DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—plain language re-drafting—standard clauses
(AM2016/15)

ELECTRICAL, ELECTRONIC AND COMMUNICATIONS CONTRACTING AWARD 2010
[MA000025]


Electrical contracting industry
JUSTICE ROSS, PRESIDENT VICE PRESIDENT HATCHER COMMISSIONER HUNT	MELBOURNE, 20 AUGUST 2019

4 yearly review of modern awards—plain language re-drafting—standard clauses—Electrical, Electronic and Communications Contracting Award 2010.

A. Further to the Full Bench decision [[2019] FWCFB 5409], 1 issued by the Fair Work Commission on 20 August 2019, the above award is varied as follows:

1. By deleting clause 15 and inserting the following:

15. Redundancy

NOTE: Redundancy pay is provided for in the NES. See sections 119–123 of the Act. Clause 15.6 supplements the NES by providing a redundancy pay scheme.

15.1 The rate for the purposes of redundancy entitlement under clause 15 will be the all-purpose weekly wage rate of pay.

15.2 An employee will be entitled to a pro-rata payment for any period of continuous service which is less than a full year at any of the year levels referred to.

15.3 Transfer to lower paid duties on redundancy

(a) Clause 15.3 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.

(b) The employer may:

(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or

(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in paragraph (c).

(c) If the employer acts as mentioned in paragraph (b)(ii), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.

15.4 Employee leaving during redundancy notice period

(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.

(b) The employee is entitled to receive the benefits and payments they would have received under clause 15 or under sections 119–123 of the Act had they remained in employment until the expiry of the notice.

(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.

15.5 Job search entitlement

(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.

(b) If an employee is allowed time off without loss of pay of more than one day under paragraph (a), the employee must, at the request of the employer, produce proof of attendance at an interview.

(c) A statutory declaration is sufficient for the purpose of paragraph (b).

(d) An employee who fails to produce proof when required under paragraph (b) is not entitled to be paid for the time off.

(e) This entitlement applies instead of clauses 14.2 and 14.3.

15.6 Redundancy pay schemes

(a) Where an employer terminates the employment of an employee and the employer incurs a redundancy pay obligation to the employee under the NES, some or all of the benefit the employee receives from a redundancy pay fund may be set off against the employer’s redundancy pay obligation under the NES, subject to the following conditions.

(b) If the employee receives a benefit from the redundancy pay fund, the employer may set off any proportion of the benefit which is attributable to the employer’s contribution to the fund against its redundancy pay obligation under the NES. If the proportion so calculated is equal to or greater than the employer’s redundancy pay obligation under the NES the obligation will be fully satisfied.

(c) If the employee does not receive a benefit from the redundancy pay scheme, contributions made by an employer on behalf of an employee to the scheme will, to the extent of those contributions, be set off against the liability of the employer under the NES and payments to the employee will be made in accordance with the rules of the redundancy pay scheme fund or any agreement relating thereto. If the contribution is equal to or greater than the employer’s redundancy pay obligation under the NES the obligation will be fully satisfied.

(d) The redundancy pay scheme must be an Approved Worker Entitlement Fund under the Fringe Benefits Tax Assessment Act 1986.

2. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from 30 August 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 30 August 2019.

PRESIDENT

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