Auswest Timbers (ACT) Pty Ltd
[2014] FWCA 2627
•17 APRIL 2014
[2014] FWCA 2627 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
Auswest Timbers (ACT) Pty Ltd
(AG2014/3854)
AUSWEST TIMBERS (ACT) PTY LTD FYSHWICK SAWMILL ENTERPRISE AGREEMENT 2011
Timber and paper products industry | |
COMMISSIONER DEEGAN | CANBERRA, 17 APRIL 2014 |
Application for variation of the Auswest Timbers (ACT) Pty Ltd Fyshwick Sawmill Enterprise Agreement 2011.
[1] An application has been made for a variation of an enterprise agreement known as the Auswest Timbers (ACT) Pty Ltd Fyshwick Sawmill Enterprise Agreement 2011 (the Agreement). The application was made pursuant to s.217 of the Fair Work Act 2009 (the Act) by Auswest Timbers (ACT) Pty Ltd (the employer) who is covered by the agreement.
[2] The application was supported by employees who were bargaining representatives for the agreement and the proposed variation was put to employees, who unanimously voted in support of the variation.
[3] Section 217 of the Act provides:
“217 Variation of an enterprise agreement to remove ambiguity or uncertainty
(1) FWC may vary an enterprise agreement to remove ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
[4] It is necessary for me to determine whether or not there is ambiguity or uncertainty in the agreement, whether I should use my discretion to vary the agreement to remove the ambiguity or uncertainty, and, if applicable, determine how the agreement should be varied to remove the ambiguity or uncertainty.
[5] Clause 9 of the agreement is the clause that the applicant contends is ambiguous and uncertain. Clause 9 deals with the ability of employees to be paid out accrued personal leave and provides as follows:
“(9) Personal Leave (Including Carer’s Leave)
...
Personal Leave Accrual Payment
Where an employee has accrued in excess of 15 days personal/carer’s leave, such excess hours may be cashed out if nominated by the employee in December by writing and the deed of release signed. The employee shall be paid at the ordinary time rate of pay and the entitlement to the personal/carer’s leave cashed out shall be extinguished. Any personal/carers leave saved from the year cannot be cashed out once saved. Paid at the end of January.
The cashing out of excess personal/carer’s leave accruals will not affect an employee’s entitlement to any other bonus scheme that may be in place from time to time.
It is recognised that it is not the intention of the employer to encourage employees who are legitimately unfit to attend work to forgo their personal leave.
Employees shall not be entitled to cash out excess personal/carer’s leave accruals as prescribed by this clause in circumstances where the employee is not working for the Company at the time that the payments are to be made in accordance with this clause or has provided notice of an intention to terminate their employment prior to, or at, the time that payments are to be made as prescribed by this clause” (My italics)
[6] Clause 9 was the subject of an application made under s.739 of the Act on 3 February 2014. Following a conference in that matter on 19 February 2014 it was agreed that the most appropriate way to resolve the dispute was for an application to be made to vary the Agreement as the meaning of clause was uncertain and it did not accurately reflect the intention of the parties that negotiated Agreement.
[7] A hearing of the application to vary took place on 16 April 2014. It was the evidence of both the representative of the employer and Mr Doodt, who represented the employees at the hearing and was a bargaining representative during bargaining for the Agreement, that, at the time the Agreement was negotiated the parties intended that cl.9 of the Agreement provide the same entitlement to the payout of accrued personal leave as was available under cl.34.4 of the Timber Industry Award 2010 [MA000071] (the Award). The clause included in the Agreement, however, did not reproduce the Award clause and the wording adopted unintentionally gave rise to uncertainty as to how cl.9 was to operate.
[8] I am satisfied that the wording of cl.9 is far from clear. In particular the words reproduced in italics in [5] above are unintelligible. Given the uncertainty that results from the current wording of the clause, I am satisfied that that it is appropriate to vary the Agreement to clarify the intent.
[9] The employer contends that to remove the uncertainty in the agreement, that the four paragraphs of clause 9 under the heading “Personal Leave Accrual” should be deleted and replaced with the following:
“...Personal Leave Accrual payment
Clause 34.4 of the Timber Industry Award 2010 [MA000071] will apply where an employee seeks payment for accumulated untaken sick leave”
[10] I am satisfied that varying the agreement in the manner proposed will remove the uncertainty and better reflect the mutual intention of both parties at the time the agreement was made.
[11] The Agreement is varied and, in accordance with s.217(2) of the Act, will operate from the date of effect of the Agreement. A consolidated version of the Agreement, as varied, is attached to this decision.
Appearances:
Mr W Kluktewicz for the applicant.
Mr M Doodt on behalf of the employees.
Hearing details:
2014.
Canberra:
April 16.
Printed by authority of the Commonwealth Government Printer
<Price code C, AE887892 PR549855>
ATTACHMENT A
Fyshwick Enterprise Agreement.
(1) Title
This Agreement shall be known as the AusWest Timbers (ACT) P/L Fyshwick Sawmill Enterprise Agreement 2011 (the “Agreement”).
(2) Arrangement
Clause
1. Title.
2. Arrangement.
3. Scope, Incidence and Parties Bound to This Agreement.
4. Date and Period of Operation.
5. Relationship to Parent Awards.
6. Object of the Parties/Spirit of Agreement.
1. Commitments.
● Sawn Timber Recovery
● Production Bonus
● Employee Safety
● Safety Bonus
● Productivity Levels
● Multi-skilling & Training
8. Annual Leave.
9. Personal Leave (Including Carer’s Leave)
10. Long Service Leave.
11. Parental Leave.
12. Ordinary hours of work
13. Shift Payments.
14. Labour Flexibility.
15. Continuous Improvement and Communication.
16. Teamwork.
17. Non Smoking
18. Occupational Health and Safety Standards.
19. Environmental Standards
20. Wage Increases.
21. Replacement of Tools.
22. Call-out Fuel Allowance
23. Charred Timber
24. Committee Attendance Outside Ordinary Time.
25. Timing of Meal Breaks.
26. Probationary Period.
27. Time Off in Lieu of Overtime.
28. Drug & Alcohol Policy.
29. Public Holiday Falling on a Friday
30. Anti Discrimination
31. Superannuation.
32. Transmission of Business.
33. Future Matters
34. No Extra Claim
35. Disputes Procedures.
36. Declaration.
(3) Scope, Incidence and Parties Bound to This Agreement
This agreement shall be binding upon AusWest Timbers (ACT) P/L, Fyshwick Sawmill (the “company”), in respect of its Fyshwick Sawmill site and all employees of AusWest Timbers (ACT) P/L, employed at AusWest Timbers (ACT) P/L’ Fyshwick Sawmill Site (at 21 Geelong Street, Fyshwick, ACT) (the “employees”).
Nothing in the Agreement interferes with, or takes away, the rights of either party under the National Employment Standards of the Fair Work Act 2009 (Cth)
This Agreement shall replace the Auswest Timbers (ACT) P/L Fyshwick Sawmill Enterprise Agreement 2007
(4) Date and Period of Operation
This agreement shall take effect upon lodgement with the office of the Workplace Authority and shall remain in force until 1st of August 2014. Wage and bonus increases will take affect in the first full pay week after 1st of August 2011.
(5) Relationship to Parent Award(s)
This Agreement will be read and interpreted in conjunction with the Timber Industry Award 2010 (the “Award”).
Where there is any inconsistency between this Agreement and the Award, this Agreement will prevail to the extent of any inconsistency.
(6) Object of Parties/Spirit of Agreement
The parties recognise the need to develop a viable, productive and enduring enterprise offering secure employment and worthwhile career opportunity for employees.
The purpose of entering into this Agreement is to increase the productivity, efficiency and flexibility of the Company’s Fyshwick ACT Operations to ensure the Company remains competitive within the timber industry.
This Agreement is further intended to enhance the quality of working life of employees through continued progress on workplace reform and consultation.
The Company remains committed to the continual training of all personnel so that their skills base can be enhanced, and to provide an environment in which these new skills can be utilised and recognised to the satisfaction of individual employees.
Furthermore, the Company recognised the need to continuously improve occupational health and safety for all employees and is therefore committed to the development and implementation of safety and health initiatives including a Drug and Alcohol Policy. This Agreement provides for the participation of all employees in these initiatives in order that the Company’s Fyshwick ACT Operation becomes a safer working environment.
(7) Commitments
The Company has a commitment to continuous improvement of the business, incorporating product and service quality with the establishment of a measurement culture and teamwork, within the life of this agreement. Likewise a commitment is given by the employees to embrace these concepts to develop and maintain appropriate measures in partnership with the company.
Further specific productivity improvements will be sought as follows:
7 (a) Sawn Timber Recovery
Percentage of sawn timber recovery will be recorded and charted on a daily basis. Targets for improvements in recovery levels will be agreed and all work teams will work towards achieving those targets. Different methods of operation, designed to improve recovery, will be implemented from time to time. It is the responsibility of all operators to ensure they recover as much sawn timber as possible from each log processed.
7 (b) Production Bonus
The Production Bonus shall be at the rate of $0.56 per employee per cubic metre of sawn timber produced. The production will be tallied daily for each shift and the bonus payment will be paid with normal wage.
7 (c) Employee Safety
The company will continue the operation of the safety reward scheme. Targets will be set for the Lost Time Injury Frequency Rate and Severity Rates, and all employees will work towards implementing improvement in work methods designed to achieve the agreed targets.
7 (d) Safety Bonus
The Safety Bonus shall be retained with the bonus paid after the completion of every three-month period in which there has been no lost time injury for the business
The amount of safety bonus paid to each employee:
● $75 after the completion of the first three months.
● $100 after the completion of the first six months.
● $125 after the completion of the first nine months.
● $150 after the completion of the first twelve months and every three months thereafter.
7 (e) Productivity levels
Employees undertake to continue the commitment shown over the last agreement period, to produce sawn timber in a safe manner and at volumes that the equipment allows. AusWest Timbers undertakes to improve identified problem areas and equipment to allow for greater throughput capabilities
7 (f) Skills Development and Training
The parties to this Agreement are committed to the development of a skilled workforce through improved job design and/or the introduction of new technology. The aim of this is to enhance the working environment to develop rewarding and satisfying employment for all employees. Wherever possible and when management considers it practical, vacant positions will be advertised in line with Company policy to allow existing employees access to promotion.
The parties agree that the outcome of training programmes will need to satisfy as a minimum the appropriate National Competency Standards.
Where possible all training undertaken as a result of this subclause will be during ordinary working hours. Training may be conducted outside ordinary working hours. Such time will be paid at the ordinary rate or the equivalent time off in lieu will be granted at an agreed time between the parties.
Any direct costs incurred by the employee as a result of undertaking training will be met by the Company.
It is agreed that all employees will continue to participate in the multi-skilling programme, which is designed to increase labour flexibility. The Company will continue to provide training in accordance with the established training programme, so that employees have the opportunity to develop new skills and hence move up the classification structure.
Employees agree to rotate their duties and to perform any work for which they have been trained and have the skills to safely perform.
The Company supports employees undertaking external studies which add value to the business and contribute to an employee’s personal development.
(8) Annual Leave
Annual leave and leave loading of 17.5% will be paid in accordance with the Award
Cashing out annual leave
An employee may, with the agreement of the employer, request to cash out up to two weeks of their annual leave during each 12 month period. Annual leave cannot be cashed out in advance of it being credited to the employee.
Employees who wish to cash out annual leave must complete the election to cash out annual leave form. Cashed out annual leave will be paid at the rate of pay that the employee receives at the time when the election is made.
The employer and the employees believe that it is important that all employees take annual leave on a regular basis to ensure that employees are sufficiently rested and have the opportunity to balance work, family and recreational interests. Employees can take annual leave at a time that is mutually agreed between themselves and their employer taking into account the operational requirements of the workplace. The employer will not unreasonably refuse the taking of annual leave. | |
THERE IS a MINIMUM AMOUNT OF ANNUAL LEAVE THAT MUST BE TAKEN ON ANY ONE OCCASION OF ONE (1) DAY ANNUAL LEAVE WILL BE PAID AT THE RATE OF PAY THE EMPLOYEE RECEIVES AT THE BEGINNING OF THE PERIOD OF ANNUAL LEAVE. UNUSED ANNUAL LEAVE CARRIES FORWARD FROM YEAR TO YEAR. | |
(9) Personal Leave (Including Carer’s Leave)
Personal leave (Carer’s leave) will be paid in accordance with the National Employment standards as set out in the Fair Work Act 2009 (Cth).
Employees shall be entitled to Carer’s Leave for absences relating to a family emergency. Such emergency may include the illness of the employee’s spouse, child or other family member under the care and responsibility of the employee.
Personal emergency leave (Carer’s Leave) shall be counted as sick leave and shall be limited to 10 days leave per year. Notification of the requirement to take such leave shall be given to the Company in advance, wherever possible, or where this is not possible the employee shall notify the Company at the first opportunity on the day of absence.
Proof of the requirement to take such leave will be:
An Employee may take a total of 2 days absences per year without providing a medical certificate or statutory declaration. For any other sick leave taken the Employee shall provide a medical certificate or statutory declaration, subject to the following:
● A medical certificate or statutory declaration is required for sick leave taken in conjunction with other leave, including a rostered day off, or a public holiday.
● Where the Employer has reason to believe the sick leave is not being taken for the purpose intended, the employer can request that the Employee provides a medical certificate or statutory declaration for any future sick leave claims the Employee makes.
● Where the Employee has reason to believe that an Employee is unfit for duty, the Employee may be directed to take sick leave.
● Where a medical certificate or statutory declaration is not provided payment for sick leave shall be at the Management’s discretion.
More than 10 days personal leave taken in a year will be considered excessive, counselling or disciplinary action may be taken in certain circumstances.
Personal Leave Accrual Payment
Clause 34.4 of the Timber Industry Award 2010 [MA000071] will apply where an employee seeks payment for accumulated untaken sick leave
(10) Long Service Leave
Long Service Leave will be paid in accordance with the provisions of the Long Service Leave Act 1976 A1976-27
(11) Parental Leave
Parental Leave shall be in accordance with National Employment Standards as set out in the Fair Work Act 2009 (Cth).
(12) Ordinary hours of work
Ordinary hours of work will be worked between the hours of 6.00 am and 6.00pm Monday to Friday, 38 hours within a work cycle of one week.
(13) Shift Payments
Employees who are rostered to work Afternoon shift or night shift will be paid at a rate of time and a quarter of ordinary day work rates.
Employees who are asked to work a mid shift and finish after 6pm will be paid at a rate of time and a quarter of ordinary day work rates.
(14) Labour Flexibility
The company and employees agree that it is in both their interests to maintain the greatest possible flexibility with regards to the operation, to ensure smooth and continuous supply of product to the customer. This is without limitation to the tasks but with due consideration to safety and the skill levels that employees have obtained.
Operational flexibility may include but is not limited to:
I. Staggered start and stopping times;
II. Flexible meal breaks to suit production;
III. Provide shift cover on Public Holidays;
IV. Flexibility in covering other shifts to minimise the use of contract labour;
V. To work with production and other trades to minimise downtimes ie. “all hands on the job”;
VI. To work agreed extra hours during shutdown periods.
It is agreed that all employees will participate in improving the productivity over each eight hour shift, by the staggering of meal breaks and reduction in Sawmill cleaning downtime.
The Company agrees that a minimum six (6) people on the production line be maintained, except when production needs to be reduced because of external circumstances. Any reduction in production line numbers will be made with site consultative committee members.
(15) Continuous Improvement and Communication
(a) The parties agree that Improvement and Problem Solving techniques will assist in the achievement of the objectives of the agreement. The company will provide ongoing training where necessary.
Employees will be required to either be directly involved in improvement teams or be indirectly involved in data collection and the implementation of recommendations made by such teams.
(b) The company will ensure all employees are informed on an ongoing basis of:
● The company’s vision, objectives, and plans.
● The company’s progress towards meeting those objectives.
● Issues of importance that effect Company performance.
● Issues of importance to the individual.
(16) Teamwork
The prime responsibility of every employee is to work as part of a team to deliver quality products and services every time - ongoing development for the most productive and harmonious working relationship striving for maximum job satisfaction.
(17) Non Smoking
The Company’s Fyshwick ACT Operation is a “Non Smoking” area.
Where an employee makes a request, the Company may organise for an employee to attend a course designed to assist them in stopping smoking.
(18) Occupational Health and Safety Standards
The employer and the employees agree that a safe and secure workplace is important and will comply with occupational health and safety laws. Employees are to take all practicable steps to ensure their own safety while at work, and to ensure that no action or inaction by them while at work causes harm to any other person. Employees are to ensure safety procedures are followed at all times.
The company is determined wherever possible to reduce risk/hazards in the work place. Auswest has implemented the AusWest Timbers (ACT) P/L Safety, Health and Environment Management System. Based upon the National OHS System
This program will require the full support of all employees.
Examples of employee requirements will involve but may not be restricted to:
● Safety Improvement Teams/Safety Committees
● Safety audits
● Reporting of all hazards/incidents via appropriate documentation
● Identifying Solutions
● Provide positive reinforcement
Employees are requires to use the safety and protective equipment and clothing provided and must ensure that they know the company health and safety rules and procedures. You will not misuse any equipment, plant or process that is provided to ensure workplace health and safety.
The replacement of damaged protective clothing of the current year issue is at management discretion. Equipment supplied will include:
● Steel-toed safety boots up to the value of $150 per year.
● Earmuffs, earplugs, lattice gloves, high visibility safety vests, hard hats or caps and protective safety glasses are supplied as required.
● Work uniforms up to the value of $180 per employee, except maintenance personnel who are allocated clothing up to the value of $250 per year.
$180 will equal two sets of free clothing - shirts and trousers (including one jacket or jumper) in a calendar year.
New employees will be eligible for the initial uniform set, after a 3-month qualifying period with the Company.
All employees will report to management as soon as possible any accidents, incidents or hazards arising during the course of their employment. If any employees have any concerns in relation to their safety or the safety of others in the workplace, they are to report them to the safety officer or appropriate manager who will take all practicable steps to provide and maintain a safe work environment.
Employees have the right to refuse to carry out work which involves an unsafe element or risk.
(19) Environmental Standard
Auswest Timbers accepts the responsibility for environmental protection which is integral to the conduct of its operation. Our objective is to comply with all applicable environmental laws and regulations.
Auswest Timbers will encourage concern and respect for the environment and emphasise every employee’s responsibility for environmental performance.
It is agreed that all employees will help to implement our Environmental Management Systems and Environmental Management Plans that are in place for this site
Employees will undergo all associated training provided in this area.
(20) Wage Increases
In recognition of improvement achieved to date and the ongoing commitment to improvement detailed in this agreement, the following wage increases shall apply:
(a) A 3.5% increase from the first full pay period commencing 2nd August 2011.
Level | Position | Hour Rate | 2011-12 Rate 3.5% increase | 2012-13 Rate 3.75% increase | 2012-13 Rate 4.0% increase |
1-5 | Mill Hands, Machine Operators Loader Operators | $19.6558 | $20.3437 | $21.1066 | $21.9509 |
6 | Foremen | $21.2763 | $22.0209 | $22.8467 | $23.7606 |
5 | Fitter | $21.7821 | $22.5444 | $23.3898 | $24.3254 |
(b) A further 3.75% increase 12 months from first full pay period commencing after 1st August 2012.
(c) A further 4% increase for year 3 from first full pay period commencing after 1st August 2013.
( d) Payment of wages
Wages shall be paid weekly on the day nominated by the Company by electronic funds transfer into an Employee’s Australian financial institution account.
Upon termination of employment, all wages due to an Employee shall be paid no later than 7 days following such termination.
The Company shall provide each Employee with written confirmation of the total amount of wages to which they are entitled, the amount of overtime included therein, details of any deductions made and the net amount paid.
The Company may deduct from wages due to an Employee such amount as is authorised (deductions) in writing by such Employee.
(21) Replacement of Tools
In lieu of the payment of a tool allowance to fitters, it is agreed that the Company will replace worn tools. The Company shall provide a secure place for the storage of all tools and tradesmen shall be responsible for maintaining a reasonable level of security over all tools.
(22) Call-out Fuel Allowance
The person who is called-out will be paid for the use of their vehicle.
The amount of the claim is the total kilometres travelled at a rate of $0.74 per kilometre. The distance will be worked out by Google maps most direct route.
(23) Charred Timber
An employee who is required handling or cutting charred timber for more than two hours will be paid a daily allowance of 33-1/3% of the standard rate in addition to their ordinary rate when disabilities associated with handling or cutting such timber are unusually dirty or objectionable.
(24) Committee Attendance Outside Ordinary Rostered Time
Employees required to attend Occupational Health and Safety Committee meetings or Consultative Committee meetings, when rostered off duty, shall be paid ordinary time rates of pay for the period of attendance at the meeting, except for public holidays and weekends when the normal allowances will apply.
(25) Timing of Meal Breaks
Employees will be required to stagger meal and tea breaks to suit the needs of the business, in accordance with the conditions of Clause 29.3 of the Award.
(26) Probationary Period
New employees will be on probation for the first 3 Months of engagement, for the purpose of determining the employee’s suitability for ongoing employment. During this period, the employee’s work performance will be assessed. At any time during the probationary period, the employer or the employee can terminate the employment by giving one day’s notice.
(27) Time Off in Lieu of Overtime
An employee may take time off in lieu of payment for overtime. The amount of time off shall be calculated on the basis of the appropriate penalty rate and shall be taken during ordinary working hours. This alternative to the payment of overtime at penalty rates shall only apply by agreement between the employer and the employee concerned.
(28) Drug & Alcohol Policy
It is Company policy to provide a workplace free from hazards, particularly those associated with drugs and alcohol. To ensure that Employees do not come to work and are not at work under the influence of drugs or alcohol which will inhibit them from performing their duties in a safe manner and endangering themselves and others, testing programs, including random testing, will be carried out.
Employees found to be in breach of the Company’s Drug and Alcohol Policy will be summarily dismissed for misconduct.
If a team leader or manager believes an Employee to be unfit for work because of visible signs of illness, fatigue, stress or the effects of medication, alcohol or illegal drugs, it is a condition of employment that the Employee attend a medical practitioner for examination if requested to do so. The Employee must also agree to undertake any tests showing the presence of alcohol or drugs which the medical practitioner considers appropriate.
An Employee may be requested to seek professional counselling with respect to drug or alcohol use.
If an Employee is found to have been under the influence of alcohol, drugs or non-prescribed medication, it will be treated as serious misconduct and dismissal will usually be the result. Each case will be evaluated on an individual basis in accordance with the Company Disciplinary Procedure.
Any Employee who is required to take prescribed or non-prescribed medication which may affect their work must notify their team leader as soon as possible prior to commencing work.
(29) Public Holiday Falling On a Friday
When a Public Holiday falls upon Friday.
Thursday before the Public Holiday the employee works 6 hours, and will be paid 8 hour Public Holiday pay for that Friday.
(30) Anti Discrimination
The parties to this agreement agree that:
a) It is their intention to achieve the principal object in paragraph 3 (j) of the Workplace Relations Act 1996,which is to respect and value the diversity of the work force by helping to prevent and eliminate discrimination at their enterprise 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; and
b) Any dispute concerning these provisions and their operation will be progressed initially under the dispute resolution procedure in this agreement; and
c) Nothing in these provisions allows any treatment that would otherwise be prohibited by anti-discrimination provisions in applicable Commonwealth, State or Territory legislation ; and
d) Employees agree to abide by the company policy on Equal Employment Opportunities (EEO) and Anti Discrimination.
(31) Superannuation
Definitions
The Fund means
(a) the ASGARD Superannuation Fund; or
(b) BT Employer Superannuation Fund
as may be amended from time to time and including any Superannuation schemes which may succeed them;
Ordinary wage is the amount of money usually earned by an Employee during the employee’s ordinary hours of work, or shift and included Leading Hand Allowance, shift allowance, and penalty rates the Employee may be entitled to for working ordinary hours under the Award. For the purposes of this clause the terms “ordinary time rate of pay”, “ordinary rates of wage(s), “ordinary rates” and “days pay” and “ordinary time earnings” have the same meaning. It does not include overtime payments for working outside of an Employees ordinary hours or rostered shift.
Choice of Fund
The Company will make superannuation contributions on behalf of each Employee covered by this Agreement, in accordance with the Superannuation Guarantee Charge Act 1992 (Cth) and associated legislation, as varied from time to time. Such contributions will be made into:
(a) The ASGARD Superannuation Fund; or
(b) BT Employer Superannuation Fund: or
(c) A choice of your personal Fund that meets the complying legal standard.
The Company will provide each Employee with the opportunity to nominate a fund from (a), (b) or (c) above into which their superannuation contributions will be made. The Employee’s nomination must be recorded in writing, signed by the Employer and Employee and kept on the Employee’s file.
The Company must contribute to the fund in respect of each Employee an amount at least the equivalent of the contribution required by the Superannuation Guarantee legislation but in any case not less than 9%.
For the purposes of this Agreement in the absence of an Employee making a nomination, the default fund will be the ASGARD Superannuation Fund.
Unpaid Absences
An Employer will not be required to make a contribution on behalf of an Employee who is absent from work without pay and the Employer’s contribution in any week when unpaid leave occurs will be reduced by a proportionate amount.
Employee contributions
Subject to the rules of the Fund, the employees who wish to make additional contributions to the Fund are entitled to do so. They may either forward their own contributions directly to the Fund Administrators or, where it is practicable to do so, authorise the Employer to pay into the fund from the Employee’s wages amounts specified by the Employee.
Cessation of Contributions
An Employee’s eligibility for contributions to the fund will cease on the last day of employment with the Employer and the Employer must not make any contributions to the fund in respect of any period beyond that last day of employment.
(32) Transmission of Business
(a) Where a business is, whether before or after the date of insertion of this clause in the Agreement transmitted from an Employer (transmittor) to another Employer (transmittee), and an Employee who at the time of such transmission was an Employee of the transmittor of the 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
(ii) the period of employment which the Employee has had with the transmittor or any prior transmittor shall be deemed to be service of the Employee with the transmittee.
(b) In this clause, ‘business’ includes trade, process, business or occupation and includes a part or subsidiary (which means a corporation that would be taken to be a subsidiary under the Corporations Law, whether or not the Corporations Law applies in the particular case) of any such business and ‘transmission’ includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and ‘transmitted’ has a corresponding meaning.
(c) In this clause ‘Redundancy” is not applicable where a business is before or after the date of the insertion of this clause into the Agreement, transmitted from an Employer (transmittor) to another Employer (transmittee), in any of the following circumstances:
(i) where the Employee accepts employment with the transmittee which recognises the period of continuous service which the Employee had with the transmittor, and any prior transmittor, to be continuous service of the Employee with the transmittee; or
(ii) where the Employee rejects an offer of employment with the transmittee:
(A) in which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the Employee at the time of ceasing employment with the transmittor; and
(B) which recognises the period of continuous service which the Employee had with the transmittor and any prior transmittor to be continuous service of the Employee with the transmittee.
It is agreed that the Company and the employees will work towards a fortnightly pay system to be implemented in the next Agreement.
(34) No Extra Claims
The Employees bound by this Agreement will not pursue extra claims, for increased wages and improvement of award conditions or over award, for the duration of this Agreement.
(35) Grievance and Dispute Settlement Procedure
(a) The principle of conciliation and direct negotiation will be adopted for the purpose of prevention and settlement of all disputes, grievances or difficulties (“the matter”).
(b) The parties will take an early and active part in discussions and negotiations aimed at preventing or settling matters in accordance with the agreed procedure set out hereunder.
All matters will be resolved in the following sequence:
1. Discussions shall initially be held between the employee(s) concerned and their supervisor(s) to attempt to resolve the matter.
2. Should the matter remain unresolved, discussions involving the employee(s) concerned, the employee representative and the employer will be held to attempt to resolve the matter.
3. Should the matter remain unresolved, discussions involving the employee’s representatives and senior management will be held to attempt to resolve the matter.
4. If the matter is not resolved through the steps specified in subclauses above, the matter may be referred to Fair Work Australia for conciliation initially and then arbitration.
(c) Fair Work Australia may deal with the matter in 2 stages:
1. Fair Work Australia may first attempt to resolve the matter as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
2. if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
● arbitrate the dispute; and
● make a determination that is binding on the parties.
If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act 2009 (Cth).
(d) At any stage of the above process either party may be represented by a representative of their choice.
(e) Provided that the cost of representation shall be borne solely by the party seeking such representation.
(f) Until the matter is resolved in accordance with the above procedure, work will continue in a normal, uninterrupted manner. While the above procedure is being followed no party will be prejudiced as to the final outcome by continuing to work in accordance with this clause.
(g) The parties to this Agreement agree to take all possible action to attempt to settle any matter within a reasonable time period. At least 3 days should be allowed for all stages of discussions to be finalized.
(h) This clause will not prevent any party to the matter from taking an application to Fair Work Australia or its successor for conciliation, initially, and then arbitration.
Provided the parties shall, before taking the matter to Fair Work Australia, confer amongst themselves and make all reasonable attempts to resolve the matter.
(i) Further guidance in respect of the resolution of grievance can be found in the Company’s Employee Procedures & Guidelines (EPG)
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