AN120118 – Charitable, Aged and Disability Care Services (State) Award
(i) For the purposes of this Clause, "Continuous service" shall be interpreted in the same manner as "service of a worker" is interpreted in the Long Service Leave Act 1955 as at 22 July 1996. Periods of leave without pay, including parental leave without pay, do not break the continuity of service of an employee but are not to be taken into account in calculating length of service for the purposes of this award.
(ii) Introduction of Change
(a) Employer's duty to notify -
(1) Where the employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the Union.
(2) "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.
(b) Employer's duty to discuss change -
(1) The employer shall discuss with the employees affected and the union to which they belong, inter alia, the introduction of the changes referred to in sub-clause (a) of this clause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the union in relation to the changes.
(2) The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in sub-clause (a) of this clause.
(3) For the purpose of such discussions, the employer shall provide to the employees concerned and the union to which they belong all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer. Provided that the making of any positions redundant shall not be deemed to be confidential information for the purposes of this award.
(iii) Redundancy
Discussions before terminations -
(a) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and that decision may lead to termination of the employee's employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.
(b) The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of sub-clause (a) of this clause and, in any case, prior to the beginning of the period of notice required by sub-clause (iv), Termination of Employment of this clause. These discussions shall cover, inter alia, any reasons for the proposed terminations, and measures to avoid or minimise the terminations, and measures to mitigate any adverse effects of any terminations on the employees concerned.
(c) For the purposes of the discussion the employer shall, as soon as practicable and, in any case, prior to the beginning of the period of notice required by sub-clause (iv), Termination of Employment of this clause, provide to the employees concerned and to the union to which they belong, all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees 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 any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer. Provided that the making of any positions redundant shall not be deemed to be confidential information for the purposes of this award.
(iv) Termination of Employment
(a) Notice for changes in production, program, organisation or structure - This sub-clause sets out the notice provisions to be applied to terminations or proposed terminations of the employment of an employee by the employer in circumstances where the employer no longer wishes the job which the employee has been doing to be done by anyone, for any reason (other than technological change), and for reasons arising from production, program, organisation or structure in accordance with sub-clause (ii)(a)(1), shall be at least the minimum periods of notice as provided in Clause 43-Termination of Employment.
(b) Notice for technological change - This subclause sets out the notice provisions to be applied to terminations or proposed terminations by the employer for reasons arising from technology in accordance with sub-clause (ii) (a) (1) Introduction of Change.
(1) An employer shall not terminate the employment of an employee unless the employer has given to the employee at least three months' notice of termination.
(2) Payment in lieu of the period of notice specified in sub-clause (iv) (b) (1) Termination of Employment shall be made if the said period of notice is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu of the period of notice specified.
(3) The period of notice required by this sub-clause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any act amending or replacing either of these Acts.
(c) Time off during the notice period -
(1) During the period of notice of termination given by the employer, each affected employee shall be allowed up to one day's time off without loss of pay for each week of notice, up to a maximum of five days off, for the purposes of seeking other employment.
(2) If an employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, if the employer so requests, the employee shall be required to produce proof of attendance at an interview. If the employee is so required to produce such proof of attendance and fails to do so, the employee shall not be entitled to receive payment for such time.
(d) Employee leaving during the notice period - If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments to which the employee shall be entitled had the employee remained with the employer until the expiry of such notice.
(e) Statement of employment - The employer shall provide to each employee whose employment has been terminated, a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee.
(f) Notice to Centrelink - Where a decision has been made to terminate the employment of 15 or more employees, the employer shall notify Centrelink of this, as soon as possible, giving relevant information, including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.
(g) Centrelink Employment Separation Certificate - The employer shall provide to an employee whose employment has been terminated an Employment Separation Certificate in the form required by Centrelink.
(h) Transfer to Lower Paid Duties - Where an employee is genuinely transferred to a lower paid classification for reasons set out in subclause (ii) (a) Introduction of Change, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employees employment has been terminated. The employer will however in addition continue to pay the employee their former ordinary pay for a period equivalent to one week for each year of service completed with the employer to a maximum of six weeks.
(v) Retrenchment Pay
Unless the Industrial Relations Commission of New South Wales subsequently orders otherwise pursuant to sub-clause (vi), Incapacity to Pay, where the employment of an employee is to be terminated, for reasons set out in sub-clause (ii) Introduction of Change, the employer shall pay, in addition to other payments due to that employee, the following retrenchment pay in respect of the following continuous periods of service:
(a) Where the employee is under 45 years of age, the employer shall pay the employee in accordance with the following scale:
Minimum Years of Service |
Retrenchment Pay |
Less than 1 year |
Nil |
1 year and less than 2 years |
4 weeks pay |
2 years and less than 3 years |
7 weeks pay |
3 years and less than 4 years |
10 weeks pay |
4 years and less than 5 years |
12 weeks pay |
5 years and less than 6 years |
14 weeks pay |
6 years and over |
16 weeks pay. |
(b) Where the employee is 45 years of age or over, the employer shall pay the employee in accordance with the following scale:
Minimum Years of Service |
Retrenchment Pay |
Less than 1 year |
Nil |
1 year and less than 2 years |
5 weeks pay |
2 years and less than 3 years |
8.75 weeks pay |
3 years and less than 4 years |
12.5 weeks pay |
4 years and less than 5 years |
15 weeks pay |
5 years and less than 6 years |
17.5 weeks pay |
6 years and over |
20 weeks pay |
(c) "Week's pay" means the rate of pay for the employee concerned at the date of termination, and shall include in addition to the ordinary pay any overaward payments:
(1) shift allowances as prescribed in sub-clauses (i) and (ii) of clause 15-Penalty Rates and Shift Allowances;
(2) weekend penalties as prescribed in sub-clause (iii) of clause 15- Penalty Rates and Shift Allowances;
(3) service allowances as prescribed in subclause (i) of clause 27-Service Allowance;
(4) broken shift allowances as prescribed in clause 7-Hours;
(5) sleepover allowances as prescribed in clause 31- Sleepovers;
(6) apprentices TAFE examination allowances as prescribed in clause 41- Apprentices;
(7) climatic and isolation allowances as prescribed in clause 14-Climatic and Isolation Allowances;
(8) leading hand allowances as prescribed in clause 28- Leading Hands;
(9) Laundry and Dry Cleaning Certificate allowance as prescribed in Table 2 of Part B Monetary Rates of this Award.
(vi) Incapacity to Pay
Subject to an application by the employer and further order of the Industrial Relations Commission an employer may pay a lesser amount (or no amount) of retrenchment pay than that contained in sub-clause (v) Retrenchment Pay.
The Industrial Relations Commission shall have regard to such financial and other resources of the employer concerned as the Industrial Relations Commission thinks relevant, and the probable effect paying the amount of retrenchment pay in the said sub-clause (v) will have on the employer.
(vii) Alternative Employment
Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in sub-clause (v) Retrenchment Pay, above if the employer obtains acceptable alternative employment for an employee.
