BREAD VENDORS (TIP TOP BAKERIES - NEWCASTLE)
2001 AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by the Australian
Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch, an
industrial organisation of employees.
(No. IRC 4706 of 2002)
|
Before Commissioner
Redman
|
2 September 2002
|
AWARD
1. Arrangement
Clause No. Subject Matter
1. Arrangement
2. Definitions
3. Relationship
of the Vendor and the Company
4. Vendor Performance
5. Company's
Rights and Liability
6. Appearance
of the Vendor and Staff
7. Delivery
Vehicle
8. Replacement
Vehicle on Breakdown
9. Vendor
Insurances and Indemnities
10. Vendor
Account
11. Vendor
Discount
12. Security
Bond
13. Reimbursement
of Expenses
14. Minimum
Discount
15. Leave
16. Non-personal
Service
17. Value of
Run
18. Changes to
the Run
19. Engagement
of a Vendor
20. Termination
of Engagement
21. Consequences
of Termination
22. Assignment
23. Settlement
of Disputes and Grievances
24. Anti-Discrimination
25. Application
26. Review
27. Notices
28. Area,
Incidence and Duration
APPENDIX A
Schedule 1 - Stationery and Uniform
APPENDIX B
Schedule 2 - Specification of Vendor Vehicle
APPENDIX C
Schedule 3 - Letter of Engagement of a Vendor
APPENDIX D
Schedule 4 - Security Bond
APPENDIX E
Schedule 5 - Vendor Discount and Reimbursement of
Expenses
2. Definitions
In this award:
"Award rate" means the amount payable to a Baking
Industry Employee Level 3 under the LHMU and and Tip Top Bakeries (NSW)
Enterprise Award published 26 July 2002 (335 I.G 463).
"Company" means George Weston Foods Limited
(A.C.N. 008 429 632), trading as Tip Top Bakeries and Kellys Bakery.
"Company-held account" means a customer who
is:
(a) a member of a
central buying group, and the account is paid by the customer direct to the
company and the company carries the debt; or
(b) such other
customers as may be agreed upon between the vendor and company, where the
company carries the debt.
"Net sales units" means gross sales of units
of bread made by the vendor to the customers of the company, less returns
allowed by the company.
"Other fixed expenses" means the expenses
specified in paragraph (c) of subclause 13.1 of clause 13, Reimbursement of
Expenses.
"Prime service" means:
(a) daily liaison
with each customer in relation to the
customer's needs;
(b) the principal
or major delivery to the customers on each day, which may be divided into a first
and second load;
(c) the collection
of returns as required from each
customer each day; and
(d) such service
as may be required on merchandising, point of sale and other customer support.
"Run" means those customers of the company
the vendor is directed by the company to supply and deliver to.
"Security Bond" means the bond referred to in
clause 12, Security Bond.
"Union" means the Australian Liquor
Hospitality and Miscellaneous Workers Union of Australia, New South Wales
Branch.
"Unit of bread" means:
(a) any bread
product which is packaged for sale as a single unit;
(b) any unwrapped
loaf of bread capable of being sold as a single unit as defined in the Bread
(Weights) Regulation 1977; and
(c) a half dozen
unwrapped bread rolls, or any roll product deemed as unwrapped.
"Vehicle running cost" means the cost
specified in paragraph (b) of subclause 13.1 of clause 13, Reimbursement of
Expenses.
"Vehicle standing charge" means the charge
specified in paragraph (a) of subclause 13.1 of the said clause 13.
"Vendor" means a person who is engaged by the
company as a bread vendor on the terms of this award, or the previous
agreement.
"Vendor-held account" means any customer
which is not a company-held account.
3. Relationship of the
Vendor and the Company
3.1 It is
acknowledged and declared that, subject to the provisions of Schedule 1 of the Industrial Relations Act 1996, nothing
contained in this award is intended to or will be deemed to create the
relationship of employer and employee between the company and the vendor.
3.2 Nothing
contained in this award shall be deemed to constitute the vendor an agent of
the company for any purpose or a partner or co-venturer of the company.
3.3 Except as
provided in this award, the vendor must not otherwise use the company's name or
describe or otherwise hold himself/herself out or permit himself/herself to be
held out as an employee or agent of the company.
4. Vendor Performance
4.1 This award
arises from the desire of the company, the union and the vendors to put in
place an arrangement which preserves a vendor system with vendors purchasing
product from the company, selling to customers and providing a high level of
customer focused service.
4.2
(a) The vendor
must perform the prime service on the run on up to six days each week, such
days to be agreed upon between the company and the vendor, which may include
public holidays.
(b) Where the
company and the vendor are unable to agree on the days, the matter shall be
handled in accordance with clause 23, Settlement of Disputes and Grievances.
(c) The vendor may
request to service the run on the seventh day or provide supplementary service
on the run and the company will grant such a request whenever it is practical
to do so.
4.3
(a) The vendor
will ascertain the customers' orders and needs, place orders with the company
and adjust orders as necessary in accordance with the company's standard
procedures.
(b) The company will
sell and supply to the vendor the products manufactured or supplied by the
company which are needed for the performance of the run.
(c) Title to the
products will pass to the vendor on receipt at the loading dock, delivery depot
or agreed upon delivery point.
4.4
(a) The vendor
must keep proper records of the names and addresses of all customers serviced
by him/her in the usual time and order in which such customers are serviced.
(b) The vendor
must, on request, provide the company with such copies of these records as the
company may require from time to time.
(c) The records
and all copies of the records will at all times remain the property of the
company.
4.5 The vendor
must not engage in activities which compete with the business of the sale of
the company's products to customers and will not engage in any activities,
acts, matters or things which may jeopardise or prejudice the income or
anticipated income of the company.
4.6 The vendor
must not deliver products other than the products supplied by the company for
delivery to customers, or deliver or offer the company's products for sale to
any person other than customers on the run, except with the prior written
approval of the company.
4.7 The vendor
must merchandise the products in accordance with the reasonable requirements
and standards of the company and the customers. This includes the supply of point of sale material, which may
require periodic renewal.
4.8 The vendor
must at all times comply with and conform to the conditions and requirements of
all relevant statutes, regulations, proclamations, ordinances and by-laws which
relate directly or indirectly to the delivery of the company's products.
4.9 The vendor
shall use the stationery specified in Schedule 1 - Stationery and Uniform, of
Appendix A to this award, which shall be supplied by the company.
4.10
(a) Unless the
company directs otherwise, all unsold products must be returned to the company.
(b) The vendor
must account to the company for returns of all unsold products by completing
the returns documentation and ensuring returns are checked and recorded by the
company.
(c) The vendor
shall manage and control returns of unsold products and bread baskets in
accordance with reasonable standards from time to time specified by the
company.
4.11 The vendor may
be required to attend such meetings, training, trade presentations, seminars
and similar presentations as may from time to time be reasonably required by the
company, provided that reasonable notice of required attendance is given to the
vendor by the company.
4.12 The vendor must
comply with all lawful and reasonable directions of the company or any person
duly authorised by the company.
5. Company's Rights
and Liability
5.1 The company
may from time to time introduce new products, discontinue existing products or
introduce seasonal products.
5.2 The company
will not be liable to the vendor for:
(a) any delay in
delivery of the company's products to the
vendor occasioned by shortage of stock, delays in transit, accident, strikes or
by any other cause beyond the control of
the company; or
(b) any defect in
the nature or quality of the company's products supplied to the vendor.
6. Appearance of the
Vendor and Staff
6.1 The company
will provide the vendor with a uniform kit described in Schedule 1 - Stationery
and Uniform, of Appendix A to this award, which the company will charge to the
vendor in accordance with Schedule 1.
6.2 The vendor
must at all times while performing his/her duties and obligations under this
award:
(a) wear the
uniform provided by the company;
(b) dress, present
and conduct himself/herself in a neat, respectable and businesslike manner;
(c) wear suitable
footwear; and
(d) ensure that
all employees of the vendor comply with this clause.
7. Delivery Vehicle
7.1 The vendor
must provide, maintain and operate at his/her own expense a vehicle that meets the
specifications set out in Schedule 2 - Specification of Vendor Vehicle, of
Appendix B to this award, for the
performance of the run.
7.2 The vehicle
must at all times comply with all applicable statutes, regulations, ordinances,
proclamations and by-laws.
7.3 The company
may, at its own expense, have from time to time displayed or painted on any
vehicle used or operated by the vendor for the performance of the run such
wording or advertising matter as it may think fit and the vendor must not
interfere with, deface or alter the same without the prior written consent of
the company. The vendor must not
display or allow to be displayed any other advertising or signs without the
prior written approval of the company.
7.4 The vendor
must keep the vehicle clean and in a fit and proper condition according to the
reasonable requirements of the company.
8. Replacement
Vehicle on Breakdown
8.1 The company
may supply a replacement vehicle when the vendor's vehicle is temporarily
broken down, to enable the vendor to have necessary repairs made, provided
that:
(a) the vendor
shall not be paid any vehicle standing charge or vehicle running cost for the
period for which the company supplies a vehicle;
(b) the company
shall pay all running costs of the
vehicle supplied; and
(c) the period
during which the company supplies a vehicle shall not exceed two weeks in any
one year, unless specifically agreed to in writing in advance by the company,
and then only to a total of four weeks.
8.2 The vehicle
supplied by the company must be:
(a) driven and
operated in a safe manner without damage to the vehicle;
(b) maintained and
operated in accordance with proper operating procedures;
(c) kept clean and
hygienic and washed and cleaned prior to its return to the company;
(d) roadworthy in
accordance with RTA Regulations.
8.3 The company
will maintain appropriate insurance in respect of the vehicle supplied by it,
but the vendor will be liable for damage sustained as a result of any act, default
or negligence of the vendor which is not covered by insurance (including the
excess).
9. Vendor Insurances
and Indemnities
9.1 The vendor
must maintain a comprehensive policy of insurance with an insurance company,
approved by the company with the Insurance Industry Council, for damage to or
caused by the vehicle used by him/her to perform the run.
9.2 The vendor
shall at all times indemnify and keep indemnified the company from and against
any liabilities, losses, damages, costs and expenses of whatsoever description
incurred by the company as a result of any actions, suits or claims made or
brought against the company in respect of or arising out of:
(a) the debts of
the vendor; or
(b) any act,
default or negligence of the vendor in connection with this award.
9.3 The vendor
must properly insure and keep insured any worker employed by the vendor and in
respect of whom the vendor must provide insurance cover under the provisions of
the relevant workers' compensation legislation.
9.4 The vendor
must insure himself/herself and any persons acting on his/her behalf against
liability from public risks for an amount nominated by the company from time to
time, but in any event not less than $3,000,000.
9.5 The vendor
must provide the company with proof of currency of the insurance policies
referred to in this clause on the date of entering this award and must provide
the company with evidence of the renewal of the policies from time to time.
10. Vendor Account
10.1 The vendor
shall purchase from the company the units of bread required to service the run
and the company shall charge the vendor for the net sales units supplied at
normal wholesale prices, less the discount specified in subclause 11.1 of
clause 11, Vendor Discount.
10.2 The company will
give the vendor credit for:
(a) net sales
units supplied to customers who are billed direct by the company; and
(b) vehicle
standing charge, vehicle running cost and other fixed expenses.
10.3 The company shall
provide to the vendor each week a fully itemised account which itemises daily
the total net sales units during that week.
The account will identify by product the total net
sales units made to customers who are billed direct by the company and credits
allowed in subclause 10.2 of this clause.
10.4 The vendor
shall pay each account within seven days of the account being provided to the
vendor.
11. Vendor Discount
11.1 A vendor shall
be allowed discounts for each net sales unit on company-held accounts and each
net sales unit on vendor held accounts at the rates set out in Item 1 of
Schedule 5 - Vendor Discount and Reimbursement of Expenses, of Appendix E to
this award.
11.2 The vendor
shall be allowed the discount only for net sales units, which are sold and
delivered by the vendor.
11.3 If in any week
the vendor fails to comply with the company's normal credit terms, the vendor's
discount in respect of that week shall be reduced by 2.5 per cent.
12. Security Bond
As security for the due performance of his/her obligations,
the vendor shall lodge with the company a bond or other security acceptable to
the company in accordance with Schedule 4 - Security Bond, of Appendix D to
this award, and the company shall return to the vendor such bond or other
security upon termination of engagement and payment by the vendor of all monies
due to the company.
13. Reimbursement of
Expenses
13.1 A vendor shall
be allowed credit on each weekly account for:
(a) vehicle
standing charge, depending on the age of the vendor's vehicle as set out in
Item 2 of Schedule 5 - Vendor Discount and Reimbursement of Expenses, of
Appendix E to this award;
(b) vehicle
running cost at the rate per kilometre set out in Item 3 of Schedule 5 of the
weekly distance travelled to perform the run, provided that a maximum of 15
kilometres each way each day shall be paid for travel between the vendor's
ordinary residence and the bakery or depot; and
(c) other fixed expenses
at the rate set out in Item 4 of Schedule 5 for bad debts, uniforms, accounting
fees, stationery, public risk insurance and requirement to service customers on
the following public holidays: Australia Day, Easter Saturday, Easter Monday,
Queen's Birthday, Labour Day and Union Picnic Day.
13.2 Reimbursement
of vehicle expenses shall be adjusted as set out in Item 5 of Schedule 5.
14. Minimum Discount
Where the amount calculated by subtracting the amount
payable by the vendor for the products purchased from the wholesale list price
value of products purchased by the vendor is less than an amount equal to that
which would have been paid to a Level 3 employee for the hours worked in
accordance with the LHMU and Tip Top Bakeries (NSW) Enterprise Award, the
company shall pay an additional discount such that the amount calculated is not
less than the weekly award rate.
15. Leave
15.1 The vendor
shall be entitled to:
(a) five calendar
weeks of annual leave after each completed year of engagement, which shall be
taken within six months of its accrual;
(b) long service
leave in accordance with the Long Service
Leave Act 1955;
(c) nine days of
sick leave each year of engagement, which shall be cumulative from year to year
if not taken (each working day of sick leave taken shall reduce the balance of
sick leave by one day); and
(d) one day of
leave to be taken as agreed upon with the company for each gazetted public
holiday, except those specified in paragraph (c) of subclause 13.1 of clause
13, Reimbursement of Expenses, which the vendor is required by the company to
work.
15.2 The company
shall provide an employee to perform the run while the vendor is on annual
leave, long service leave or sick leave.
15.3 During periods
of annual leave, long service leave and sick leave, the vendor shall receive:
(a) the same
discounts for the net sales units achieved on the run in the vendor's absence
that he/she would have received had he/she performed the run; and
(b) the other
fixed expenses that are payable in respect of
the run.
15.4
(a) One week prior
to the date the vendor has been approved to go on annual or long service leave,
the vendor shall provide the company with an accurate list of customers serviced
on the run on a daily basis, including the usual time and order of service and
any special instructions.
(b) If the vendor
fails to provide the list in accordance with paragraph (a) of this subclause,
the company may provide an employee to accompany the vendor for such period as
necessary to bring the necessary records up to date and charge the vendor the
cost to the company of employing the employee for the period the employee
accompanies the vendor.
15.5
(a) If the vendor
is proceeding on annual or long service leave for more than one week, the
vendor may, by notice in writing given at least one week prior to the
commencement of leave, request prepayment of the leave.
(b) If a request
is received that complies with paragraph (a) of this subclause, the company
shall prepay the leave at the award rate.
(c) The company
shall reconcile the prepayment with settlement of the account due on resumption
of the vendor from leave.
15.6 While the
vendor is on leave, the company is not obligated to provide a vehicle to
service the run.
15.7 If, while the
vendor is on leave, the vendor's vehicle is used by the company to service the
run:
(a) The company
must pay to the vendor the vehicle standing charge and vehicle running cost for
the vehicle.
(b) The company
must check the vendor's vehicle for roadworthiness and safety prior to use by
the company.
(c) The vendor
shall be responsible for the insurance of the vehicle and must advise the
insurer of his/her vehicle that an employee of the company will be driving the
vehicle.
(d) In the event
of an accident occurring, and if the employee of the company performing the run
is under 25 years of age, the company will meet any additional excess under the
vehicle insurance policy in relation to a driver under age 25.
(e) The company
shall be liable only for mechanical damage caused by the negligence of the
company or the company's employee.
(f) The vendor
shall be liable for accidental damage, wear and tear, normal repairs and costs
of fuel, consumables and routine maintenance.
(g) The company
shall carry out, at the vendor's expense, normal routine maintenance (fuel,
air, water and oil) and routine servicing.
(h) The company
must ensure that the vendor's vehicle is used only to perform the deliveries on
a yard-to-yard basis.
15.8 If, while the
vendor is on leave, the company's vehicle is used by the company to service the
run, the company shall:
(a) pay to the
vendor the vehicle standing charge;
(b) not pay to the
vendor any vehicle running cost; and
(c) charge the
vendor the vehicle standing charge of a four-year old vehicle.
15.9 Bereavement
Leave
(a) A vendor shall
be entitled to up to two days of bereavement leave without deduction of pay on
each occasion of the death of a person prescribed in section (2) of
subparagraph (c) of paragraph (1) of subclause 15.10 of this clause.
(b) The vendor
must notify the company as soon as practicable of the intention to take
bereavement leave and will, if required by the company, provide to the
satisfaction of the employer proof of death.
(c) Bereavement
leave shall be available to the vendor in respect to the death of a person
prescribed for the purposes of carer's leave in subclause 15.10 of this clause,
provided that, for the purpose of bereavement leave, the vendor need not have
been responsible for the care of the person concerned.
(d) A vendor shall
not be entitled to bereavement leave under this clause during any period in
respect of which the vendor has been granted other leave.
(e) Bereavement
leave may be taken in conjunction with other leave available under subclause
15.10 of this clause. In determining
such a request the company will give consideration to the circumstances of the
vendor and the reasonable operational requirements of the business.
15.10 Carer’s Leave
(1) Use of Sick
Leave
(a) A vendor with
responsibilities in relation to a class of person set out in section 2 of
subparagraph (c) of this paragraph, who needs the vendor’s care and support,
shall be entitled to use, in accordance with this subclause, any current or
accrued sick leave entitlement provided for in this clause for absences to
provide care and support for such persons when they are ill. Such leave may be taken for part of a single
day.
(b) The vendor shall,
if required, establish, either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person.
In normal circumstances, a vendor must not take carer’s leave under this
subclause where another person has taken leave to care for the same person.
(c) The
entitlement to use sick leave in accordance with this subclause is subject to:
(1) The vendor
being responsible for the care of the person concerned; and
(2) The person
concerned being:
(a) a spouse of
the vendor; or
(b) a de facto
spouse who, in relation to a person, is a person of the opposite sex to the
first-mentioned person who lives with the first-mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
(c) a child or an
adult child (including an adopted child, a stepchild, a foster child or an ex
nuptial child), parent (including foster parent and legal guardian), grandparent,
grandchild or sibling of the employee or spouse or de facto spouse of the
vendor; or
(d) a same sex
partner who lives with the vendor as the de facto partner of that vendor on a
bona fide domestic basis; or
(e) a relative of
the vendor who is a member of the same household, where for the purposes of
this subparagraph:
"relative" means a person related by blood,
marriage or affinity;
"affinity" means a relationship that one
spouse because of marriage has to blood relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(d) A vendor shall,
wherever practicable, give the company notice prior to the absence of the
intention to take leave, the name of the person requiring care and that
person’s relationship to the vendor, the reasons for taking such leave and the
estimated length of the absence. If it
is not practicable for the vendor to give prior notice of absence, the vendor
shall notify the company by telephone of such absence at the first opportunity
on the date of absence.
(2) Unpaid Leave
for Family Purpose
A vendor may elect, with the consent of the company, to
take unpaid leave for the purpose of providing care and support to a member of a
class of person set out in section (2) of subparagraph (c) of paragraph (1) of
this subclause who is ill.
(3) Annual Leave
(a) A vendor may
elect with the consent of the company to take annual leave not exceeding five
days in single day periods or part thereof, in any calendar year at a time or
times agreed by the parties.
(b) Access to
annual leave, as prescribed in subparagraph (a) of this paragraph, shall be
exclusive of any shutdown period provided for elsewhere under this award.
(c) A vendor and the
company may agree to defer payment of the annual leave loading in respect of
single-day absences until at least five consecutive annual leave days are
taken.
(4) Time Off in
Lieu of Payment for Overtime
(a) A vendor may
elect, with the consent of the company, to take time off in lieu of payment for
overtime at a time or times agreed with the company within 12 months of the
said election.
(b) Overtime taken
as time off during ordinary-time hours shall be taken at the ordinary-time
rate, that is, an hour for each hour worked.
(c) If, having
elected to take time as leave in accordance with subparagraph (a) of this
paragraph, the leave is not taken for whatever reason, payment for time accrued
at overtime rates shall be made at the expiry of the 12-month period or on
termination.
(d) Where no
election is made in accordance with the said subparagraph (a), the vendor shall
be paid overtime rates in accordance with the award.
(5) Make-up Time
(a) A vendor may
elect, with the consent of the company, to work "make-up time", under
which the vendor takes time off ordinary hours and works those hours at a later
time during the spread of ordinary hours provided in the award, at the ordinary
rate of pay.
(b) A vendor on
shift work may elect, with the consent of the company, to work "make-up
time" (under which the vendor takes time off ordinary hours and works
those hours at a later time) at the shift work rate which would have been
applicable to the hours taken off.
16. Non-Personal
Service
16.1 The vendor must
notify the company immediately if the vendor is unable to personally carry out
his/her duties and obligations under this award for any reason whatsoever.
16.2 Where the
vendor is unable to personally carry out his/her duties and obligations under
this award as a result of a substantiated illness or injury or other absence
authorised by the company and providing that available paid leave has been
exhausted, the company may engage a competent person to carry out the duties
and obligations of the vendor under this award for a period not exceeding 13
weeks.
16.3 If the vendor
is unable to personally carry out his/her duties and obligations under this
award after the 13-week period, the run will revert to a company run and the
vendor's contract will terminate with one month's notice.
16.4 During the
period that the company arranges for a person to carry out the vendor's duties
and obligations under this award, the vendor:
(a) will not
receive any payments for other fixed expenses or of any discounts for the net
sales units achieved on the run in the vendor's absence; and
(b) will only
receive payment for vehicle standing charge and vehicle running cost if the
vendor's vehicle is used to perform the run.
17. Value of Run
17.1 The company
carries on the business of manufacturing, marketing, selling and distributing
bread and related products ("the business"), and the goodwill of the
business is and will at all times remain the property of the company.
17.2 The run has no
value and the vendor has no equity in the run.
18. Changes to the
Run
18.1 Removal of a
Customer from the Run
The company may at any time remove a customer from the
run, provided that:
(a) the company
gives the vendor at least one month's notice of its intention to remove that
customer, except where the customer demands the vendor no longer services that
customer (in which case the company may remove the customer immediately); and
(b) the company,
for the following period of 26 weeks, either:
(i) provides to the
vendor other customers that have weekly net sales units of not less than the
customer removed; or
(ii) continues to
pay to the vendor an amount per week equal to the discounts applicable to the
net sales units that the vendor sold to the customer on average over the
previous 13 weeks.
18.2 Addition of a
Customer to a Run
The company may require the vendor to provide service
to new or additional customers.
19. Engagement of a
Vendor
On or prior to the date of engagement of the vendor, the
company must provide to the vendor a letter in the form set out in Schedule 3
of Appendix C to this award.
20. Termination of
Engagement
20.1 The company may
terminate the engagement of the vendor by giving three months' notice in
writing to the vendor.
20.2 Without
prejudice to any other remedy the company may have against the vendor, the
company may terminate the engagement of the vendor immediately by written
notice to the vendor, if the vendor:
(a) breaches or
fails to perform any of the provisions of this award;
(b) becomes
bankrupt or assigns his/her estate for the benefit of his/her creditors or any
of them;
(c) becomes of
unsound mind or a person whose person or estate is liable to be dealt with in
any way under the law relating to mental health;
(d) is convicted
of any indictable offence; or
(e) is guilty of
any conduct which, in the opinion of the company, might tend to injure the
reputation or the business of the company or any of its related bodies corporate (as defined in section 50 of the
Corporations Law or any provision of any legislation replacing the Corporations
Law).
20.3 The vendor may
terminate his/her engagement by giving three months' notice in writing to the
company, or such lesser period as may be agreed upon.
21. Consequences of Termination
21.1 On termination
of engagement of the vendor, for any reason whatsoever:
(a) The vendor
must deliver up to the company all customer lists, stationery, documentation,
records, uniforms and all other property of the company in his/her possession
or under his/her control.
(b) The company
will, at its own expense, remove such wording or advertising matter as it may
have caused to be displayed or painted on the vendor's vehicle in accordance
with subclause 7.3 of clause 7, Delivery Vehicle, and the vendor will be
responsible for the removal of any other advertising matter or signs on the
vehicle.
(c) The company
shall refund to the vendor any cash security bond and release any bank
guarantee security bond, less any monies owing by the vendor to the company.
(d) The vendor
will be solely and entirely responsible for the collection of any amount
outstanding for products supplied by the vendor, except to customers which are
billed direct by the company.
21.2 For a period of
six months after the date of termination, the vendor must not, either alone or
in partnership or as an agent or employee of any person, firm or corporation,
in any way directly or indirectly solicit or endeavour to obtain the custom of
or serve or cause to be served with bread or other bakery products any of the
customers who were served with products by him/her in the performance of the
run under this award during the six months prior to the termination of the
engagement.
21.3 On termination
of the engagement of the vendor, the vendor shall be paid any annual or long
service entitlement, calculated at the award rate.
22. Assignment
This award may not be assigned by either party except that
the company may assign its rights and obligations under this award at any time
to a related body corporate (as defined in section 50 of the Corporations Law
or of the provisions of any legislation replacing the Corporations Law).
23. Settlement of
Disputes and Grievances
23.1 If a vendor or
vendors have a grievance with the company, the grievance must be dealt with in
accordance with the following procedure:
(a) A grievance
must initially be dealt with as close to its source as possible, with graduated
steps for further discussions and resolutions at higher levels of authority.
(b) The vendor(s)
must notify in writing the Area Manager as to the substance of the grievance,
request a meeting for discussions and state the remedies being sought.
(c) If the
grievance is not resolved through discussions with the Area Manager, the matter
must be referred to the responsible District or Sales Manager and discussed
with the Site Vendor Consultative Committee.
(d) At the
conclusion of these discussions, the company must provide a response to the
grievance including, if the matter has not been resolved, any reasons for not
implementing any proposed remedy.
(e) If not
resolved at the operations level, the issue must be referred to the company's
senior management and dealt with by:
(i) discussion
between the company, the vendor and the union; or
(ii) referred to
an agreed upon mediation mechanism; or
(iii) referred to
the Industrial Relations Commission of New South Wales.
(f) Reasonable
time limits must be allowed for discussions at each level of authority.
(g) Whilst this
procedure is being followed, normal work must continue.
23.2 The company may
be represented by an industrial organisation of employers and the vendor may be
represented by the union for the purpose of each stage of this procedure.
24.
Anti-Discrimination
24.1 It is the intention
of the parties bound by this award to seek to achieve the object in section
3(f) of the Industrial Relations Act
1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds
of race, sex, marital status, disability, homosexuality, transgender identity,
age and responsibilities as a carer.
24.2 It follows
that, in fulfilling their obligations under the dispute resolution procedure
prescribed by this award, the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this award are not
directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
24.3 Under the Anti-Discrimination Act 1977, it is
unlawful to victimise an employee because the employee has made or may make or
has been involved in a complaint of unlawful discrimination or harassment.
24.4 Nothing in this
clause is to be taken to affect:
(a) any conduct or
act which is specifically exempted from anti-discrimination legislation;
(b) offering or providing
junior rates of pay to persons under 21 years of age;
(c) any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination
Act 1977;
(d) a party to
this award from pursuing matters of unlawful discrimination in any State or
Federal jurisdiction.
24.5 This clause
does not create legal rights or obligations in addition to those imposed upon
the parties by the legislation referred to in this clause.
NOTES
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d)
of the Anti-Discrimination Act 1977
provides:
"Nothing in this Act affects … any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
25. Application
This award shall apply to all vendors engaged by the company
operating from the Newcastle Bakery, Oakdale Road, Gateshead, and its depots,
excluding the Taree, Wauchope, Port Macquarie and Kempsey regions.
26. Review
Not later than six months prior to the expiry of this award,
the company, vendors and union shall commence a process to review this
award. This process shall include:
(a) an exchange of
issues, items and matters for review;
(b) opportunity
for direct involvement, communication and discussion with and by each vendor;
and
(c) the
establishment of a timetable for conclusion of the review process and reaching
a new agreement prior to the expiry date of this award.
27. Notices
27.1 Any notice,
approval, consent or other communication to be given or made under this award
shall be in writing and shall be delivered personally or given by prepaid
registered post or facsimile to a party at the last known address of that
party.
27.2 Proof of
posting by prepaid registered post or of dispatch of facsimile shall be proof
of receipt and, in the case of a letter, on the third day after posting and, in
the case of a facsimile, on the day immediately following the date of dispatch.
28. Area, Incidence
and Duration
This award shall take effect on and from 2 September 2002
and shall remain in force thereafter until 31 October 2004. NOTE: By administrative action, the rates
contained herein have been applicable from the first account week to commence
on or after 1 November 2001
This award rescinds and replaces the Bread Vendors (Tip Top
Bakeries - Newcastle) Award published 16 June 2000 (316 I.G. 558) and all
variations thereof.
APPENDIX A
Schedule 1 - Stationery and Uniform
1. Stationery
(a) Printed
delivery dockets
(b) Printed credit
dockets
(c) Preliminary
load sheets
(d) Returns slips
2. Uniform
(a) A vendor uniform
kit will be supplied by the company on engagement and charged to the vendor at
50 per cent of invoice cost to the company.
(b) Replacement
uniforms will be supplied on a demonstrated needs basis and charged to the
vendor at 50 per cent of invoice cost to the company.
(c) The vendor
uniform kit will consist of:
5 shirts (short sleeves)
3 trousers
3 shorts
1 jacket
5 pairs of socks
APPENDIX B
Schedule 2 - Specification of Vendor Vehicle
1. If the vendor
was engaged as a vendor under the previous agreement immediately prior to the
commencement of this award, the vehicle used by the vendor for that purpose
will be acceptable to the company, provided that, in the opinion of the
company, the vehicle is adequate for the performance of the run.
2. New and
Replacement Vehicles
Unless specifically authorised in writing by the
company, all new and replacement vehicles shall satisfy the following
specifications:
Cab chassis - white painted to accommodate Pantech body
with internal dimensions-
Width: 2.l metres
Length: 4.3 metres
Minimum Height: 2.0 metres
Maximum Unladen Vehicle Height (including Pantech): 3.3
metres
APPENDIX C
Schedule 3 - Letter of Engagement of a Vendor
Dear (insert name of the Vendor),
Engagement as a Bread Vendor
I am pleased to offer you engagement as a bread vendor with
Tip Top Bakeries ( ) under the
terms and conditions of the attached award.
You will be required to perform deliveries to such customers
as specified by the company on the following days of the week (whether or not
these days are public holidays) unless specifically directed otherwise by the
company: ( ) inclusive.
Your attention is specifically drawn to clause 17, Value of
Run, of this award. This run has no
value, and you, as a vendor, have no equity in the run.
You will be requested to provide a security bond in terms of
clause 12, Security Bond, and schedule 4 of this award. Please sign below to accept this offer and
forward security bond of $ ( )
to the company.
Yours faithfully
On copy:
I accept the offer to become a bread vendor with the company
on the terms set out in this letter and the award.
Date:
APPENDIX D
Schedule 4 - Security Bond
Amount
The amount of the security bond required is four weeks'
value of the average weekly net sales units on vendor held accounts, over the
previous 52 weeks, priced at current wholesale list price less vendor discount,
referred to in subclause 11.1 of clause 11, Vendor Discount.
Adjustment to Amount of Security Bond
The amount of the security bond is to be reviewed at the
commencement of each trading quarter used by the company (1 February, 1 May, 1
August and 1 November) and adjusted for change in volume or price.
Form of Security Bond
The security bond may be:
(a) cash deposit
with the company; or
(b) bank guarantee
in favour of the company payable in cash on demand by the company, not
revocable or subject to cancellation by the bank without 14 days' prior written
notice to the company;
(c) a financial
instrument acceptable to the company which provides equal security in the
opinion of the company.
Interest on Cash Security Bond
The company shall pay interest on a cash security bond
deposited with the company. Interest
payments shall be made annually on 31 July each year but shall be calculated
six-monthly on the balance deposited with the company on 30 January and 31 July. The rate of interest payable will be the
rate payable by the Commonwealth Bank for a 12-month term deposit of less than
$10,000 at the date of calculation.
APPENDIX E
Schedule 5 - Vendor Discount and Reimbursement of Expenses
|
Item No.
|
Clause No.
|
Brief Description
|
|
1
|
11.1
|
Vendor discount, from 1/11/01vendor-held accounts - 18.64
cents per net sales unit.
|
|
|
|
Note: Vendor discount shall increase by 4% operative
1/11/02 and 1/11/03.
|
|
|
|
Vendor discount, from 1/11/01 company held accounts - 13.14
cents per net sales unit.
|
|
|
|
Note: Vendor discount shall increase by 4% operative
1/11/02 and 1/11/03.
|
|
2
|
13.1(a)
|
Vehicle Standing
Charge
|
|
|
|
Year of Manufacture
|
Per week
|
|
|
|
(as per compliance
plate)
|
($)
|
|
|
|
2002
|
388
|
|
|
|
2001
|
320
|
|
|
|
2000
|
265
|
|
|
|
1999
|
224
|
|
|
|
1998
|
192
|
|
|
|
1997
|
165
|
|
|
|
1996 or earlier
|
122
|
|
3
|
13.1(b)
|
Vehicle Running
Cost
|
|
|
|
.3082 cents per kilometre of the weekly distance travelled
to perform the runs (based on
|
|
|
|
fuel price of 87.9 cents per litre.)
|
|
4
|
13.1(c)
|
Other fixed expenses - $40.00 per week.
|
|
|
|
Note: Other fixed expenses shall increase by 4% on 1/11/02
and by 4% on 1/11/03.
|
|
5
|
13.2
|
Adjustment to
Vehicle Expenses
|
|
|
|
(a) The vehicle standing charge for each year of
manufacture (effective from 1 February
|
|
|
|
each year) is to be calculated annually by the NRMA based
on a NPR 300 with a
|
|
|
|
Pantech body of the specifications set out in Schedule 2,
depreciated over 6 years. The
|
|
|
|
earliest year shown immediately prior to the insertion of
the new year rate will be
|
|
|
|
deleted, and the year subsequent to that adjusted to the average
of the 6th year rate
|
|
|
|
standing charge for the succeeding 6 years.
|
|
|
|
(Example: With the insertion of the 1994 standing charge,
the 1987 or earlier rate will
|
|
|
|
be deleted; the 1988 or earlier rate will then be the average
of the 6th year rate for the
|
|
|
|
years 1989, 1990, 1991, 1992, 1993 and 1994.)
|
|
|
|
(b) The vehicle running cost is to be reviewed annually
(effective 1 February each
|
|
|
|
year) and will be based on calculations made by the NRMA for
a NPR 300 with a
|
|
|
|
Pantech body of the specifications set out in Schedule 2.
|
J. N. REDMAN, Commissioner.
____________________
Printed by
the authority of the Industrial Registrar.