AP806313CRV - National Fast Food Retail Award 2000
[Common rule declared by PR957912 from 26May05]
Further to the decision given orally on 26 April 2005 and pursuant to ss.141 and 493A of the Workplace Relations Act 1996 the Commission makes the following declaration for a common rule award:
1. In this Declaration:
1.1 “the award’ means the National Fast Food Retail Award 2000 as varied from time to time;
1.2 “employees” means employees in the industry who perform work of a kind that is covered by the award;
1.3 “employers” means employers who employ employees;
1.4 “the industry” means:
all work in or in connection with the receipt of orders for and/or preparation and/or sale and/or delivery of:
2. That save for and subject to the matters referred to in clauses 4 to 11 below, the whole of the terms of the award except those specified in clause 3 below, shall be:
2.1 a common rule for the industry in Victoria and known as the Fast Food Retail Victorian Common Rule Declaration 2005;
2.2 binding on all employers in respect of the employment by them of employees;
2.3 binding on all employees; and
2.4 binding on the Shop Distributive and Allied Employees Association.
3. The following clauses of the award are not included in the Fast Food Retail Victorian Common Rule Declaration 2005:
3.1 clause 4 – Area, Incidence and Duration;
3.2 clause 15.1 – Classification – Wage Group, New South Wales;
3.3 clause 16 - Allowances and/or Additional Rates;
3.4 clause 18 – Location Allowances;
3.5 clause 24.1 Weekend and Late Night Rates and Loadings, New South Wales;
3.6 clause 28.2.2 – Sick Leave, New South Wales;
3.7 clause 34 – Long Service Leave in Western Australia.
4. The Fast Food Retail Victorian Common Rule Declaration 2005 shall not apply to:
4.1 The heating or reheating of pre cooked or prepared foods which are sold in, milk bars, grocery shops or shops trading as delicatessens, or,
4.2 Employers who are primarily engaged in the preparation and/or cooking and/or packaging of take away food items where such items are only sold wholesale.
5. Subject to 5.1 to 5.5 below, all provisions in the Fast Food Retail Victorian Common Rule Declaration 2005 are to operate from 26 May 2005.
5.1 With respect to annual leave, only periods of annual leave commencing on or after 26 June 2005 attract leave loading.
5.2 With respect to redundancy payments for employees of employers who have less than 15 employees, only service on or after 26 May 2005 is to be taken into account for the purpose of calculating `service'.
5.3 With respect to redundancy payments for employees of employers who have 15 employees or more, only service on or after 26 May 2004 is to be taken into account for the purpose of calculating `service'.
5.4 Any accident make-up pay clause is to apply in relation to any injury on or after 3 August 2004.
5.5 The wages clauses (including all allowances and penalty payments) are to commence operation from the first pay period on or after 26 May 2005.
6. The Fast Food Retail Victorian Common Rule Declaration 2005 shall not apply to employers respondent by any means to any other award of the Australian Industrial Relations Commission in respect of the employment by them of employees covered by that award.
6.1 The Fast Food Retail Victorian Common Rule Declaration 2005 shall not apply to employers respondent to one of the following awards, or any award replacing such awards:
6.1.1 SDA Hungry Jacks Victoria Award 2002.
6.1.2 KFC National Enterprise Award 2001.
6.1.3 McDonald’s – Shop Distributive and Allied Employees Association – Victoria Award 2004.
6.1.4 Pizza Hut – SDA National Employee Relations Award 2000.
6.1.5 Shop Distributive and Allied Employees Association – Red Rooster Award 2002.
6.2 The Fast Food Retail Victorian Common Rule Declaration 2005 shall not apply to Eagle Boys Dial a Pizza Pty Ltd or its franchisees.
7. This declaration shall not apply to a person with a disability who is eligible for a Disability Support Pension and who is employed by a supported employment service that receives funding under the Disability Services Act 1986 (Cth) to provide support for that person. [See Note 1 below.]
8. An employer who is making superannuation contributions into a complying superannuation fund, within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth), on behalf of an employee covered by this declaration prior to the date of effect of this declaration is exempt from any provision in the award which specifies the fund or funds into which superannuation contributions are to be paid. [See Note 2 below.]
9. In application to each employee who commenced employment prior to the commencement of this declaration, the employer shall be entitled to offset any amounts paid under the employee’s contract of employment against any amounts payable under the Fast Food Retail Victorian Common Rule Declaration 2005. For the purposes of this clause all payments made over the period of operation of the Fast Food Retail Victorian Common Rule Declaration 2005 pursuant to the contract of employment may be taken into account for the purpose of limiting any payment due under the Fast Food Retail Victorian Common Rule Declaration 2005 to whatever may be the deficiency between Fast Food Retail Victorian Common Rule Declaration 2005 entitlements for an employee for a period in dispute against the aggregate entitlement under the employee’s contract of employment for any reasonably corresponding period. Provided that this clause shall cease to operate in relation to any employee if and when the contract of employment of that employee is varied at any time after 6 months after the commencement of this declaration.
10. Nothing in this declaration reduces or in any way detracts from any accrued rights to any forms of leave including sick leave, annual leave, long service leave or parental leave to which employees or any of them have become entitled by accrual or otherwise prior to the commencement date in clause 11 below.
11. This declaration shall be an award of the Commission, shall come into force on 26 May 2005 and shall remain in force for a period of 3 months and thereafter in accordance with the Act. [See Note 3 below.]
Note 1
1. Disability Support Pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided for under the Social Security Act 1991 (Cth), as amended from time to time, or any successor to that scheme.
2. The intention of this provision is limited to preventing the award from applying to sheltered workshops (i.e. supported employment services) - it does not prevent the award from applying to employees with disabilities in open employment.
3. Leave is reserved for any party to have this issue reconsidered in the light of any developments in the national process which is currently considering workplace relations issues for sheltered workshops. This national process includes the Disability Sector National Industry Consultative Council and any related applications that seek award coverage for sheltered workshops.
Note 2
1. The purpose of the exception above is to maintain the status quo in respect of employers who, as at the date of effect of the common rule declaration, are making superannuation contributions into a complying superannuation fund. These employers will not be required to change their existing arrangements. Nor will there be any requirement for the existing arrangements to be the subject of an agreement between the employer and employees. For the avoidance of doubt, the exception continues to apply to employers who are making superannuation contributions to complying superannuation funds which are successor funds (as defined in Regulation 1.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), or as amended or replaced by other legislation) into which benefits are transferred, after the date of effect of the common rule declaration, in accordance with the Superannuation Industry (Supervision) Act 1993 (Cth) and the Regulations thereunder. Further, "existing arrangements" includes the making of contributions to such funds.
2. The exception is in respect of current and future employees of the employers who are entitled to the benefit of the exemption.
3. The exception does not apply to new businesses which are established after the date on which the award is declared to have effect as a common rule.
4. The exception only applies to employers who are required to apply the terms of the award by virtue of the Common Rule declaration. It does not apply to employers who are named respondents to the award or who are parties bound by virtue of the membership of an employer organisation.
5. The exception applies subject to any Commonwealth legislation to the contrary.
Note 3
Subject to s.113 of the Workplace Relations Act 1996 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters (see s.148 of the Workplace Relations Act 1996).
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