FRESENIUS MEDICAL CARE AUSTRALIA PTY LTD (SMITHFIELD) SITE ENTERPRISE
AWARD 2003 - 2004
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Fresenius
Medical Care Australia Pty Limited.
(No. IRC 2486 of 2003)
Before Mr Deputy
President Grayson
|
18 June 2003
|
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. Personal/Carer's
Leave
42. 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 their 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-03
|
1-Jan-04
|
|
Hourly Rate
|
Hourly Rate
|
Team Leader
|
20.3507
|
20.9612
|
TM Level I
|
17.3287
|
17.8486
|
TM Level II
|
16.2615
|
16.7493
|
TM Level III
|
15.8627
|
16.3386
|
TM Level IV
|
15.0666
|
15.5186
|
Casual
|
16.7136
|
17.2150
|
4.3 Fresenius
Medical Care will contribute 1% of the employees 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 2003 and a further 3% increase from the first pay period on
or after 1 January 2004.
4.5 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 encashing
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).
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 this clause, for the
period not taken.
12.9.2 Except
as provided by paragraph 12.9.1 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 parent-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.
14.5 An employee
shall not be entitled to bereavement leave under this clause during any period
in respect of which the employee has been granted other leave.
14.6 Bereavement
leave may be taken in conjunction with other leave available under subclauses
(2) (3) (4) (5) and (6) in the said clause (Personal carers clause). In
determining such a request the employer will give consideration to the
circumstances of the employee and the reasonable operational requirements of
the business.
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 shiftworkers
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
subclause 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 Shift
workers whilst on afternoon shift shall be paid an allowance of 17.5% of the
ordinary 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 paragraph 28.3.3 above shall be applied on the
following basis:
28.4.1 In
accordance with subclause paragraph 28.3.3 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 Factory State Award
published 1 June 2001 (325 I.G. 1) and the Fresenius Medical Care Australia Pty
Ltd, (Smithfield) Site Enterprise Award 1999-2000 as it applies to all
employees performing work on the site herein specified covered by this Award.
32.2 This Award
shall take effect from the 1st January 2003 and shall continue in force until
December 2004.
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.
39.1 It is the
intention of the parties bound by this award to seek to achieve the object in
section 3(f) of the Industrial Relations
Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds
of race, sex, marital status, disability, homosexuality, transgender identity,
age and responsibilities as a carer.
39.2 It follows that
in fulfilling their obligations under the dispute resolution procedure
prescribed by this award, the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
39.3 Under the Anti-Discrimination Act 1977, it is
unlawful to victimise an employee because the employee has made or may make or
has been involved in a complaint of unlawful discrimination or harassment.
39.4 Nothing in this
clause is to be taken to affect:
(i) any conduct
or act which is specifically exempted from anti-discrimination legislation;
(ii) offering or providing
junior rates of pay to persons under 21 years of age;
(iii) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination
Act 1977;
(iv) a party to
this award from pursuing matters of unlawful discrimination in any State or
Federal jurisdiction.
39.5 This clause
does not create legal rights or obligations in addition to those imposed upon
the parties by legislation referred to in this clause.
NOTES
-
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d)
of the Anti-Discrimination Act 1977
provides:
“Nothing in this Act affects … any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.”
40. Period of
Operation
This Award shall commence from 01 January 2003 and shall
remain in force until 31 December 2004. This Award will be reviewed and negotiations will commence two (2)
months prior to the expiry of this Award.
41. Personal/Carer's
Leave
(1) Use of Sick
Leave -
(a) An employee, other
than a casual employee, with responsibilities in relation to a class of person
set out in subparagraph (ii) of paragraph (c) who needs the employee's care and
support shall be entitled to use, in accordance with this subclause, any
current or accrued sick leave entitlement provided for in clause 10 of the sick
leave clause for absences to provide care and support for such persons when
they are ill. Such leave may be taken
for part of a single day.
(b) The employee
shall, if required, establish, either by production of a medical certificate or
statutory declaration the illness of the person concerned and that the illness
is such as to require care by another person.
In normal circumstances, an employee must not take carer's leave under
this subclause where another person has taken leave to care for the same
person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(i) the employee
being responsible for the care of the person concerned; and
(ii) the person
concerned being:
(a) a spouse of
the employee; or
(b) a de facto
spouse who, in relation to a person, is a person of the opposite sex to the
first mentioned person who lives with the first mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
(c) a child or an
adult child (including an adopted child, a stepchild, a foster child or an
ex-nuptial child), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or spouse or de facto spouse
of the employee; or
(d) a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
(e) a relative of
the employee who is a member of the same household where, for the purposes of
this subparagraph:
(1) "relative"
means a person related by blood, marriage or affinity;
(2) "affinity"
means a relationship that one spouse, because of marriage, has to blood
relatives of the other; and
(3) "household"
means a family group living in the same domestic dwelling.
(d) An 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 that
person's 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.
(2) Unpaid Leave
for Family Purpose -
(a) An employee
may elect, with the consent of the employer, to take unpaid leave for the
purpose of providing care and support to a member of a class of person set out
in subparagraph (ii) of paragraph (c) of subclause (1) who is ill.
(3) Annual Leave -
(a) An employee
may elect, with the consent of the employer, subject to the Annual Holidays Act 1944, to take annual
leave not exceeding five days in single-day periods or part thereof in any
calendar year at a time or times agreed by the parties.
(b) Access to
annual leave, as prescribed in paragraph (a) of this subclause, shall be
exclusive of any shutdown period provided for elsewhere under this award.
(c) An employee and
employer may agree to defer payment of the annual leave loading in respect of
single-day absences until at least five consecutive annual leave days are
taken.
(4) Time Off in
Lieu of Payment for Overtime -
(a) For the
purpose only of providing care and support for a person in accordance with
subclause (1) of this clause, and despite the provisions of clause 7 above, the
following provisions shall apply:
(b) An employee
may elect, with the consent of the employer, to take time off in lieu of
payment for overtime at a time or times agreed with the employer within 12
months of the said election.
(c) Overtime taken
as time off during ordinary-time hours shall be taken at the ordinary-time
rate, that is, an hour for each hour worked.
(d) If, having
elected to take time as leave in accordance with paragraph (b) of this
subclause, the leave is not taken for whatever reason, payment for time accrued
at overtime rates shall be made at the expiry of the 12-month period or on
termination.
(e) Where no
election is made in accordance with the said paragraph (b), the employee shall
be paid overtime rates in accordance with the award.
(5) Make-up Time -
(a) An employee
may elect, with the consent of the 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 award, at the
ordinary rate of pay.
(b) An employee on
shift work may elect, with the consent of the employer, to work "make-up
time" (under which the employee takes time off ordinary hours and works
those hours at a later time) at the shift work rate which would have been
applicable to the hours taken off.
(6) Rostered Days
Off -
(a) An employee
may elect, with the consent of the employer, to take a rostered day off at any
time.
(b) An employee
may elect, with the consent of the employer, to take rostered days off in part
day amounts.
(c) An employee
may elect, with the consent of the employer, to accrue some or all rostered
days off for the purpose of creating a bank to be drawn upon at a time mutually
agreed between the employer and employee, or subject to reasonable notice by
the employee or the employer.
(d) This subclause
is subject to the employer informing each union which is both party to the
award and which has members employed at the particular enterprise of its
intention to introduce an enterprise system of RDO flexibility and providing a
reasonable opportunity for the union(s) to participate in negotiations.
42. No Further Claims
There shall be no further claims made during the term of
this Award.
SCHEDULE 1
Wage Rates
|
Hourly Rates
|
Team Member
|
1-Jan-03
|
1-Jan-04
|
|
|
|
Team Leader
|
20.3507
|
20.9612
|
TM Level I
|
17.3287
|
17.8486
|
TM Level II
|
16.2615
|
16.7493
|
TM Level III
|
15.8627
|
16.3386
|
TM Level IV
|
15.0666
|
15.5186
|
Casual
|
16.7136
|
17.2150
|
|
Weekly Rates
|
Team Member
|
1-Jan-03
|
1-Jan-04
|
|
|
|
Team Leader
|
773.33
|
796.53
|
TM Level I
|
658.49
|
678.25
|
TM Level II
|
617.94
|
636.47
|
TM Level III
|
602.78
|
620.87
|
TM Level IV
|
572.53
|
589.71
|
Casual
|
635.12
|
654.17
|
J. P. GRAYSON D.P.
____________________
Printed by
the authority of the Industrial Registrar.