FRESENIUS MEDICAL CARE AUSTRALIA PTY LTD (SMITHFIELD) SITE ENTERPRISE AWARD 2005 - 2006

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Fresenius Medical Care Australia Pty Ltd.

 

(No. IRC 1917 of 2005)

 

 

AWARD

 

1.  Arrangement

 

Clause No.          Subject Matter

 

1.         Arrangement

2.         Classification

3.         Changes to Classification

4.         Wages

5.         Hours

6.         Rostered Day Off (RDO)

7.         Overtime

8.         Meal Hours - Meal Money

9.         Holidays

10.       Sick Leave

11.       Annual Leave

12.       Annual Leave Loading

13.       Long Service Leave

14.       Bereavement Leave

15.       Parental Leave

16.       Protective Clothing

17.       Contract of Employment

18.       Payment of Wages

19.       Shift Work

20.       Training

21.       Performance appraisal

22.       Productivity measures

23.       Accident Pay

24.       First Aid Attendance and Ambulance Chest

25.       Amenities

26.       Right of Entry

27.       Mechanisation

28.       Counselling Disciplinary Procedures

29.       Dispute Settling Procedure

30.       Sunday/Public Holiday Pay

31.       Medical check

32.       Area, Incidence and Duration

33.       Redundancy

34.       Superannuation

35.       Rehabilitation Provider

36.       Union Leave

37.       Entitlements Protection

38.       Mixed Functions/Higher Duties

39.       Anti Discrimination

40.       Period of Operation

41.       No Further Claims

 

Schedule 1 - Wage Rates

 

2.  Classification

 

2.1        Classification of all employees covered by this site Award will be based on skill levels attained, performance and attitude.

 

2.2        Employees are required to perform any duties that are within their skill, training and competency.

 

2.2.1     Team Leader

 

Have team leadership skills.

 

Can assign work priorities.

 

Can train/induct other team members in new skills. Attributes required for Level 1 Team member.

 

2.2.3     Team Member - Level I

 

Have the necessary literacy, numeracy and computer skills.

 

Holder of a certified Forklift licence

 

Is aware of the relevant work procedures and is complying with their requirements.

 

Undertakes duties in a safe and responsible manner

 

2.2.4     Team Member - Level II and III

 

Employees will be classified on the above levels depending on the degree of skill required to do the task, the degree of competency skills and performance exhibited by the employee as judged by the Production Manager, and as a result of completing appropriate training, and experience

 

2.2.5     New Team Member - Level IV

 

New employees learning the skills necessary to satisfactorily carry out there assigned tasks.  Level IV will be for a maximum of 3 months.

 

3.  Changes to Classification

 

3.1        The transfer to higher levels will be on the basis of a request from the Team Leader. All requests will be reviewed by the Manager, who will advise the Team Leader of the decision.

 

3.2        The promotion from Level 1 to Team Leader will be on the basis of either creation of a new team, or a vacancy. The demotion of Team Leaders to Level 1 will be on the basis of non-performance of duties (carried out through counselling procedure), elimination of a team, or by mutual agreement.

 

4.  Wages

 

4.1        Adult Employees - The total rates set out shall be the minimum rates payable to employees herein named.

 

4.2        Team Leaders

 

Increases above the minimum prescribed by this Award may be negotiated separately by individual Team Leaders, where there has been a substantial change in Responsibilities or Performance.

 

Team Member	1-Jan-05	1-Jan-06
	Hourly Rate	Hourly Rate
Team Leader	21.5900	22.2377
TM Level I	18.3840	18.9355
TM Level II	17.2517	17.7692
TM Level III	16.8287	17.3335
TM Level IV	15.9841	16.4636
Casual	17.7314	18.2633

 

4.3        Fresenius Medical Care will contribute 1% of the employee's ordinary wage, (i.e. excluding overtime and allowances) for all permanent employees forward a salary continuance insurance scheme.

 

4.4        The increases specified above represent a 3% increase commencing from the first pay period on or after 1 January 2005 and a further 3% increase from the first pay period on or after 1 January 2006.

 

4.5        Should the Consumer Price Index (CPI), published by the Australian Bureau of Statistics for the first twelve month period of this agreement, be greater then the second wage increase, then the second wage increase will be equal to the CPI.

 

4.6        The above increases are subject to a commitment by the parties to either implement or continue to implement a process of improving productive performance.

 

5.  Hours

 

5.1        Normal working hours for the site will be 6.00am to 6.00pm five days per week, Monday to Friday. The total working hours are 38 hours per week with a maximum of 10 hours per day. The employer can alter the start/stop time of any employee by giving at least one month's notice. New times will remain fixed for at least 3 months, except by mutual agreement. Consideration will be given to special hardship cases and mutual agreement will be sought whenever possible.

 

5.2        The employer shall endeavour to give a one (1) month’s notice for roster changes. No notice of change of roster needs to be given when agreement exists between the employer and employee as to the change if circumstances prohibit giving a one month’s notice as to the change.

 

5.3        By agreement with the employer, a team leader, and the employee, the employee may work on Saturdays as part of their ordinary week. An allowance of 20% will be paid to maximum of 8 hours for the Saturday.

 

5.4        By agreement with the employee the team leader and the employee, an employee may temporarily work between the hours of 6pm and 1 pm, Monday to Friday, as part of their ordinary week.

 

An allowance of 20% will be paid for the time worked after 6pm to a maximum of 8 hours worked on any day. All time after the 8 hours will be paid at overtime rates.

 

5.5        The total normal working, hours will be 38 hours/week.  Rostered days off will be used to achieve the average of 38 hours/week, except by mutual agreement.

 

6.  Rostered Day Off (RDO)

 

6.1        An RDO system will be based on the following principles:

 

6.1.1     An RDO is not a day given, but hours off for time worked in lieu.

 

6.1.2     The RDO will be paid from an accrued employee time bank.

 

6.1.3     The accrual will be based on a factor to ordinary hours paid.

 

6.1.4     The accrual will be generated only from:  Actual ordinary, overtime working hours and annual leave.

 

6.1.5     If an employee agrees to work on the RDO, they will be paid the RDO payment plus normal time rates for the full hours worked.

 

6.1.6     Up to maximum of 5 RD0s may be accrued.  However, more could be accrued by mutual consent between the employer and employee. The accrued days must be taken within 12 months.

 

6.1.7     On termination or retirement, the employee's accrued RDO bank will be paid out.

 

6.1.8     An RDO can be taken on any day by either giving 1 week's notice or by mutual agreement between employee, employer, and the team leader.

 

7.  Overtime

 

7.1        All time worked before the agreed commencing time or after the agreed ceasing time each day shall be overtime and shall be paid for at the rate of time and a half for the first hour and double time thereafter.

 

7.2        An employee recalled to work after leaving the employer's premises shall be paid for four hours at least, at the appropriate overtime rate.

 

7.3        An employee working overtime but finishing work when the usual means of transport are not available shall be entitled to any additional outlay incurred in reaching home by reasonable means of transport.

 

7.4        Where over-time is necessary it shall, wherever reasonably practicable, be so arranged that employees have at least eight consecutive hours off duty between the work of successive days. An employee (other than a casual employee) who works overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day such that the employee has not had at least eight consecutive hours off duty between these times shall, subject to this subclause, be released after completion of such overtime until they have had eight successive hours off duty without loss of pay, for ordinary working time occurring during such absence.  If on the instructions of the employer such employee resumes or continued to work without have had the eight consecutive hours off duty, they shall be paid at double rates until they are released from duty for that period, or they shall then be entitled to be absent until they have had eight consecutive hours off duty without loss of pay, for ordinary working time occurring during such absence. Call backs shall not be counted as overtime for the purpose of this subclause.

 

7.5        Overtime shall be paid for at the end of each fortnight and each day shall stand alone, except where it relates to clause 17.

 

8.  Meal Hours - Meal Money

 

8.1        Employees shall be allowed a meal break of not less than thirty minutes or more than one hour, Monday to Friday, inclusive.

 

8.2        An employee called upon to work during their regular meal break shall be paid at overtime rates for all time worked until such break for meal is granted, unless by mutual agreement.

 

8.3        Meal Allowance (Overtime not notified)

 

8.3.1     An employee who is required to work for any period in excess of one and one-half hours after the fixed finishing time shall be allowed an amount of $10.00 for a meal, which shall be paid to the employee prior to the meal break.

 

8.3.2     If an employee pursuant to such notice has provided a meal or meals and is not required to work overtime, or is required to work less than the surplus, they shall be paid in accordance with paragraph (a) of this subclause for meals which they have provided and which are surplus.

 

8.4        Employees shall be supplied at meal time with boiling water or with facilities for boiling water.

 

8.5        No employees shall work longer than five hours without a break for a meal.

 

9.  Holidays

 

9.1        Days gazetted as public holidays in NSW shall be allowed to all employees covered by this Award.

 

9.2        The Tuesday after Easter Monday will be allowed as the Union Picnic Day.

 

9.3        Any employee who is absent without leave or reasonable excuse on the working day succeeding or proceeding a holiday shall not be entitled to payment for such holiday.

 

10.  Sick Leave

 

10.1      An employee with not less than three months continuous service with Fresenius Medical Care, who is absent from work by reason of personal illness or personal injury arising out of or in the course of employment, shall be entitled to leave of absence without deduction of pay subject to the following conditions and limitations:

 

10.1.1               They shall, unless it is not reasonably practicable to do so (proof whereof shall be on the employee) before their agreed starting time on the first day of their absence, and in any event within twenty-four hours, inform the Production Manager of their inability to attend for duty, and as far as practicable state the nature of the illness or injury and the estimated duration of absence.

 

10.1.2               They shall furnish to the employer such evidence as the employer may reasonably desire that they were unable by reason of such illness or injury to attend for duty on the day and days for which sick leave is claimed. A Doctor’s certificate is required after a two-day sick leave.

 

10.1.3               They shall not be entitled to paid sick leave in excess of 38 hours of agreed working time in their first year of service.

 

10.1.4               If their employment continues with the company, after the first year this entitlement shall be 60.8 hours for second year of service; 60.8 hours for the third year of service; 60.8 hours for the fourth year of service; 76 hours for the fifth year of service, and for each subsequent year of continued employment.

 

10.1.5               If the employment of an employee who has become entitled to leave in accordance with provision (d) above is terminated for any reason, they shall not be entitled, in that year to leave in excess of 38 hours of agreed working time.

 

10.2      The rights under this clause shall accumulate from year to year so long as their employment continues with the employer, so that any part of the leave entitlement which has not been allowed in any year may be claimed by the employee and shall be allowed by that employer, subject to the condition prescribed by this clause, in a subsequent year of continued employment.

 

10.3      If a Gazetted holiday occurs during an employee's absence on sick leave then such award holiday shall not be counted as sick leave.

 

10.4      Service before the date of this award coming into force shall be counted as service for the purpose of assessing the sick leave entitlement.

 

10.5      Accumulated sick leave credited to an employee at the commencement of this award shall not be affected nor reduced by the operation of this clause.

 

10.6      The initial sick leave year shall commence from the date of employment and subsequent entitlement shall accrue at the beginning of each year's service thereafter.

 

10.7      Accumulated sick leave shall not be paid out if the employee is terminated or leaves the company for any reason.

 

10.8      An employee may elect to be paid an attendance bonus each year, which will be the equivalent of the balance of the unpaid sick leave at the employees' last anniversary date. An employee must have a minimum of 114 hours (3 weeks) sick leave accumulated and unutilised, after then cashing the unpaid sick leave as attendance bonus.

 

10.9      On termination the attendance bonus will be paid out equivalent to all unpaid sick leave entitlements over the 114 hours (3 weeks).

 

10.10    Carer’s Leave

 

An employee, other than a casual employee, shall have access to personal carer’s leave with pay to provide short-term care and support for immediate family members when they are ill. Personal carer’s leave is not long term indefinite leave and only applies where no other carer is available and until alternative arrangements can be made. The employee is obligated to put in place alternative care arrangements as soon as possible.

 

10.11    Carer’s leave is available from the employee’s current year’s annual sick leave entitlement, minus any sick leave already taken. Payment for carer’s leave is on the same basis as sick leave. Employees will be paid at their ordinary rate of pay, not including shift allowances, overtime or penalties. Carer’s leave is not available to casual employees.

 

10.12    Except for periods of personal carer’s leave of one day or less than one day, the department manager will require documentary confirmation of the illness of the family member and the need for care by another person. This could take the form of a medical certificate or a statutory declaration. The employee has the right to choose the method by which the ground for leave is established, that is, by production of either the medical certificate or statutory declaration. The employee is not required to state the exact nature of the family member’s illness on either the medical certificate or statutory declaration.

 

The employee must not take sick leave to care for a family member when another person has taken leave for the same purpose. An employee who needs to take personal carer’s leave should notify their reporting manager as soon as possible.

 

11.  Annual Leave

 

11.1      A period of 152 hours of agreed working hours shall be allowed annually to an employee after twelve months continuous service.

 

11.2      An employee shall accrue annual leave at the rate of 2.923 hours for each 8 ordinary working hours worked.

 

11.3      Annual leave accrued can be taken as agreed to between the employee and employer; but leave accrued in excess of 190 agreed working hours must be taken as directed by the employer.

 

11.4      Other provisions of the Annual Holidays Act 1944 must be followed.

 

12.  Annual Leave Loading

 

12.1      This clause applies only to annual holidays to which employees become or have become entitled after 31 December 1983.

12.2      In the clause the Annual Holidays Act 1944, is referred to as the "Act".

 

12.3      Before an employee is given and takes their annual holiday, or where by agreement between the employer and employee the annual holiday is given and taken in more than one separated period, then before each of such separate periods, the employer shall pay the employee a loading determined in accordance with this clause. (NOTE: The obligation to pay in advance does not apply where an employee takes an annual holiday wholly or partly in advance - see subclause 12.7 of this clause).

 

12.4      The loading is payable in addition to the pay for the period of holiday given and taken and due to the employee under clause 10 of this award.

 

12.5      The loading is to be calculated in relation to any period of annual holiday to which the employee becomes or has become entitled where such a holiday is given and taken in separate periods, then in relation to each such separate period.

 

12.6      The loading is the amount payable for the period or the separate period, as the case may be, stated in subclause 12.5 of this clause, at the rate of 17.5 per cent of the appropriate ordinary classification in which the employee was employed immediately before commencing their annual leave holidays, or on the basis of the employee’s annual average hours.

 

12.7      No loading is payable to an employee who takes an annual holiday wholly or partly in advance; provided that, if the employment of such an employee continues until the day when they would have become entitled under the Act to an annual holiday, the loading then becomes payable in respect of the period for such holiday and is to be calculated in accordance with subclause 12.6 of this clause, applying the award rates of wages payable on that day.

 

12.8      Where, in accordance with the Act the employer's establishment or part of it is temporarily closed down for the purpose of giving an annual holiday or leave without pay to the employees concerned:

 

12.8.1               An employee who is entitled under the Act to an annual holiday and who is given and takes such a holiday shall be paid the loading calculated in accordance with subclause 12.6 of this clause.

 

12.8.2               An employee who is not entitled under the Act to an annual holiday and who is given and takes leave without pay shall be paid in addition to the amount payable to them under the Act such proportion of the loading that would have been payable to them prior to the close-down as their qualifying period of employment in completed weeks bears to 52.

 

12.9      Termination of Employment

 

12.9.1               When the employment of an employee is terminated by the employer for a cause other than misconduct, and at the time of the termination, the employee has not been given and has not taken the whole annual holiday to which they became entitled, they shall be paid a loading calculated in accordance with subclause (vi) of this clause, for the period not taken.

 

12.9.2               Except as provided by paragraph (a) of this subclause no loading is payable on the termination of an employee's employment.

 

13.  Long Service Leave

 

As per NSW Long Service Leave Act 1955

 

14.  Bereavement Leave

 

14.1      A fulltime permanent employee on weekly hiring, covered by this award, shall be entitled to five (5) days’ bereavement leave per year without loss of pay and on production of satisfactory evidence of the death of the employee's spouse/partner (including de facto), father, mother, brother, sister, child, stepchild, grandchild, grandparents, or parents-in-law.

 

14.2      For the purposes of this clause the words "wife" and "husband" shall include de-facto wife or husband and the words "father" and "mother" shall include foster-father and mother, and stepfather and mother. 

 

14.3      Provided there is an on-going personal relationship or the employee can demonstrate some other special relationship warranting the granting of the leave.

 

14.4      Provided further that generally an employee will not be entitled to the full five days unless he/she is responsible for funeral arrangements.

 

15.  Parental Leave

 

15.1      As per NSW Industrial Relations Act 1996, Employees’ parental leave to be without deduction of pay for the first two (2) days

 

16.  Protective Clothing

 

16.1      Where necessary, for the safe performance of their duties, employees shall be provided with suitable personal protective equipment as required. Three (3) sets of trousers and shirts will be provided to all employees, and will be replaced as required.

 

16.2      Any employee issued with protective clothing in accordance with subclause 16.1 of this clause must wear such clothing whilst engaged on work for which it was deemed necessary for protective clothing to be issued.

 

16.3      Warehouse/Production employees will be supplied with a maximum of one (1) jacket per year.

 

16.4      Clothing and equipment shall remain the property of the employer.

 

17.  Contract of Employment

 

17.1      After the first three (3) months continuous service, employment shall be by the week and may be terminated by a week's notice on either side or by the payment or forfeiture of one week's wages in lieu of notice as the case may be.

 

17.2      Employment for the first three months of continuous service shall be from day to day at a proportion of the weekly rate fixed.

 

17.3      An employer shall not be required to pay for any time an employee cannot be usefully employed because of any strike, or through any breakdown in machinery or any stoppage of work through any cause for which the employer cannot be reasonably held responsible.

 

17.4      An employer may dismiss any employee without notice for malingering, inefficiency, neglect of duty or misconduct and in such cases wages shall be paid up to the time of dismissal only.

 

18.  Payment of Wages

 

18.1      All wages and overtime shall be paid on a fortnightly basis.

 

18.2      The pay period shall close not more than two working days prior to the recognised pay day.

 

18.3      Payment will be made by electronic funds transfer to a bank account nominated by the employee.

 

19.  Shiftwork

 

19.1      This clause is to apply to permanent shift work.

 

Definitions:

 

19.1.1               "Afternoon shift" means - any shift finishing after 6pm and at or before midnight.

 

19.1.2               "Continuous work" means - work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks, or due to unavoidable causes beyond the control of the employer.

 

19.1.3               "Night Shift" means - any shift finishing subsequent to midnight and at or before 8am.

 

19.1.4               "Rostered Shift" means - a shift of which the employee concerned has at least 48 hours notice.

 

19.2      Hours - Continuous Work Shift

 

This subclause applies to shift work as herein defined.  The ordinary hours of shift workers shall average 38 per week, inclusive of crib time, and shall not exceed 15') hours in 28 consecutive days.  Provided that where the employer and the majority of the employees concerned agree, a roster system may operate on the basis that the weekly average of 38 hours is achieved over a period which exceeds 28 consecutive days. Subject to the following conditions, such shift workers shall work at such times as the employer may require.

 

A shift shall consist of not more than ten hours inclusive of crib time, provided that:

 

19.2.1               By agreement between the employer, the Union(s) concerned and/or the majority of employees concerned, ordinary hours not exceeding twelve on any day may be worked subject to:

 

suitable roster arrangements being made, and

 

proper supervision being provided.

 

19.2.2               Except at the regular change over of shifts an employee shall not be required to work more than 1 shift in each 24 hour period.

 

19.2.3               Ten minutes shall be allowed to shift workers each shift as crib, which shall be counted as time worked. If a shift is greater than 9 hours, a 30 minute crib break will be allowed.

 

19.3      Hours – Other than continuous work

 

19.3.1               This sub clause shall apply to shift workers not on continuous work as herein defined. The ordinary hours of work shall be an average of 38 hours per week, to be worked on the following basis:

 

19.3.1.1            10 hours during any consecutive 24 hours

 

19.3.1.2            38 hours per week

 

19.3.1.3            76 hours in 14 consecutive days, or

 

19.3.1.4            1 14 hours in 21 consecutive days, or

 

19.3.1.5            152 hours in 28 consecutive days.

 

Provided that:

 

The ordinary hours of work prescribed herein shall not exceed 10 hours on any day.

 

By agreement between an employer, the Union and the majority of employees in the plant or work section/s concerned, ordinary hours not exceeding 12 on any day may be worked subject to:

 

suitable roster arrangements being made

 

proper supervision being provided.

 

The method of working shifts and the time of commencing and finishing shifts may in any case be varied by agreement between the employer and the employees concerned to suit the circumstances.  The time of commencing and finishing shifts once having been determined, may be varied by agreement between the employer and the accredited representative of the Union to suit the circumstances, or in the absence of agreement, by 7 days notice of alteration given by the employer to the employees.

 

19.4      Shift Allowances

 

19.4.1               rate of pay per week, in addition to the rates payable under this Award.

 

19.4.2               Shift workers, whilst on night shift, shall be paid an allowance of 20% if the ordinary rate of pay per week, in addition to the rates of pay under the Award.

 

19.4.3               The employer will give the employee at least 20 days notice (less by mutual agreement) before starting permanent shift work.

 

20.  Training

 

20.1      Fresenius Medical Care will implement an agreed training plan that aims to allow employees to enhance their career path opportunities and reclassification.  This will be implemented by mutual agreement between the employee and Fresenius Medical Care.

 

20.2      Promotion from one classification to another will be based on successful completion of a nominated training program.  This program will include a basic literacy and numeracy training. Agreed modules will be developed to suit company requirements.

 

20.3      The company will pay all fees and sundry expenses associated with company approved training programs.

 

20.4      The mutual benefit of training is agreed to, with both parties getting advantages, and to this end preference will be given and all efforts made to organize all training during normal working hours. Where attendance cannot be achieved during normal work hours, time in lieu will be provided, or ordinary rate paid.

 

20.5      Overtime rates will not be paid for any training.

 

20.6      For external courses, the level of company reimbursement for fees, books and time off must be agreed by the company prior to commencement of the course.

 

20.7      Where there is mutual agreement between Fresenius Medical Care and the employee, the training, where possible, will be undertaken during normal working hours without loss of pay.

 

21.  Performance Appraisal

 

21.1      The performance of the Team Leaders will be formally appraised by their Manager when there is a substantial change in responsibility or performance. This appraisal will be used as a basis for:

 

Adjusting the wage rate

 

Analysing training needs

 

Counselling

 

21.2      The performance of each team member will be appraised by the Team Leader. This appraisal will be used as a basis for:

 

Recommending a change of classification to Management

 

Analysing training needs

 

Counselling

 

21.3      The employees shall have access to all information and shall have all the right of appeal to the Production Manager.

 

21.4      Continuing disputes on appraisal are to be referred to a committee consisting of 2 company and 2 union representatives. Any further dispute is to be handled as per the method detailed in clause 28.

 

22.  Productivity Measures

 

22.1      The parties to this Award are committed to the development and improvement of the business.  Key performance indicators for reviewing this development include, but are not limited to:

 

Workers Compensation premium cost

 

Accident Frequency

 

Accident Severity

 

Customer service levels as measured by:

 

Delivery Advices out by the due date

 

Manufacturing orders completed by the due date

 

Inventory accuracy.

 

Productivity levels based on a basket of products

 

Order assembly costs as a percentage of sales

 

Labour efficiency compared to standard

 

Company profitability as measured by earning before tax and interest Overtime as a percentage of normal labour

 

AS3902 measures

 

22.2      These indicators will be developed during the life of this Award to enable assessment to be made on productivity improvements and to provide a formula for future wage increases.

 

23.  Accident Pay

 

The employer will pay an employee who is absent through injuries and is covered by Workers' Compensation.  They shall be paid equivalent to their ordinary rate (based on 38 hour week) for 26 weeks and then at the rate set by their Workers' Compensation entitlement.

 

24.  First Aid Attendant and Ambulance Chest

 

A first-aid and ambulance chest, fully equipped and maintained, shall be placed in a position available to all departments at any time when work is being carried on (See section 60 of the Factories, Shops and Industries Act, 1962).

 

25.  Amenities

 

The requirements in relation to amenities shall conform at least to the minimum requirements set out in the guide to welfare facilities and amenities provided under the Factory and Industrial Welfare Board as constituted by the Factories, Shops and Industries Act, 1962, as amended.

 

26.  Right of Entry

 

See section 298 of the Industrial Relations Act 1996 as amended.

 

27.  Mechanisation

 

Where, on account of the introduction or proposed introduction by an employer of mechanisation or technological changes in the industry in which they are en-aged, the employer terminates the employment of an employee who has been employed for the preceding twelve months, the employer shall give the employee one month's notice of their termination of employment; provided that, if the employer fails to give such notice in full, they shall pay the employee at the ordinary rate of pay applicable under this Award for period equal to the difference between one month and the period of the notice given shall be deemed to be service with the employer for the purpose of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing wither of those Acts; and provided further that the right of the employer summarily to dismiss an employee for malingering, inefficiency, neglect of duty, or misconduct shall not be prejudiced by the fact that the employee has been given notice pursuant to this clause of the termination of their employment.

 

28.  Counselling and Disciplinary Procedure

 

28.1      This clause shall not apply where the actions and/or behaviour of an employee are such as to constitute grounds for summary dismissal.

 

28.2      In any reasonable case where the actions and/or behaviour of an employee are unacceptable to the employer the employee shall be counselled.

 

28.3      The following counselling procedures shall apply:

 

28.3.1               The employee shall be verbally counselled in the presence of the Union delegate or any other authorised union representative. The employer shall clearly identify the unacceptable actions and/or behaviour and advise on corrective measures and a review date.

 

28.3.2               Where the initial counselling has failed to correct the unacceptable actions and/or behaviour, a further review will occur and will incorporate a final written warning to the employee identifying the unacceptable actions and/or behaviour the corrective measures required, review date and advise of subsequent steps which may be taken, including termination of employment.

 

28.3.3               If no change occurs by the review date the employer may consider the options of disciplinary leave or termination. After review of all the facts the employer may exercise the options available and direct the employee on disciplinary leave or give notice of termination.

28.3.4               Where warnings have been made under the procedure prescribed herein, and a subsequent -review shows that the appropriate corrective measures have been taken, then the warnings shall be withdrawn after the expiration of 12 months period.

 

28.4      Disciplinary leave as referred to in subclause (Iii) c) above shall be applied on the following basis:

 

28.4.1               In accordance with subclause (iii) c) above, the employee concerned should be directed to go on disciplinary leave.  Such leave shall be without pay and shall be for a period of not more than 76 agreed working hours.

 

28.4.2               Once an employee has been directed on disciplinary leave, termination shall occur automatically if the unacceptable action and/or behaviour occurs again.

 

29.  Settlement of Dispute Procedure

 

29.1      Any grievance or dispute arising out of employment shall be referred by the employee or group of employees to, in the first instance, the most appropriate supervisor.

 

29.2      Failing settlement at this level the matter shall be referred by the employee/s to the Department Manager and Human Resource Manager.

 

29.3      If the grievance or dispute has not been resolved, the Union Delegate may refer the matter within 48 hours to the Union Organiser, who will take the matter up with the employer.

 

29.4      All efforts shall be made by the employer and the Union Organiser to settle the matter, but failing settlement, the Union Organiser shall refer the grievance or dispute to their representative.

 

29.5      During discussion, the status quo shall remain and work shall proceed normally "Status Quo" shall mean - the situation existing immediately prior to the grievance or dispute or the matter giving rise to the grievance or dispute.

 

29.6      At any time either party shall have the right to notify the matter to the Industrial Register.

 

30.  Sunday/Public Holiday Pay

 

30.1      Employees shall be paid at the rate of double time for work done on Sunday.

 

30.2      All employees required to work on a public holiday shall be paid at the rate of double time and a half.

 

31.  Medical Check

 

31.1      Members will be paid four ordinary hours per annum to attend the AWU doctor for a medical check.

 

31.2      A certificate of attendance may be requested.

 

31.3      It will not be compulsory.

 

32.  Area, Incidence and Duration

 

32.1      This Award will replace wholly the terms and conditions of the Drug Factories (State) Award, published 1 June 2001 (325 I.G. 1), and the Fresenius Medical Care Australia Pty Ltd (Smithfield) Site Enterprise Consolidated Award, published 14 November 2003 (342 I.G. 1), as it applies to all employees performing work on the site herein specified covered by this Award.

 

32.2      This Award shall take effect on and from 20 May 2005.

 

33.  Redundancy

 

33.1      Notice of Redundancy

 

Where Fresenius Medical Care has made a definite decision to retrench an employee(s) and this is not due to the ordinary and customary turnover of labour, the Company undertakes to provide the maximum possible period of notice to the employee(s) concerned, and their Union.

 

Following this notification, the Company will allow the equivalent of one day off per week to any affected employees in order to attend job interviews.

 

33.2      Method of Selection

 

It is the aim of Fresenius Medical Care and accepted by the Union that the Company’s continued operation is of primary concern.  It is clear that Fresenius Medical Care must be viable to ensure continued employment opportunities.  Any redundancies must be approached in this manner.

 

Where Fresenius Medical Care has made a definite decision that it no longer wishes the job to be performed by anyone, and that decision may lead to the termination of employment, Fresenius shall hold discussions with the Union immediately.

 

For the purpose of discussion Fresenius Medical Care shall provide to the Union, all relevant information about the proposed termination 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, provided that Fresenius Medical Care shall not disclose confidential information, the disclosure of which would adversely affect the Company.

 

Any redundancies must be approached in this light and will be by the following process:

 

(a)        Fresenius Medical Care will seek expressions of interest from employees concerned on a possible offer of voluntary redundancy.

 

(b)        When or if a redundancy situation occurs, Fresenius Medical Care will approach all persons who have made an expression of interest and will confirm this acceptance in writing. Upon request by the employee, severance details shall be supplied.

 

(c)        Fresenius Medical Care reserves the right not to agree to all acceptances of voluntary redundancies in certain situations.

 

(d)        Fresenius Medical Care selects employees from the voluntary redundancies firstly, however, if insufficient numbers of employees accept voluntary redundancy, Fresenius Medical Care will then select employees to be made redundant according to skill, flexibility, competency and to meet the Company's requirements.

 

(e)        If alternative employment is available on another site, then Fresenius Medical Care shall advise the affected employee/s and their Union.  The affected employee/s may take such opportunity for a trial period of up to six months.

 

33.3      Redundancy

 

(a)        Each employee who is made redundant shall receive 4 weeks pay at ordinary time i.e. excluding overtime.  This payment is in lieu of any notice.

 

(b)        Each employee who is made redundant shall receive 4 weeks pay at ordinary time for each completed year of service.  The maximum payment, including the 4 weeks pay in lieu of notice, shall not exceed 52 weeks.

 

(c)        Each employee who is made redundant shall receive payment of all accumulated sick pay on the date of their termination.

 

(d)        Long Service leave shall be paid according to the appropriate legislation.

 

(e)        Superannuation payments will be made in accordance with the terms of the trust deed(s) and will not effect the above mentioned payments.

 

(f)         Each employee who is made redundant shall receive annual leave entitlements and pro rata annual leave loadings.

 

33.4      Misconduct

 

Subject to clause 28, misconduct will negate redundancy entitlements.

 

34.  Superannuation

 

On or before the twenty eighth day of each month Fresenius Medical Care will pay into the approved superannuation fund, the Australian Public Superannuation (APS) Fund or the Colonial Master Fund, the total sum of the weekly contribution amounts accrued the previous month on behalf of each employee, in addition to any other voluntary contribution made in respect of superannuation. The choice of an approved superannuation fund to be the decision of the employee.

 

The "Employer's Contribution" shall be fully vested in each employee's name and be subject to the preservation and portability requirements of the Australian Government Occupational Superannuation Guidelines.

 

Fresenius Medical Care does not agree to Superannuation contribution to be at pre-injury level whilst the employee is in receipt of worker's compensation payments for up to a minimum of 52 weeks. We will maintain Commonwealth legislation.

 

35.  Rehabilitation Provider

 

Fresenius Medical Care nominates Australian Injury Management Pty Limited, which has been certified by WorkCover, New South Wales, as their preferred rehabilitation provider for injured workers.

 

36.  Union Leave

 

36.1      Union Delegates are collectively entitled to a maximum of two (2) days’ paid union training leave.

 

36.2      Employees will be allowed to attend on-site union meetings for up to one hour per month without loss of pay, provided that these meetings take place at appropriate times that do not interrupt production.

 

36.3      Union Delegates are entitled to five (5) days’ unpaid union meeting/training leave per annum.

 

37.  Entitlements Protection

 

Fresenius Medical Care does not agree that all employees, who are members of the Australian Workers' Union, Greater New South Wales Branch to whom this enterprise agreement applies, shall have their accrued entitlements to long service leave, annual leave, retrenchment provisions and any other accrued benefit insured through a licensed insurance broker approved and endorsed by the Australian Worker's Union, Greater New South Wales Branch.

 

38.  Mixed Functions/Higher Duties

 

38.1      Where an employee is engaged for more than two (2) hours during one day or  shift, to perform the work of a higher classification, the employee will be paid at the higher rate as detailed in this Award for such day or shift.

 

38.2      Where an employee is engaged for less than two (2) hours during one day or shift, the employee will be paid at the higher rate as detailed in this Award for the time so worked.

 

39.  Anti Discrimination

 

Fresenius Medical Care will refer to their company policies on Equal Employment Opportunity and Anti Discrimination.

 

40.  Period of Operation

 

This Award shall take effect from 20 May 2005 and shall remain in force until 31 December 2006. This Award will be reviewed and negotiations will commence two (2) months prior to the expiry of this Award.

 

41.  No Further Claims

 

There shall be no further claims made during the term of this Award.

 

SCHEDULE 1

 

Wage Rates

 

Fresenius Medical Care Australia Pty Ltd Site Enterprise Award (Smithfield) 2005 - 2006

 

 

 

 

 

 

E. A. R. BISHOP, Commissioner.

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.