AP817693 - Kmart Australia Ltd Award 2002
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
10. TERMS OF EMPLOYMENT
10.1 Full-time employment
10.1.1 A full-time employee shall be hired by the week (subject to clause 10.5) to work 152 hours over a four week cycle. The minimum daily engagement shall be 4 consecutive hours.
10.1.2 A full-time employee who is ready, willing and available to work the number of hours prescribed herein as a week's work shall be paid the full weekly wage prescribed in clause 12 - Wages.
10.2 Regular part-time employees
10.2.1 An employer may employ regular part-time employees in any classification in this award.
10.2.2 A regular part-time employee is an employee who:
(a) works less than full time hours of 38 hours per week: and
(b) has reasonably predictable hours of work.
10.2.3 At the time of first being employed, the employer and the regular part-time employee will agree, in writing, on a regular pattern of work in accordance with the relevant rostering principles outlined in clause 17.2, specifying at least:
(a) the hours worked each day;
(b) which days of the week the employee will work;
(c) the actual starting and finishing times of each day;
(d) variation must be made in writing;
(e) minimum daily employment is three consecutive hours;
(f) all time worked in excess of the agreed hours other than those hours worked as flex up in accordance with clause 10.3.5 shall be paid at the appropriate overtime rate;
(g) the entitlement and the duration of meal breaks as outlined in clause 18.
10.2.4 Any agreement to vary the regular pattern of work must be made in writing before the variation occurs.
10.2.5 The agreement and variation to it must be retained by the employer and a copy given to the employee.
10.2.6 An employer is required to roster a regular part-time employee for a minimum three consecutive hours on any shift.
10.2.7 An employee who does not meet the definition of a regular part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 10.4.
10.2.8 A regular employee employed under the provisions of this clause must be paid for the ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
10.3 Rosters
10.3.1 A part-time employees agreed hours of work may be reduced in accordance with clause 10.3.6.
10.3.2 A part-time employee’s roster may be altered in accordance with clause 17.2.8.
10.3.3 Rosters shall not be changed from week to week, or fortnight to fortnight, nor shall they be changed to avoid any award entitlements.
10.3.4 No part-time employee may be employed on more than five days per week other than at the request in writing of the employee concerned or pursuant to clause 17.2.4.
10.3.4 A part-time employee's hours may be increased within the span of ordinary hours in clause 16 - Hours of work on a temporary basis during any four week cycle, provided the employee agrees and provided the total hours do not exceed the maximum hours prescribed for a full-time employee. The additional hours worked will be paid at ordinary time plus 15%. Provided that additional hours worked on Saturday after 6.00 p.m. will be paid at ordinary time plus 40% and on Sunday at ordinary time plus 65%.
Any extra hours paid with a loading on this basis will not be taken into account when calculating leave entitlements other than long service leave as provided by state legislation or by clause 18 - Meal breaks and rest breaks.
10.3.6 A part-time employee's contract hours may only be reduced under the following conditions:
(a) two weeks notice of such reduction is given to the employee concerned or, if the employee disagrees, four weeks notice is provided in lieu of two weeks,
(b) the maximum reduction in any anniversary year shall be 20% of the contract hours worked, and
(c) A part-time employee whose hours have been reduced shall be given first opportunity to restore hours to the previous level when operational requirements permit.
10.3.7 Subclause 10.3.6 shall not apply to those part-time employees employed in Victoria at 1 November 1994. Where hours must be reduced in Victoria due to trading difficulties part-time employees will be offered the option of reduced hours or redundancy.
10.4 Casual employment
10.4.1 A casual employee shall be hired by the hour to work when available and as required for less than the prescribed number of ordinary hours for a full-time employee. The minimum daily engagement shall be three consecutive hours.
10.4.2 Except as provided in clauses 16 - Hours of work, 19 - Overtime and 26 - Public holidays for each hour worked, a casual will be paid the appropriate hourly rate plus 20% of the ordinary hourly rate.
10.4.3 Casual employees are not entitled to:
10.4.4 The minimum period of engagement for casual employees engaged in Tasmania prior to 1 November 1994 shall remain at four consecutive hours from Monday to Friday and two consecutive hours on Saturday.
10.4.5 Casual employment caring responsibilities
[10.4.5 inserted by PR968607 ppc 09Dec05]
10.4.5(a) Subject to the evidentiary and notice requirements in 21.2.3 and 21.2.4 casual employees are entitled to not be available to attend work, or to leave work:
10.4.5(b) The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.
10.4.5(c) An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.
10.5 Limited tenure employees
10.5.1 Kmart shall have the right to engage employees on a limited tenure basis as either full-time or part-time employees provided that such periods of limited tenure shall:
(a) not be less than one month provided that the minimum engagement may be two weeks where the sole purpose is the replacement of an employee on annual leave;
(b) not be more than twelve months' duration; and
(c) not run consecutively.
10.5.2 Prior to commencement of a period of limited tenure, the employee shall be advised in writing of the nature of the work, the hours to be worked, the proposed weekly earnings and the commencing and ceasing dates of their limited tenure employment.
10.5.3 Limited tenure employment may be terminated by either party in accordance with the provisions of subclause 10.6 Termination of employment and clause 11 Redundancy.
10.5.4 Limited tenure employment shall be voluntary and in the case of existing employees, the savings provision of this award shall continue to apply.
10.5.5 An employee who accepts change to limited tenure shall not be disadvantaged in respect to their terms and conditions of employment.
10.5.6 The provisions of this clause do not constitute employment of the type specified in regulation 30B of the Workplace Relations Regulations in circumstances where limited tenure is offered and accepted by persons already in the employ of the employer, provided those employees were not previously covered by regulation 30B.
10.5.7 Where an employee varies their employment contract to a limited tenure contract, such an employee shall, at the conclusion of the limited tenure period, revert to a position of employment which is no less advantageous to the employee than that which existed immediately prior to the limited tenure contract.
10.6 Termination of employment
[10.6 substituted by PR952230 ppc 20Sep04]
10.6.1 Notice of termination by employer
10.6.1(a) In order to terminate the employment of an employee the employer must give to the employee the period of notice specified in the table below:
Period of continuous service |
Period of notice |
Less than 1 year |
1 week |
1 year and less than 3 years |
2 weeks |
3 years and less than 5 years |
3 weeks |
5 years and over |
4 weeks |
10.6.1(b) In addition to the notice in 10.6.1(a), employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, are entitled to an additional week's notice.
10.6.1(c) Payment in lieu of the prescribed notice in 10.6.1(a) and 10.6.1(b) must be made if the appropriate notice period is not required to be worked. Provided that employment may be terminated by the employee working part of the required period of notice and by the employer making payment for the remainder of the period of notice.
10.6.1(d) The required amount of payment in lieu of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. That total must be calculated on the basis of:
10.6.1(d)(i) the employee's ordinary hours of work (even if not standard hours); and
10.6.1(d)(ii) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and
10.6.1(d)(iii) any other amounts payable under the employee's contract of employment.
10.6.1(e) The period of notice in this clause does not apply:
10.6.1(e)(i) in the case of dismissal for serious misconduct;
10.6.1(e)(ii) to apprentices;
10.6.1(e)(iii) to employees engaged for a specific period of time or for a specific task or tasks;
10.6.1(e)(iv) to trainees whose employment under a traineeship agreement or an approved traineeship is for a specified period or is, for any other reason, limited to the duration of the agreement; or
10.6.1(e)(v) to casual employees.
10.6.1(f) Continuous service is defined in clause 4.6.
10.6.2 Notice of termination by an employee
10.6.2(a) The notice of termination required to be given by an employee is the same as that required of an employer, save and except that there is no requirement on the employee to give additional notice based on the age of the employee concerned.
10.6.2(b) If an employee fails to give the notice specified in 10.6.1(a) the employer has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received under 10.6.1(d).
10.6.3 Job search entitlement
Where an employer has given notice of termination to an employee, an employee shall be allowed time off without loss of pay for a cumulative period of up to 8 hours for the purpose of seeking other employment. The time off shall be taken at times that are convenient to the employee after consultation with the employer.
10.6.4 Transmission of business
Where a business is transmitted from one employer to another, as set out in clause 11 - Redundancy, the period of continuous service that the employee had with the transmittor or any prior transmittor is deemed to be service with the transmittee and taken into account when calculating notice of termination. However, an employee shall not be entitled to notice of termination or payment in lieu of notice for any period of continuous service in respect of which notice has already been given or paid for.
10.7 Probationary period
10.7.1 Kmart may engage full-time and part-time employees on a probationary basis for a period not exceeding two months.
10.7.2 Probationary employment can be terminated with one days notice by either party during the above mentioned period.
