1

[2012] FWAA 7357

DECISIONFair Work Act 2009 s.185—Enterprise agreement

Kmart Australia Limited(AG2012/5509)

KMART AUSTRALIA LTD AGREEMENT 2012

Storage services

COMMISSIONER GAY MELBOURNE, 27 AUGUST 2012

Application for approval of the Kmart Australia Ltd Agreement 2012.

[1] An application has been made for approval of a single-enterprise agreement known as the Kmart Australia Ltd Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kmart Australia Limited.

[2] Kmart Australia Limited has provided a signed written undertaking as to the queries I had expressed. I am satisfied the undertaking meets my concerns.

[3] In accepting the undertaking I have also accepted that it is not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Australian Workers Union (AWU) and the Shop Distributive and Allied Employees Association (SDA), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers them.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 September 2012. The nominal expiry date of the Agreement is 30 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code O, AE896430 PR528409>

PART 1 -APPLICATION AND OPERATION

1 ~TITLE

This Agreement shall be known as the Kmart Australia Ltd Agreement 2012.

2 ~ARRANGEMENT PAGE

PART 1-APPLICATION AND OPERATION OF AGREEMENT .........•.................................................................................. 1

1 TITLE ..................................................................................................................................................................................... 1 2 ARRANGEMENT ..................................................................................................................................................................... 1 3 INCIDENCE AND PARTIES BOUND .......................................................................................................................................... 3 4 0BJECTIVES ............................................................................................................................................................................ 4 5 DURATION ............................................................................................................................................................................. 5 6 DEFINITIONS .......................................................................................................................................................................... 6

PART 2- WAGES, ALLOWANCES AND RELATED MATTERS ............................................................................................ 8

7 WAGES .................................................................................................................................................................................. 8 8 FIRST AID ............................................................................................................................................................................ 15 9 TRANSPORT, DRIVERS AND ALLOWANCE ............................................................................................................................ 16 10 LOCATION ALLOWANCE ...................................................................................................................................................... 18

PART 3- EMPLOYMENT RELATIONSHIP AND HOURS OF WORK ................................................................................ 19

11 TERMS OF EMPLOYMENT ..................................................................................................................................................... 19 12 HOURS OF WORK ................................................................................................................................................................. 25

PART 4- ROSTERING, BREAKS AND OVERTIME ............................................................................................................... 27

13 ROSTER CONDITIONS ........................................................................................................................................................... 27 14 0VERTIME ........................................................................................................................................................................... 32 15 MEAL BREAKS AND TEA BREAKS ....................................................................................................................................... 35

PART 5- LEAVE AND PUBLIC HOLIDAYS ............................................................................................................................. 37

16 PUBLIC HOLIDAYS ............................................................................................................................................................... 37 17 ANNUALLEAVE .................................................................................................................................................................. 43 18 LONG SERVICE LEAVE ......................................................................................................................................................... 46 19 PERSONAL LEAVE ............................................................................................................................................................... 47 20 PRE-NATALLEAVE .............................................................................................................................................................. 51 21 COMPASSIONATELEAVE ..................................................................................................................................................... 52 22 BLOOD DONOR LEAVE ....................................................... , ................................................................................................ 53 23 COMMUNITY SERVICE LEAVE AND OTHER LEAVE ............................................................................................................... 54 24 PARENTAL LEAVE AND REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS ..................................................................... 57 25 INTRODUCTION OF CHANGE ................................................................................................................................................ 69 26 REDUNDANCY ..................................................................................................................................................................... 70 27 DISPUTES RESOLUTION PROCEDURE ....................................................................................................... ··· ......................... 73

PART 7- COMPANY AND TEAM MEMBER'S DUTIES, WORKPLACE SAFETY & RELATED MATTERS .............. 75

28 SUPERANNUATION ............................................................................................................................................................... 75 29 ACCIDENT PAY .................................................................................................................................................................... 78 30 RETAIL TRAINEESHIPS ......................................................................................................................................................... 79 31 DRESS AND PRESENTATION STANDARDS ............................................................................................................................. 80 32 PROTECTIVE CLOTHING ....................................................................................................................................................... 81 33 POSTING OF AGREEMENT AND FAIR WORK INFORMATION STATEMENT .............................................................................. 82 34 SAVINGS PROVISIONS ...................................................................................................................... ··········· ......................... 83

35 INDNIDUAL FLEXIBILITY TERM ........................................................................................................................................... 87 36 WORKPLACE SAFETY .......................................................................................................................................................... 88 3 7 GUIDELINES CONCERNING SECURITY PROCEDURES ............................................................................................................ 91 38 INTERACTIONWITHTHENES ..................................................................................................................................... 93 39 TRADE UNION TRAINING LEAVE ............................................................................................................................... 93 40 UNION RECOGNITION AND MEMBERSHIP ............................................................................................................................ 94 41 UNION DELEGATES ............................................................................................................................................................. 95 42 UNION NOTICE BOARD ........................................................................................................................................................ 95 43 PAID UNION MEETINGS ....................................................................................................................................................... 95 44 SIGNATORIES TO THE KMART AUSTRALIA LTD AGREEMENT 2012 ..................................................................................... 96

PART 8 -APPENDICES ................................................................................................................................................................. 97

APPENDIX A- CONCILIATION AND ARBITRATION ...............................................................................•........................................ 97 APPENDIX B- ALPHABETICAL INDEX ................................................................................................................................ 1 01

3 ~INCIDENCE AND PARTIES BOUND

3.1. This Agreement shall be binding upon:

(a) Kmart Australia Limited; and

(b) The Shop Distributive and Allied Employees' Association in respect of team members, whether members of the Union or not, who are employed by Kmart ("Kmart Stores") throughout Australia but excluding K Auto Service Centres, in the classifications contained in this Agreement; and

(c) The Australian Workers Union (QLD Branch) with respect to team members, whether members of the A WU or not, who are employed by Kmart stores in Queensland within the boundaries commencing at the sea-coast at 24 degrees 30 minutes of south latitude, thence by that parallel of latitude bearing tme west to 151 degrees of each longitude, thence by that degree of longitude bearing tme south to 25 degrees of south latitude; thence by that parallel of latitude bearing tme west to the western border ofthe State of Queensland; thence by the western border ofthe state, bearing tme north to 22 degrees 30 minutes of south latitude; thence by that parallel oflatitude bearing tme east to 147 degrees of east longitude; thence by that degree of longitude bearing true north to 22 degrees of south latitude; thence by that parallel of latitude bearing true east to the sea-coast; thence by the sea-coast southerly to the point of commencement and including the islands adjacent to the Coast within that area excluding the Local Government Areas of Rockhampton and Gladstone, but excluding K Auto Service Centres, in the classifications contained in this Agreement.

3.2. It is agreed that team members employed within retail stores in management pay ranged positions equivalent to or greater than pay range 11, as appointed or promoted, are not covered by the tenns and conditions of this Agreement.

3.3. Subject to the requirements of the Fair Work Act 2009, this Agreement shall operate in complete substitution of any Award (including any Modern Award and the General Retail Industry Award 2010) or Agreement, whether state or federal, previously covering such team members as are provided for within the classifications contained herein.

4 - OBJECTIVES

4.1. The ongoing development of a supportive relationship between team members and Kmart built on commitment to trust and mutual respect.

4.2. The achievement ofthe competitive requirement of increased customer service at a lower cost through enhanced productivity and efficiencies within the workplace.

4.3. The creation of a flexible work environment that recognises the changing needs ofthe customer and which enables team members to work to the level of their skills, training and capabilities.

4.4. To communicate and consult with team members encouraging them to participate and become involved in matters that have an impact on their environment and positions within the organisation.

4.5. To provide more stable and secure employment for all team members with the objective of minimal turnover and long term employment.

4.6. To provide a healthy, safe and harmonious working environment. In working towards the achievement of this objective, Kmart and the Union shall honour the provisions in relation to Workplace Safety as set out in clause 37.

4.7. Equal Employment Opportunity, Workplace Harassment and Discrimination

4. 7.1 It is the intention of Kmart to comply with all relevant legislation to provide equal opportunity for every team member in all spheres of employment, and an environment in which team members may work without distress or interference caused by harassment, including sexual harassment and discrimination

4.7.2 Kmart also undertakes to periodically review a nationally applicable equal opportunity policy and grievance procedures, in conjunction with the Union.

4.7.3 It is the intention ofKmart to provide all team members access to a copy of each policy and appropriate training in the principles and procedures in relation to equal opportunity including, discrimination, harassment and sexual harassment

4.7.4 Kmart and the Union agree that duly authorised officers of each organisation, or their representatives, shall meet on a 6 monthly basis or more frequently if agreed during the life of the Agreement, to discuss, monitor and review equal opportunity and harassment matters or concerns, in relation to team members covered by this Agreement.

5 -DURATION

5.1. This Agreement will come into effect seven days after the date it is approved by Fair Work Australia and will remain in force until Apri130, 2016.

5.2. It is agreed that there shall be a no-extra claims commitment dui-ing the life of this Agreement.

6 - DEFINITIONS

6.1. Permanent Team Member

Shall mean either a full-time or part-time team member.

6.2. Casual Team Member

Shall mean a person engaged on an hourly basis to work when available and as required by Kmart.

6.3. Ordinary Hourly Rate

The ordinary hourly rate of pay for full-time and part-time team members shall be 1/38th of the appropriate weekly rate contained in clause 7. The ordinary hourly rate of pay for casual team members shall be 1/38th of the appropriate weekly rate contained in clause 7 plus 20%.

6.4. Continuous Service

Continuous service shall, for the purpose of annual leave and personal leave accruals (include all service with Kmart from the date of engagement, but shall not include in any anniversary year of accrual:

(a) Unauthorised absences of more than one week, and

(b) Authorised unpaid absences (including unpaid absences due to sickness) of more than one week, but excluding any period of community services leave in accordance with the NBS

Continuous service shall for the purpose of determining eligibility for parental leave, requests for flexible working arrangements, calculation of termination notice and severance pay shall include all service with Kmart from the date of engagement, but shall not include in any anniversary year of accrual any unauthorised absences.

6.5 FWA

Means Fair Work Australia.

6.6 NES

Means the National Employment Standards contained in the Fair Work Act 2009.

6.7 Union

Union shall mean the Shop Distributive and Allied Employees' Association (SDA) and the Australian Workers Union (QLD Branch) in respect to the area of coverage specified in sub­clause 3.1 of this Agreement.

6.8 Systematic Cleaning

Systematic cleaning shall not mean cleaning duties incidental to a team member's duties. Incidental cleaning shall include dusting of shelves and stock, the sweeping up of packaging materials within the general work area, the cleaning of implements and fixtures used and the cleaning (including vacuum cleaning) of the immediate work area. Incidental cleaning shall not include the wet washing of floors, the cleaning of toilets, sweeping of pavement areas excepting incidental to sales promotion activities, the cleaning of exterior windows other than for the removal of occasional defacements, the cleaning of electrical and plumbing vents, electrical conduits and pipe work.

6.9 Key Operational Periods

Key Operational Period shall mean in each year:

(a) The commencement of the 4 week cycle prior to the last Monday in October to the cessation of the 4-week cycle following the last Sunday in February; and

(b) The commencement of the 4 week cycle prior to the half yearly stock take to the cessation of the 4-week cycle following the last Sunday in July.

Key Operational Period shall also mean 2 consecutive 4-week cycles during which a store refit is undertaken. Store refit means the refurbishment of a store involving the use of shop fitters in accordance with specified refurbishment drawings/plans, but does not mean an occasional change in the layout or format of a store. During the life of this Agreement no more than one (1) Key Operational Period will operate per store for a refit.

6.10 De facto Partner

Has the same meaning as set out in the Fair Work Act 2009.

PART 2- WAGES, ALLOWANCES AND RELATED MATTERS

7" WAGES

7.1. Rates ofPay

7.1.1 Effective from the first pay period to commence on or after the dates shown below.

Extended 1 May 1 Nov 1 May 1 Nov 1 May 1 Nov 1 May 1 Nov trade 2012 2012 2013 2013 2014 2014 2015 2015 stores*

Level3 $769.70 $782.90 $796.10 $809.30 $822.50 $835.70 $848.90 $862.10 Retail Assistant Level2 $717.20 $729.50 $741.80 $754.10 $766.40 $778.70 $791.00 $803.30 Retail Assistant Levell $699.70 $711.70 $723.70 $735.70 $747.70 $759.70 $771.70 $783.70 Retail Assistant

Non- 1 May 1 Nov 1 May 1 Nov 1 May 1 Nov 1 May 1 Nov extended 2012 2012 2013 2013 2014 2014 2015 2015 trade stores**

Leve13 Retail $764.90 $778.10 $791.30 $804.50 $817.70 $830.90 $844.10 $857.30 Assistant Leve12 $712.80 $725.10 $737.40 $749.70 $762.00 $774.30 $786.60 $798.90 Retail Assistant Levell $695.40 $707.40 $719.40 $731.40 $743.40 $755.40 $767.40 $779.40 Retail Assistant

*"Extended Trade Stores" are stores which may legally trade 5 nights per week and/or where general Sunday trading legally commences. "General Sunday Trading" shall mean trading on all Sundays throughout the year except Easter Sunday and Public Holidays.

**Non-extended trade stores are stores which may legally trade less than 5 nights per week.

7 .1.2 Rates of Pay Principles in relation to trading hours

a) Rates of pay are to prevail for legal trading ability. b) When changes to legal trading ability occur, the rate of pay will change. c) Where the change results in a reduction in the rate of pay, no team member will

sustain a reduction in their rate of pay. However, the subsequent increases in pay as provided under the terms of the Agreement will absorb any additional amount.

d) Where a change results in an increase in the rate of pay, team members will receive the increased rate of pay from the commencement ofthe following pay cycle.

7.1.3 The Level2 and Level 3 rates as defined shall be at the proportion of 102.5% and 110% respectively in relation to the Level 1 rate of pay.

7.1.4 Junior Rates are as follows:

20yo 100.0% 19 yo 80.0% 18 yo 67.5% 17 yo 55.0%* 16 yo & below 50.0%

*Increases to 57.5% from first pay period to commence on or after 1 May 2014.

7 .1.5 The junior proportions shown above shall not apply where a team member is performing supervision work in accordance with the provisions of sub-clause 7.3 of this Agreement or level 3 clerical work.

7.1.6 Standing down of team members

The Company may stand down a team member without pay if the team member cannot be usefully employed because of any strike, breakdown iri machinery, or stoppage of work by any cause for which the Company cannot reasonably be held responsible provided that:

(a) each period for which useful work cannot be perfonned extends beyond 2 days before the stand down occurs;

(b) a team member stood down does not lose entitlements to benefits of a public holiday which falls during the stand down period;

(c) when calculating entitlements for continuity of employment, annual leave, personal leave and long service leave, any such time shall be counted as time worked.

7 .1. 7 Recovery of overpayments

a) In the event that K.mart inadvertently makes an overpayment of remuneration to a team member and the entitlement to that remuneration is governed by this Agreement, K.mart shall have the right to recover such overpayment in accordance with this sub-clause.

b) K.mart must advise the team member in writing of the amount of the overpayment and the reason and circumstance of the overpayment.

c) K.mart and the employee may agree on the amount to be recovered from each periodic pay of the employee, the number of periodic pays that will be affected by the recovery action and the usual amount of pay that the employee will receive whilst the recovery action occurs. The agreement shall be in writing, however an employee will not unreasonably withhold their agreement.

d) An employee may dispute any overpayment recovery claim. If no agreement is reached, the matter must be dealt with under the Dispute Settlement Procedure of this Agreement. Any resolution of a dispute about an overpayment recovery claim must have regard to all the circumstances of the case and may determine the amount, if any, ofthe overpayment to be recovered and the method and timing of any recovery of an overpayment.

7.2. Classification Definitions

Level 3 - A Retail Assistant employed at this level shall perform Payroll Clerk duties or shall provide supervision in accordance with sub-clause 7.3 of this Agreement. Payroll Clerk duties shall include the operation and application of a wage and salary system to calculate wages and maintain records.

Level 2 - A Retail Assistant employed at this level shall perform non-payroll clerical duties (excluding returns and repairs related work) or shall perform as a Specialist Retail Assistant. Clerical duties performed at this level shall include general clerical routines not related to payroll duties. A Specialist will have completed the credentialed training and shall perform the range of specialist duties. The following positions shall be deemed to be Level 2 Specialists: Mini-Lab Specialist and Self-Serve Checkout Specialist.

Level 1 - A Retail Assistant employed at this level shall perform sales, replenishment and returns/repairs related duties. Retail Assistants may not be engaged to carry out systematic cleaning duties as defined.

A team member may be required to perform any function or work in any area at their classification level provided those duties are within the skill,competence and training of the team member.

Classification Payment principles

• Team members performing duties in a higher level will receive payment at the higher rate for actual hours worked (based upon rostered hours) whilst performing such duties, except team members providing supervision who will be paid in accordance with sub-clause 7.3 of this Agreement

• If a team member works regular rostered hours in another area of lower classification, they will be paid the lower rate. If the team member is requested to work on an ad hoc basis in a lower classification, they will continue to receive their normal (higher) rate.

• New adult team members with no relevant retail experience may be paid an "introductory rate" equivalent to 95% of either the Level 1 rate or the Level 2 rate for new clerks. This "introductory rate" shall apply for a maximum period of up to 3 months of service following the commencement of their employment.

7.3. Supervision

7.3 .1 Where a team member temporarily performs in a management position they will be paid an allowance 10% above the Level 1 Retail Assistant's rate for full-time and part-time team members and at the Levell Retail Assistant's rate plus 30% for casual team members.

7.3.2 The need for such temporary perfonnance will be at management's detennination. Temporary perfonnance in a management position will generally apply for one week or more.

7.3.3 In exceptional circumstances, for periods of less than 1 week, payment for temporary perfonnance will be on the following basis: -For a period ofless than 4 hours the team member shall be paid on an hourly basis, and -For a period of 4 hours or more payment shall be made for the entire shift.

The provisions of this clause shall also apply in the following circumstances: a) A team member is providing supervision during a Line Manager's period ofleave; or b) A team member is perfonning supervision duties at the checkout area ie Front End

Supervisor; or c) A team member who is canying keys and opening the store for replenishment

purposes until a Manager anives at the store.

7.4. Payment of Wages

7.4.1 Kmart shall pay wages weekly or fortnightly in anears, by either cash or by payment into a bank account, building society account or credit union account nominated by the team member. In the case of fortnightly pay such payment shall be made not later than Wednesday of the following pay cycle and not later than 3 days after the end of the pay cycle; provided that where a public holiday falls on a Monday or a Tuesday prior to pay day, wages shall be paid no later than Thursday in that week. In the case of weekly pays such payment shall be made not later than Thursday and not later than 3 days after the end of the pay week.

7.4.2 For the purposes of this Agreement, the pay week shall run from Monday to Sunday inclusive. Provided that payment for work performed which commences prior to midnight on Sunday night and continues into Monday, shall be paid as part of the week in which the shift commences.

7.4.3 In the case ofpermanent team members the wage paid will be calculated as an average of the wage for the 4 week roster cycle. For the purposes of averaging of pays, for full-time team members the average payment shall reflect 38 hours and for part-time team members the average payment shall reflect the contract hours of the team member.

7.4.4 Where the pay cycle or the pay day is changed so that team members receive a smaller pay or a later pay at the point of change than they have been accustomed to receive, Kmart shall pay the relevant number of days' pay in advance. The advance payment shall be phased out at a rate, which the individual team member elects over a maximum period of five months. Provided that a team member may elect to change to the new pay system immediately without an advance payment by Kmart.

7.5. Pay Advices

7.5 .1 Pay advices given to team members shall include details of a team member's current annual leave and long service leave entitlements. Where entitlements are not shown, the team member shall be provided with the entitlement details upon request.

7.5.2 Time off in lieu records will be retained at the store and the team member may review their entitlement details by request.

7.5.3 Superannuation information is provided on a monthly basis on the pay advice.

7.5.4 Kmart may provide pay advices to team members in an electronic form however where Kmart makes a decision to do so Kmart must issue pay slips to workers securely and confidentially and team members must be able to access and print their pay slips in private at the store. Kmart will consult with the union prior to implementing any change to the provision of electronic pay advices.

7.6. Supported Wage

The terms as prescribed in this clause shall apply with respect to employment of team members under the Supported Wage principles.

7.6.1 Workers Eligible for a Supported Wage

This Clause defines the conditions which will apply to team members who because of the effects of a disability are eligible for a supported wage under the terms of this Agreement. In the context of this Clause, the following definitions will apply:

a) "Supported Wage System" means the Commonwealth Government system to promote employment for people who cannot work at full Agreement wages because of a disability, as documented in [Supported Wage System: Guidelines and Assessment Process].

b) "Accredited Assessor" means a person accredited by the management unit established by the Commonwealth under the Supported Wage System to perform assessments of an individual's productive capacity within the Supported Wage System.

c) "Disability Support Pension" means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, as amended from time to time, or any successor to that scheme.

d) "Assessment instrument" means the form provided for under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System.

7.6.2 Eligibility Criteria

a) Team members covered by this Clause will be those who are unable to perform the range of duties to the competence level required within the class of work for which the team member is engaged under this Agreement, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a Disability Support Pension.

b) The Clause does not apply to any existing team member employed by Kmart who has a claim against Kmart which is subject to the provisions of workers' compensation

legislation or any provision of this Agreement relating to the rehabilitation of team members who are injured in the course of their current employment.

c) The Agreement does not apply to Kmart in respect of their facility, programme, undertaking service or the like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider and sheltered Company to people with disabilities who are in receipt of or are eligible for a disability support pension, except with respect to an organisation which has received recognition under s.l 0 or under s.12A of the Act, or if a part only has received recognition, that part.

7.6.3 Supported Wage Rates

Team members to whom this Clause applies shall be paid the applicable percentage of the minimum rate of pay prescribed by this Agreement for the class of work which the person is performing, according to the following schedule:-

Assessed Capacity % of Prescribed Agreement Rate

10%* 10% 20% 20% 30% 30% 40% 40% 50% 50% 60% 60% 70% 70% 80% 80% 90% 90%

The minimum amount payable shall be not less than $75.00 per week. Adjustments to the minimum amount payable will automatically be increased to reflect any increases flowing from any Supported Wage decision that may apply during the life of the Agreement.

*Where a person's assessed capacity is 10%, they shall receive a high degree of assistance and support.

7.6.4 Assessment of Capacity

·For the purpose of establishing the percentage of the Agreement rate to be paid to a team member under this Agreement, the productive capacity of the team member will be assessed in accordance with the Supported Wage System and documented in an assessment instrument by either:

a) Kmart and a union party to the Agreement, in consultation with the team member or, if desired by any of these;

b) Kmart and an accredited Assessor from a panel agreed by the parties to the Agreement and the team member

7.6.5 Lodgement of Assessment Instrument

a) All assessment instruments under the conditions of this Clause, including the appropriate percentage of the Agreement wage to be paid to the team member, shall be lodged by Kmart with the Registrar of the Industrial Relations Commission.

b) All assessment instruments shall be agreed and signed by the parties to the assessment, provided that where the union is not a party to the assessment, it shall be referred by the Registrar to the union by certified mail and shall take effect unless an objection is notified to the Registrar within 10 working days.

7.6.6 Review of Assessment

The assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonable request for such a review. The process or review shall be in accordance with the procedures for assessing capacity under the Supported Wage System.

7.6.7 Other Terms and Conditions of Employment

Where an assessment has been made, the applicable percentage shall apply to the wage rate only. Team members covered by the provisions of this Clause will be entitled to equal tenns and conditions of employment as all other workers covered by this Agreement, paid on a proportionate basis.

7.6.8 Workplace Adjustment

When K.mart wishes to employ a person under the provisions of this Clause, reasonable steps shall be taken to make changes in the workplace to enhance the team member's capacity to do the job. Changes may involve re-design of the job duties, working time arrangements and work Organisation in consultation with other workers in the area.

7.6.9 Trial Period

a) In order for an adequate assessment of the team member's capacity to be made, K.mart may employ a person under the provision of this Clause for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding 4 weeks) may be needed.

b) During the trial period the assessment of capacity shall be undertaken and the proposed wage rate for a continuing employment relationship shall be determined.

c) The minimum amount payable to the team member during the trial period shall be no less than $75.00 per week.

d) Work trials should include induction or training as appropriate to the job being trialed.

e) Where Kmart and the team member wish to establish a continuing employment relationship following the completion ofthe trial period, a further contract of employment shall be entered into based on the outcome of assessment under sub­clause 7.6.4, Assessment of Capacity.

8 ~FIRST AID

8.1. Kmart will provide and continuously maintain adequate first aid kits for use of team members in all locations.

8.2. Team members engaged under the tenns of this Agreement and directed by Kmart to perform first aid activities, shall, upon their request, be reimbursed the cost of receiving Hepatitis A and/or B immunisation.

8.3. Where Kmart appoints a qualified team member to perform first aid duties, they shall be entitled to an additional allowance in accordance with the following table effective from the first pay period to commence on or after the dates shown below:

1/5/2012 1111/2012 115/2013 1/11/2013 115/2014 1/11/2014 115/2015 1111/2015 Daily $1.87 $1.90 $1.93 $1.96 $1.99 $2.02 $2.05 $2.08

Weekly $11.20 $11.39 $11.58 $11.77 $11.96 $12.15 $12.34 $12.53 Maximum

8.4 Where Kmart no longer requires an appointed qualified team member to perfo;rm first aid duties, Kmart shall notify the team member in writing that the team member is no longer required to perform first aid duties. In these circumstances the first aid allowance will cease being paid to the team member from the date of notification.

9- TRANSPORT, DRIVERS AND ALLOWANCE

9.1 Transport Allowance

9 .1.1 Where a team member is temporarily transferred from one store to another, they shall be entitled to the following:

Any additional fare costs for using public transport, or

Any additional cost for private mileage will be calculated on the basis of cents per kilometre for vehicles of 1600cc or under, between 1601cc-2600cc or 260lcc and over in accordance with the guidelines from the Australian Taxation Office (A.T.O.). Rate adjustments are effective from the first pay period to commence on or after any rate adjustment is made by the ATO.

9 .1.2 Where a team member agrees to use their private vehicle on company business, the transport allowance shall apply.

9 .1.3 A team member shall also be entitled to payment of additional travelling time at the ordinary time earnings rate except on Sundays and Public Holidays when payment shall be at time and a half.

Provided such payments shall cease when the team member has been permanently transferred to the store.

Where a team member works additional hours beyond their rostered shift without having been provided with either 24 hours' notice or notice before the completion of the previous shift, and they are unable to obtain their regular form of transport home, Kmart shall arrange at its own cost, an alternative safe form of transport for the team member.

9.2 Driver's Allowance Offsite Reserves

Suitably qualified team members required to drive trucks between off-site reserves and stores shall be paid an additional amount of 64 cents per hour, whilst engaged on driving and related duties, to a maximum of $24.43 per week.

Provided that a team member who is permanently required to perform driving and related duties shall be paid such allowance during annual leave.

9.3 Forklift Driver's Allowance

Where Kmart requires a team member to obtain a Forklift Licence or renew a Forklift Licence, the cost of any training and the cost of the Licence will be paid for by Kmart.

Where a team member, who is located at an offsite, is required to operate a Forklift for a majority of a shift the team member will be paid the Level 2 rate of pay for the entire shift. Where a team member, who is located at an offsite, is required to operate a Forklift for a minority of a shift the team member will be paid the Level 2 rate of pay for the time so worked calculated to the nearest 15 minutes.

Where a team member, located at a store, is required to operate a Forklift for 1 hour or more the team member will be paid the Level 2 rate of pay for the time so worked calculated to the nearest 15 minutes.

10- LOCATION ALLOWANCE

The following district allowances shall be paid in addition to the rates prescribed in clause 7- Wages:

Darwin Alice Springs

$16.60 per week $9.30 per week

The provisions of General Order 911 of the Western Australian Industrial Relations Commission with respect to location allowances shall apply to the team members engaged under the terms of this Agreement in Karratha, Ka1goorlie, Port Hedland and any other location specified in that General Order as amended from time to time.

PART 3- EMPLOYMENT RELATIONSHIP AND HOURS OF WORK

11- TERMS OF EMPLOYMENT

11.1 Full-time Employment

11.1.1 A full-time team member shall be hired by the week (subject to sub-clause 11.5) to work 152 hours over a 4 week cycle with an average of 3 8 hours per week or 160 hours over a 4 week cycle in accordance with sub-clause 13.10.2.

11.1.2 The minimum daily engagement shall be 4 consecutive hours.

11.1.3 A full-time team member 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 7.

11.2 Part-time Employment

11.2.1 A part-time team member shall be hired by the week to work an agreed base number of hours (contract hours) between a minimum of36 hours and a maximum of 144 hours over a 4 week cycle.

11.2.2 The maximum ordinary hours worked in any week shall be 38.

11.2.3 The minimum ordinary hours worked shall be 9 hours per week or 36 hours averaged over a 4 week cycle.

11.2.4 Subject to sub-clause 13.12, the minimum daily engagement shall be 3 consecutive hours.

11.2.5 A part-time team member shall be paid the rates of pay prescribed in clause 7 on a pro­rata basis.

11.2.6 A part-time team member's hours may be increased within the span of ordinary hours in clause 12 on a temporary basis during any 4 week cycle, provided the team member agrees and provided the total hours do not exceed the maximum hours prescribed elsewhere in this Agreement. The additional hours worked will be paid at ordinary time plus 15%. Provided that additional hours worked during a period where a penalty applies, the part-time team member shall receive the penalty plus the 15% payment. The 15% payment shall be calculated on the ordinary hourly rate in accordance with clause 7 of this Agreement.

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 or territory legislation or by clause 18. The meal allowance in clause 14.5 does not apply to additional hours worked under this sub-clause.

11.2. 7 A part-time team member's contract hours may only be reduced under the following conditions:

11.2.8

a) 2 weeks notice of such reduction is given to the team member concerned or, if the team member disagrees, 4 weeks notice is provided in lieu of 2 weeks;

b) the maximum reduction in any anniversary year shall be 20% ofthe contract hours worked, and

c) hours shall not be reduced below the minimums elsewhere stated in this Agreement.

A part-time team member whose hours have been reduced shall be given first opportunity to restore hours to the previous level when operational requirements permit.

Sub-clause 11.2.7 shall not apply to those part-time team members employed in Victoria as at 1 November, 1994. Where hours must be reduced in Victoria due to trading difficulties part-time team members will be offered the option of reduced hours or redundancy.

11.3 Casual Employment

11.3 .1 A casual team member shall be hired by the hour to work when available to a maximum of 152 hours per 4 week cycle.

11.3.2 Subject to clause 13.11 and 13.12, the minimum daily engagement shall be 3 consecutive hours.

11.3.3 Except as provided in clauses 12, 14 and 16 for each hour worked, a casual will be paid the appropriate hourly rate plus 20% of the ordinary hourly rate.

11.3 .4 Casual team members are not entitled to paid public holidays except where worked (clause 16), paid personal leave (clause 19), paid annual leave (clause 17), , parental leave (except as provided in clause 24.15), blood donor leave (clause 22), leave of absence (sub-clause 23.2), defence forces leave (sub-clause 23.3),emergency services leave (sub-clause 23.4) and termination of employment (clause 11.5).

11.4 Limited Tenure Team Members

11.4.1 Kmart shall have the right to engage team members on a Limited Tenure basis as either full­time or part-time team members provided that such periods of Limited Tenure shall:

a) not be less than one month provided that the minimum engagement may be one (1) week where the sole purpose is the replacement of a team member on annual leave or long service leave or an unpaid leave of absence; and

b) not be more than 12 months' duration; unless the limited tenure is to replace a team member who has taken parental leave in accordance with clause 24; and

c) Run consecutively by agreement with the team member.

A team member shall not be worked on consecutive Limited Tenure contracts for a period exceeding 12 months (unless the limited tenure is to replace a team member who has taken parental leave in accordance with clause 24);

A team member shall not be disadvantaged in respect to their personal s leave entitlement by virtue of working consecutive limited tenure contracts.

11.4.2 Prior to commencement of a period of Limited Tenure, the team member shall be advised in writing ofthe nature of the work, the hours to be worked, the proposed weekly earnings and the commencing and ceasing dates of their Limited Tenure employment.

11.4.3 Limited tenure contracts for team members already in the employ ofKmart may be tenninated in accordance with the ceasing date specified in the limited tenure contract or at an earlier time by the provision of 1 week's notice by either party. An exception is where a team member was exclusively hired to carry out work under a limited tenure contract, in which event, the employment may be te1minated in accordance with the ceasing date of employment specified in the limited tenure contract or at an earlier time by the provision by either party of notice in accordance with the provisions of sub­clause 11.5, Termination ofEmployment.

11.4.4 Limited Tenure employment shall be voluntary for existing team members and if applicable, the savings provision of this Agreement shall continue to apply.

11.4.5 A team member who accepts change to Limited Tenure shall not be disadvantaged in respect to their terms and conditions of employment.

11.4.6 Where Limited Tenure is offered and accepted by persons already in the employ of Kmart, those team members are not team members 'engaged under a contract of employment for a specified period oftime' as referred to in s.386(2) ofthe Fair Work Act 2009.

11.4.7 Where a team member varies their employment contract to a Limited Tenure contract, such a team member shall, at the conclusion of the Limited Tenure period, revert to a position of employment which is no less advantageous to the team member than that which existed immediately prior to the Limited Tenure contract.

11.4.8 A temporary weekly team member shall receive all the benefits which apply to a weekly team member and shall be paid a proportionate annual leave entitlement at the time of termination.

11.5 Termination of Employment

11.5 .1 Excluding casuals, in order to terminate the employment of a team member, except in cases of serious misconduct which will lead to summary dismissal, Kmart shall give to the team member the following notice period:

Period of Continuous Service Period of Notice

Less than 1 year 1 week 1 year but less than 3 years 2 weeks 3 years but less than 5 years 3 weeks 5 years and over 4weeks Team members over 45 years with a minimum of 2 years' service shall be entitled to one extra week's notice.

11.5.2 For the purpose of this sub-clause continuous service shall be calculated in accordance with clause 6.4 of this Agreement.

11.5 .3 Payment in lieu of the notice prescribed as in sub-clause 11.5 .1 shall be made if the appropriate notice period is not given

11.5.4 Where Kmart has given notice to a team member of intended termination, the team member 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. Such time off shall be taken at times that are convenient to the team member after consultation with their manager.

11.5.5 Where notice of termination is given by Kmart to a team member, it shall be given to the team member in writing. The written notice must specify, how much notice is being given and the date of termination. The date of termination specified in the written notice cannot pre-date the notice date. The notice shall also set out if the notice is to be worked, compensation paid in lieu or partly worked and compensation partly paid in lieu.

11.5.6 Payment in lieu of notice shall include all amounts the team member would have been entitled to for the hours the team member would have worked during the minimum notice period, including any applicable overtime, penalty rates and allowances.

11.5.7 Team member Termination

a) In the case of termination by a team member, other than a casual, the following minimum notice shall be given by the team member:

Period of Continuous Service Period of Notice Probationary team member None Not more than 1 year 1 week More than 1 year 2 weeks

b) Where it is mutually agreed between the store manager and the team member, notice of termination may be reduced to one week. If it is not mutually agreed then team members terminating are required to give the same period of notice as provided in clause 11.5.7 (a).

c) At the team member's request, and Kmart's discretion, part or all of the period of notice may be waived by Kmart and the team member paid up to the date of termination.

d) At Kmart's discretion, payment in lieu of notice may be made by Kmart.

11.6 Probationary Period

11.6.1 Kmart may engage full-time and part-time team members on a probationary basis for a period not exceeding 3 months.

11.7 Certificate of Service

Kmart shall, upon receipt of a request from a team member, provide to the team member a written statement specifying the period of his or her employment and the classification of or the type of work performed by the team member.

11.8 Abandonment of Employment

Where a team member is absent from work for a continuous period exceeding three working days without the authorisation of Kmart and without reasonable cause, Kmart will provide in writing to the team member notification that failure to contact Kmart within seven working days with a satisfactory explanation for the absence will result in Kmart regarding the team member as having abandoned their employment and the company will consider the team member's employment at an end.

11.9 Team members working at multiple locations (other than temporary transfers):

11.9.1 All team members will be engaged at a base store. Kmart may engage a team member to work at locations other than their base store without the payment of a travel allowance and/or travel time, provided that work on any one shift shall be performed in the one location.

11.9 .2 When a part-time or casual team member works an additional shift under clause 13.11, the additional shift may also be worked at a different location without the payment of a travel allowance and/or travel time.

11.9 .3 The work locations where the team member is prepared to work will be nominated by the team member at the commencement of employment and may include additional locations by agreement between Kmart and the team member. Team members engaged before the commencement of this Agreement may also agree to work at locations other than their base store provided the team member nominates the stores where they are prepared to work before the team member commences working in more than one location. Nominated stores must be within a 15km radius of the team member's place of residence.

11.9.4 The base store and agreed additional work locations will be recorded in the team member's employment records.

11.9.5 Where a team member's personal circumstances change, for reasons such as a change of address or travel atTangements, the team member may vary their nominated stores.

11.9.6 Where a permanent team member's contracted hours increase as a result of accepting hours at additional locations and a team member varies their nominated locations or the team member no longer wishes to work at additional locations, the team member's total contracted hours may reduce accordingly.

11.9.7 A team member may only nominate additional locations for the purpose of this clause if the additional locations are within a 15km radius of the team member's place of residence.

11.9.8 This clause shall only operate from the time when Kmart has the operational capacity to administer the arrangement.

12- HOURS OF WORK

12.1 The span of ordinary hours for the beginning and ending of work shall be:

Day Time of Time of Finishing Starting

Monday to Friday 6.00 am Midnight Saturday 6.00 am 10.00 pm Sunday 7.00 am 7.00pm (where legal to trade) Sunday permanently trading 24 hour 6.00 am lO.OOpm stores (where legal to trade)

Ordinary hours of work may be rostered on any day at any time. Where work is performed outside the above span of hours, the penalties outlined elsewhere in this clause shall apply.

Span of Hours Penalties Penalties and Permanent Loadings

Casual Monday to Friday 6 am to Midnight Nil 20% Saturday 6 am to 8 pm Nil 20% Saturday 8 pm to 10 pm 25% 45% Sunday 7 am to 7 pm where legal to trade 50% 70% (this Sunday span ofhours shall also apply during refurbishment programs as detailed below). Sunday 6 am to 10 pm where legal to 50% 70% trade - permanent 24 hour stores only Monday to Friday 12.01 am to 6 am 30% 50% Saturday 12.01 am to 6 am and 10 pm to 50% 70% Midnight Sunday 12.01 am to 7 am and 7 pm to 100% 120% Midnight Sunday 12.01 am to 6 am and 10 pm to 100% 120% Midnight - pennanent 24 hour stores only Sunday 7 am to 7 pm where not legal to 100% 120% trade

12.2 Ordinary Hours - Refurbishment Stores

12.2.1 In stores where it is not legal to trade, the above 7am to 7pm period on a Sunday is only to be applicable during store refurbishments in the following circumstances:

a) Refurbishment means involving a major capital expenditure and will not cover relays and other minor work in a store;

b) Kmart must give one month's written notice to the appropriate Branch of the SDA; c) it shall only apply for a set period of 8 weeks for a store; and d) work will be voluntary for all team members.

12.3 Escorts to cars

12.3.1 Team members completing their shift at a late time (after dark) may:

a) be encouraged to leave the store in the company of other team members to give an element of security through numbers;

b) request an escort to their car after finishing work, regardless of (a).

12.3.2 A request from the team member as in (b) above, shall not unreasonably be refused by Krnart.

12.4 Attendance at Trade Nights

12.4.1 Team members may from time to time be offered opportunities to attend trade nights run by suppliers as a means of further enhancing their product knowledge. Attendance at trade nights however is voluntary and any decision to attend shall be at the discretion of the team member.

12.4.2 Due to the voluntary nature of attendance at trade nights, no payments and allowances shall apply.

PART 4- ROSTERING, BREAKS AND OVERTIME

13 -ROSTER CONDITIONS

13.1 Days per 28 Day Roster Cycle- Full-time and Part-time Team Members

13.1.1 No full-time or part-time team member shall be rostered to work more than 20 days in any 28 day roster cycle, except in circumstances in accordance with clause 13 .1.2 or 13.2.3.

13.1.2 All existing full-time team members currently working 19 days per 28 day roster cycle as at the date oflodgement of this Agreement shall retain their working cycle of 19 days per 28 day roster cycle, unless they otherwise agree to work 20 days per 28 day roster cycle.

13.1.3 Where practicable, a full~time team member on a 19 day start shall be given the preference to take their non-working day in conjunction with annual leave or to move their non-working day so that it adjoins a period of annual leave.

13 .1.4 No full-time team member shall be engaged on more than one shift per day.

13.2 Days per Week- All Team Members

13.2.1 Subject to 13.2.3 full-time and part-time team members rostered hours shall be worked on not more than 5 days in each week, provided that rostered hours may be worked on 6 days in one week if in the following week rostered hours are worked on not more than 4 days.

13 .2.2 A casual team member shall work a maximum of 5 days in any week unless by agreement, a team member is willing to work 6 days.

13.2.3 A part-time team member may work up to 6 days in each week by mutual agreement, provided the team member makes a request to do so in writing. A team member working up to 6 days in a week must be rostered at least two consecutive days off in each fortnight. A team member having made a request to work up to 6 days in a week may withdraw from this arrangement at any time.

13.3 Consecutive Days Off- Full-time, Part-time and Casual Team Members

13.3.1 Full-time and part-time team members (subject to 13.2.3) shall be given at least two consecutive days off in each week, or three consecutive days off in a fortnight with another day off that stands alone

13.3.2 Rostered hours for full-time, part-time and casual team members shall be worked on not more than 6 consecutive days, however a casual employee may be rostered to work more than 6 consecutive days provided that the team member has made a written request to Kmart.

13.3.3 The requirement in sub-clause 13.2.1 for two consecutive days off each week (or 3 in a fortnight) does not apply where Kmart makes a change to an employee's regular roster and this requirement cannot be met in the week or fortnight at the time of the roster change.

13.4 Sundays- Full-time and Part-time Team Members

13.4.1 In shops which can lawfully trade on a Sunday, full-time and part-time team members may be asked to work a maximum of 3 Sundays in 4 unless otherwise agreed, provided that on the Sunday they do not work they receive a three day break including Saturday. By agreement between Kmart and the team member, a team member may work 4 Sundays in a 4 week cycle.

13.5 Maximum Weekly Hours- All Team Members

13.5.1 The maximum hours a team member may be rostered to work in any week shall be 48 hours for a full-time team member and 38 hours for a part-time team member except as provided in clause 13.5.4.

13.5.2 A full-time team member's roster shall provide for 152 hours over 4 weeks with an average of 3 8 hours per week except as provided in clause 13 .1.2.

13.5.3 A part-time team member's maximum ordinary hours worked shall be 144 averaged over a 4 week cycle except as provided in clause 13.5.4.

13.5.4 During Key Operational Periods, a part-time team member's ordinary hours may be increased up to 48 hours in any one week and to a maximum of 152 hours in the appropriate four week cycle.

13.5.5 A casual team member's ordinary hours shall not exceed 38 hours in any week, excepting during the Key Operational Periods where a casual team member may work a maximum of 48 hours in any week to a maximum of 152 hours in a 4 week cycle.

13.6 Hours per Shift- All Team Members

13.6.1 A team member may be rostered to work up to a maximum of9 hours on any day provided that a team member may be rostered up to a maximum of 10.5 hours on not more than one day in a week.

13.6.2 At the team member's request and with agreement by Kmart, a team member may be rostered to work up to a maximum of 10.5 hours on more than one day in any week.

13.6.3 The above daily maximums shall be exclusive of meal breaks.

13.7 Break Between Shifts- All Team Members

13.7.1 A 10 hour break will be observed between the completion ofwork (including overtime) on one shift and the commencement ofwork (including overtime) on the next shift.

13.8 Rosters- Full-time and Part-time Team Members

13.8.1 Rosters shall be set on a regular basis and may be changed by 7 days' written notice or at shorter notice by mutual consent. Should a team member disagree with any roster change they shall be provided with a minimum 14 days' written notice in lieu of the 7 days. As far as practicable, rosters shall be set by mutual agreement.

13.8.2 Subject to sub-clause 13.8.1 a team member shall be provided with a regular roster, which will not be subject to frequent variations from one cycle to another.

13.8.3 A team member's roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the team member shall be entitled to such penalty, loading or benefit as if the roster had not been changed.

13.8.4 When establishing or changing rosters, Kmart shall take into consideration the family responsibilities and the safe transport home of the team member. Family responsibilities in relation to a team member means the responsibilities of the team member to care for or support a dependent child of the team member or any other immediate family member who is in need of care and support. Immediate family is defined in clause 19 of this Agreement.

13.8.5 A part-time tea member shall be given stability in their regular roster pattern over 4 week cycles and shall not be subject to constant roster changes in successive cycles.

13.8.6 Subject to the provisions of sub-clause 13.8 roster changes, including one off roster changes can occur at any time by mutual agreement.

13.8.7 Where a team member works in a 24-hour trade store and is rostered to work at the time clocks are wound forward for daylight savings the team member will work an additional 1 hour after their rostered finishing time. Where a team member is rostered to work at the time the clocks are wound back for daylight savings, a team member will finish lhour earlier than their rostered finishing time. A team member is only entitled to be paid for hours actually worked.

13.9 Registers- All Team Members

13.9.1 A team member who is rostered to work on registers for more than 8 hours on any one day shall upon notice to Kmart at least 48 hours prior, be provided with alternative duties so that the total time spent on registers shall not exceed 8 hours in any one day.

13.10 Flexible Rosters for Full-time Team Members on 19 Day Starts (employed prior to lodgement of the Kmart Ltd. National Agreement 2006)

13.10.1 On a voluntary basis, a full-time team member on a 19 day start may transfer their non­working day from the four week roster cycle during the Christmas Key Operational Period, provided that the non-working day is then taken at a time the team member nominates either in the 4 week roster cycle prior to or post the 4 week Christmas operational period.

Where Kmart wishes the team member to transfer their non-working day, it will discuss this with the team member and the team member shall respond no later than 30 November in that year.

This election shall then apply for the Christmas trading period. Only one non-working day can be transferred under this clause.

13.1 0.2 A team member may elect to work 160 hours over 20 starts per 4 week cycle for a period of 5 consecutive roster cycles and accumulate 5 days to be taken as a week off or added to a period of annual leave.

Such requests shall be in writing and the application is to be made by the team member as part of the leave application process adopted by Kmart. Provided that the hours in excess of 152 hours over the 4 week roster cycles up to 160 hours shall be paid at the ordinary time rate of pay at the time the accrued week is taken. Where the 5 days are adjoined to a period of annual leave, the 5 days shall not attract the annual leave loading with respect to these days.

In this sub-clause the Christmas Key Operational Period shall mean the three weeks prior to Christmas and the one-week after Christmas.

13.11 Additional Shifts- Part-time and Casual Team Members

13.11.1 Part-time and casual team members may be engaged on an additional shift commencing in any 24-hour period provided that:

a) There are no more than two engagements commencing in any 24-hour period a minimum of3 hours' work shall apply for the original rostered shift and 2 hours for the additional shift.

b) A minimum break of not less than two hours shall apply between the original shift and the additional shift;

c) The maximum hours of work per day as prescribed within this Agreement shall apply;

d) For part-time team members, the additional shift of work shall attract the 15% flex up loading;

e) Where a second engagement occurs in any 24-hour period, a 10 hour break will be observed between the cessation of work on that second shift and the commencement of the next shift; and

f) The arrangement shall be on a voluntary basis where the team member may revoke the agreement to work an additional shift at any time.

g) An additional shift worked in accordance with this sub-clause does not constitute an additional start when calculating the maximum number of starts permitted by this Agreement.

13.12 Shorter Shifts for Training Activities- Part-time and Casual Team Members

13.12.1 For the purposes of designated training activities as advised to the Union, part-time and casual team members may be engaged with a minimum of 2 consecutive hours per day on a maximum of 6 occasions per calendar year. Such hours shall not be used as a split shift. Attendance at such training sessions shall be voluntary.

13.13. Casual rostered hours not to be reduced after travel to work commences

13.13 .1. A casual team member who has been rostered to work a specified number of hours on a day and whose hours are reduced, other than by the initiation of the team member, shall be paid for the full number of hours specified.

13.13.2. Sub-clause 13.13.1 does not apply in circumstances where:

(a) the casual team member has been notified before commencing to travel to work that there is a reduction in the hours required to be worked: or

(b) the casual team member has otherwise, at anytime, agreed to a reduction in hours; or

(c) the casual team member does not attend work on a particular day or otherwise ceases working before the rostered end time for reasons other than Kmart seeking to reduce the casual team member's rostered hours.

13.13.3. For the circumstances listed in Sub-clause 13.13 .2, the casual team member will only be paid for the actual hours worked.

14-0VERTIME

14.1 Km.art may require a team member to work reasonable overtime at appropriate overtime rates other than on a public holiday and subject to the savings provisions in this Agreement.

14.2 A team member shall be entitled to the payment of overtime when:

a) A permanent team member is required to work before or after their rostered shift, except for a part-time team member who has been offered and has accepted additional hours of work in accordance with sub-clauses 11.2.6 and 13.11.

b) A full-time team member works in excess of 48 hours in any week or in excess of 152 hours in any 4 week cycle provided that a team member who works 160 hours in accordance with the provisions contained within sub-clause 13.10.2, overtime shall not apply until the team member works in excess of 160 hours in any 4 week cycle.

c) A part-time team member works in excess of 3 8 hours in any week or in excess of 144 hours in any 4 week cycle, except during Key Operational Periods where a part­time team member's ordinary hours, may be increased up to 48 hours in any one week and to a maximum of 152 hours in the appropriate four week cycle.

d) A casual team member works in excess of 3 8 hours in any week except during Key Operational Periods where a casual team member works in excess of 48 hours in any week or at any time in excess of 152 hours over a 4 week cycle.

e) A team member works in excess of 5 days in any week (or in excess of 6 days in accordance with sub-clause 13.2.3).

f) A full-time or part-time team member is required to work a non-rostered shift (except for either the circumstances provided for in sub-clause 13.8.1 or for a part-time team member who has been offered and has accepted additional hours of work in accordance with sub-clauses 11.2.6 and 13.11).

g) A full-time team member works in excess of 20 days in any 4 week cycle excepting in circumstances in accordance with sub-clause 13 .1.2 or for existing full-time team members who work in excess of 19 days in any 4 week cycle in accordance with sub­clauses 13.1.2 and 13.10.2.

h) A part-time team member works in excess of 20 days in any 4 week cycle, (unless the team member has agreed to work up to 6 days in accordance with sub-clause 13.2.3, in which case the team member works in excess of22 days in a 4-week cycle.)

i) A team member works in excess of 9 hours (excluding meal breaks) on any shift, provided that a team member may work up to 10.5 hours in accordance with sub­clause 13.6 without the payment of overtime.

14.3 Overtime shall be Paid at the Following Rates

a) Monday to Saturday:

Full-time, part-time and casual team members - first 2 hours 150% and 200% thereafter

b) Sunday:

Full-time, part-time and casual team members- 200%

c) Public Holiday:

Full-time, part-time and casual team members - 250%

d) Each day shall stand alone, ie. overtime shall be treated on a daily basis and shall be non-cumulative.

e) The minimum engagement for a period of overtime as a separate shift shall be 3 hours for all team members.

14.4 Time Off In Lieu of Overtime

By agreement with Kmart a team member may elect to take time off in lieu of overtime provided:

a) any such agreement is in writing,

b) the time off shall be calculated at the overtime equivalent,

c) the team member shall be entitled to a fresh choice of payment or time off on each occasion overtime is worked,

d) time off must be taken either 28 days prior to working the overtime or within 28 days after the working of the overtime, or shall be paid out. At the request of the team member, this may be extended to 56 days.

14.5 Meal Allowance

A team member required to work more than one hour of overtime after their rostered time of ending work, where less than 24 hours' notice of such overtime has been given, shall be paid a meal allowance as described below. Where a team member is rostered to work an additional day as overtime and it continues for more than 5 hours, the team member shall be entitled to a meal allowance, except if they have received 24 hours' notice of the requirement to work such overtime.

Meal allowance effective from the from the first pay period to commence on or after the dates shown below:

1/5/2012 1111/2012 115/2013 1/11/2013 115/2014 1/11/2014 115/2015 1/11/2015

$12.76 $12.98 $13.20 $13.42 $13.64 $13.86 $14.08 $14.30

14.6 Where a team member has not been granted a minimum often hours between ending work in one day, including any overtime worked, and the commencement of work on the subsequent day, including any overtime worked, the team member shall be paid overtime until such time as a ten hour break is observed. The rate of overtime shall be time and one half for the first two hours and double time thereafter.

14.7 Reasonable Overtime

a) Subject to clause 14.7 (b), Kmart may require a team member to work reasonable overtime in accordance with the provisions of this clause.

b) A team member may refuse to work ove1iime in circumstances where the working of such overtime would result in the team member working hours which are unreasonable having regard to:

i) any risk to team member health and safety; ii) the team member's personal circumstances including any family responsibilities; iii) the needs of the workplace or enterprise; iv) the notice (if any) given by Kmart of the overtime and by the team member of his

or her intention to refuse it; and v) any other relevant matter.

15. MEAL BREAKS AND TEA BREAKS

15.1 Unpaid Meal Break

15.1.1 No team member shall work for more than five hours continuously without an unpaid meal break.

15.1.2 Meal breaks shall be between 45 to 60 minutes. Meal breaks may be reduced to 30 minutes with the agreement of the team member.

15 .1.3 Unless mutually agreed no meal break shall be given or taken within two (2) hours of the team member's commencing time or within one (1) hour ofthe team member's ceasing time.

15 .1.4 Notwithstanding the meal break entitlement provided for in sub-clause 15 .1.1 the following provision may apply on a voluntary basis to a team member working a shift of no more than 6 hours:

a) A team member may request and with the consent ofK.mart work up to 6 ordinary hours and forego the meal break until the shift is concluded. Such agreement will be recorded in writing.

b) In cases where such an arrangement is entered into, the team member shall take their rest period at least 2 hours prior to concluding work.

c) A team member may revoke their request to work up to 6 hours. At the end of 2 weeks' notice, clause 15.1.1 above shall apply to that team member.

d) This provision will not be used by Kmart to disadvantage team members who wish to work up to 6 hours with a meal break.

e) Unpaid meal breaks do not count as hours worked by a team member. For example for the 38-hour week worked by a a full-time team member the meal breaks required under this clause do not count as time worked towards the 38 hours.

15.2 Paid Meal Breaks

15.2.1 Instead of the unpaid meal break provided in clause 15.1, a team member whose entitlement to a meal break in accordance with sub-clause 15.1.1 falls between the hours of midnight and 6.00am, shall be entitled to a paid meal break of 30 minutes.

15.3 Paid Tea Breaks

15.3.1 One paid tea break of 15 minutes shall be provided when a team member works 4 hours or more.

An additional paid tea break of 15 minutes shall be provided when a team member works:

- 7 hours or more in Victoria, Tasmania, Queensland and Northern Territory

- More than 8 hours elsewhere

15.3 .2 The 15 minute break is inclusive of all walking time to and from the tea room or any other location where a team member takes their paid tea break.

15.3.3 The taking of a tea break shall be at a time mutually agreed upon by the parties. If the work period includes a meal break, the tea break is to be granted in that portion of the work period which is greater. Unless mutually agreed no tea break falling within a work period of 3 hours or more shall be given or taken within one hour of the team members commencing or ceasing time or within one hour before or after any meal.

15.3.4 All tea breaks shall be deemed as time worked.

15.3.5 When a team member is working an additional shift in accordance with sub-clause 13.11, each shift of work on the day shall be treated separately towards the granting of a tea break in accordance with this clause. That is, the total hours of the two shifts of work (the rostered and the additional shifts) shall not serve to determine the granting of paid tea breaks.

PART 5 -LEAVE AND PUBLIC HOLIDAYS

16 PUBLIC HOLIDAYS

16.1 General Public Holidays

A team member, other than a casual shall be entitled, without loss of pay, to Public Holidays as observed in each State or Territory as follows:

• New Years Day • Australia Day • Good Friday • Easter Saturday (except Tasmania) • Easter Monday • Anzac Day • Queens Birthday (Birthday of Sovereign) • Labour Day (8 Hour Day) • Christmas Day • Boxing Day (Proclamation Day)

16.2 State and Territory Public Holidays

The following days shall be taken in addition to the days named above or in lieu of where stated:

Victoria- In addition, Melbourne Cup Day. Provided that where a local day is declared or prescribed in the locality outside the metropolitan area and Melbourne Cup Day is not declared or prescribed in the locality then the local day shall be taken as a Public Holiday in lieu of Melbourne Cup Day. Where two half local days are declared or prescribed in a locality outside the metropolitan area in lieu of Melbourne Cup Day and a team member is rostered to work both these days the team member may elect to take a single full-day public holiday on one of the half day public holidays (In such a case the employee has elected to substitute the other half day public holiday and no further entitlement applies) in lieu of the two half day public holidays.

Western Australia- in addition, Foundation Day.

Northern Territory- in addition, Picnic Day.

South Australia - in addition, Adelaide Cup Day.

Tasmania- in lieu of Easter Saturday, Show Day and in addition Hobart Regatta Day (south of Oatlands) or Recreation Day (where Hobart Regatta Day is not observed).

New South Wales- the first Tuesday ofNovember in any year. Such day shall be treated as an additional day off or pay in lieu. However work on this day shall not attract public holiday penalty rates.

Australian Capital Territory - in addition, Canberra Day and Family & Community Day. Family & Community Day shall be treated as an additional day off or pay in lieu. However work on this day shall not attract public holiday penalty rates.

Queensland - in addition, Exhibition Day or the appropriate regional show day.

16.3 Additional Public Holidays

A team member, other than a casual, shall be entitled without loss of pay to an additional public holiday within a State or Territory or locality, when such Public Holiday is declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory or a region of the State or Territory as a public holiday.

Where in a State or Territory, public holidays are declared or prescribed in addition to the days specified in sub-clauses 16.1 and 16.2, those days shall constitute additional public holidays for the purpose of this Agreement and work performed on such public holidays shall attract public holiday penalty rates.

Where in a locality, public holidays are declared or prescribed in addition to the days specified in sub-clauses 16.1 and 16.2, those days shall be treated as additional paid time off or pay in lieu, but work performed on these days shall not attract public holiday penalty rates. If declared or prescribed, this shall include Newcastle and the Northern Territory show days and Port Pirie Picnic Day.

16.4 Substitute Public Holidays

If a public holiday or part public holiday is substituted to another day or part day by a law of a State or Territory the substituted day or part day is a public holiday and the original day or part day is not a public holiday.

16.5 Christmas Day Loading Where Substitution Occurs

In the case of Christmas Day where substitution occurs, in accordance with sub-clause 16.4 (and 25 December has not otherwise been declared or prescribed a public holiday), work on the 25th December shall attract an additional loading of half a normal day's wage for a full day's work in addition to the Saturday/Sunday rate and the team member shall also be entitled to the benefits of the substituted Public Holiday.

16.6 Where a Store Does Not Open for Trade on a Public Holiday

Where a store does not open for trade on a Public Holiday, and a team member would have been rostered to work on such a day, they shall be entitled to the day off with pay for the hours normally rostered to work including any applicable penalties (excluding the public holiday penalty).

16.7 Where a Store Opens for Trade on a Public Holiday

Where a store opens for trade on a Public Holiday, team members who would normally be rostered to work on the Public Holiday, may elect to work the day or part thereof and shall be paid the public holiday penalty for time so worked. Provided that when a team member

chooses not to work they shall be entitled to the day off with pay for the hours normally rostered to be worked including any applicable penalty (excluding the public holiday penalty).

16.8 Non Working Days

a) A full-time team member whose non-working day falls on a Public Holiday, shall be paid by mutual agreement either:

(i) payment of an additional day's wages; or

(ii) addition of one day to the team member's annual holidays; or

(iii) another day may be allowed off with pay to the team member within twenty-eight days after the Public Holiday falls, or during the week prior to the Public Holiday. The additional day off shall be granted on the day before or after the Public Holiday or attached to other consecutive days off. At the election of the team member, the team member may take the day off with pay within fifty-six days after the public holiday falls instead of within twenty-eight days.

b) For the purpose of sub-clause 16.8 (a) (i), (ii), or (iii) for full-time team members working 19 days in a 4 week cycle, "day" shall mean 8 hours. Provided that where a full-time team member works 20 days in accordance with sub-clause 13.1.2, "day" shall mean 7.6 hours.

c) A part-time team member shall be entitled to the provisions of sub-clause 16.8 (a) (i), (ii) or (iii), where the team member is rostered so they do not work their ordinary hours on the same days each week (an alternating roster) and the public holiday falls on a day on which the team member works in any week of their roster cycle.

d) A part-time team member shall be entitled to the provisions of sub-clause 16.8 (a) (i), (ii) or (iii), where the team member is rostered to work 20 starts over a 4 week cycle or where the team member is contracted to work a minimum of 32 hours per week, and their non working day falls on a Public Holiday.

e) For the purposes of sub-clause 16.8 (c) and (d) for part-time team members, "day" shall mean the average number of hours rostered per day for the part-time team member in the 4 week cycle prior to the public holiday.

f) Where an additional day is declared or prescribed for the public holidays specified in sub­clauses 16.1, 16.2 and 16.3, the non-working day provisions above shall not apply to the additional public holiday.

16.9 Absences from work

Kmart may require an employee who fails to attend for a rostered shift the day before and/or the day after a public holiday to provide documentary evidence in the form of a medical certificate or statutory declaration in accordance with clause 19.2.11.

16.10 Voluntary Work

A team member cannot be required, but may elect to work on any Public Holiday as provided for in this clause.

16.11 Rates of Pay

a) All full-time, part-time and casual team members working on a Public Holiday shall be paid at the rate of250% of the ordinary hourly rate of pay prescribed in clause 7 Wages with a minimum payment as for 3 hours' work.

b) Provided that a team member working on a public holiday subject to sub-clauses 16.2 (the first Tuesday in November (NSW) and Family & Community Day (ACT), 16.3 and 16.6, shall be paid in accordance with sub-clauses 16.2 (the first Tuesday in November and ACT Family & Community Day), 16.3 and 16.6 of this clause.

c) A team member may elect to take time in lieu of the rate specified in sub-clause 16.11(a) provided the following conditions are met:

(i) the time to be taken in lieu shall be agreed in writing before the team member makes the election. If agreement cannot be reached the team member is entitled to the rate ofpay specified in 16.11(a);

(ii) the time in lieu shall be taken on the basis that a team member that works on a public holiday may take an equivalent number of hours off elsewhere as time in lieu, provided Kmart shall pay the team member 150% for the hours worked on the public holiday;

(iii) the team member shall be entitled to a fresh choice of payment at 250% or time off in lieu and payment of 150% on each occasion a public holiday is worked.

(iv) time off in lieu must be taken either 28 days prior to working the public holiday or within 28 days after the working of the public holiday, or shall be paid out. At the request of the team member, this may be extended to 56 days.

16.12 Half-Day Public Holidays

The following principles shall apply when an additional day is declared or prescribed as a public holiday and that day is a half-day public holiday (excluding circumstances in Victoria where a team member elects to take a single full day public holiday on one of the half day public holidays for Melbourne Cup Day in lieu of the two half-day public holidays in accordance with Clause 16.2).

For a holiday from noon onwards: a) A team member who is normally rostered only before noon then no benefit applies.

b) A team member who is normally rostered only to work from or after 12 noon then the entire shift is a public holiday.

c) A team member who is normally rostered on a day shift then the part of the shift which occurs from 12 noon shall have the benefits of a public holiday apply.

d) When a team member's non working day occurs on a half public holiday then a benefit for that holiday in accordance with the principles contained within sub-clause 16.8 shall apply.

e) If the half-day is a locality day then this provision shall apply in conjunction with the provisions of sub-clause 16.3 above.

Provided that similar principles will apply if a half-day holiday occurs in the morning.

16.13 New Years Eve and Christmas Eve (if not a public holiday)

Work after 6.00 p.m. on Christmas Eve and New Year's Eve will be subject to the following provisions:

a) Team members not wishing to work beyond 6pm shall advise Kmart at least 4 weeks prior to Christmas Eve or New Years Eve.

b) Kmart shall then seek volunteer replacements.

c) If insufficient volunteers are obtained then Kmart shall have the right to direct the working of a team member's normal roster so that a reasonable staffing level is reached.

d) In cases of permanently rostered staff not wanting to work at these times they shall be rostered to work on another day or time in the 4 week cycle as part of their ordinary rates of pay.

This sub clause does not apply where New Years Eve and/or Christmas Eve are public holidays.

16.14 Easter Sunday (if not a public holiday)

a) In stores which are permittedto open, work on Easter Sunday shall be voluntary for Full­time and Part-time team members. Team members not wanting to work on this day shall be rostered to work their hours at some other time during the 2 or 4 week roster cycle and shall be paid the appropriate ordinary rate of pay.

Team members shall give Kmart at least 2 weeks' notice if they do not wish to work on Easter Sunday.

b) Permanent team members rostered to work in a store which is not permitted to open on Easter Sunday shall be given the day off with pay at the ordinary time earnings rate, exclusive of any penalty payment.

This sub clause does not apply where Easter Sunday is a public holiday.

16.15 Shifts worked over two days (Permanent Team Members):

(a) Where the majority of a team member's rostered shift falls on a public holiday, the entire shift shall be regarded as the public holiday;

(b) Where a team member is rostered for a shift with an equal number of hours on the public holiday and on the day before the public holiday the entire shift shall be treated as a public holiday;

(c) Where a team member is rostered for a shift with an equal number of hours on the public holiday and the day after the public holiday the entire shift shall be treated as a public holiday;

(d) Subject to sub-clause 16.15(e) if the minority of a shift falls on a public holiday the team member is entitled to have that part of the shift that falls on the public holiday treated as a public holiday (hours off without loss) and the remainder of the shift treated as a normal shift.

(e) If a team member works two consecutive shifts so that the first shift ends the morning of a public holiday and the next shifts commences on the same night; only one shift will be treated as the public holiday not both, i.e the majority shift on the public holiday will then be the public holiday shift.

(f) If both shifts have equal hours on the public holiday and non-public holiday only one of the two shifts shall be a public holiday shift.

17 ANNUALLEAVE

17.1 Period of Leave

For each year of continuous service:

(a) Full-time team members (other than shift workers) are entitled to 4 weeks of annual leave (152 hours); and

(b) Full-time shift workers* are entitled to 5 weeks of annual leave (190 hours); and (c) Part-time team members shall be entitled to annual leave on a pro-rata basis. Where the

number of hours worked vary throughout the course of the year, the entitlements to annual leave shall be calculated upon the average number of rostered hours worked during the year of accrual excluding additional hours worked pursuant to sub-clause 11.2.6 and 13.11.

A team member's entitlement to annual leave accrues progressively during each year according to the ordinary hours of work and accumulates from year to year.

*Shift workers, for the purpose of this sub-clause, are seven day a week shift workers who are regularly rostered to work on Sundays and public holidays in a store where shifts are continuously rostered 24 hours a day for seven days a week.

17.2 Time of Taking Leave

The taking of annual leave will be by mutual agreement, within a period not exceeding 12 months from the date it becomes due. Under no circumstances shall a team member forfeit their annual leave entitlement.

Where there is no agreement annual leave shall be taken in one period of 4 weeks. Under these circumstances, a minimum period of 4 weeks' notice shall be given by Kmart with the team member being advised of more than one option of the time period in which the leave is to be taken.

When detennining annual leave for team members, Kmart shall, where practicable, take into account the family matters of the team member.

17.3 By mutual agreement annual leave may be taken in two or three separate periods, of not less than 5 days.

Notwithstanding the above provision annual leave may be taken in single days up to a maximum of 5 single days per year at the request of a team member. Upon exhaustion of the initial 5 single days of annual leave, at the request of the team member, the team member may extend their use of single days of annual leave for up to a further 5 single days per year from any annual leave accrued above 4 weeks.

17.4 If the team member and Kmart agree, annual leave may be taken wholly or partly in advance before the team member has become entitled to the annual leave.

17.5 By written request to Kmart, a team member may take their annual leave in periods other than those specified for above provided the request is able to be accommodated within the operational needs of Kmart.

17.6 Payment for Period of Leave

(a) Before going on fully accrued leave a team member will be paid the amount of wages they would have received in respect of the period of annual leave plus a loading of 17 Y2% for up to 152 hours leave per anniversary year or pro-rata for part-time team members.

(b) Before going on leave that has not fully accrued a team member will be paid the amount of wages they would have received in respect of the period of annual leave taken but not the 17.5% annual leave loading Ifthe team member subsequently accrues a full-year annual leave entitlement the team member will be paid an amount equivalent to 171/2% of the wages paid for the leave previously taken.

(c) A team member may elect not to receive this payment in advance and receive it as per the normal pay cycle during the period of leave.

17.7 Payment will not be made in lieu of annual leave, except in accordance with sub-clause 17.9 or 17.11.

17.8 Annual Leave Exclusive of Public Holidays

Where any public holiday for which the team member is entitled to payment under this Agreement occurs during any period of annual leave taken by a team member under this clause, the period of the leave shall be exclusive of that public holiday and the public holiday is not deducted from the team member's annual leave entitlement.

17.9 Payment of Annual Leave on Termination

Any accrued or pro-rata annual leave entitlement will be paid upon termination of employment. The 17 Y2% loading referred to in sub-clause 17.6 will apply to fully accrued leave on termination but does not apply to proportionate leave payable upon termination.

Where the employment of a team member is terminated before the team member has completed one year of employment, the sum paid to the team member will be 1/12 of the ordinary pay for that period of employment.

17.10 Annual Leave Credit from Other Leave

17.10.1 If the period during which a team member takes paid annual leave includes a period of personal leave (including compassionate leave) or a period of absence on community services leave the team member is taken not to be on paid annual leave for that period of that other leave or absence.

17.11 Cash out of annual leave in certain circumstances

17.11.1 A team member is entitled to cash-out an amount of annual leave credited to the team member if:

17.11.2

17.11.3

17.11.4

17.11.5

(a) The team member provides Kmart with a written request to cash-out the amount of annual leave; and

(b) The amount paid by Kmart to the team member in lieu of annual leave is at a rate no less than the hourly ordinary time rate the team member is entitled to at the time of the request; and

(c) Kmart authorises the team member to cash-out the leave and provides a copy of the written agreement to the team member.

A team member is not entitled to cash-out, during any 12 month period, an amount that is greater than 76 hours of annual leave for full-time team members (pro rata for part-time team members).

Kmart will only authorise any team member's written request to cash-out annual leave if:

a) The above requirements have been or will be met; and b) The team member has credited to them at the time ofthe request at least 5

weeks of annual leave (pro rata for part-time team members); and c) A request by the team member is a request to cash-out either an amount of

annual leave in blocks of either 38 hours or 76 hours (to cash out an amount of 7 6 hours a team member must have a minimum of 6 weeks' leave accrued at the time of the request) for full-time employees or equivalent pro-rata hours for part-time employees; and

d) A written request provided by the team member to Kmart must be provided in either in February or August of any year (requests cannot be made in both February and August of the same year) not both); and

e) The request is the only request made by the employee in the previous 12 months.

At Kmart's discretion, and in special circumstances, Kmart may authorise a request to cash-out annual leave received at other times of the year provided the other requirements of this clause have or will be met.

Kmart will pay annual leave loading of 17.5% in addition to any amount paid for cashed out annual leave in accordance with this clause.

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18. LONG SERVICE LEAVE

18.1 Team members are entitled to long service leave in accordance with the relevant State or Territory legislation.

In addition, team members will be entitled to access long service leave on the basis of double time at half pay subject to the team member and Kmart reaching mutual agreement. Provided that, the team member shall not accrue any more leave than they would have had they taken long service leave on normal pay. Such requests shall not be unreasonably refused.

18.2 During a period of long service leave a full-time team member working 19 starts in a 28 day roster cycle in accordance with sub-clause 13.1.2 does not accrue an RDO during a period of long service leave. If the team member partly works during a 4-week cycle and is on long service leave for the remainder of the 4-week cycle, the team member will continue to be entitled to any hours already worked toward the RDO. Such hours shall be taken off by the team member at a time of mutual agreement.

19. PERSONAL LEAVE

19.1 Immediate family member

For the purposes of this clause, immediate family member shall mean a spouse (including a fanner spouse), de facto partner (including a fanner de facto partner), child (including step or foster), parent (including a step-parent), grandparent, grandchild or sibling of the employee; or a child (including step or foster), parent, grandparent, grandchild or sibling of a spouse (or former spouse) or de facto partner (or fanner de facto partner) of the employee.

19.2 Entitlement to Personal Leave

19 .2.1 A team member, other than a casual, is entitled to personal leave in circumstances where the team member cannot attend work as rostered due to:

(a) a personal illness, or injury affecting the team member (personal purposes); or (b) the need to provide care or support to a member ofteam member's immediate

family or household who requires care or support because of a personal illness or injury or an unexpected emergency affecting that immediate family or household member (carer's purposes).

The entitlement to personal leave to provide care or support to an immediate family or household member is on the basis that the team member seeking such leave is the most suitable person, in the circumstances, to provide such care or support.

19.2.2 A full-time team member is entitled to 76 hours of paid personal leave (pro-rata for part­time team members) that is accrued during the first year of employment and credited thereafter upon the anniversary of each year of continuous service.

19 .2.3 For part-time team members the personal leave entitlement in the first year of employment will be accrued upon the team member's contract hours at the time of engagement. For each year thereafter, the entitlement will be based upon the average contract hours of the team member in the preceding completed year.

19.2.4 Where a team member has taken 76 hours of personal leave in an anniversary year for carer's purposes, an additional 7.6 hours of paid leave (pro rata for part-time team members) may be accessed. This paid leave is not deducted from the team member's personal leave accrual and is not available for personal purposes. This 7.6 hours does not accrue from year to year.

19.2.5 Payment whilst on paid personal leave will be at the team member's ordinary time earnings for the hours normally rostered to work, excluding any penalties.

Notification and Documentation Requirements-Where personal leave is for personal purposes

19.2.6 Kmart and the Union are committed to ensuring that personal leave is only utilised in cases of genuine need. The misuse of personal leave will lead to counselling for the team member.

19.2.7 A team member may take up to 2 days' personal leave in any one year without a medical certificate or a statutory declaration. Upon written notice by Krnart other claims for personal leave may need to be supported by a medical certificate from a registered medical practitioner or a statutory declaration.

19.2.8 Where a team member has taken 2 days' personal leave in any one year without a medical certificate or a statutory declaration, Krnart will deal with such cases on a case by case basis and shall not provide written notice under clause 19 .2. 7 unless the team member demonstrates a recurring pattern of absenteeism.

19.2.9 Where a full-time or part-time team member accesses less than half of the annual personal leave entitlement from the previous anniversary year, the team member may not be requested to provide proof of absence until 4 days' absence on account of illness or injury has occurred. For the purposes of this provision, each anniversary year shall stand alone.

19.2.10Entitlement to all personal leave claimed will be dependent on notification to the Store manager or manager on duty of the inability to attend for duty and the possible recommencement time. Such notification should be provided as soon as is reasonably practicable.

19.2.11 Notwithstanding any contrary provisions in this clause Krnart may require the production of documentary evidence in the form of a medical certificate or a statutory declaration where a team member is absent either the day before and/or the day after a public holiday as set out in sub-clause 16.9.

19.2.12 Upon reporting back to work after personal leave, the team member will report to their line manager.

19.2.13 Upon request, a team member shall be entitled to information regarding their accrued personal leave entitlements.

Notification and Documentation Requirements: Where personal leave is for carer's purposes and for unpaid carer's leave

19.2.14 The team member will provide Krnart with notice as soon as is reasonably practicable of their intention to take personal leave, a satisfactory explanation of the reason for the leave and the estimated duration of absence.

19.2.15 Reasonable proof of absence may be required by Krnart to grant payment for personal leave taken to care or support immediate family or household members.

19.3 Unpaid Carer's Leave

19.3.1 A team member (including a casual team member) is entitled to a period of up to 2 days unpaid carer's leave for each occasion that a member of the team member's immediate family or household requires care and support due to that person being ill, injured or affected by an unexpected emergency.

19.3 .2 A pennanent team member is not entitled to unpaid carer's leave if during a particular period they could instead take paid personal leave.

19.3.3 Only 1 day ofunpaid carer's leave is available in conjunction with leave accessed under sub-clause 19.2.4.

19.4 Requests for flexible working arrangements (Carer's)

19.4.1 An eligible team member who has responsibility for the care of an elderly parent or spouse (or defacto partner) whom suffers from a disability or long term serious illness or injury that prevents them from caring for themselves, may make a request to Kmart for a change in working arrangements to assist the team member to care for the elderly parent or spouse ( defacto partner).

19.4.2 Permanent team members are able to make such a request iftheyhave completed 12 months continuous service with Kmart immediately before making the request. A casual team member is able to make such a request ifthe team member is a long term casual with an ongoing expectation of continuing employment with Kmart on a regular and systematic basis. A long term casual employee is a casual employee that has been employed by Kmart on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

19 .4.3 A request must be in writing and set out the details of the change sought and the reason for the change. Kmart will provide the team member with a response in writing within 21 days to the request stating if Kmart grants or declines the request. In the event that Kmart refuses the request Kmart's written response will include reasons for the refusal.

19.5 Personal emergencies

19.5 .1 Where a team member has a pressing domestic emergency that requires the team member's immediate attention, a full-time team member may access up to 7.6 hours (pro rata for part-time team members) of their personal leave to attend to the emergency. An emergency includes situations such as a house fire, burst water pipes or a burglary at the team member's primary residence and where the team member's attendance is required to deal with emergency services or permit access by state emergency services members or emergency repair service personnel.

19.5.2 However an emergency does not include situations where a team member could otherwise deal with a situation before or after their rostered hours of work, or where it is simply a matter of convenience or preference for the team member to attend a situation. Where the emergency situation has been addressed the team member is required to attend work for the remainder of their shift, if practical. The team member will only have deducted from their personal leave the hours they were absent from work.

19.5.3 A team member maybe required to provide evidence ofthe emergency that would satisfy a reasonable person of the emergency situation in order for payment to be made under this sub-clause.

19.5.4 A team member able to access leave under sub-clause 23.5 of this Agreement cannot also access leave under this clause for the same situation.

2.0. PRE-NATAL LEAVE

20.1 Pregnant Team Member

20.1.1 A full-time or part-time pregnant team member may access personal leave for the purpose of attending medical appointments associated with the pregnancy.

20.2 Team Member Whose Partner is Pregnant

20.2.1 A full-time or part-time team member may access paid personal leave up to 22.8 hours (pro-rata for part-time team members) for the purpose of attending medical appointments with their pregnant spouse.

20.3 Notification and Attendance

a) Proof of such attendance may be required to be produced upon request by Kmart. b) Where possible, team members should attempt to organise appointments during non­

working hours, or if during working hours, as close as possible to the beginning or ending of their ordinary working hours.

c) The team member is to provide reasonable notice to Kmart of the requirements to take this leave; and

d) Personal/carer's leave used for the purpose of attending medical appointments associated with pregnancy will be deducted from the team member's accrued entitlement based on the actual time taken to attend each appointment.

21 COMPASSIONATE LEAVE

21.1 Compassionate leave is a period of leave during times ofbereavement or to spend time with an immediate family member or household member with a personal illness or injury that poses a serious threat to life.

21.2 Entitlement due to Death

22.1.1 Full-time, part-time and casual team members are entitled to compassionate leave for each occasion when a member of the team member's immediate family or household dies. Permanent team member entitlements are included in sub-clause 22.1.3 and casual team members are entitled to 2 days compassionate leave.

22.1.2 Immediate family is defined in clause 19.1 of this Agreement.

22.1.3 Upon the death of a permanent team member's:

(a) Spouse (including a de facto partner), father, mother, stepfather, stepmother, child (including adopted, step or foster children), sister and brother, a team member is entitled to paid compassionate leave to a maximum of five (5) shifts including the day of the funeral;

(b) Parent-in-law (including de facto partner's parent), grandparent, grandparent-in­law, (including de facto partner's grandparent) grandchild, brother-in-law (including de facto partner's brother), sister-in-law (including de facto partner's sister), son-in­law (including a de facto partner's son), daughter-in-law (including a de facto partner's daughter), aunt, uncle, niece or nephew, a team member is entitled to paid compassionate leave to a maximum of three (3) shifts including the day of the funeral;

(c) Former spouse (including former de facto partner) or spouse from whom the team member is separated, a team member is entitled to paid compassionate leave to a maximum of three (3) shifts including the day ofthe funeral;

(d) Upon the death of a member of the team member's household, paid compassionate leave to a maximum of two (2) shifts;

(e) Upon the death of other close relatives not otherwise covered by this clause or the NBS, paid compassionate leave to a maximum of one (1) shift to attend the funeral may be approved by Kmart.

22.1.4 Compassionate leave may be taken as a single continuous period of leave or as separate shifts ofleave, except leave under sub-clause 21.1.3(e) which must be taken as a single shift.

22.1.5 Where the death of a relative detailed in paragraphs 21.1.3(a)-(c) occurs interstate or outside of Australia and the team member attends the funeral, the team member shall be entitled to receive an additional unpaid period of compassionate leave, which shall not exceed two shifts.

22.3 Entitlement Due to Serious Illness/Injury

22.3.1 Full-time, part-time and casual team members are entitled to a period of2 shifts of compassionate leave (either as a continuous period or as single shifts of leave) for the

purposes of spending time with a member of the team member's immediate family (as defined in clause 19.1) or a member of the team member's household who has contracted or sustained a personal illness/injury that poses a serious threat to his or her life. Team members may access this entitlement for each occasion of serious illness/injury.

22.3.2 Compassionate leave taken pursuant to subclause 21.2.1 can be taken at any time while the illness or injury persists.

22.4 Payment whilst on compassionate leave for pennanent team members will be at the team member's ordinary time earnings for the hours normally rostered to be worked excluding any penalties. Compassionate leave for casual team members is unpaid.

22.5 Proof of the illness, injury or death shall be required to be produced, when requested by Kmart.

22 BLOOD DONOR LEAVE

22.1 A team member other than a casual shall be entitled to up to two hours' paid leave on any one occasion for the purposes of donating blood. A maximum of four separate absences per calendar year shall be allowed.

22.2 Absences shall be arranged by mutual agreement between the team member and K.mart.

22.3 Upon request, proof of such attendance will be required to be produced.

22.4 Team members should attempt to organise the donation of blood during non-working hours.

23 COMMUNITY SERVICE LEAVE AND OTHER LEAVE

23.1 Community Services Leave

23.1.1

23.1.2

23.1.3

23.1.4

23.1.5

23.1.6

23.1.7

23.1.8

23.1.9

A team member who is engaged in an eligible community service activity is entitled to be absent from work for a period which comprises the time when the team member is engaged in the activity, reasonable travelling time associated with the activity and reasonable rest time immediately following the activity, provided the team's members absence is reasonable in all the circumstances (the reasonableness requirement does not extend to jury service).

An eligible community service activity is:

(i) Jury Service (including attending for jury selection); and

(ii) A voluntary Emergency Management Activity; and

(iii) Any other activity prescribed in the Fair Work Regulations.

The NBS sets out when a team member engages in a voluntary Emergency Management Activity.

All team members, including casual team members are eligible for Community Services Leave; however Community Services Leave is unpaid (other than for permanent team members on Jury Service and as set out in sub-clause 23.2-Emergency Services Leave).

A team member required to attend for Jury Service during their rostered hours of work will not suffer any loss of income in respect ofthe ordinary hours they would have worked had they not been on Jury Service.

While on Jury Service a team member will not be required to attend work until the completion of Jury Service.

A team member on a roster including weekend work shall be given time off without loss of pay so that the combination of consecutive jury and work days does not exceed 5 days per week.

A team member required to attend for jury service during a period of annual leave will, upon producing satisfactory evidence of attendance, be credited with annual leave for the period for which jury service was attended.

Notice and evidence

(a) A team member who wants to take Community Services Leave must provide Kmart with notice, which must be given as soon as practicable (which may be at a time after the leave has started) by the team member to the team member's manager. The team member must also advise their manager of the period, or the expected period, of the absence.

(b) If required by Kmart, a team member who has given notice of the taking of Community Services Leave must give the Kmart evidence that would satisfy a reasonable person that the absence has been or will be because the team member is engaging in an eligible community services activity.

(d) In respect to jury service Kmart may also require the team member to give to Kmart evidence that would satisfy a reasonable person that the team member has taken all reasonable steps to obtain any amount of jury service pay to which the team member is entitled and of the total amount of jury service pay (if any) that has been paid or is payable to the team member for the period.

(d) IfKmart requires the team member to provide evidence for the taking of jury service, the team member is not entitled to payment for jury service unless the evidence has been provided.

23.2 Emergency Services Leave

(a) A team member, other than a casual, involved in recognised voluntary services including SES and fire fighting shall be entitled to paid time off to attend to emergency situations which may affect the community as a whole.

(b) It shall be the responsibility of the team member to keep Kmart informed about the time off needed to attend to emergency duties.

(c) To receive payment, a team member shall provide Kmart proof of attendance at the emergency situation.

(d) Paid time off for attendance at emergencies in the local area shall not be unreasonably restricted nor accessed, and shall be limited to a maximum of 3 days per situation.

(e) Paid time off for attendance to emergencies that are not local shall be limited to a maximum of 5 days per annum, but may be increased, and depending on the nature of the emergency (e.g. major bush fire) subject to Kmart approval.

23.3 Leave of Absence

23.3.1 Subject to Kmart's approval, a team member, other than a casual, with more than 1 year of continuous service, may take a period of authorised unpaid leave of absence of one week's duration or more, and such absence shall not break the continuity of employment for the team member concerned provided that:

a) the maximum period of absence on any one occasion does not exceed 3 months;

b) all outstanding paid leave entitlements the team member is eligible to apply for, are taken prior to the period of absence;

c) a leave of absence application is made by the team member as a part of the leave application process adopted by Kmart; and

23.3.2 Any or all of the provisions in sub-clause 23.3.1 may be waived by agreement between K.mart and the team member.

23.3.3 The operation ofthe above sub-clauses 23.3.1 and 23.3.2 shall not be applied retrospectively.

23.3.4 Where a team member takes approved leave of absence, all entitlements to annual leave, personal leave and long service leave are frozen from date of commencement until the date of return of such leave.

23.3.5 This clause may be used by a team member to attend to their study commitments. Where this clause is used for this purpose, clause 23.3.1 (a) does not apply and under clause 23.3.1 (c), the team member will be required to provide at least four weeks' notice.

23.3.6 Clause 23.3.1 (b) also does not apply except where a team member has an annual leave entitlement of more than four weeks. Where the team member has an annual leave entitlement of more than four weeks, the team member will use any accrued leave greater than four weeks before taking a leave of absence.

23.4 Defence Force Service Leave

24.4.1 A team member, other than a casual, shall be allowed leave ofup to a maximum of2 weeks per calendar year to attend Defence Forces Reserve approved training camps.

24.4.2 During such leave, team members who are required to attend full-time training shall be paid an amount equal to the difference between the payment received in respect of their attendance at camp and the amount of ordinary time earnings they would have received for working ordinary time during that period.

24.4.3 To receive payment, a team member shall provide Kmart proof of attendance and proof of Defence Forces Reserve rate of pay and total payment received for the time spent in training.

24.4.4 Team members seeking to take defence force services leave must provide notice to K.mart at least one month prior to the period of training. The notice should detail the start and finish dates for training.

23.5 Natural Disaster Leave

Where a "yellow alert" is announced for cyclones, or there is flooding or bush fires which pose a genuine threat to a team member's property or creates a need for a team member to care for their children, team members shall be allowed to leave work. In such circumstances, permanent team members will be able to access up to 3 days per year, non-cumulative, paid leave.

Kmart agrees that, where a time has been set for moving from a yellow alert to red alert, the store will close one hour before the red alert comes into force, unless otherwise directed by the State Emergency Services or other emergency services body.

Upon the threats caused by the natural disaster subsiding (outlined two immediate paragraphs above), team members shall return to work.

2,4 PARENTAL LEAVE AND REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS

24.1 The parental leave provisions of this clause apply to full-time and part-time team members, and only apply to eligible casual team members as per 24.16 of this clause.

24.2 Nature of Leave

Parental Leave is unpaid leave.

24.3 Definitions

a) Birth-related leave means unpaid leave associated with the birth of a child of a team member or the team member's spouse or team member's de facto partner where the team member has or will have the responsibility for the care of the child.

b) Adoption-related leave means leave associated with the placement of a child with a team member for adoption where the team member has or will have the responsibility for care of the child.

c) The day of placement in relation to the adoption of a child means the earlier of the day the on which the team member first takes custody of the child for the adoption or the day on which the team member starts any travel that is reasonably necessary to take custody of the child for adoption.

d) Child means a child of the team member under school age except for adoption of a child where 'child' means a person under school age who is placed with the team member for the purposes of adoption, other than a child or step-child of the team member or of the spouse of the team member or a child who has previously lived continuously with the team member for a period of 6 months or more.

e) In relation to birth-related leave, spouse includes a de facto partner or former spouse.

f) In relation to adoption-related leave, spouse includes a de facto partner but does not include a former spouse.

g) Former position means the position held by a team member immediately before proceeding on leave or part-time employment under this clause whichever first occurs or, in the case of a team member transferred to a safe job in accordance with sub-clause 24.5(f), the position held immediately before such transfer. If such position no longer exists and there are other positions available for which the team member is qualified and the duties of which the team member is capable of performing, the former position shall mean a position as nearly comparable in status and pay to that of the position first mentioned in this definition.

h) For the purpose of this clause continuous service shall be calculated in accordance with clause 6.4 of this Agreement.

24.4 Basic Entitlement

a) Except as provided in paragraph (b) hereof, after 12 months' continuous service, a team member is entitled to a total of 104 weeks' parental leave on a shared basis in relation to the birth or adoption of their child.

b) Provided that, if a team member has 6 months' continuous service, the team member will be entitled to a combined total of 26 weeks' parental leave in accordance with the provisions of this clause. Additional leave may be considered by Kmart upon application by the team member in accordance with clause 23.3, leave of absence.

c) Parental leave, whether it is birth-related and/or adoption-related leave is to be available to only one parent at a time, in a single unbroken period, except where both parents may concurrently take an unbroken period of up to 8 weeks at the time of the birth or placement of the child.

d) Birth-related and/or adoption-related leave may start at any time within 12 months after the date ofbirth or day ofplacement of a child ifthe team member has a spouse or de facto partner who is not a team member and the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or placement of the child and the start ofthe date ofleave.

e) If the leave is birth-related for a female team member who is pregnant with, or gives birth the period ofleave may start up to 6 weeks before the expected date ofbirth of the child and must not start later than the date of birth of the child.

f) Where both parents intend to take birth-related leave, one parent's period of leave must start first on either the date of the birth of the child or for a female team member who is pregnant with or gives birth to a child the period of leave may start up to 6 weeks before the expected date of birth of the child, the second parent's period ofleave must start immediately after the end of the first parent's period ofleave.

g) If the leave is adoption-related leave, the period ofleave must start on the day of placement of the child.

h) Where both parents intend to take adoption-related leave, one parent's period of leave must start on the day of placement of the child and the second parent's period ofleave must start immediately after the end of the first parent's period ofleave.

24.5 Birth-Related Parental Leave -Notice and Evidence Requirements

a) A team member must provide notice to Kmart in advance of the expected date of commencement ofparentalleave. The notice requirements are:

(i) at least 10 weeks prior- advise Kmart of the expected date of birth (included in a certificate from a registered medical practitioner stating that the team member is pregnant) specifying the intended start and end dates of the leave; and

(ii) at least 4 weeks prior -to the date on which the team member proposes to commence parental leave, confinn the period ofleave to be taken, advise ifthere are any changes to the intended start and the intended end date of the leave.

b) When the team member gives notice under sub-clause 24.5(a)the team member must also provide a statutory declaration stating particulars of any period of parental leave sought by their spouse or de facto partner and that for the period of parental leave they will not engage in any conduct inconsistent with their contract of employment.

c) A team member will not be in breach of this clause if failure to give the stipulated notice is occasioned by the birth of the child occurring earlier than the expected date.

d) Where a pregnant team member continues to work within the 6 week period immediately prior to the expected date of birth, or where the pregnant team member elects to return to work within 6 weeks after the birth of the child, Kmart may require the team member to provide a medical certificate stating that she is fit to work on her normal duties.

If in the opinion of the medical practitioner, the team member is fit to work, the medical certificate may contain a statement of whether it is inadvisable for the team member to continue in her present position for a stated period because of:

(i) illness, or risks arising out of the pregnancy; or (ii) hazards connected with the position.

Where such a certificate is issued, Kmart may require the team member to start a continuous period ofbirth-related leave as soon as reasonably practicable, ifthe team member:

(1) does not give Kmart the requested certificate within 7 days after the request; or (2) within 7 days after the request for the certificate, gives Kmart a medical

certificate stating that the team member is unfit for work.

e) Unpaid Special Maternity Leave

(i) Where the pregnancy of a team member not then on birth-related parental leave terminates after 28 weeks other than by the birth of a living child, the team member may take special maternity leave and personal leave of such periods as a registered medical practitioner certifies is necessary.

(ii) Where a team member is suffering from an illness not related to the direct consequences of the confinement, a team member may take any paid personal leave to which she is entitled in lieu of, or in addition to, special maternity leave.

(iii) Where a team member not then on birth-related parental leave suffers illness related to her pregnancy, she may take any paid personal leave to which she is then entitled and such further special maternity leave as a registered medical practitioner certifies as necessary before her return to work. The aggregate of paid personal leave, special maternity leave and parental leave, including parental leave taken by a spouse or de facto partner, may not exceed 104 weeks.

(iv) A team member must provide Kmart with notice of the taking of unpaid special maternity leave as soon as practicable (which may be at a time after the leave has started). The notice must advise of the period or expected period of the leave.

(v) A team member's entitlement to 24 months of unpaid birth-related parental leave is reduced by the amount of any unpaid special maternity leave taken by the team member while she was pregnant.

f) Transfer to a safe job

(i) Where a team member is pregnant and, in the opinion of a registered medical practitioner, the team member is fit for work but it is inadvisable for the team member to continue at her present position because of illness or risks arising out of the pregnancy or hazards connected with that position, the team member will, if Kmart deems it reasonably practicable after being provided with the required notice and evidence, be transferred to a safe job at the rate and on the conditions attaching to that job with no other change to the team member's terms and conditions of employment.

(ii) If the transfer to a safe job is not practicable, the team member may take, or Kmart may require the team member to take, a period of paid leave immediately in accordance with the following:

(1) the entitlement to leave is in addition to any other leave entitlement the team member has; and

(2) the period ofleave ends at the earliest of whichever the following times is applicable:

• the end of the period stated in the medical certificate; • if the team member's pregnancy results in the birth of a living child-the end

of the day before the date ofbirth; • if the team member's pregnancy ends otherwise than with the birth of a

living child-the end of the day before the end of the pregnancy.

24.6 Adoption Related Leave

a) The team member will notify Kmart at least 10 weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. A team member may commence adoption leave prior to providing such notice where, through circumstances beyond the control of the team member, the adoption of a child takes place earlier.

b) Before commencing adoption leave, a team member will provide Kmart with a statutory declaration stating:

(i) the team member is seeking adoption leave to become the primary care-giver of the child; and

(ii) particulars of any period of adoption leave sought or taken by the team member's spouse and de facto partner; and

(iii) that for the period of adoption leave the team member will not engage in any conduct inconsistent with their contract of employment.

c) Kmart may require a team member to provide confirmation from the appropriate government authority of the placement.

d) Where the placement of a child for adoption with a team member does not proceed or continue, the team member will notify Kmart immediately and Kmart will nominate a time not exceeding 4 weeks from receipt of notification for the team member's return to work.

e) A team member will not be in breach of this clause as a consequence of failure to give the stipulated periods of notice if such failure results from a requirement of an adoption agency to accept earlier or later placement of a child, the death of a spouse or de facto partner, or other compelling circumstances.

f) A team member seeking to adopt a child is entitled to unpaid leave for the purpose of attending any compulsory interviews or examinations as are necessary as part of the adoption procedure. The team member and Kmart should agree on the length of the unpaid leave. Where agreement cannot be reached, the team member is entitled to take up to 2 days' unpaid leave. Where paid leave is available to the team member, Kmart may require the team member to take such leave i.nstead.

24.7 Return to Work After Cancellation of Parental Leave

Where a team member has commenced parental leave and loses their child during the period of leave a team member may return to work at any time, as agreed between Kmart and the team member provided that time does not exceed 4 weeks from the recommencement date desired by the team member.

24.8 Variation of Period of Parental Leave

a) Where a team member has originally applied for less than 104 weeks' leave, the team member may extend their leave up to an aggregate of 104 weeks' by providing Kmart 4 weeks' notice.

b) A team member may shorten their period of leave by agreement with Kmart, by giving not less than 4 weeks' notice.

24.9 Parental Leave and Other Entitlements

a) A team member may in lieu ofor in conjunction with parental leave, access any annual leave or long service leave entitlements which they have accrued subject to the total amount of leave not exceeding 104 weeks. Ifthe team member does so, the taking ofthe other paid leave does not break the continuity of the period of unpaid parental leave.

b) A team member is not entitled to take paid personal/carer's leave or compassionate leave whilst on unpaid parental leave.

24.10 Returning to Work After a Period of Parental Leave

a) A team member will notify of their intention to return to work after a period of parental leave at least 4 weeks prior to the expiration of the leave.

b) A team member is able to return on fewer hours than their contracted hours prior to going on parental leave, for a period up to the child's 2nd birthday (or 2nd anniversary of placement), as provided for in 24.14 of this clause.

Provided that, the hours and rosters to be worked will be agreed between Kmart and the team member.

c) A team member will be entitled to the position that they held immediately before proceeding on parental leave. In the case of a team member transferred to a safe job pursuant to sub-clause 24.5(f), the team member will be entitled to return to the position they held immediately before such transfer.

d) Where such position no longer exists but there are other positions available that the team member is qualified for and is capable of performing, the team member will be entitled to a position as nearly comparable in status and pay to that of their former position. Kmart will consider the family responsibilities of the team member who is returning to work when considering the team member's roster.

24.11 Right to Request

a) In addition to clause 24.1 0, a team member entitled to parental leave pursuant to the provisions of clause 24.4 may request Kmart to return from a period of parental leave on fewer hours than their contracted hours prior to going on parental leave until the child reaches school age, to assist the team member in reconciling work and parental responsibilities.

b) Kmart shall consider the request having regard to the team member's circumstances and, provided the request is genuinely based on the team member's parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or Kmart's business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

c) The team member's request and Kmart's decision made under 24.11 (b) must be recorded in writing.

d) Where a team member wishes to make a request under 24.11 (b) such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the team member is due to return work from parental leave.

24.12 Voluntary Casual Work Whilst on Parental Leave

a) By agreement between the team member and Kmart, a team member may be engaged on a casual basis during periods of parental leave.

b) Hours worked as a casual team member under this Clause:

(i) will be paid at the appropriate casual hourly rate;

(ii) will not be included for the purposes of accruing any leave entitlements with the exception of long service leave;

(iii) will count as service for the purposes of long service leave accrual. A team member's long service leave date will be altered by the number of starts worked casually whilst on parental leave;

(iv) will not extend the period of parental leave beyond the approved period ofleave;

(v) a team member's status (full-time, part-time) will not be changed as a result of working during parental leave as provided by this clause.

24.13 Replacement Team Members

a) A replacement team member is a team member specifically engaged or temporarily promoted or transferred, as a result of a team member proceeding on parental leave.

b) Before Kmart engages a replacement team member Kmart must inform that person of the temporary nature of the employment and of the rights of the team member who is being replaced.

24.14 Part-time Work

The following provisions apply to full-time and part-time team members only.

a) Entitlement

(i)

(ii)

(iii)

A team member may work part-time in one or more periods at any time from the date of birth of the child until the child's 2nd birthday or, in relation to adoption, from the date of placement ofthe child until the 2nd anniversary of the placement.

By agreement, a female team member may also work part-time in one or more periods while she is pregnant where part-time employment is, because of the pregnancy, necessary or desirable. ·

A team member may work part-time in relation to a gradual return to full-time work on return from parental leave until the child's 2nd birthday (or 2nd anniversary ofthe child's placement in the case of adoption).

b) Return to former position

(i) Following a period of part-time employment as provided for in sub-clause 24.14, a team member has the right to retum to his or her former position.

(ii) Nothing in (a) hereof shall prevent Kmart from permitting the team member to return to his or her former position after a second or subsequent period of part-time employment.

c) Effect of part-time employment on continuous service

Commencement of part-time work under this clause, and return from part-time work to full-time work under this clause, shall not break the continuity of service or employment.

d) Pro-rata entitlements

Subject to the provisions of this clause and the matters agreed to in accordance with paragraph (b) hereof, part-time employment shall be in accordance with the provisions of this Agreement that shall apply pro-rata.

e) Part-time work agreement

(i) Before commencing a period of part-time employment under this clause the team member shall advise Kmart:

(1) that the team member wants to work part-time; and

(2) the period of part-time employment.

(ii) The team member and Kmart shall then agree:

(1) upon the hours to be worked by the team member, the days upon which they will be worked and commencing times for the work; and

(2) upon the classification applying to the work to be performed.

(iii) The terms of this agreement may be varied by consent, or in accordance with the rostering principles contained in clause 13, Rostering Principles- Permanent Team members.

(iv) The terms of this agreement or any variation to it shall be put in writing and retained by Kmart. A copy of the agreement, and any variation to it, shall be provided to the team member by Kmart.

(v) The terms of this agreement shall apply to the part-time employment.

f) Termination of employment

(i) The employment of a part-time team member under this clause, may be terminated in accordance with the provisions of this Agreement but may not be terminated by K.mart because the team member has exercised or proposes to exercise any rights arising under this clause or has enjoyed or proposes to enjoy any benefits arising under this clause.

(ii) Any termination entitlements payable to a team member whose employment is terminated while working part-time under this clause, or while working full-time after transferring from part-time work under this clause, shall be calculated by reference to the full-time rate of pay at the time of termination and by regarding all service as a full-time team member as qualifying for a termination entitlement

based on the period of full-time employment and all service as a part-time team member on a pro-rata basis.

g) Extension of hours of work

Kmart may request, but not require, a team member working part-time under this clause to work outside or in excess of the team member's ordinary hours of duty provided for in accordance with paragraph (e) hereof.

h) Nature of part-time work

Where possible, a team member returning to work part-time under this provision shall perform the work of his or her former position.· Where this is not possible, the work shall be work otherwise performed under this Agreement.

i) Inconsistent Agreement provisions

A team member may work part-time under this clause irrespective of any other provision of this Agreement which limits or restricts the circumstances in which part-time employment may be worked or the terms upon which it may be worked including provisions prescribing a minimum or maximum number of hours a part-time team member can work.

j) Replacement team member

(i) A replacement team member is a team member specifically engaged as a result of a team member working part-time under this clause.

(ii) A replacement team member may be employed part-time. Subject to this clause, paragraphs (d) to (f) and paragraph (i) hereof apply to the part-time employment of a replacement team member.

Before Kmart engages a replacement team member under this clause, Kmart shall inform the person of the temporary nature of the employment and of the rights of the team member who is being replaced.

k) Unbroken service as a replacement team member shall be treated as continuous service for the purposes of sub-clause 24.14.

24.15 Eligible Casual Team Members

a) A casual is entitled to parental leave in accordance with the provisions ofthis clause provided that:

(i) They are employed on a regular and systematic basis for an ongoing period of employment for at least 12 months immediately preceding when the team member proposes to proceed on parental leave and who, but for an expected birth or an expected placement of a child, would have a reasonable expectation of continuing engagement by Kmart on a regular and systematic basis, and

(ii) have, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.

For the purposes of this sub-clause, a regular casual shall mean a casual who has had at least 1 start per fortnight.

b) On return from parental leave, the casual team member shall be engaged as a casual team member in accordance with clause 11.3, Casual Team members, of the Agreement.

c) Nothing in this clause shall operate to vary the nature of employment of the casual team member or affect the team member's rights or entitlements following return from parental leave in accordance with this clause.

d) Without limiting clause 24.15 (a) for the purposes of this clause, a casual team member is also an eligible casual team member if:

(i) the team member was engaged by Kmart on a regular and systematic basis for a sequence of periods during a period (the first period of employment) ofless than 12 months; and

(ii) at the end of the first period of employment, the team member ceased, on Kmart's initiative, to be so engaged by Kmart; and

(iii) Kmart later again engaged the team member on a regular and systematic basis for a further sequence of periods during a period (the second period of employment) that started not more than 3 months after the end of the first period of employment; and

(iv) the combined length of the first period of employment and the second period of employment is at least 12 months; and

(v) the team member, but for an expected birth or an expected placement of a child, would have a reasonable expectation of continuing engagement by Kmart on a regular and systematic basis.

24.16 Communication during Parental Leave

Where a team member is on parental leave and a definite decision has been made to introduce significant change at the workplace, Kmart shall take reasonable steps to:

a) make information available in relation to any significant effect the change will have on the status or responsibility level of the position the team member held before commencing parental leave; and

b) provide an opportunity for the team member to discuss any significant effect the change will have on the status or responsibility level of the position the team member held before commencing parental leave.

c) The team member shall take reasonable steps to inform Kmart about any significant matter that will affect the team member's decision regarding the duration of parental leave to be taken, whether the team member intends to return to work and whether the team member intends to request to return to work on a part-time basis.

d) The team member shall also notify Kmart of changes of address or other contact details which might affect Kmart' s capacity to comply with clause 25.16 (a), 25.16 (b) and 25.16 (c).

24.17 Requests for flexible working arrangements

(a) An eligible team member who is a parent, or who has responsibility for the care, of a child may make a request to Kmart for a change in working arrangements to assist the team member to care for the child if the child is under school age or is under 18 years of age and has a disability.

(b) Permanent team members are able to make such a request if they have completed 12 months continuous service with Kmart immediately before making the request. A casual team member is able to make such a request if the team member is a long term casual with an ongoing expectation of continuing employment with Kmart on a regular and systematic basis. A long term casual employee is a casual employee that has been employed by Kmart on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

(c) A request must be in writing and set out the details of the change sought and the reason for the change. Kmart will provide the team member with a response in writing within 21 days to the request stating if Kmart grants or declines the request. In the event that Kmart refuses the request Kmart's written response will include reasons for the refusal.

24.18 Top-up Payments-Government Paid Parental Leave Scheme

24.18.1 Where a team member is eligible for unpaid parental leave and eligible to payments under the Federal Government's Paid Parental Leave Scheme (PPL Scheme), Kmart will make up the difference, if any, between the payment made to the team member under the PPL Scheme and the team member's ordinary hourly rate of pay (exclusive of any penalties) for the ordinary hours that would have been worked by the team member but for the team member being on unpaid parental leave.

24.18.2 Where a team member receives a payment under the PPL Scheme that exceeds the amount the amount that the team member would have been paid for their ordinary hours at their ordinary hourly rate no top up payment becomes due under this clause.

24.18.3 The top up of the PPL Scheme under this clause operates to a maximum of 18 weeks with the team member receiving a top up only for the period under the PPL Scheme that the team member is entitled to PPL payments.

24.18.4 For the purposes of this clause ordinary hours means for a:

(a) Full-time team member 38 hours; (b) Part-time team member their agreed contract hours; and (c) Casual team member the average hours worked per week, calculated over a 6

month period immediately prior to the team member proceeding on unpaid parental leave.

If before proceeding on unpaid parental leave if a team member who was transferred to a safe job and worked less hours then the hours worked prior to the safe job are the team member's ordinary hours for the purpose of this clause.

24.18.5 Ordinary hourly rate has the meaning given in clause 6.3 of this Agreement.

24.18.6 Payment of the top up will only be made by Kmart once the government has advised Kmart that PPL is payable for a team member, Kmart has been advised of the amount payable and the Government has reimbursed Kmart the cost of the PPL Payment. If the government subsequently advises Kmart that a team member has become ineligible to PPL payments and this results in monies paid that a team member is not entitled to under this clause Kmart will seek to recover the overpayment in accordance with 7 .1. 7 of this Agreement.

24.18.7 The purpose of the entitlement provided under this clause is to ensure that team members going on unpaid parental leave who have an entitlement to payment under the PPL Scheme receive at least their ordinary time rate for their ordinary hours for a period up to 18 weeks. Team members already receiving an equivalent of their ordinary time of pay (or more) because they are receiving various payments either under this Agreement or otherwise do not also receive a top up under this clause.

24.18.8 Payments made by Kmart under this clause do not constitute paid leave, and annual leave and personal leave do not accrue during unpaid parental leave .

24.18.9 Amendments to the PPL Scheme

(a) If amendments are made to the PPL Scheme reducing the amount payable under the PPL Scheme the amount payable under this clause shall not increase. The payments made under the PPL Scheme at the time of approval of this Agreement by FW A shall provide the basis for the top up, subject to any increases under this Agreement and or the Federal Minimum Wage from time to time.

(b) If amendments are made to the PPL Scheme increasing the amount payable under the PPL Scheme (other than increases in the Federal Minimum Wage) the amount payable under this clause will reduce to preserve only a top up to the team member's ordinary hourly rate (exclusive of penalties) for the hours that would have been paid to the team member but for the team member being on unpaid parental leave.

(c) If the PPL Scheme is abolished or Kmart becomes required by law to provide paid parental leave Kmart's obligation to make top up payments under this clause will cease.

PART 6- COMMUNICATION, CONSULATION AND DISPUTE RESOLUTION

25 INTRODUCTION OF CHANGE

25.1 Notification

25.1.1 Where Kmart has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on team members, Kmart shall notify the team members who may be affected by the proposed changes and the Union.

25.1.2 "Significant effects" include tennination of employment, major changes in the composition, operation or size of Kmart's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the significant alteration of hours of work; the need for retraining or transfer of team members to other work or locations and the restructuring of jobs. Provided that where the Agreement makes provision for alteration of any of the matters referred to herein, the alteration shall be deemed not to have significant effect.

25.2 Discussion

25.2.1 Kmart shall discuss with the team members affected and the Union, inter alia, the introduction of the changes referred to in sub-clause 25 .1.1 hereof, the effects the changes are likely to have on team members, measures to avert or mitigate the adverse effects of such changes on team members and shall give prompt consideration to matters raised by the team members and/or the Union in relation to the changes.

25.2.2 The discussions shall commence as early as practicable after a definite decision has been made by Kmart to make the changes referred to in sub-clause 25.1 hereof.

25.2.3 For the purposes of such discussion, Kmart shall provide in writing to the team members concerned and the Union, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on team members and any other matters likely to affect team members, provided that Kmart shall not be required to disclose confidential infonnation the disclosure ofwhich would be harmful to Kmart's interests.

26 REDUNDANCY

Excluding casuals, a team member being made redundant shall receive the provisions as contained below:

26.1 Discussions Before Terminations

a) Where Kmart has made a definite decision that it no longer wishes the job the team member has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to tennination of employment, Kmart shall hold discussions with the team members directly affected and with the Union.

b) The discussions shall take place as soon as is practicable after Kmart has made a definite decision which will invoke the provision of sub-clause (a) hereof and shall cover, inter alia, any reasons for the proposed terminations measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the team members concerned.

c) For the purposes of the discussion Kmart shall, as soon as practicable, provide in writing to the team members concerned and the union, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of team members 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 K.mart shall not be required to disclose confidential information the disclosure of which would be inimical to Kmart's interests.

26.2 Transfer to Lower Paid Duties

Where a team member is transferred to lower paid duties for reasons set out in sub-clause l(a) hereof the team member shall be entitled to the same period of notice of transfer as he/she would have been entitled to if his/her employment had been terminated, and Kmart may at its option make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rates for the number of weeks of notice still owing.

26.3 Transmission of Business

a) Where a business is before, on or after the date of this Agreement, transmitted from an employer (in this sub-clause called "the transmitter") to another employer (in this sub-clause called "the transmittee") and a team member who at the time of such transmission was a team member of the transmitter in that business becomes a team member of the transmittee:

(i) the continuity of the employment of the team member shall be deemed not to have been broken by reasons of such transmission; and

(ii) the period of employment which the team member has had with the transmitter, or any prior transmitter, shall be deemed to be service of the team member with the transmittee.

b) In this sub-clause "business" includes trade, process, business or occupation and includes part of any such business and "transmission" includes transfer, conveyance, assignment or succession whether by agreement or by operation oflaw and "transmitted" has a corresponding meaning.

26.4 Time Off Work During Notice Period

a) During the period of notice of termination given by Kmart a team member shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment.

b) If the team member has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the team member shall, at the request ofKmart, be required to produce proof of attendance at an interview or he/she shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.

26.5 Notice to Centrelink

Where a decision has been made to terminate team members in the circumstances outlined in sub­clause 26.1 hereof, Kmart shall notify Centrelink thereof as soon as possible giving relevant infonnation including the number and categories of the team members likely to be affected and the period over which the terminations are intended to be carried out.

26.6 Severance Pay

In addition to the period of notice prescribed for ordinary termination in clause 11.5 of this Agreement a team member whose employment is terminated for reasons set out in sub-clause 26.1 hereof shall be entitled to the following amount of severance pay in respect of a continuous period of service.

Severance Pay - Severance Pay -Period of Continuous under 45 years of age 45 years of age and over Service

Less than 1 year nil nil 1 year and less than 2 years 4 weeks 5 weeks 2 years and less than 3 years 7 weeks 8.75 weeks 3 years and less than 4 years 10 weeks 12.5 weeks 4 years and less than 5 years 12 weeks 15 weeks 5 years and less than 6 years 14 weeks 17.5 weeks 6 years and over 16 weeks 20 weeks

"Weeks' pay" means the ordinary time rate of pay for the team member concerned.

Provided that the severance payments shall not exceed the amount which the team member would have earned if employment with Kmart had proceeded to the team member's normal retirement date.

For the purpose of this clause, continuity of service shall be calculated in the manner prescribed by sub-clause 6.4 of this Agreement.

26.7 Team Member Leaving During Notice Period

A team member whose employment is terminated for reasons set out in sub-clause 26.1 hereof may terminate his/her employment during the period of notice and, if so, shall be entitled to the same benefits and payments under this clause had he/she remained with Kmart until the expiry of such

/

notice. Provided that in such circumstances the team member shall not be entitled to payment in lieu of notice.

26.8 Superannuation Benefits

Where a team member who is terminated receives a benefit from a superannuation scheme, he/she shall only receive under sub-clause 6 the difference between the severance pay specified in that sub-clause and the amount of the superannuation benefit he/she receives which is attributable to employer contributions only.

If this superannuation benefit is greater than the amount due under sub-clause 6 then he/she shall receive no payment under that sub-clause.

The provisions of this clause shall not apply to benefits received under an Award based Superannuation Scheme.

26.9 Incapacity to Pay

Kmart, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied on the basis of Kmart' s incapacity to pay.

26.10 Alternative Employment

Kmart, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied ifKmart obtains acceptable alternative employment for a team member.

26.11 Team Members Exempted

Clause 26 shall not apply where employment is terminated as a consequence of misconduct, in the case of casual team members or team members engaged for a specific period of time or for a specified task or tasks.

26.12 Team Members with Less Than 1 Year's Service

Clause 26 shall not apply to team members with less than one year's continuous service and the general obligation on Kmart should be no more than to give relevant team members an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the team members of suitable alternative employment.

27 DISPUTES RESOLUTION PROCEDURE

27.1 Defined Terms

In this clause 27 and Appendix A:

27 .1.1 "Party" means Kmart or a team member or team members involved in the dispute and "Parties" means both or all of them;

27 .1.2 "Dispute" means any matter concerning the application of the terms of Agreement (not merely whether the Agreement applies at all) or matters arising from the Agreement or matters arising in the workplace which pertain to the employment relationship but does not include a matter or claim that:

a) would constitute an additional claim pursuant to clause 5.2 or; b) relates to matters in respect ofwhich a team member (or former team member)

has an immediate right to make a legal claim pursuant to legislation pertaining to termination of employment; or

c) relates solely to a team member's immediate right to make a legal claim pursuant to legislation pertaining to equal opportunity or unlawful discrimination complaints.

27.1.3 Dispute also means disputes about the NBS.

27 .1.4 "Team Member Representative" means a fellow team member from the same work location or, if relevant, a representative of a union who is party to this Agreement.

27.2 Dispute Resolution Procedure

The following procedure for the avoidance or resolution of disputes between Kmart and team members covered by this Agreement shall apply.

27.2.1

27.2.2

27.2.3

27.2.4

In the first instance, the dispute shall, wherever possible, be discussed by the affected team member and the manager at the work location concerned, with the joint intent of achieving a satisfactory outcome.

If the dispute remains unresolved, an appropriate representative ofKmart, will assist in resolving the dispute. The team member may appoint a Team Member Representative to represent the team member in relation to the dispute.

Should the dispute still remain unresolved, a senior representative ofKmart or another suitably authorised representative ofKmart must become involved. The team member and/or their Team Member Representative shall meet as required with Kmart representative.

Until the dispute is resolved, but subject to clause 27.2.7, all work shall continue in accordance with the practices existing prior to the matter in dispute arising, or other agreed arrangements. No Party shall be prejudiced as to the final settlement by the continuance or deferment of the work in accordance with this clause.

27 .2.5 Clause 27 .2.4 is subject to Kmart's responsibility to provide a safe and healthy working environment.

27.2.6 If after the steps in clauses 27.2.1 to 27.2.4 have been followed and, subject to clause 27.2.6, the dispute (or part of it) is still unresolved after having followed all of the above steps, a Party may refer the dispute to Fair Work Australia ("FW A") for resolution through conciliation in the first instance. If the dispute cannot be resolved by conciliation the dispute may then proceed to arbitration by FW A. An arbitrated decision of FW A may be the subject of an appeal by leave of a Full Bench of FW A in accordance with clause 1.6 of Appendix A.

27 .2. 7 A dispute may also be referred to FW A for conciliation and arbitration in accordance with clause 27.2.6 by agreement between the Parties even ifthe relevant dispute (or part of it) has not progressed through the steps outlined in clauses 27 .2.1 to 27 .2.4.

27.2.8 Appendix A sets out the powers and functions exercisable by FWA in dealing with a dispute by conciliation, arbitration and on appeal. Appendix A also sets out various procedural matters which must be followed by the Parties in relation to a dispute (or a part of it) referred to FWA.

27.3 Conduct of the Parties

27.3.1 In order to facilitate this dispute resolution procedure:

a) the Party with the dispute must notify the other Party at the earliest opportunity of the problem;

b) throughout all stages of the procedure all relevant facts must be clearly identified and recorded; and

c) sensible time limits must be allowed for completion of the various stages of discussion. However, the Parties must co-operate to ensure that the dispute resolution procedure is carried out as quickly as possible.

PART 7- COMPANY AND TEAM MEMBER'S DUTIES, WORKPLACE SAFETY & RELATED MATTERS

28 SUPERANNUATION

28.1 Kmart shall be and remain a participating employer of the Retail Employees Superannuation Trust (REST) and shall participate in accordance with the Fund Trust Deed.

28.2 Kmart shall contribute monthly to REST on behalf of each eligible team member the following levels of contributions: -

From 1 July, 2002 - 9% of ordinary time earnings

An eligible team member is one who: -

a) Earns $450 or more in ordinary time earnings in any month; and

b) In the case of a team member aged below 18 years, works at least 30 hours per week.

Ordinary time earnings shall be calculated in accordance with subsection 6(1) of the Superannuation Guarantee (Administration) Act 1992.

28.3 Kmart shall provide each team member upon commencement of employment with the appropriate membership application form(s) of REST and shall forward the completed form(s) to REST within 14 days of the team member returning completed forms to Kmart.

28.4 (i) A team member may make personal contributions to REST in addition to those made byKmart.

(ii) A team member who wishes to make such additional contributions must authorise Kmart in writing to pay into the Fund, from the team member's wages, a specified amount in accordance with the REST Trust Deed and Rules.

(iii) Upon receipt of written authorisation from the team member, Kmart shall commence making monthly payments into the Fund on behalf of the team member following receipt of the authorisation.

(iv) A team member may vary his or her additional contributions by a written authorisation and Kmart shall alter the additional contributions within 14 days of receipt of the authorisation.

(v) Additional team member contributions to REST requested under this sub-clause shall be expressed in whole dollars.

(vi) The ability to opt in and out of the fund as provided within the Superannuation Guarantee (Administration) Act 1992 (as amended) and the applicable regulations shall not apply and team members employed under the terms of this Agreement are not

--··--------·--·--------------

eligible to elect another superannuation fund into which the team member's employer contributions are paid.

28.5 An existing team member employed at the commencement of this Agreement who was eligible for superannuation contributions paid under the Coles Myer Occupational Superannuation Award [Print K2517] shall continue to receive such contributions.

28.6 Ability to Salary Sacrifice by Company Authorisation

28.6.1 This clause provides for a team member to request an alternative system for the payment of wages. It is intended that the flexibility provided by this clause will be of benefit to team members without imposing additional costs on Kmart.

28.6.2 Flexible Remuneration

a) A team member may, by mutual agreement with Kmart:

ii. participate in a salary sacrifice program in relation to Superannuation or any other benefit agreed to by Kmart; and

iii. request to receive wages payable in accordance with this Agreement, minus the amount diverted into contributions under this program.

b) A team member whose request is accepted by Kmart, will receive the benefit and wages prescribed under this clause in lieu of wages and other Amounts payable under this Agreement.

(i) Any request under subclause 28.6.2 above will be in the form prescribed by Kmart.

(ii) A team member who takes any paid leave shall receive the benefit and wages prescribed under this clause in lieu of wages and other amounts payable under this Agreement.

(iii) Any other Agreement payment, including termination payments, calculated by reference to the team member's wages as provided in this Agreement will be calculated by reference to the total of wages and benefits provided in clause 7, Wages unless this clause specifically provides otherwise.

(iv) Each team member participating in benefits available under this clause shall receive written confirmation of relevant information including the post arrangement gross wage rates, net wage rates and any other payment that may be affected by the arrangement.

(v) Written confirmation as specified in subclause 28.6.2(b )(iv) above shall be provided upon any adjustment to pre-arrangement wage rates under this Agreement or reclassification.

(vi) For all other purposes, after taking into account the deductions made in accordance with subclause 28.2 above a team member shall not receive less

28.6.3

28.6.4

than the rate specified in clause 7, Rates of Pay, of this Agreement for the relevant classification for the team member.

Changes to Flexible Remuneration

a) Kmart may amend the provisions of benefits under the program covered by this clause in the event of changes in State or Federal legislation.

b) In the event that amendment to these remuneration arrangements is to be implemented, Kmart will provide team members with notice of not less than 2 months unless the amendments arise from circumstances outside Kmart's control, in which case, a shorter notice period may apply.

Contributions

a) A team member may choose to vary the amount of their contribution at 3 monthly intervals.

29 ACCIDENT PAY

29.1 This clause shall only apply to the state of Victoria.

29.2 If following an injury a team member receives compensation under the applicable State legislation, then that compensation payment shall be increased by Kmart to the amount of the usual weekly rate for the average rostered hours worked by the team member at the time of the accident. This payment made by Kmart will be limited to a maximum of 39 weeks.

29.3 The provisions of this clause shall not apply in respect of any injury during the first 7 consecutive days (including non-working days) of incapacity.

30 RETAIL TRAINEESHIPS

30.1 This agreement allows for the employment of trainees. A trainee is an employee undertaking a traineeship under a training contract approved by a relevant state or territory training authority which meets the requirements of a training package developed by the relevant Industry Skills Council and which leads to an AQF certificate level qualification.

Such trainees will be employed and paid under the wages (including junior rates) and conditions set out in this Agreement, providing that the wage rate applicable will only be paid for hours worked.

31 DRESS AND PRESENTATION STANDARDS

31.1 When at work team members shall be dressed in a neat, tidy and business like manner at all times.

31.2 Team members shall at all times dress in accordance with Kmart's Teamwear Policy.

31.3 Kmart will continue to consult with the Union on the practical implementation of tax deductable Teamwear and on any changes it may propose to Kmart's Teamwear Policy.

32. PROTECTIVE CLOTHING

32.1 Suitable protective clothing and/or accessories shall be provided to team members who are required to perform duties which may lead to excessive soiling or damage to clothing or instances where the provision of such clothing and/or accessories is necessa1y for Kmart to meet its obligations to provide a safe work environment for team members. Such protective clothing shall remain the property of Kmart.

32.2 Items of protective clothing detailed in this clause shall be laundered by Kmart at Kmart's expense.

33. POSTING OF AGREEMENT AND FAIR WORK INFORMATION STATEMENT

33.1 An up-to-date copy of this Agreement shall be posted and maintained by Kmart in a prominent place accessible to all team members.

33.2 Kmart will provide new team members with a copy of the Fair Work Information Statement, in accordance with the NES, as soon as practicable after a new team member commences employment with Kmart.

34. SAVINGS PROVISIONS

It is agreed between the parties that these savings provisions supersede any other savings provisions which were applicable within the Kmart National Award 1994, or any subsequent Agreement, prior to the implementation of this Agreement.

34.1 No team member will move to a lower hourly rate of pay for their current roster, applicable at the time of commencement of the Agreement. This provision will include ordinary time earnings and over-time for current regular patterns of work.

34.2 Subject only to the provisions of sub-clause 11.2. 7, no permanent team member shall suffer a reduction in ordinary time earnings as a result of the implementation of this Agreement.

34.3 Part-time team members engaged prior to 1 November 1994 who are entitled to a minimum of 12 rostered hours per week (48 hours averaged over 4 weeks) or a higher minimum shall have this minimum provision maintained.

34.4 Casual team members may be converted to part-time employment under the terms and conditions of this Agreement provided that:

i) the change from casual to part-time is voluntary and recorded in writing, and

ii) casual team members converting to part-time shall have continuity of employment for all purposes where they have previously been regularly employed.

34.5 Casuals who have accrued sick leave entitlements prior to 1 November 1994 shall retain such accrued entitlements and may take paid sick leave until the entitlements are exhausted (subject to the requirements of sub-clause 19 .2).

34.6 Part-time employees in Victoria and Western Australia who were rostered to work less than an average of 36 hours over a 4-week period shall be permitted to retain their existing hours.

34.7 Part-time employees in Tasmania, South Australia, NT and ACT whose contract hours at the commencement of this Agreement are in excess of an average of 36 hours per week shall be pennitted to retain their existing hours as their maximum hours and these hours are not subject to the payment of overtime under this Agreement.

34.8 The minimum engagement for casual employees engaged in Tasmania prior to 1 November 1994 shall remain 4 hours from Monday to Friday and 2 Hours on a Saturday.

34.9 Employees on a premium hour roster in NSW at the time of the implementation of this Agreement shall, retain existing rosters and classification as a full-time employee and receive all pay rises under this Agreement.

34.10 Sunday work

The requirement to work on Sunday as a part of a team member's roster of work shall operate under the following arrangements:

a) Team members engaged prior to 1 November 1994 and who at that time were not working Sunday as a part of their regular roster shall not be required to work on Sunday unless they agree to do so.

b) Team members engaged prior to 1 November 1994 and who were working Sunday as a part of their regular roster may continue to be required to work on Sunday.

c) Where trading on Sunday becomes legal during the life of this Agreement, team members engaged at the commencement of this Agreement shall not be required to work on Sunday as a part of their regular roster unless they agree to do so.

d) Where trading on Sunday becomes legal during the life of this Agreement, team members engaged after the commencement of this Agreement shall not be required to work on Sunday as a part of their regular roster unless they agree to do so.

e) Where trading on Sunday becomes legal during the life of this Agreement, team members engaged after the commencement of Sunday trading may be required to work on Sunday as a part of their regular roster.

f) Where a team member protected by this clause transfers at his/her own request to a store where Sunday trading is already lawful and they are advised that they may be required to work on a Sunday, the team member will not have the right to refuse to work on Sundays at the new store.

g) Where a team member transfers at Kmart's request from a non-Sunday trading store to another store where Sunday trading is already lawful, the team member will retain the right to refuse to work on Sunday at the new store.

34.11 Existing Level 1 team members and Level 2 clerical team members shall not be replaced by new team members paid at a lower rate for the sole purpose of reducing labour cost.

34.12 Savings Provision - Change to Span of Hours

Team members employed as at 1st May 1998 who did not work beyond the span of hours as prescribed in the Kmart Australia Ltd Award 2001 may volunteer to work between 10.00 pm and 6.00 am Monday to Saturday inclusive. Provided that such team members currently rostered to work between 10.00 pm and 6.00 am Monday to Saturday inclusive may continue to be required to do so.

34.13 Work rostered between 6.00 pm and 10.00 pm Saturday shall be voluntary for all team members employed by Kmart prior to November 1, 1994.

34.14 Classification Changes 2012-Savings Provision for team members

34.14.1 Existing Team members working in roles which have been reclassified with a lower percentage as a result of the implementation of this Agreement will have their existing rate of pay (paid immediately before the commencement of this Agreement) saved and under the terms of this Agreement and will receive an increase of 50% of the lower classification wage increase on a six monthly basis until such time as the rate paid to the team member is exceeded by the wage paid for the lower classification in clause 7.1 of this Agreement. From that time such

team members will be paid in accordance for the rate of pay for their classification as set out in clause 7.1 of this Agreement.

34.14.2 Team member that commence employment with Kmart once this Agreement is in operation shall be paid in accordance with the rates specified in clause 7.1 ofthis Agreement.

34.14.3 The adult rates for such team members are set out below:

Extended 1 May 1 Nov 1 May 1 Nov lMay lNov 1 May 1 Nov 2015 trade 2012 2012 2013 2013 2014 2014 2015 stores*

Level3 Retail $762.65 $768.80 $774.95 $781.10 $787.25 $793.40 $799.55 $805.70 Assistant moving to Level2 Level2B Retail $728.25 $734.40 $754.10 $766.40 $778.70 $791.00 $803.30 Assistant Level2A Level2A Level2A Level2A Level2A moving to Rate Rate Rate Rate Rate Level2 Level2A Retail $710.90 $716.90 $735.70 $747.70 $759.70 $771.70 $783.70 Assistant Levell Levell Levell Levell Levell moving to Rate Rate Rate Rate Rate Levell

Non- 1 May 1 Nov 1 May 1 Nov 1 May 1 Nov lMay 1 Nov 2015 extended 2012 2012 2013 2013 2014 2014 2015 trade stores*

Level3 Retail $757.85 $764.00 $770.15 $776.30 $782.45 $788.60 $794.75 $800.90 Assistant moving to Level2 Level2B Retail $723.75 $729.90 $749.70 $762.00 $774.30 $786.60 $798.90 Assistant Level2A Level2A Level2A Level2A Level2A moving to Rate Rate Rate Rate Rate Level2 Level2A Retail $731.40 $743.40 $755.40 $767.40 $779.40 Assistant $706.50 $712.50 Levell Levell Levell Levell Levell moving to Rate Rate Rate Rate Rate Levell

34.14.4 Classifications impacted by the reclassification of some roles under this Agreement are:

34.14.5

34.14.6

34.14.7

(a) Mini-Lab Specialist (formerly Level2B reclassified to Level2 under the terms of this Agreement); and

(b) Returns and Repairs Clerk (formerly Level2A reclassified to Levell under the terms ofthis Agreement).

Self-Serve Checkout Team Leaders were not formerly classified but will be recognised as Self-Serve Checkout Specialists and paid at Level2 under this Agreement. Where a team member was being paid a higher rate of pay as a Self­Serve Checkout Team Leader before the operation of this Agreement the team member will be entitled to a saved rate in accordance with this clause.

Casual team members are entitled to be paid saved rates only if they worked regular and systematic hours as a Mini-Lab Specialist, a Returns and Repairs Clerk or as a Self Service Checkout Team Leader for a period of at least 3 months prior to the operation of this Agreement and if the team member continues to work such hours once this Agreement is operational. Other hours worked by such a casual will be paid at the appropriate rate of pay in clause 7.1 of this Agreement.

Under this Agreement certain specialists formerly recognised under the Kmart Ltd Australia Agreement 2009, are no longer recognised as specialists. Any team member who at the commencement of this Agreement continues to be paid a Level 2 rate as a Cosmetics Assistant, Asset Protection Officer, Garden Assistant or Paint Assistant they will continue to receive that rate. If the need for the position no longer exists the team member's rate will be saved until the saved rate is absorbed by the new classification rate. Where a saved rate is already in operation nothing in this sub-clause serves to extend that savings period.

35.. INDIVIDUAL FLEXIBILITY TERM

35.1.1

35.1.2

35.1.3

35.1.4

35.1.5

35.1.6

35.1.7

Kmmi and a team member covered by this agreement may agree to make an individual flexibility arrangement to vary the effect of one or more of the following matters:

(a) Arrangements about when work is performed; (b) Overtime rates; (c) Penalty rates; (d) Allowances; (e) Leave loading;

to meet the genuine needs ofKmart and the team member.

The arrangement must be genuinely agreed to by the Kmart and employee.

Kmmi must ensure that the tenns of the individual flexibility arrangement:

(a) are about permitted matters under s.172 of the Fair Work Act 2009; and (b) are not unlawful terms under s.194 of the Fair Work Act 2009; and (c) result in the employee being better off overall than the employee would be if no

arrangement was made.

Kmart must ensure that the individual flexibility arrangement:

(a) is in writing; (b) includes Kmart' s company name and the name of the team member; and (c) is signed by an authorised representative ofKmart and the team member and ifthe

employee is under 18 years of age, a parent or guardian of the team member must also sign the agreement.

The individual flexibility arrangement must include details of:

(a) the terms ofthe enterprise agreement that will be varied by the arrangement; (b) how the arrangement will vary the effect of the terms; (c) how the team member will be better off overall in relation to the terms and conditions

of his or her employment as a result of the arrangement; and (d) state the day on which the arrangement commences.

The Company must give the team member a copy of the individual flexibility agreement within 14 days after it is agreed to.

Kmart or the team member may terminate the individual flexibility arrangement by giving no more than 28 days written notice to the other party to the arrangement or if Kmart and team member agree, in writing at any time.

36. WORKPLACE SAFETY

Workplace Safety

36.1 Objective

Kmart, its team members, and the Union are committed to achieving and maintaining healthy and safe working conditions in all K.mart workplaces. This goal can best be achieved by developing a comprehensive approach to managing health and safety with joint involvement of management, team members, their elected Occupational Health and Safety Representatives and the Union. This approach shall have the following objectives:

a) to control workplace hazards at their source;

b) to reduce the incidence and costs of occupational injury and disease; and

c) to provide an injury management system for team members affected by occupational injury or illness.

36.2 Consultation

To ensure the effective elimination, minimisation and management of risks to health and, safety in the workplace, the following consultative mechanisms shall need to be maintained:

a) the election of Health and Safety Representatives in accordance with relevant legislative requirements;

b) an Occupational Health and Safety committee with equal representation of management and team members;

c) consultative procedures for the resolution of occupational health and safety issues; and

d) a six monthly meeting shall be held by the National Secretary of the Union, and the General Manager Human Resources ofKmart, or their authorised representatives, to discuss national or state-wide issues in the workplace which affect health and safety.

36.3 Occupational Health and Safety Training

Kmart and the Union are committed to enabling all team members to receive appropriate occupational health and safety training. Occupational Health and Safety Representatives shall be given paid leave to attend appropriate occupational health and safety training courses as stipulated in state legislation, and/or as approved by Kmart and the Union.

Where an issue arises regarding attendance at training programs, this shall be resolved by taking the matter through the Dispute Resolution Procedures in clause 27.

Kmart shall provide induction and on the job training to all team members on Kmart's occupational health and safety policy, particular hazards associated with the job, control measures applicable to these hazards and procedures for reporting and preventing hazards in the workplace.

36.4 Injury Management

Kmart shall maintain a process for the injury management of team members affected by occupational injury and illness which aims to return these team members to their pre-injury status within the community, their families and employment.

Injury management incorporates medical treatment and a multi-disciplinary range of skills necessary in the management of an injury or illness. This process shall include early intervention with appropriate, adequate and timely services based on needs assessed by the treating doctor, other health professionals and/or Injury Management Coordinator as agreed with the team member.

The process shall be managed in a consultative framework including the injured team member, treating doctor, Kmart, the rehabilitation provider, where appropriate, and as requested by the team member, the Union.

36.5 Change to Equipment or Work Practices

a) Where any proposed changes to equipment, substances or work practices may reasonably be expected to affect team member health and safety, Kmart shall consult with:

(i) the team members concerned;

(ii) the health and safety representatives of the team members concerned; and

(iii) any health and safety committee established in the workplace, to identify and resolve potential health and safety problems. Change shall not occur until identified risks are controlled.

b) Where the issue is beyond store control and/ or affects stores on a state wide or national basis, these matters shall be managed at a national or state level, rather than store specific, in the fonn of a pilot or trial. The Union shall also be notified. National implementation of changes shall not occur until identified risks are controlled.

c) As far as practicable consideration shall be given to the health and safety implications of store design and purchasing of equipment.

36.6 Renovations

a) As soon as practicable after a decision is made to renovate a store, Kmart shall notify:

• the Safety Committee; • The Safety Representative; • the team members affected; and • the appropriate branch of the Union.

___ I

b) Kmart shall take appropriate action to minimise or where possible eliminate any risks to team member health and safety during renovations. Team members shall co-operate with Kmart directions during renovations to minimise risks within the workplace.

c) Where an issue or disagreement arises regarding the renovations, such issue or disagreement shall be resolved by taking the matter through the Dispute Resolution Procedure in clause 27.

36.7 Application of State Laws

Nothing in this clause must operate to remove, lessen diminish, or otherwise effect in any way whatsoever:

a) the obligations and duties ofKmart, it's team members or the Union, under any applicable law relating to workplace health and safety; or

b) the rights and duties of any persons or authority who has any power relating to the monitoring, implementation, inspection, enforcement or prosecution of any matter arising under such laws; or

c) the operation and application of such laws.

36.8 Risk Identification, Assessment And Control

a) Kmart must take all practicable steps to ensure all hazards likely to cause injury are identified and assessed. Kmart shall do this through store hazard inspections, accident investigations, state based and national collection and analysis of accident statistics.

b) All team members must take all practicable steps to identify and report hazards to Management.

c) The hazards identified shall be assessed and controlled in the following manner by the Store Manager ensuring that risks are assessed and control measures developed and implemented in consultation with;

(i) the team members concerned;

(ii) any health and safety representatives for the team members concerned; and

(iii) any health and safety committee established in the workplace.

d) Where the issue is beyond store control and/or affects stores on a state-wide or national basis, the risk assessment process shall be coordinated by Kmart's National Office with input sought from team members and where appropriate the Union, to formulate and implement agreed control measures.

36.9 Hand sanitiser Kmart will provide hand sanitiser for team member use in stores. Hand sanitiser will be located at the front end of the store.

37. GUIDELINES CONCERNING SECURITY PROCEDURES

37.1 Preamble

The following guidelines are designed to deal with the industrial relations difficulty that arises where security measures are taken by Kmart concerning a team member suspected of dishonest practices. They should be honoured in the spirit rather than in the letter. They should have application in normal situations but it ought to be understood that, if abnormal situations arise making it impossible for them to be adhered to, the Union will accept, in place of the guidelines, such protective measures as are within the spirit of the guidelines but which may not be embraced within their written terms.

The guidelines have no relevance to the questioning of staff in the ordinary course of employment concerning security matters unconnected with any liability by the team member whose assistance is being sought by the security personnel.

37.2 Basis of Guidelines

a) The Union recognises that Kmart has the right to protect their property, interests and effects and have the right to establish and maintain proper security precautions towards this end.

b) The Union recognises that such security precautions will include, at times, the employment of trained security personnel, charged with the responsibility of carrying out security investigations in a responsible manner.

c) The Union unreservedly states that it does not condone or countenance dishonesty, or any other fonn of malpractice, in the industty.

d) The Union recognises that their members have an obligation under their employment contracts to cany out their duties in fidelity to Kmart's interests and that members of the Unions will at all times act to protect the property, interests and effects ofKmart against theft or dishonesty by any person.

e) Within these general principles the Union is concerned to ensure that a proper regard is paid to their member's particular interests and liberties and, to this end, agree to these guidelines as normally regulating security matters touching the employment of their members.

37.3 Stafflnterviews

a) When Kmart is trying to discover whether, or by whom, an offence or breach of company security has been committed Kmart is entitled to question any team member, whether suspected or not, from whom useful information may be obtained.

b) As soon as Kmart has reasonable grounds for suspicion that a team member has committed an offence Kmart will ask such team member whether he or she will agree to be questioned in connection therewith and upon such agreement being forthcoming, he or she shall caution the team member before putting to him or her any questions, or further questions, relating to that offence.

The caution shall be in the following tenus:-

- ---- -----------------------------~---------~ ------ -- -------------- --- -------~---------- --------------------------------------- -------------- -------------------------- ----------------- -------------- -

/

"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence."

After the giving of the above caution, Kmart shall then bring to the team member's attention the right under these guidelines to ask for the attendance of a nominated team member who is immediately available to be present as a witness during the course of the interview.

c) Kmart may object to the presence of any particular person as a witness at such interview if there is a reason to believe that the witness may be in some way involved in the subject matter of the interview. The attendance of a team member as a witness at a security interview shall be on the understanding that the witness will not reveal to any person not involved in the interview what has taken place or been said in the course of such interview and that the witness shall not interrupt or frustrate the course of the interview.

d) During the course of any such interview management or security personnel shall conduct themselves in a courteous manner toward the team member being interviewed.

e) Where a security investigation involves a team member remaining at K.mart's premises, or elsewhere at K.mart's direction, outside of the team member's ordinary working time, such team member shall be paid overtime in accordance with the Agreement, for all time so spent.

f) As a general principle team members who have been interviewed with regard to a security matter should not be transferred to another work place, have a change of duties or sustain any disciplinary action until the security investigation has been completed. However, in the spirit of these guidelines it is acknowledged that there may be circumstances in which it may be desirable to transfer a team member, or change his or her duties. In such a case maximum care is to be exercised by Kmart so as to prevent any odium attaching to the team member as a result of the transfer or change in duties.

37.4 Cash Shortages

a) Team members whose duties involve the handling of money shall not be held responsible for the repayment of any shortages which may occur unless such team member has sole access to such money.

b) This provision shall not affect K.mart's right to take such disciplinary or legal action as Kmart considers necessary.

37.5 Security Checks of Bags, Parcels and/or Lockers

a) Kmart is entitled to conduct routine security checks of staff bags and/or parcels at points of exit and entry used by staff.

b) Individual security checks ofbags, parcels and/or lockers shall not take place unless the team member concerned is present, or alternatively that the team member has given permission for such search to take place in his or her absence.

c) Where a search or check is to take place in the team member's absence, the team member may nominate some other responsible team member to be present during such proposed search or check.

37.6 Carrying of Moneys

Team members involved in the responsibility of carrying moneys belonging to Kmart, to or from a bank or other institution shall be accompanied at such times by a responsible fellow team member. Kmart shall not require a team member to have money chained, handcuffed or fastened to a team member's person, unless such fastening is engaged to the team member with a quick-release mechanism.

37.7 Staff Entrances and Exits

Kmart may require team members to use staff entrances and exits while entering or leaving the store during such times as the team member is rostered to work. Kmart shall not require a team member to use staff entrances and exits in a store when a team member wishes to enter the store as a customer on rostered days off, or during periods of annual or long service leave or other leave.

38. INTERACTION WITH THE NES

This Agreement does not exclude the NES or any provision of the NES. Where this Agreement contains terms that are supplementary or ancillary to the NES, terms that have the same or substantially the same effect as the NES or tenns that are expressly permitted to be included in this Agreement, the interaction between the terms of this Agreement and the provisions of the NES are governed by the Fair Work Act 2009. Nothing in this clause has the effect oflessening any entitlement in this Agreement that is supplementary or ancillary to the NES.

39. TRADE UNION TRAINING LEAVE

39.1 Paid Leave:

a)

b)

c)

d)

e)

Kmart will pay a Union Delegate in accordance with the roster they would have worked whilst the delegate is attending a Trade Union Training Course conducted by or under the auspices of the Australian Trade Union Training Authority, or by the Union.

Each store will provide up to a maximum of five (5) days paid leave per store per annum, non­cumulative.

An additional 5 days Trade Union Training Leave per store will be available for training new delegates where the standard 5 days per store has been exhausted. For the purpose of this sub­clause, a new delegate shall mean a delegate who has not completed the introductory delegates course but shall not include specific issues training, for example, enterprise bargaining.

At each store, the maximum number of team members attending a course for the purpose of trade union training leave shall be two except where trade union training leave is utilised for the purpose of training on new enterprise agreements where more delegates may be released for this purpose.

An additional one (1) day paid leave per delegate will be provided for training on new enterprise agreements provided that a further one (1) day training can be utilised from the 5 days paid leave referred to in paragraph (b).

f) In consultation between K.mart and the Branch Secretaries or their representatives, additional paid leave will be provided for training on key legislative changes.

g) Each application to attend a training course and receive full pay during the consequent absence must be in writing and endorsed by either a state or federal official of the Union.

h) Kmart shall not be required to pay the cost of travel to and from the place where such courses are conducted and/or any accommodation costs during such leave.

i) On completion of the course the team member shall provide, upon request, proof satisfactory to Kmart of their attendance at the course.

39.2 Unpaid Leave

a) With prior arrangement at store level, a Union Delegate may be released from their employment duties for up to five (5) days per calendar year, to participate in Union activities associated with membership recruitment.

b) Delegates so released from their duties shall be on leave without pay.

c) The company may refuse to grant Unpaid Leave if it would impact negatively on the operation of the business. Provided that requests for Unpaid Leave shall not be unreasonably refused by the company.

39.3 To access Trade Union Leave, at least four weeks' notice shall be given to the Store Manager.

39.4 Leave granted pursuant to this clause shall count as service for all purposes of the Agreement.

39.5 Leave will not be granted during key operational periods defined in the Agreement.

40. UNION RECOGNITION AND MEMBERSHIP

40.1. For the duration of the Agreement, Kmart recognises the Union as being the Union that may have representation of team members covered by this Agreement (the SDA nationally except for the coverage area of Queensland specified in clause 3.1(c) and in that case the A WU (QLD Branch) and this representation will extend to all terms and conditions of employment, whether those terms and conditions are subject to this Agreement or not.

40.2 Kmart recommends to team members covered by this Agreement wishing to join the appropriate Union, that they be members of the SDA nationally except for the coverage area of Queensland specified in clause 3.l(c) and in that case the A WU (QLD Branch). Team members who do not wish to be members of the union will not have their employment prejudiced in any way by their decision.

40.3 All new team members covered by the Agreement, shall upon induction, be given an application form to join the Union and any appropriate literature provided by the union.

40.4 Kmart undertakes upon authorisation to deduct union membership dues, as levied by the Union in accordance with its rules, from the pay of team members who are members of the SDA or A WU (QLD Branch). Such monies collected shall be forwarded to the SDA or

A WU at the beginning of each month together with all necessary infonnation to enable the reconciliation of crediting of subscriptions to members' accounts.

41. UNION DELEGATES

41.1 A team member who is credentialled by the Union as Union Delegate ("Union Delegate") shall, upon notification to Kmart, be recognised as the accredited representative of the Union.

41.2 A Union Delegate shall have the right to discuss work related matters of concern of any team member or to convey information relating to the workplace to team members, provided that the Union Delegate does not unduly interfere with the work in progress, and that they initially follow the Dispute Resolution Procedure in Clause 27.

41.3 A Union Delegate shall be allowed a reasonable period oftime during working hours to interview an authorised official of the Union, provided it does not unnecessarily interrupt the operations ofthe store.

41.4 The period of time is expected to be no greater than half an hour. The time spent in discussions between the Union Delegate and the authorised Union official shall be devoted to legitimate union business.

41.5 The Union Delegate shall not be unreasonably denied access to a telephone to contact the Union officer to progress enquires on behalf of a member on work related matters.

41.6 The Union Delegate shall have the right to place notices on the section of the notice board designated for their use within the store. Provided that such notices are authorised by the Union and deal with legitimate union matters.

41.7 Kmart shall introduce to a Union Delegate, all new team members as soon as is reasonably . practicable.

42. UNION NOTICE BOARD

42.1 Kmart shall provide in each store a notice board (of reasonable dimensions) or section of a notice board, for the display of union notices authorised by the Branch Secretary of the Union.

43.. PAID UNION MEETINGS

43.1 Kmart shall provide the Union with one paid meeting of30 minutes duration per team member, per store, in each half year, on the following basis;

c) dates, times and fonnat of meetings to be mutually agreed between the Store Manager and the Union;

d) normal store operations are to be maintained at all times;

e) meetings are non-cumulative and non-transferable between stores; and f) meetings may be linked to lunch or tea breaks.

(

44. SIGNATORmS TO THE KMART AUSTRALIA LTD AGREEMENT 2012

Susan Tonks, as General Manager, Human 'Resources, of Kmart Australia Ltd, who is duly authorised to sign this workplace agreement on behalf of Kmart Australia Ltd

Kmart Australia Ltd

690 Springvale Road Mulgrave VIC 3170

Date ~\, S""' · \2-

Km$:1:' Australia-Ltd Agreeniynt 2012 ., : - -.-

Ian Blandthom, as Assistant National Secretary of The Shop Distributive and Allied Employees' Association, who is duly authorised to sign this workplace agreement pursuant to the rules of the Shop, Distributive and Allied Employees' Association

The Shop Distributive and Allied Employees Association 6th Floor, 53 Queen Street MELBOURNE VIC 3000

1rr17

William Ludwig, as State Secretary of the Australian Workers' Union of Employees, Queensland, who is duly authorised to sign this workplace agreement pursuant to the rules of the Australian Workers' Union of Employees, Queensland

The Australian Workers' Union of Employees, Queensland 12th Floor, 333 Adelaide Street BRISBANE QfD 3000

Date ;8 rn:y 2012

' ... . - ·-: . .. ··.·:. ·. •' ··· ... '•,'' ..

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PART 8- APPENDICES

APPENDIX A- CONCILIATION AND ARBITRATION

Representation

Once a dispute has been referred to FW A, any Party may be represented in proceedings before FW A by a legal practitioner. A team member may be represented in proceedings before FWA by a Team Member Representative instead of a legal practitioner.

Conciliation

1.1 Conciliation process

1.1.1 If a dispute is referred for conciliation, FW A shall do everything that appears to it to be right and proper to assist the Parties to agree on tenns for the settlement of the dispute. In doing so, FW A may make suggestions and conduct an initial assessment of the dispute.

1.1.2 The action that may be taken by FW A under this clause 1.1 includes, without limitation:

(a) arranging conferences of the Parties presided over by FWA; (b) meeting or otherwise discussing the dispute with one or more of the Parties in order to

conciliate dispute; (c) arranging for the Parties to confer among themselves at conferences (with or without the

presence of FWA); (d) making an interim recommendation or assessment in relation to all or any matters in dispute; (e) hearing submissions from the Parties as to the facts or issues pertaining to the dispute; (f) conducting the conciliation at any place; (g) adjourning the conciliation to any time and place; (h) conecting, amending, or waiving any error, defect or irregularity, whether in substance or form; (i) allowing the amendment, on such terms as it considers appropriate, of any application or other

document relating to any proceeding; and U) generally giving all direction and do all such things as are necessary or expedient for the speedy

and just conciliation of the matter in dispute.

1.2 Completion of conciliation process

1.2.1 A conciliation proceeding before FWA shall be regarded as completed when:

a) the Parties have reached agreement for the settlement of the whole of the dispute; or. b) whether or not the Parties have reached agreement for the settlement of part of the dispute:

(i) FW A is satisfied that there is no likelihood that, within a reasonable period, conciliation, or further conciliation, will result in agreement, or further agreement, by the Parties on terms for the settlement of the dispute or any matter in dispute; or

(ii) the Parties to the dispute have informed FW A that there is no likelihood of agreement, or further agreement, on the dispute and FW A does not have a substantial reason to refuse to regard the conciliation proceeding as completed.

Arbitration

1.3 Proceeding to Arbitration

1.3 .1 When a conciliation proceeding before FW A in relation to a dispute is completed but the dispute has not been fully settled, FW A shall proceed to deal with the dispute, or the matters remaining in dispute, by arbitration.

1.3.2 In arbitration proceedings under this Agreement, unless all the Parties agree, evidence shall not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under this Agreement (whether before FWA or at a conference arranged by FWA) in relation to the dispute that remains unsettled.

1.4 At Arbitration

1.4.1 In dealing with a dispute, FW A shall, where it appears practicable and appropriate, encourage the Parties to agree on procedures in respect of those arbitration proceedings by discussion and agreement.

1.4.2 If, in accordance with clause 1.4.1, the Parties are unable to come to an agreement on procedures in respect of the arbitration proceedings, FW A will be entitled to determine its own procedures for the arbitration proceedings.

1.5 Arbitration Powers of FW A

1.5 .1 The powers of FW A in arbitrating a dispute shall include the following:

a) taking evidence on oath or affirmation; b) making a decision in relation to all or any matters in dispute; c) hearing and determining the matter in dispute; d) giving a direction, in the course of, or for the purpose of, the hearing or determination of the

matter in dispute; e) referring any matter to an expert and accepting the expert's report as evidence; f) directing, in so far as it has power to do so, that Parties be joined or struck out; g) summoning before it persons in respect of whom the Parties to this Agreement can reasonably

procure attendance, the Parties to the Agreement, the witnesses or any other person whose presence FWA considers would help in the hearing or determination of the matter in dispute and compel the production before it of documents and other things for the hearing and determination of the matter in dispute;

h) making an interim finding in relation to all or any matters in dispute; i) hearing submissions from the Parties as to the facts or issues pertaining to the dispute; j) conducting the arbitration at any place; k) adjourning the arbitration to any time and place; 1) correcting, amending, or waiving any error, defect or irregularity, whether in substance or form; m) allowing the amendment, on such terms as it considers appropriate, of any application or other

document relating to any proceeding; n) generally giving all direction and do all such things as are necessary or expedient for the speedy

and just hearing and determination of the matter in dispute; and o) inform itself in any matter that it thinks fit.

1.5 .2 Any decision of FW A dealing with a dispute (or any matter that remained in dispute) by arbitration shall include reasons for the decision and shall be in writing, dated and given to the Parties on the day that it is delivered.

Appeals

1.6 Appeals to the Full Bench ofFWA

1. 6.1 Where the dispute (or any matter that remained in dispute) has been arbitrated and a decision given under clause 1.5 .2, either Party may appeal the decision to a Full Bench of FW A, with the leave of the Full Bench, within 21 days of the date of the arbitrated decision. A Full Bench of FWA will have all of the powers as outlined in clause 1.5.1 and shall have the power to confinn, quash, dismiss or vary the decision ofFW A.

1.6.2 The Full Bench of FWA may grant leave to appeal under clause 1.6.1 if, in its opinion, the matter is of such importance that leave should be granted.

1.6.3 An appeal under clause 1.6.1 may be instituted by either Party.

1.6.4 For the purposes of an appeal under clause 1.6.1, a Full Bench of FWA may:

a) admit further evidence; and b) direct a member of the Full Bench to provide a report in relation to a specified matter.

1.6.5 The appeal process set out in this clause 1.6 is intended to be comprehensive of all rights of appeal.

1.6.6 The Parties agree to exclude the operation of any legislation (other than the Fair Work Act 2009) applicable to arbitration agreements in relation to rights of appeal. For the avoidance of doubt, the Parties wish to exclude rights of appeal to any court and rights to refer a question of law to a court pursuant to such legislation.

1.6.7 The Parties will:

a) ifFWA makes an arbitrated decision and an appeal is not lodged under clause 1.6.1 abide by and give full effect to the arbitration decision; and

b) if an appeal is lodged under clause 1.6.1, abide by and give full effect to the decision of the Full Bench of FW A in detennining the appeal.

FW A generally

1. 7 Guidelines to FW A in the exercise of its powers, functions and discretions

1. 7.1 In the exercise of its powers, functions and discretions in this Agreement, FW A must ensure that:

a) it has regard to the objects of this Agreement; b) the matters are set down for hearing as soon as possible; c) the rules of natural justice and procedural fairness are applied and that relevant legislation is

complied with; d) it has regard for the operating arrangements which apply at Kmart;

e) the hearing of the matter be concluded as soon as reasonably possible; and f) it acts according to equity, good conscience and the substantial merits of the case, without

regard to technicalities and legal forms.

APPENDIX B -ALPHABETICAL INDEX

Clause Name Clause Page No

Accident Pay 29 78 Annual Leave 17 43 Arrangement 2 1 Blood Donor Leave 22 53 Compassionate Leave 21 52 Community Services Leave 23 54 Definitions 6 6 Disputes Resolution Procedure 27 73 Dress and Presentation Standards 31 80 Duration 5 5 First Aid 8 15 Individual Flexibility Term 35 87 Interaction with the NES 38 93 Guidelines Concerning Security Procedures 37 91 Hours of Work 12 25 Incidence and Parties Bound 3 3 Introduction of Change 25 69 Jury Service and Other Leave 23 19 Location Allowance 10 18

,·

Long Service Leave 18 46 Meal Break and Tea Breaks 15 35 Objectives 4 4 Overtime 14 32 Paid Union Meetings 43 95 Parental Leave and Top Up PPL Scheme 24 57 Personal Leave 19 47 Posting of Agreement and Fair Work information Statement 33 82 Pre-Natal Leave 20 51 Protective Clothing 32 81 Public Holidays 16 37 Redundancy 26 70 Retail Traineeships 30 79 Roster Conditions 13 27 Savings Provisions 34 83 Signatories to the Agreement 45 96 Superannuation 28 75 Tenns ofEmployment 11 19 Title 1 1 Transport, Drivers and Forklift Drivers Allowance 9 16 Trade Union Training Leave 39 93

Union Delegates 41 95 Union Notice Board 42 95 Union Recognition and Membership 40 94 Wages 7 8 Workplace Safety 36 88

Appendices Conciliation and Arbitration Appendix A 97 Alphabetical Index Appendix B 101

16 August 2012 Commissioner Gay Fair Work Australia 11 Exhibition Street Melbourne Vic 3000 Dear Commissioner Gay In respect to the operation of the Kmart Australia Ltd Agreement 2012, Kmart undertakes: • That the first sentence of clause 7.2 point 2 of the Agreement is not intended to and

will not be used to unilaterally reduce a team member’s rate of pay by directing a team member to work lower level duties when the team member has been contracted to work their ordinary hours at a higher classification. However this does not prevent a team member accepting, or Kmart offering, an increase in a team member’s contracted hours of work where the additional hours of work are classified and paid in accordance with a lower level classification;

• Level 1 and Level 2 adult team members to whom an introductory rate applies under clause 7.2 point 3 will be paid the minimum wage rates applicable by law as required by the Fair Work transitional legislation, despite anything to the contrary in this Agreement. Should a any team member on an introductory rate become covered by a modern award during the life of this Agreement the team member will be entitled to be paid whichever is highest of the introductory rate set out in this Agreement and the minimum rate of pay applicable as required by s.206 of the Fair Work Act 2009; and

• Team members cashing out an amount of annual leave in accordance with clause 17.11 of the Kmart Australia Ltd Agreement 2012 will be paid no less than the full amount that would have been payable to the team member had the team member taken the leave the team member has forgone under sub-clause 17.11.5.

These undertakings will constitute terms of the Kmart Australia Ltd Agreement 2012. Yours sincerely

Susan Tonks

General Manager Human Resources