following must be taken into account:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
any risk to employee health and safety from working the additional hours;
the employee's personal circumstances, including family responsibilities;
the needs of the workplace or enterprise in which the employee is employed;
whether the employee is entitled to receive overtime payments, penalty rates or other compensation
for, or a level of remuneration that reflects an expectation of, working additional hours;
any notice given by the employer of any request or requirement to work the additional hours;
any notice given by the employee of his or her intention to refuse to work the additional hours;
the usual patterns of work in the industry, or the part of an industry, in which the employee works;
40
(h)
(i)
(j)
the nature of the employee's role, and the employee's level of responsibility;
whether the additional hours are in accordance with averaging terms included under section 63 in a
modem award or enterprise agreement that applies to the employee, or with an averaging arrangement
agreed to by the employer and employee under section 64;
any other relevant matter.
Authorised leave or absence treated as hours worked
(4)
For the purposes of subsection (1), the hours an employee works in a week are taken to
include any hours of leave, or absence, whether paid or unpaid, that the employee takes
in the week and that are authorised:
(a)
(b)
(c)
63
by the employee's employer; or
by or under a term or condition of the employee's employment; or
by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a
law.
Modern awards and enterprise agreements may provide for averaging of hours of work
A modern award or enterprise agreement may include terms providing for the averaging of
hours of work over a specified period. The average weekly hours over the period must not
exceed:
.
(a)
(b)
(i)
38 hours; and
Note: Hours in excess of the hours referred to in paragraph (a) or (b) that are worked in a week in accordance with averaging terms
in a modern award or enterprise agreement will be treated as additional hours for the purpose of section 62, but the averaging
terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).
64
Averaging of hours of work for award/agreement free employees
An employer and an award/agreement free employee may agree in writing to an averaging
arrangement under which hours of work over a specified period of not more than 26 weeks are
averaged. The average weekly hours over the specified period must not exceed:
(a)
(b)
(i)
38 hours; and
Note: Hours in excess of the hours referred to in paragraph (a) or (b) that are worked in a week in accordance
with an agreed averaging arrangement will be treated as additional hours for the purpose of section 62,
but the averaging arrangement will be relevant in determining whether the additional hours are
reasonable (see paragraph 62(3)(i)).
41
Division 4 - Requests for flexible working arrangements
65
Requests for flexible working arrangements
Employee may request change in working arrangements
(1)
An employee who is a parent, or has responsibility for the care, of a child may request
the employer for a change in working arrangements to assist the employee to care for the
child if the child:
(a)
(b)
is under school age; or
is under 18 and has a disability.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in
location of work.
(2)
The employee is not entitled to make the request unless:
(a)
(b)
for an employee other than a casual employee - the employee has completed at least 12 months of
continuous service with the employer immediately before making the request; or
for a casual employee - the employee:
(i)
is a long term casual employee of the employer immediately before making the request; and
(ii) has a reasonable expectation of continuing employment by the employer on a regular and
systematic basis.
Formal requirements
(3)
The request must:
(a)
(b)
be in writing; and
set out details of the change sought and of the reasons for the change.
Agreeing to the request
(4)
The employer must give the employee a written response to the request within 21 days,
stating whether the employer grants or refuses the request.
(5)
The employer may refuse the request only on reasonable business grounds.
(6)
If the employer refuses the request, the written response under subsection (4) must
include details of the reasons for the refusal.
66
State and Territory laws that are not excluded
This Act is not intended to apply to the exclusion of laws of a State or Territory that provide
employee entitlements in relation to flexible working arrangements, to the extent that those
entitlements are more beneficial to employees than the entitlements under this Division.
42
Division 5 - Parental leave and related entitlements
Subdivision A - General
67
General rule - employee must have completed at least 12 months of service
Employees other than casual employees
(1)
An employee, other than a casual employee, is not entitled to leave under this Division
(other than unpaid pre-adoption leave) unless the employee has, or will have, completed
at least 12 months of continuous service with the employer immediately before the date
that applies under subsection (3).
Casual employees
(2)
A casual employee, is not entitled to leave (other than unpaid pre-adoption leave) under
this Division unless:
(a)
(b)
the employee is, or will be, a long term casual employee of the employer immediately before the date
that applies under subsection (3); and
but for:
(i)
the birth or expected birth of the child; or
(ii) the placement or the expected placement of the child; or
(iii) if the employee is taking a period of unpaid parental leave that starts under subsection 71(6) or
paragraph 72(3)(b) or 72(4)(b) - the taking of the leave;
the employee would have a reasonable expectation of continuing employment by the employer on a
regular and systematic basis.
Date at which employee must have completed 12 months ofservice
(3)
For the purpose of subsections (1) and (2), the date that applies is:
(a)
(b)
(c)
unless paragraph (b) or (c) applies:
if the leave is birth-related leave - the date of birth, or the expected date of birth, ofthe child; or
(i)
(ii) if the leave is adoption-related leave - the day of placement, or the expected day of placement, of
the child; or
for an employee taking a period of unpaid parental leave that is to start within 12 months after the birth
or placement of the child under subsection 71(6) -the date on which the employee's period ofleave is
to start; or
for a member of an employee couple taking a period of unpaid parental leave that is to start under
paragraph 72(3)(b) or 72(4)(b) after the period of unpaid parental leave of the other member of the
employee couple - the date on which the employee's period ofleave is to start.
Meaning ofbirth-related leave
(4)
Birth-related leave means leave of either of the following kinds:
(a)
(b)
unpaid parental leave taken in association with the birth of a child (see section 70);
unpaid special maternity leave (see section 80).
43
Meaning ofadoption-related leave
(5)
Adoption-related leave means leave of either of the following kinds:
(a)
(b)
unpaid parental leave taken in association with the placement of a child for adoption (see section 70);
unpaid pre-adoption leave (see section 85).
Meaning ofday ofplacement
(6)
The day ofplacement, in relation to the adoption of a child by an employee, means the
earlier of the following days:
(a)
(b)
68
the day on which the employee first takes custody of the child for the adoption;
the day on which the employee starts any travel that is reasonably necessary to take custody of the
child for the adoption.
General rule for adoption-related leave - child must be under 16 etc.
An employee is not entitled to adoption-related leave unless the child that is, or is to be,
placed with the employee for adoption:
(a)
(b)
(c)
is, or will be, under 16 as at the day of placement, or the expected day of placement, ofthe child; and
has not, or will not have, lived continuously with the employee for a period of 6 months or more as at
the day of placement, or the expected day of placement, of the child; and
is not (otherwise than because of the adoption) a child of the employee or the employee's spouse or
de facto partner.
69
Transfer of employment situations in which employee is entitled to continue on leave etc.
(1)
If:
(a)
(b)
there is a transfer of employment in relation to an employee; and
the employee has already started a period of leave under this Division when his or her employment
with the first employer ends;
the employee is entitled to continue on that leave for the rest of that period.
(2)
If:
(a)
(b)
there is a transfer of employment in relation to an employee; and
the employee has, in relation to the first employer, already taken a step that is required or permitted by
a provision of this Division in relation to taking a period of leave;
the employee is taken to have taken the step in relation to the second employer.
Note: Steps covered by this subsection include (for example) giving the first employer notice under subsection 74(1), confirmation
or advice under subsection 74(4) or evidence under subsection 74(5).
44
Subdivision B - Parental leave
70
Entitlement to unpaid parental leave
An employee is entitled to 12 months of unpaid parental leave if:
(a)
(b)
the leave is associated with:
(i)
the birth of a child of the employee or the employee's spouse or de facto partner; or
(ii) the placement of a child with the employee for adoption; and
the employee has or will have a responsibility for the care of the child.
Note 1: Entitlement is also affected by section 67 (which deals with length of the employee's service) and, for adoption, section 68 (which
deals with the age etc. ofthe adopted child).
Note 2: The 12 months is reduced by the amount of any unpaid special maternity leave the employee has taken (see subsection 80(7)).
71
The period of leave - other than for members of an employee couple who each intend to take
leave
Application ofthis section
(1)
This section applies to an employee who intends to take unpaid parental leave if:
(a)
(b)
the employee is not a member of an employee couple; or
the employee is a member of an employee couple, but the other member of the couple does not intend
to take unpaid parental leave.
Leave must be taken in single continuous period
(2)
The employee must take the leave in a single continuous period.
Note: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).
When birth-related leave must start
(3)
If the leave is birth-related leave for a female employee who is pregnant with, or gives
birth to, the child, the period of leave may start up to 6 weeks before the expected date of
birth of the child, but must not start later than the date of birth of the child.
(4)
If the leave is birth-related leave but subsection (3) does not apply, the period of leave
must start on the date of birth of the child.
When adoption-related leave must start
(5)
If the leave is adoption-related leave, the period of leave must start on the day of
placement of the child.
45
Leave may start later for employees whose spouse or de facto partner is not an employee
(6)
Despite subsections (3) to (5), the period ofleave may start at any time within 12 months
after the date of birth or day of placement of the child if:
(a)
(b)
the employee has a spouse or de facto partner who is not an employee; 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 day of placement of the child and the start date of the leave.
Note: An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period ofleave
beyond his or her available parental leave period. However, the period ofleave may not be extended beyond 24 months after the date
of birth or day of placement of the child (see subsection 76(7)).
72
The period of leave - members of an employee couple who each intend to take leave
(1)
This section applies to an employee couple if each of the employees intends to take
unpaid parental leave.
Leave must be taken in single continuous period
(2)
Each employee must take the leave in a single continuous period.
Note: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).
When birth-related leave must start
(3)
If the leave is birth-related leave:
(a)
(b)
one employee's period ofleave must start first, in accordance with the following rules:
if the member of the employee couple whose period of leave starts first is a female employee
(i)
who is pregnant with, or gives birth to, the child - the period of leave may start up to 6 weeks
before the expected date of birth of the child, but must not start later than the date of birth of the
child;
(ii) if subparagraph (i) does not apply - the period ofleave must start on the date of birth of the
child; and
the other employee's period ofleave must start immediately after the end of the first employee's period
ofleave (or that period as extended under section 75 or 76).
When adoption-related leave must start
(4)
If the leave is adoption-related leave:
(a)
(b)
one employee's period ofleave must start on the day of placement of the child; and
the other employee's period ofleave must start immediately after the end of the first employee's period
of leave (or that period as extended under section 75 or 76).
46
Limited entitlement to take concurrent leave
(5)
If one of the employees takes a period (the first employee's period of leave) of unpaid
parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take
a period of unpaid parental leave (the concurrent leave) during the first employee's
period of leave, if the concurrent leave complies with the following requirements:
(a)
(b)
(c)
(6)
the concurrent leave must be for a period of3 weeks or less;
unless the employer agrees as referred to in paragraph (c), the concurrent leave must not start before,
and must not end more than 3 weeks after:
(i) if the leave is birth-related leave - the date of birth of the child; or
(ii) if the leave is adoption-related leave - the day of placement of the child;
if the employer agrees, the concurrent leave may (subject to paragraph (a)):
(i) start earlier than is permitted by paragraph (b); or
(ii) end up to 3 weeks later than is permitted by paragraph (b).
Concurrent leave taken by an employee:
(a)
(b)
is an exception to the rule that the employee must take his or her leave in a single continuous period
(see subsection (2)); and
is an exception to the rules about when the employee's period of unpaid parental leave must start (see
subsection (3) or (4)).
Note: The concurrent leave is unpaid parental leave and so comes out ofthe employee's entitlement to 12 months of unpaid parental
leave under section 70.
73
Pregnant employee may be required to take unpaid parental leave within 6 weeks before the
birth
Employer may ask employee to provide a medical certificate
(1)
If a pregnant employee who is entitled to unpaid parental leave (whether or not she has
complied with section 74) continues to work during the 6 week period before the expected
date of birth of the child, the employer may ask the employee to give the employer a
medical certificate containing the following statements (as applicable):
(a)
(b)
a statement of whether the employee is fit for work;
if the employee is fit for work - a statement of whether it is inadvisable for the employee to continue in
her present position during a stated period because of:
(i)
illness, or risks, arising out of the employee's pregnancy; or
(ii) hazards connected with the position.
Note: Personal infonnation given to an employer under this subsection may be regulated under the Privacy Act 1988.
Employer may require employee to take unpaid parental leave
(2)
The employer may require the employee to take a period of unpaid parental leave (the
period of leave) as soon as practicable if:
(a)
(b)
the employee does not give the employer the requested certificate within 7 days after the request; or
within 7 days after the request, the employee gives the employer a medical certificate stating that the
employee is not fit for work; or
47
(c)
the following subparagraphs are satisfied:
(i)
within 7 days after the request, the employee gives the employer a medical certificate stating that
the employee is fit for work, but that it is inadvisable for the employee to continue in her present
position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);
(ii) section 81 does not apply to the employee.
Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and section 81 applies to the
employee, the employee is entitled under that section to be transferred to a safe job, or to paid no safe job leave.
When the period ofleave must end
(3)
The period of leave must not end later than the earlier of the following:
(a)
(b)
the end of the pregnancy;
if the employee has given the employer notice of the taking of a period of leave connected with the
birth of the child (whether it is unpaid parental leave or some other kind of leave) - the start date of
that leave.
Special rules about the period ofleave
(4)
The period of leave:
(a)
(b)
is an exception to the rule that the employee must take her unpaid parental leave in a single continuous
period (see subsection 71(2) or 72(2)); and
is an exception to the rules about when the employee's period of unpaid parental leave must start (see
subsections 71(3) and (6), or subsection 72(3)).
Note: The period ofleave is unpaid parental leave and so comes out of the employee's entitlement to 12 months of unpaid parental
leave under section 70.
(5)
The employee is not required to comply with section 74 in relation to the period of leave.
74
Notice and evidence requirements
Notice
(1)
An employee must give his or her employer written notice of the taking of unpaid
parental leave under section 71 or 72 by the employee.
(2)
The notice must be given to the employer:
(a)
(b)
(3)
at least 10 weeks before starting the leave; or
if that is not practicable - as soon as practicable (which may be a time after the leave has started).
The notice must specify the intended start and end dates of the leave.
48
Confirmation or change ofintended start and end dates
(4)
At least 4 weeks before the intended start date specified in the notice given under
subsection (1), the employee must:
(a)
(b)
confmn the intended start and end dates of the leave; or
advise the employer of any changes to the intended start and end dates of the leave;
unless it is not practicable to do so.
Evidence
(5)
An employee who has given his or her employer notice of the taking of unpaid parental
leave must, if required by the employer, give the employer evidence that would satisfy a
reasonable person:
(a)
(b)
(6)
ifthe leave is birth-related leave - of the date of birth, or the expected date of birth, of the child; or
ifthe leave is adoption-related leave:
(i) of the day of placement, or the expected day of placement, of the child; and
(ii) that the child is.or will be, under 16 as at the day of placement, or the expected day of
placement, of the child.
Without limiting subsection (5), an employer may require the evidence referred to in
paragraph (5)(a) to be a medical certificate.
Compliance
(7)
An employee is not entitled to take unpaid parental leave under section 71 or 72 unless
the employee complies with this section.
Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.
75
Extending period of unpaid parental leave - extending to use more of available parental leave
period
(1)
This section applies if:
(a)
(b)
(c)
an employee has, in accordance with section 74, given notice of the taking of a period of unpaid
parental leave (the original leave period); and
the original leave period is less than the employee's available parental leave period; and
the original leave period has started.
49
(2)
The employee's available parental leave period is 12 months, less any periods of the
following kinds:
(a)
(b)
(c)
(d)
a period of concurrent leave that the employee has taken in accordance with subsection 72(5);
a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or
82(2);
a period by which the employee's entitlement to unpaid parental leave is reduced under paragraph
76(6)(c);
a period of special maternity leave that the employee has taken.
First extension by giving notice to employer
(3)
The employee may extend the period of unpaid parental leave by giving his or her
employer written notice of the extension at least 4 weeks before the end date of the
original leave period. The notice must specify the new end date for the leave.
(4)
Only one extension is permitted under subsection (3).
Further extensions by agreement with employer
(5)
If the employer agrees, the employee may further extend the period of unpaid parental
leave one or more times.
No entitlement to extension beyond available parental leave period
(6)
The employee is not entitled under this section to extend the period of unpaid parental
leave beyond the employee's available parental leave period.
76
Extending period of unpaid parental leave - extending for up to 12 months beyond available
parental leave period
Employee may request further period ofleave
(1)
An employee who takes unpaid parental leave for his or her available parental leave
period may request his or her employer to agree to an extension of unpaid parental leave
for the employee for a further period of up to 12 months immediately following the end of
the available parental leave period.
Making the request
(2)
The request must be in writing, and must be given to the employer at least 4 weeks
before the end of the available parental leave period.
Agreeing to the requested extension
(3)
The employer must give the employee a written response to the request stating whether
the employer grants or refuses the request. The response must be given as soon as
practicable, and not later than 21 days, after the request is made.
(4)
The employer may refuse the request only on reasonable business grounds.
(5)
If the employer refuses the request, the written response under subsection (3) must
include details of the reasons for the refusal.
50
Special rules for employee couples
(6)
The following paragraphs apply in relation to a member of an employee couple extending
a period of unpaid parental leave in relation to a child under this section:
(a)
(b)
(c)
the request must specify any amount of unpaid parental leave and unpaid special maternity leave that
the other member of the employee couple has taken, or will have taken, in relation to the child before
the extension starts;
the period of the extension cannot exceed 12 months, less any period of unpaid parental leave or
unpaid special maternity leave that the other member of the employee couple has taken, or will have
taken, in relation to the child before the extension starts;
the amount of unpaid parental leave to which the other member of the employee couple is entitled
under section 70 in relation to the child is reduced by the period ofthe extension.
No extension beyond 24 months after birth or placement
(7)
Despite any other provision of this Division, the employee is not entitled to extend the
period of unpaid parental leave beyond 24 months after the date of birth or day of
placement of the child.
77
Reducing period of unpaid parental leave
If the employer agrees, an employee whose period of unpaid parental leave has started may
reduce the period of unpaid parental leave he or she takes.
78
Employee who ceases to have responsibility for care of child
(1)
This section applies to an employee who has taken unpaid parental leave in relation to a
child if the employee ceases to have any responsibility for the care of the child.
(2)
The employer may give the employee written notice requiring the employee to return to
work on a specified day.
(3)
The specified day:
(a)
(b)
must be at least 4 weeks after the notice is given to the employee; and
if the leave is birth-related leave taken by a female employee who has given birth - must not be earlier
than 6 weeks after the date of birth ofthe child.
(4)
The employee's entitlement to unpaid parental leave in relation to the child ends
immediately before the specified day.
79
Interaction with paid leave
(1)
This Subdivision (except for subsections (2) and (3)) does not prevent an employee from
taking any other kind of paid leave while he or she is taking unpaid parental leave. If the
employee does so, the taking of that other paid leave does not break the continuity of the
period of unpaid parental leave.
Note: For example, if the employee has paid annual leave available, he or she may (with the employer's agreement) take some or all
of that paid annual leave at the same time as the unpaid parental leave.
51
(2)
An employee is not entitled to take paid personal/ carer's leave or compassionate leave
while he or she is taking unpaid parental leave.
(3)
An employee is not entitled to any payment under Division 8 (which deals with
community service leave) in relation to activities the employee engages in while taking
unpaid parental leave.
Subdivision C - Other entitlements
80
Unpaid special maternity leave
Entitlement to unpaid special maternity leave
(1)
A female employee is entitled to a period of unpaid special maternity leave if she is not fit
for work during that period because:
(a)
(b)
she has a pregnancy-related illness; or
she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the
child otherwise than by the birth of a living child.
Note: Entitlement is also affected by section 67 (which deals with the length of the employee's service).
Notice and evidence
(2)
An employee must give her employer notice of the taking of unpaid special maternity
leave by the employee.
(3)
The notice:
(a)
(b)
must be given to the employer as soon as practicable (which may be a time after the leave has started);
and
must advise the employer of the period, or expected period, of the leave.
(4)
An employee who has given her employer notice of the taking of unpaid special maternity
leave must, if required by the employer, give the employer evidence that would satisfy a
reasonable person that the leave is taken for a reason specified in subsection (1).
(5)
Without limiting subsection (4), an employer may require the evidence referred to in that
subsection to be a medical certificate.
(6)
An employee is not entitled to take unpaid special maternity leave unless the employee
complies with subsections (2) to (4).
Taking ofspecial maternity leave reduces entitlement to unpaid parental leave
(7)
A female employee's entitlement to 12 months of unpaid parental leave associated with
the birth of a child (see section 70) is reduced by the amount of any unpaid special
maternity leave taken by the employee while she was pregnant.
52
81
Transfer to a safe job
(1)
This section applies to a pregnant employee if:
(a)
(b)
(c)
she is entitled to unpaid parental leave; and
she has already complied with the notice and evidence requirements of section 74 for taking unpaid
parental leave; and
she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that
it is inadvisable for her to continue in her present position during a stated period (the risk period)
because of:
(i) illness, or risks, arising out of her pregnancy; or
(ii) hazards connected with that position.
Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.
(2)
Without limiting paragraph (l)(c), an employer may require the evidence referred to in
that paragraph to be a medical certificate.
Employee entitled to appropriate safe job or paid no safe job leave during risk period
(3)
If this section applies to an employee:
(a)
(b)
(4)
ifthere is an appropriate safe job available - the employer must transfer the employee to that job for
the risk period, with no other change to the employee's terms and conditions of employment; or
if there is no appropriate safe job available - the employee is entitled to take paid no safe job leave for
the risk period.
An appropriate safe job is a safe job that has:
(a)
(b)
the same ordinary hours of work as the employee's present position; or
a different number of ordinary hours agreed to by the employee.
Payment to employee if transferred to appropriate safe job
(5)
Without limiting paragraph (3)(a), if the employee is transferred to an appropriate safe job
for the risk period, the employer must pay the employee for the safe job at the employee's
full rate of pay (for the position she was in before the transfer) for the hours that she
works in the risk period.
Payment to employee if on paid no safe job leave
(6)
If the employee takes paid no safe job leave for the risk period, the employer must pay
the employee at the employee's base rate of pay for the employee's ordinary hours of work
in the risk period.
Risk period ends
(7)
ifpregnancy ends
If the employee's pregnancy ends before the end of the risk period, the risk period ends
when the pregnancy ends.
53
82 Employee on paid no safe job leave may be asked to provide a further
medical certificate
Employer may ask employee to provide a medical certificate
(1)
If an employee is on paid no safe job leave during the 6 week period before the expected
date of birth of the child, the employer may ask the employee to give the employer a
medical certificate stating whether the employee is fit for work.
Employer may require employee to take unpaid parental leave
(2)
The employer may require the employee to take a period of unpaid parental leave (the
period of leave) as soon as practicable if:
(a)
(b)
the employee does not give the employer the requested certificate within 7 days after the request; or
within 7 days after the request, the employee gives the employer a certificate stating that the employee
is not fit for work.
Entitlement to paid no safe job leave ends
(3)
When the period of leave starts, the employee's entitlement to paid no safe job leave ends.
When the period ofleave must end etc.
(4)
Subsections 73(3}, (4) and (5) apply to the period of leave.
83
Consultation with employee on unpaid parental leave
(1)
If:
(a)
(b)
an employee is on unpaid parental leave; and
the employee's employer makes a decision that will have a significant effect on the status, payor
location of the employee's pre-parental leave position;
the employer must take all reasonable steps to give the employee information about, and an opportunity to
discuss, the effect of the decision on that position.
(2)
The employee's pre-parental leave position is:
(a)
(b)
unless paragraph (b) applies, the position the employee held before starting the unpaid parental leave;
or
if, before starting the unpaid parental leave, the employee:
(i)
was transferred to a safe job because of her pregnancy; or
(ii) reduced her working hours due to her pregnancy;
the position the employee held immediately before that transfer or reduction.
54
84
Return to work guarantee
On ending unpaid parental leave, an employee is entitled to return to:
(a)
(b)
85
the employee's pre-parental leave position; or
if that position no longer exists - an available position for which the employee is qualified and suited
nearest in status and pay to the pre-parental leave position.
Unpaid pre-adoption leave
Entitlement to unpaid pre-adoption leave
(1)
An employee is entitled to up to 2 days of unpaid pre-adoption leave to attend any
interviews or examinations required in order to obtain approval for the employee's
adoption of a child.
Note: Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).
(2)
However, an employee is not entitled to take a period of unpaid pre-adoption leave if:
(a)
(b)
(3)
the employee could instead take some other form of leave; and
the employer directs the employee to take that other form of leave.
An employee who is entitled to a period of unpaid pre-adoption leave is entitled to take
the leave as:
(a)
(b)
a single continuous period of up to 2 days; or
any separate periods to which the employee and the employer agree.
Notice and evidence
(4)
An employee must give his or her employer notice of the taking of unpaid pre-adoption
leave by the employee.
(5)
The notice:
(a)
(b)
and
(6)
An employee who has given his or her employer notice of the taking of unpaid preadoption leave must, if required by the employer, give the employer evidence that would
satisfy a reasonable person that the leave is taken to attend an interview or examination
as referred to in subsection (1).
(7)
An employee is not entitled to take unpaid pre-adoption leave unless the employee
complies with subsections (4) to (6).
55
Division 6 - Annual leave
86
Division applies to employees other than casual employees
This Division applies to employees, other than casual employees.
87
Entitlement to annual leave
Amount ofleave
(1)
For each year of service with his or her employer, an employee is entitled to:
(a)
(b)
4 weeks of paid annual leave; or
5 weeks of paid annual leave, if:
(i)
a modern award applies to the employee and defmes or describes the employee as a shiftworker
for the purposes of the National Employment Standards; or
(ii) an enterprise agreement applies to the employee and defmes or describes the employee as a
shiftworker for the purposes of the National Employment Standards; or
(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this
relates to award/agreement free employees).
Note: Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is
covered by a modem award that is in operation and defines or describes the employee as a shiftworker for the purposes
of the National Employment Standards.
Accrual ofleave
(2)
An employee's entitlement to paid annual leave accrues progressively during a year of
service according to the employee's ordinary hours of work, and accumulates from year
to year.
Note: If an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid
annual leave up to when the employment ends.
Award/agreementfree employees who qualify for the shiftworker entitlement
(3)
An award/agreement free employee qualifies for the shiftworker annual leave entitlement
if:
(a)
(b)
(4)
the employee:
(i)
is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a
week; and
(ii) is regularly rostered to work those shifts; and
(iii) regularly works on Sundays and public holidays; or
the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes
of the National Employment Standards.
However, an employee referred to in subsection (3) does not qualify for the shiftworker
annual leave entitlement if the employee is in a class of employees prescribed by the
regulations as not being qualified for that entitlement.
56
(5)
Without limiting the way in which a class may be described for the purposes of
paragraph (3)(b) or subsection (4), the class may be described by reference to one or more
of the following:
(a)
(b)
(c)
a particular industry or part of an industry;
a particular kind of work;
a particular type of employment.
88
Taking paid annual leave
(1)
Paid annual leave may be taken for a period agreed between an employee and his or her
employer.
(2)
The employer must not unreasonably refuse to agree to a request by the employee to take
paid annual leave.
89
Employee not taken to be on paid annual leave at certain times
Public holidays
(1)
If the period during which an employee takes paid annual leave includes a day or part-
day that is a public holiday in the place where the employee is based for work purposes,
the employee is taken not to be on paid annual leave on that public holiday.
Other periods ofleave
(2)
If the period during which an employee takes paid annual leave includes a period of any
other leave (other than unpaid parental leave) under this Part, or a period of absence
from employment under Division 8 (which deals with community service leave), the
employee is taken not to be on paid annual leave for the period of that other leave or
absence.
90
Payment for annual leave
(1)
If, in accordance with this Division, an employee takes a period of paid annual leave, the
employer must pay the employee at the employee's base rate of pay for the employee's
ordinary hours of work in the period.
(2)
If, when the employment of an employee ends, the employee has a period of untaken paid
annual leave, the employer must pay the employee the amount that would have been
payable to the employee had the employee taken that period of leave.
91
Transfer of employment situations that affect entitlement to payment for period of untaken
paid annual leave
Transfer ofemployment situation in which employer may decide not to recognise employee's service withfirst
employer
(1)
Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of
employment between non-associated entities in relation to an employee, if the second
employer decides not to recognise the employee's service with the first employer (for the
purpose of this Division).
57
Employee is not entitled to payment for untaken annual leave if service with first employer
counts as service with second employer
(2)
If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment
in relation to an employee, the employee is not entitled to be paid an amount under
subsection 90(2) for a period of untaken paid annual leave.
Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as
service with the second employer.
92
Paid annual leave must not be cashed out except in accordance with permitted cashing out
terms
Paid annual leave must not be cashed out, except in accordance with:
93
(a)
cashing out terms included in a modem award or enterprise agreement under section 93, or
(b)
an agreement between an employer and an award/agreement free employee under subsection 94(1).
Modern awards and enterprise agreements may include terms relating to cashing out and
taking paid annual leave
Terms about cashing out paid annual leave
(1)
A modern award or enterprise agreement may include terms providing for the cashing out
of paid annual leave by an employee.
(2)
The terms must require that:
(a)
(b)
(c)
paid annual leave must not be cashed out if the cashing out would result in the employee's remaining
accrued entitlement to paid annual leave being less than 4 weeks; and
each cashing out of a particular amount of paid annual leave must be by a separate agreement in
writing between the employer and the employee; and
the employee must be paid at least the full amount that would have been payable to the employee had
the employee taken the leave that the employee has forgone.
Terms about requirements to take paid annual leave
(3)
A modern award or enterprise agreement may include terms requiring an employee, or
allowing for an employee to be required, to take paid annual leave in particular
circumstances, but only if the requirement is reasonable.
Terms about taking paid annual leave
(4)
A modern award or enterprise agreement may include terms otherwise dealing with the
taking of paid annual leave.
58
94
Cashing out and taking paid annual leave for award/agreement free employees
Agreements to cash out paid annual leave
(1)
An employer and an award/agreement free employee may agree to the employee cashing
out a particular amount of the employee's accrued paid annual leave.
(2)
The employer and the employee must not agree to the employee cashing out an amount
of paid annual leave if the agreement would result in the employee's remaining accrued
entitlement to paid annual leave being less than 4 weeks.
(3)
Each agreement to cash out a particular amount of paid annual leave must be a separate
agreement in writing.
(4)
The employer must pay the employee at least the full amount that would have been
payable to the employee had the employee taken the leave that the employee has forgone.
Requirements to take paid annual leave
(5)
An employer may require an award/ agreement free employee to take a period of paid
annual leave, but only if the requirement is reasonable.
Note: A requirement to take paid annual leave may be reasonable if, for example:
(a) the employee has accrued an excessive amount of paid annual leave; or
(b) the employer's enterprise is being shut down for a period (for example, between Christmas and New Year).
Agreements about taking paid annual leave
(6)
An employer and an award/agreement free employee may agree on when and how paid
annual leave may be taken by the employee.
Note: Matters that could be agreed include, for example, the following:
(a) that paid annual leave may be taken in advance of accrual;
(b) that paid annual leave must be taken within a fixed period of time after it is accrued;
(c) the form of application for paid annual leave;
(d) that a specified period of notice must be given before taking paid annual leave.
59
Division 7 - Personal/carer's leave and compassionate leave
Subdivision A - Paid personal/carer's leave
95
Subdivision applies to employees other than casual employees
This Subdivision applies to employees, other than casual employees.
96
Entitlement to paid personal/carer's leave
Amount ofleave
(1)
For each year of service with his or her employer, an employee is entitled to 10 days of
paid personal/ carer's leave.
Accrual ofleave
(2)
An employee's entitlement to paid personal/ carer's leave accrues progressively during a
year of service according to the employee's ordinary hours of work, and accumulates from
year to year.
97
Taking paid personal/carer's leave
An employee may take paid personal/ carer's leave if the leave is taken:
(a)
(b)
because the employee is not fit for work because of a personal illness, or personal injury, affecting the
employee; or
to provide care or support to a member of the employee's immediate family, or a member of the
employee's household, who requires care or support because of:
(i)
a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
Note: The notice and evidence requirements of section 107 must be complied with.
98
Employee taken not to be on paid personal/carer's leave on public holiday
If the period during which an employee takes paid personal/ carer's leave includes a day or
part-day that is a public holiday in the place where the employee is based for work purposes,
the employee is taken not to be on paid personal/carer's leave on that public holiday.
99
Payment for paid personal/carer's leave
If, in accordance with this Subdivision, an employee takes a period of paid personal/ carer's
leave, the employer must pay the employee at the employee's base rate of pay for the
employee's ordinary hours of work in the period.
100 Paid personal/carer's leave must not be cashed out except in accordance with permitted
cashing out terms
Paid personal/ carer's leave must not be cashed out, except in accordance with cashing out
terms included in a modern award or enterprise agreement under section 101.
60
101 Modern awards and enterprise agreements may include terms relating to
cashing out paid personal! carer's leave
(1)
A modern award or enterprise agreement may include terms providing for the cashing out
of paid personal/ carer's leave by an employee.
(2)
The terms must require that:
(a)
(b)
(c)
paid personal/carer's leave must not be cashed out if the cashing out would result in the employee's
remaining accrued entitlement to paid personal/carer's leave being less than 15 days; and
each cashing out of a particular amount of paid personal/carer's leave must be by a separate agreement
in writing between the employer and the employee; and
the employee must be paid at least the full amount that would have been payable to the employee had
the employee taken the leave that the employee has forgone.
Subdivision B - Unpaid carer's leave
102 Entitlement to unpaid carer's leave
An employee is entitled to 2 days of unpaid carer's leave for each occasion (a permissible
occasion) when a member of the employee's immediate family, or a member of the employee's
household, requires care or support because of:
(a)
(b)
a personal illness, or personal injury, affecting the member; or
an unexpected emergency affecting the member.
103 Taking unpaid carer's leave
(1)
An employee may take unpaid carer's leave for a particular permissible occasion if the
leave is taken to provide care or support as referred to in section 102.
(2)
An employee may take unpaid carer's leave for a particular permissible occasion as:
(a)
(b)
(3)
a single continuous period of up to 2 days; or
any separate periods to which the employee and his or her employer agree.
An employee cannot take unpaid carer's leave during a particular period if the employee
could instead take paid personal/ carer's leave.
61
Subdivision C - Compassionate leave
104 Entitlement to compassionate leave
An employee is entitled to 2 days of compassionate leave for each occasion (a permissible
occasion) when a member of the employee's immediate family, or a member of the employee's
household:
(a)
(b)
(c)
contracts or develops a personal illness that poses a serious threat to his or her life; or
sustains a personal injury that poses a serious threat to his or her life; or
dies.
105 Taking compassionate leave
(1)
An employee may take compassionate leave for a particular permissible occasion if the
leave is taken:
(a)
(b)
(2)
An employee may take compassionate leave for a particular permissible occasion as:
(a)
(b)
(c)
(3)
to spend time with the member of the employee's immediate family or household who has contracted
or developed the personal illness, or sustained the personal injury, referred to in section 104; or
after the death of the member of the employee's immediate family or household referred to in section
104.
a single continuous 2 day period; or
2 separate periods of 1 day each; or
any separate periods to which the employee and his or her employer agree.
If the permissible occasion is the contraction or development of a personal illness, or the
sustaining of a personal injury, the employee may take the compassionate leave for that
occasion at any time while the illness or injury persists.
106 Payment for compassionate leave (other than for casual employees)
If, in accordance with this Subdivision, an employee, other than a casual employee, takes a
period of compassionate leave, the employer must pay the employee at the employee's base
rate of pay for the employee's ordinary hours of work in the period.
Note: For casual employees, compassionate leave is unpaid leave.
62
Subdivision D - Notice and evidence requirements
107 Notice and evidence requirements
Notice
(1)
An employee must give his or her employer notice of the taking of leave under this
Division by the employee.
(2)
The notice:
(a)
(b)
and
Evidence
(3)
An employee who has given his or her employer notice of the taking of leave under this
Division must, if required by the employer, give the employer evidence that would satisfy
a reasonable person that:
(a)
(b)
(c)
if it is paid personal/carer's leave - the leave is taken for a reason specified in section 97; or
if it is unpaid carer's leave - the leave is taken for a permissible occasion in circumstances specified in
subsection 103(1); or
if it is compassionate leave - the leave is taken for a permissible occasion in circumstances specified in
subsection 105(1).
Compliance
(4)
An employee is not entitled to take leave under this Division unless the employee
complies with this section.
Modern awards and enterprise agreements may include evidence requirements
(5)
A modern award or enterprise agreement may include terms relating to the kind of
evidence that an employee must provide in order to be entitled to paid personal/ carer's
leave, unpaid carer's leave or compassionate leave.
63
Division 8 - Community service leave
108 Entitlement to be absent from employment for engaging in eligible community service activity
An employee who engages in an eligible community service activity is entitled to be absent
from his or her employment for a period if:
(a)
(b)
the period consists of one or more of the following:
(i)
time when the employee engages in the activity;
(ii) reasonable travelling time associated with the activity;
(iii) reasonable rest time immediately following the activity; and
unless the activity is jury service - the employee's absence is reasonable in all the circumstances.
109 Meaning of eligible community service activity
General
(1)
Each of the following is an eligible community service activity:
(a)
(b)
(c)
jury service (including attendance for jury selection) that is required by or under a law of the
Commonwealth, a State or a Territory; or
a voluntary emergency management activity (see subsection (2)); or
an activity prescribed in regulations made for the purpose of subsection (4).
Voluntary emergency management activities
(2)
An employee engages in a voluntary emergency management activity if, and only if:
(a)
(b)
(c)
(d)
the employee engages in an activity that involves dealing with an emergency or natural disaster; and
the employee engages in the activity on a voluntary basis (whether or not the employee directly or
indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for
engaging in the activity); and
the employee is a member of, or has a member-like association with, a recognised emergency
management body; and
either:
(i)
the employee was requested by or on behalf of the body to engage in the activity; or
(ii) no such request was made, but it would be reasonable to expect that, if the circumstances had
permitted the making of such a request, it is likely that such a request would have been made.
64
(3)
A recognised emergency management body is:
(a)
(b)
(c)
(d)
a body, or part of a body, that has a role or function under a plan that:
(i) is for coping with emergencies and/or disasters; and
(ii) is prepared by the Commonwealth, a State or a Territory; or
a fire-fighting, civil defence or rescue body, or part of such a body; or
any other body, or part of a body, a substantial purpose of which involves:
(i) securing the safety of persons or animals in an emergency or natural disaster; or
(ii) protecting property in an emergency or natural disaster; or
(iii) otherwise responding to an emergency or natural disaster; or
a body, or part of a body, prescribed by the regulations;
but does not include a body that was established, or is continued in existence, for the purpose, or for purposes
that include the purpose, of entitling one or more employees to be absent from their employment under this
Division.
Regulations may prescribe other activities
(4)
The regulations may prescribe an activity that is of a community service nature as an
eligible community service activity.
110 Notice and evidence requirements
Notice
(1)
An employee who wants an absence from his or her employment to be covered by this
Division must give his or her employer notice of the absence.
(2)
The notice:
(a)
(b)
must be given to the employer as soon as practicable (which may be a time after the absence has
started); and
must advise the employer of the period, or expected period, of the absence.
Evidence
(3)
An employee who has given his or her employer notice of an absence under subsection (1)
must, if required by the employer, give the employer evidence that would satisfy a
reasonable person that the absence is because the employee has been or will be engaging
in an eligible community service activity.
Compliance
(4)
An employee's absence from his or her employment is not covered by this Division unless
the employee complies with this section.
65
111 Payment to employees (other than casuals) on jury service
(1)
(a)
(b)
in accordance with this Division, an employee is absent from his or her employment for a period
because ofjury service; and
the employee is not a casual employee.
Employee to be paid base rate ofpay
(2)
Subject to subsections (3), (4) and (5), the employer must pay the employee at the
employee's base rate of pay for the employee's ordinary hours of work in the period.
Evidence
(3)
The employer may require the employee to give the employer evidence that would satisfy
a reasonable person:
(a)
(b)
that the employee has taken all necessary steps to obtain any amount ofjury service pay to which the
employee is entitled; and
of the total.amount (even if it is a nil amount) ofjury service pay that has been paid, or is payable, to
the employee for the period.
(4)
If, in accordance with subsection (3), the employer requires the employee to give the
employer the evidence referred to in that subsection:
(a)
(b)
the employee is not entitled to payment under subsection (2) unless the employee provides the
evidence; and
if the employee provides the evidence - the amount payable to the employee under subsection (2) is
reduced by the total amount ofjury service pay that has been paid, or is payable, to the employee, as
disclosed in the evidence.
Payment only requiredfor first 10 days ofabsence
(5)
If an employee is absent because of jury service in relation to a particular jury service
summons for a period, or a number of periods, of more than 10 days in total:
(a)
(b)
(c)
the employer is only required to pay the employee for the first 10 days of absence; and
the evidence provided in response to a requirement under subsection (3) need only relate to the first 10
days of absence; and
the reference in subsection (4) to the total amount ofjury service pay as disclosed in evidence is a
reference to the total amount so disclosed for the first 10 days of absence.
66
Meaning ofjury service pay
(6)
Jury service pay means an amount paid in relation to jury service under a law of the
Commonwealth, a State or a Territory, other than an amount that is, or that is in the
nature of, an expense-related allowance.
Meaning of'jury service SUlll111011S
(7)
Jury service summons means a summons or other instruction (however described) that
requires a person to attend for, or perform, jury service.
112 State and Territory laws that are not excluded
(1)
This Act is not intended to apply to the exclusion of laws of a State or Territory that
provide employee entitlements in relation to engaging in eligible community service
activities, to the extent that those entitlements are more beneficial to employees than the
entitlements under this Division.
Note: For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid
jury service pay.
(2)
If the community service activity is an activity prescribed in regulations made for the
purpose of subsection 109(4), subsection (1) of this section has effect subj ect to any
provision to the contrary in the regulations.
Division 9 - Long service leave
113 Entitlement to long service leave
Entitlement in accordance with applicable award-derived long service leave terms
(1)
If there are applicable award-derived long service leave terms (see subsection (3)) in
relation to an employee, the employee is entitled to long service leave in accordance with
those terms.
Note: This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are
entitled to long service leave under this Division (see paragraph 27(2)(g)), and except as provided in subsection I 13A(3).
(2)
However, subsection (1) does not apply if:
(a)
(b)
a workplace agreement, or an AWA, that came into operation before the commencement of this Part
applies to the employee; or
one of the following kinds of instrument that came into operation before the commencement of this
Part applies to the employee and expressly deals with long service leave:
(i)
an enterprise agreement;
(ii) a preserved State agreement;
(iii) a workplace determination;
(iv) a pre-reform certified agreement;
(v) a pre-reform AWA;
(vi) a section 170MX award;
(vii) an old IR agreement.
Note: If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the
employee will, at that time, become entitled under subsection (I) to long service leave in accordance with applicable award-derived
long service leave terms.
67
(3)
Applicable award-derived long service leave terms, in relation to an employee, are:
(a)
(b)
terms of an award that (disregarding the effect of any instrument of a kind referred to in subsection
(2)):
(i)
would have applied to the employee immediately before the commencement ofthis Part if the
employee had, at that time, been in his or her current circumstances of employment; and
(ii) would have entitled the employee to long service leave; and
any terms of the award that are ancillary or incidental to the terms referred to in paragraph (a).
Entitlement in accordance with applicable agreement-derived long service leave terms
(4)
If there are applicable agreement-derived long service leave terms (see subsection (5)) in
relation to an employee, the employee is entitled to long service leave in accordance with
those terms.
(5)
There are applicable agreement-derived long service leave terms, in relation to an
employee if:
(a)
(b)
(c)
(6)
an order under subsection (6) is in operation in relation to terms of an instrument; and
those terms of the instrument would have applied to the employee immediately before the
commencement of this Part if the employee had, at that time, been in his or her current circumstances
of employment; and
there are no applicable award-derived long service leave terms in relation to the employee.
If FWA is satisfied that:
(a)
(b)
(c)
any of the following instruments that was in operation immediately before the commencement of this
Part contained terms entitling employees to long service leave:
(i)
an enterprise agreement;
(ii) a collective agreement;
(iii) a pre-reform certified agreement;
(iv) an old IR agreement; and
those terms constituted a long service leave scheme that was applying in more than one State or
Territory; and
the scheme, considered on an overall basis, is no less beneficial to the employees than the long service
leave entitlements that would otherwise apply in relation to the employees under State and Territory
laws;
FW A may, on application by, or on behalf of, a person to whom the instrument applies, make an order that
those terms of the instrument (and any terms that are ancillary or incidental to those terms) are applicable
agreement-derived long service leave terms,
References to instruments
(7)
References in this section to a kind of instrument (other than an enterprise agreement)
are references to a transitional instrument of that kind, as continued in existence by
Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009.
68
113A Enterprise agreements may contain terms discounting service under prior
agreements etc. in certain circumstances
(1)
(a)
(b)
(c)
(d)
an instrument (the first instrument) of one of the following kinds that came into operation before the
commencement of this Part applies to an employee on or after the commencement of this Part:
(i) an enterprise agreement;
(ii) a workplace agreement;
(iii) a workplace determination;
(iv) a preserved State agreement;
(v) an AWA;
(vi) a pre-reform certified agreement;
(vii) a pre-reform AWA;
(viii) an old IR agreement;
(ix) a section 170MX award; and
the instrument states that the employee is not entitled to long service leave; and
the instrument ceases, for whatever reason, to apply to the employee; and
immediately after the first instrument ceases to apply, an enterprise agreement (the replacement
agreement) starts to apply to the employee.
(2)
The replacement agreement may include terms to the effect that an employee's service
with the employer during a specified period (the excluded period) (being some or all of
the period when the first instrument applied to the employee) does not count as service
for the purpose of determining whether the employee is qualified for long service leave, or
the amount of long service leave to which the employee is entitled, under this Division or
under a law of a State or Territory.
(3)
If the replacement agreement includes terms as permitted by subsection (2), the excluded
period does not count, and never again counts, as service for the purpose of determining
whether the employee is qualified for long service leave, or the amount of long service
leave to which the employee is entitled, under this Division or under a law of a State or
Territory, unless a later agreement provides otherwise. This subsection has effect despite
sections 27 and 29.
(4)
References in this section to a kind of instrument (other than an enterprise agreement)
are references to a transitional instrument of that kind, as continued in existence by
Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009.
69
Division 10 - Public holidays
114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1)
An employee is entitled to be absent from his or her employment on a day or part-day
that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2)
However, an employer may request an employee to work on a public holiday if the
request is reasonable.
(3)
If an employer requests an employee to work on a public holiday, the employee may
refuse the request if:
(a)
(b)
(4)
the request is not reasonable; or
the refusal is reasonable.
In determining whether a request, or a refusal of a request, to work on a public holiday is
reasonable, the following must be taken into account:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
the nature of the employer's workplace or enterprise (including its operational requirements), and the
nature of the work performed by the employee;
the employee's personal circumstances, including family responsibilities;
whether the employee could reasonably expect that the employer might request work on the public
holiday;
whether the employee is entitled to receive overtime payments, penalty rates or other compensation
for, or a level of remuneration that reflects an expectation of, work on the public holiday;
the type of employment of the employee (for example, whether full-time, part-time, casual or
shiftwork);
the amount of notice in advance of the public holiday given by the employer when making the request;
in relation to the refusal of a request - the amount of notice in advance of the public holiday given by
the employee when refusing the request;
any other relevant matter.
70
115 Meaning of public holiday
The public holidays
(1)
The following are public holidays:
(a)
(b)
each of these days:
1 January (New Year's Day);
(i)
(ii) 26 January (Australia Day);
(iii) Good Friday;
(iv) Easter Monday;
(v) 25 April (Anzac Day);
(vi) the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a
region of a State or Territory);
(vii) 25 December (Christmas Day);
(viii) 26 December (Boxing Day);
any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be
observed generally within the State or Territory, or a region of the State or Territory, as a public
holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations
from counting as a public holiday.
Substituted public holidays under State or Territory laws
(2)
If, under (or in accordance with a procedure under) a law of a State or Territory, a day or
part-day is substituted for a day or part-day that would otherwise be a public holiday
because of subsection (1), then the substituted day or part-day is the public holiday.
Substituted public holidays under modern awards and enterprise agreements
(3)
A modern award or enterprise agreement may include terms providing for an employer
and employee to agree on the substitution of a day or part-day for a day or part-day that
would otherwise be a public holiday because of subsection (1) or (2).
Substituted public holidays for award/agreementFee employees
(4)
An employer and an award/agreement free employee may agree on the substitution of a
day or part-day for a day or part-day that would otherwise be a public holiday because of
subsection (1) or (2).
Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it
does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public
holidays (see paragraph 27(2)(j)).
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a
day or part-day that is a public holiday, the employer must pay the employee at the
employee's base rate of pay for the employee's ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this
section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the
public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday
occurs.
71
Division 11- Notice of termination and redundancy pay
Subdivision A - Notice of termination or payment in lieu of notice
117 Requirement for notice of termination or payment in lieu
Notice specifying day oftermination
(1)
An employer must not terminate an employee's employment unless the employer has
given the employee written notice of the day of the termination (which cannot be before
the day the notice is given).
Note 1: Section 123 describes situations in which this section roes not apply.
Note 2:
Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may
be given to an employee by:
(a)
delivering it personally; or
(b)
leaving it at the employee's last known address; or
(c)
sending it by pre-paid post to the employee's last known address.
Amount ofnotice or payment in lieu ofnotice
(2)
(3)
The employer must not terminate the employee's employment unless:
(a)
the time between giving the notice and the day of the termination is at least the period (the minimum
period ofnotice) worked out under subsection (3); or
(b)
the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu
of notice of at least the amount the employer would have been liable to pay to the employee (or to
another person on the employee's behalf) at the full rate of pay for the hours the employee would have
worked had the employment continued until the end of the minimum period of notice.
Work out the minimum period of notice as follows:
(a)
first, work out the period using the following table:
Period
Employee's period of continuous service with the employer
at the end of the day the notice is given
1 Not more than 1 year
2 More than 1 year but not more than 3 years
3 More than 3 years but not more than 5 years
4 More than 5 years
(b)
Period
1 week
2 weeks
3 weeks
4 weeks
then increase the period by 1 week if the employee is over 45 years old and has completed at least 2
years of continuous service with the employer at the end of the day the notice is given.
118 Modern awards and enterprise agreements may provide for notice of termination by
employees
A modern award or enterprise agreement may include terms specifying the period of notice an
employee must give in order to terminate his or her employment.
72
Subdivision B - Redundancy pay
119 Redundancy pay
Entitlement to redundancy pay
(1)
An employee is entitled to be paid redundancy pay by the employer if the employee's
employment is terminated:
(a)
(b)
at the employer's initiative because the employer no longer requires the job done by the employee to be
done by anyone, except where this is due to the ordinary and customary turnover of labour; or
because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount ofredundancy pay
(2)
The amount of the redundancy pay equals the total amount payable to the employee for
the redundancy pay period worked out using the following table at the employee's base
rate of pay for his or her ordinary hours of work:
Redundancy pay period
Employee's period of continuous service with the
employer on termination
1
At least 1 year but less than 2 years
2
At least 2 years but less than 3 years
3
4
5
6
7
8
9
10 At least 10 years
Redundancy pay
period
4 weeks
6 weeks
7 weeks
8 weeks
10 weeks
11 weeks
13 weeks
14 weeks
16 weeks
12 weeks
120 Variation of redundancy pay for other employment or incapacity to pay
(1)
(a)
(b)
an employee is entitled to be paid an amount of redundancy pay by the employer because of section
119; and
the employer:
(i)
obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.
(2)
On application by the employer, FWA may determine that the amount of redundancy pay
is reduced to a specified amount (which may be nil) that FWA considers appropriate.
(3)
The amount of redundancy pay to which the employee is entitled under section 119 is the
reduced amount specified in the determination.
73
121 Exclusions from obligation to pay redundancy pay
(1)
Section 119 does not apply to the termination of an employee's employment if,
immediately before the time of the termination, or at the time when the person was given
notice of the termination as described in subsection 117(1) (whichever happened first):
(a)
(b)
the employee's period of continuous service with the employer is less than 12 months; or
the employer is a small business employer.
(2)
A modern award may include a term specifying other situations in which section 119
does not apply to the termination of an employee's employment.
(3)
If a modern award that is in operation includes such a term (the award term), an
enterprise agreement may:
(a)
(b)
incorporate the award term by reference (and as in force from time to time) into the enterprise
agreement; and
provide that the incorporated term covers some or all of the employees who are also covered by the
award term,
122 Transfer of employment situations that affect the obligation to pay redundancy pay
Transfer ofemployment situation in which employer may decide not to recognise employee's service withfirst
employer
(1)
Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of
employment between non-associated entities in relation to an employee if the second
employer decides not to recognise the employee's service with the first employer (for the
purpose of this Subdivision).
Employee is not entitled to redundancy pay if service with first employer counts as service with second employer
(2)
If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of
employment in relation to an employee, the employee is not entitled to redundancy pay
under section 119 in relation to the termination of his or her employment with the first
employer.
Note: Subsection 22(5) provides that, generally, ifthere is a transfer of employment, service with the first employer counts as service with
the second employer.
74
Employee not entitled to redundancy pay if refuses employment in certain circumstances
(3)
An employee is not entitled to redundancy pay under section 119 in relation to the
termination of his or her employment with an employer (the first employeri if:
(a)
(b)
(4)
the employee rejects an offer of employment made by another employer (the second employer) that:
(i)
is on terms and conditions substantially similar to, and, considered on an overall basis, no less
favourable than, the employee's terms and conditions of employment with the first employer
immediately before the termination; and
(ii) recognises the employee's service with the first employer, for the purpose of this Subdivision;
and
had the employee accepted the offer, there would have been a transfer of employment in relation to the
employee.
If FWA is satisfied that subsection (3) operates unfairly to the employee, FWA may order
the first employer to pay the employee a specified amount of redundancy pay (not
exceeding the amount that would be payable but for subsection (3)) that FWA considers
appropriate. The first employer must pay the employee that amount of redundancy pay.
Subdivision C - Limits on scope of this Division
123 Limits on scope of this Division
Employees not covered by this Division
(1)
This Division does not apply to any of the following employees:
(a)
(b)
(c)
(d)
(e)
(2)
an employee employed for a specified period of time, for a specified task, or for the duration of a
specified season;
an employee whose employment is terminated because of serious misconduct;
a casual employee;
an employee (other than an apprentice) to whom a training arrangement applies and whose
employment is for a specified period of time or is, for any reason, limited to the duration of the training
arrangement;
an employee prescribed by the regulations as an employee to whom this Division does not apply.
Paragraph (l)(a) does not prevent this Division from applying to an employee if a
substantial reason for employing the employee as described in that paragraph was to
avoid the application of this Division.
75
Other employees not covered by notice oftermination provisions
(3)
Subdivision A does not apply to:
(b)
(c)
(d)
(e)
a daily hire employee working in the building and construction industry (including working in
connection with the erection, repair, renovation, maintenance, ornamentation or demolition of
buildings or structures); or
a daily hire employee working in the meat industry in connection with the slaughter of livestock; or
a weekly hire employee working in connection with the meat industry and whose termination of
employment is determined solely by seasonal factors; or
an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.
Other employees not covered by redundancy pay provisions
(4)
Subdivision B does not apply to:
(a)
(b)
(c)
(d)
an employee who is an apprentice; or
an employee to whom an industry-specific redundancy scheme in a modem award applies; or
an employee to whom a redundancy scheme in an enterprise agreement applies if:
(i) the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as
in force from time to time) into the enterprise agreement from a modem award that is in
operation; and
(ii) the employee is covered by the industry-specific redundancy scheme in the modem award; or
an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.
Division 12 - Fair Work Information Statement
124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement
(1)
The Fair Work Ombudsman must prepare a Fair Work Information Statement. The
Fair Work Ombudsman must publish the Statement in the Gazette.
Note: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the
Statement in the Gazette.
(2)
The Statement must contain information about the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
the National Employment Standards;
modem awards;
agreement-making under this Act;
the right to freedom of association;
the role of FWA and the Fair Work Ombudsman;
termination of employment;
individual flexibility arrangements;
right of entry (including the protection of personal information by privacy laws).
76
(3)
The Fair Work Information Statement is not a legislative instrument.
(4)
The regulations may prescribe other matters relating to the content or form of the
Statement, or the manner in which employers may give the Statement to employees.
125 Giving new employees the Fair Work Information Statement
(1)
An employer must give each employee the Fair Work Information Statement before, or as
soon as practicable after, the employee starts employment.
(2)
Subsection (1) does not require the employer to give the employee the Statement more
than once in any 12 months.
Note: This is relevant if the employer employs the employee more than once in the 12 months.
Division 13 - Miscellaneous
126 Modern awards and enterprise agreements may provide for school-based apprentices and
trainees to be paid loadings in lieu
A modern award or enterprise agreement may provide for school-based apprentices or schoolbased trainees to be paid loadings in lieu of any of the following:
(a)
(b)
(c)
paid annualleave;
paid personal/carer's leave;
paid absence under Division 10 (which deals with public holidays).
Note: Section 199 affects whether FWA may approve an enterprise agreement covering an employee who is a school-based apprentice or
school-based trainee, if the employee is covered by a modem award that is in operation and provides for the employee to be paid
loadings in lieu of paid annual leave, paid personal/carer's leave or paid absence under Division 10.
127 Regulations about what modern awards and enterprise agreements can do
The regulations may:
(a)
(b)
permit modem awards or enterprise agreements or both to include terms that would or might otherwise
be contrary to this Part or section 55 (which deals with the interaction between the National
Employment Standards and a modem award or enterprise agreement); or
prohibit modem awards or enterprise agreements or both from including terms that would or might
otherwise be permitted by a provision of this Part or section 55.
77
128 Relationship between National Employment Standards and agreements etc. permitted by this
Part for award/agreement free employees
The National Employment Standards have effect subject to:
(a)
(b)
an agreement between an employer and an award/agreement free employee or a requirement made by
an employer of an award/agreement free employee, that is expressly permitted by a provision of this
Part; or
an agreement between an employer and an award/agreement free employee that is expressly permitted
by regulations made for the purpose of section 129.
Note 1: In determining what matters are permitted to be agreed or required under paragraph (a), any regulations made for
the purpose of section 129 that expressly prohibit certain agreements or requirements must be taken into account.
Note 2:
See also the note to section 64 (which deals with the effect of averaging arrangements).
129 Regulations about what can be agreed to etc. in relation to award/agreement free employees
The regulations may:
(a)
(b)
permit employers, and award/agreement free employees, to agree on matters that would or might
otherwise be contrary to this Part; or
prohibit employers and award/agreement free employees from agreeing on matters, or prohibit
employers from making requirements of such employees, that would or might otherwise be permitted
by a provision of this Part.
130 Restriction on taking or accruing leave or absence while receiving workers' compensation
(1)
An employee is not entitled to take or accrue any leave or absence (whether paid or
unpaid) under this Part during a period (a compensation period) when the employee is
absent from work because of a personal illness, or a personal injury, for which the
employee is receiving compensation payable under a law (a compensation law) of the
Commonwealth, a State or a Territory that is about workers' compensation.
(2)
Subsection (1) does not prevent an employee from taking or accruing leave during a
compensation period if the taking or accruing of the leave is permitted by a compensation
law.
(3)
Subsection (1) does not prevent an employee from taking unpaid parental leave during a
compensation period.
131 Relationship with other Commonwealth laws
This Part establishes minimum standards and so is intended to supplement, and not to
override, entitlements under other laws of the Commonwealth.
78

Domino`s Pizza Agreement 2009

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