The attached document replaces the document previously issued with the above code on 26 August 2019.
1. By deleting ‘21’ in Note 2 and inserting ‘19.3’
Modern Awards Team
On behalf of President Ross
Dated 5 September 2019
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern award – Payment of wages
HORTICULTURE AWARD 2010
JUSTICE ROSS, PRESIDENT
MELBOURNE, 26 AUGUST 2019
4 yearly review of modern awards – common issue – payment of wages – payments on termination – outstanding awards – Horticulture Award 2010.
A. Further to the Full Bench decision issued by the Fair Work Commission on 23 August 2019 [ FWCFB 5868], the above award is varied as follows:
1. By deleting clause 19.3 and inserting the following:
19.3 Payment on termination of employment
(a) If the employment of an employee terminates, the employer must pay an employee the following amounts in accordance with this clause:
(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and
(ii) all other amounts that are due to the employee under this award and the NES.
(b) The amounts described at clause 19.3(a)(i) must be paid to the employee:
(i) By cash or cheque on the day of termination or forwarded to the employee by post on the next working day; or
(ii) By electronic funds transfer no later than 7 days after the day on which the employee’s employment terminates.
(c) The amounts described at clause 19.3(a)(ii) must be paid to the employee:
(i) By cash or cheque on the day of termination or forwarded to the employee by post as soon as reasonably practicable and by no later than 7 days after the day on which the employee’s employment terminates; or
(ii) By electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.
(d) The requirement to pay wages and other amounts under clause 19.3 is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.
Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.
Note 2: Paragraph (d) allows the Commission to make an order delaying the requirement to make a payment under clause 19.3. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.
Note 3: State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.
B. This determination comes into operation from 6 September 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 6 September 2019.
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