AN120185 – Draughting Employees, Planners, Technical Employees, &c (State) Award
4.4.1 Application
4.4.1(a) This clause shall only apply in respect of full-time and part-time employees.
4.4.1(b) This clause shall apply in respect of employers who employ 15 employees or more immediately prior to the termination of employment of employees.
4.4.1(c) Notwithstanding anything contained elsewhere in this clause, this clause shall not apply to employees with less than one year's continuous service, and the general obligation on employers shall be no more than to give such employees 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 employees of suitable alternative employment.
4.4.1(d) Notwithstanding anything contained elsewhere in this clause, this clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.
4.4.2 Introduction of Change
4.4.2.1 Employer's duty to notify
4.4.2.1(a) Where an 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 to which they belong.
4.4.2.1(b) "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.
4.4.2.2 Employer's duty to discuss change -
4.4.2.2(a) 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 4.4.2.1, 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.
4.4.2.2(b) The discussions shall commence as early as possible after a definite decision has been made by the employer to make the changes referred to in 4.4.2.1.
4.4.2.2(c) 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.
4.4.3 Redundancy
4.4.3.1 Discussions before terminations
4.4.3.1(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 pursuant to 4.4.2.1(a), and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.
4.4.3.1(b) The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of 4.4.3.1(a) 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 termination of the employees concerned.
4.4.3.1(c) For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and 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 employees 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.
4.4.4 Termination of Employment
4.4.4.1 Notice for Changes in Production, Programme, Organisation or Structure
4.4.4.1(a) The notice provisions to be applied to terminations by the employer for reasons arising from changes in production, programme, organisation or structure shall be the same as that provided in 4.3 Termination of Employment
4.4.4.1(b) Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
4.4.4.2 Notice for Technological Change
This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from "technology" in accordance with 4.4.2.1(a).
4.4.4.2(a) In order to terminate the employment of an employee the employer shall give to the employee 3 months notice of termination.
4.4.4.2(b) Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
4.4.4.2(c) The period of notice required by this subclause 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.
4.4.4.3 Time off during the notice period
4.4.4.3(a) During the period of notice of termination given by the employer an employee shall be allowed up to one day's time off without loss of pay during each week of notice, to a maximum of 5 weeks, for the purposes of seeking other employment.
4.4.4.3(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.
4.4.4.4 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 under this clause had the employee remained with the employer until the expiry of such notice. Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.
4.4.4.5 Statement of employment
The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee.
4.4.4.6 Employment Separation Certificate
The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an "Employment Separation Certificate" in the form provided by Centrelink
4.4.4.7 Transfer to lower paid duties
Where an employee is transferred to lower paid duties for reasons set out in clause 4.4.2 of this award, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated, and the employer may at the employer's option make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new ordinary time rates for the number of weeks of notice still owing.
4.4.5 Severance Pay
4.4.5.1 Amounts
Where an employee is to be terminated pursuant to subclause 4.4.4, the employer shall pay the following severance pay in respect of a continuous period of service:
4.4.5.1(a) If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:
Years of Service |
Under 45 Years of Age Entitlement |
Less than 1 year |
Nil |
1 year and less than 2 years |
4 weeks |
2 years and less than 3 years |
7 weeks |
3 years and less than 4 years |
10 weeks |
4 years and less than 5 years |
12 weeks |
5 years and less than 6 years |
14 weeks |
6 years and over |
16 weeks |
4.4.5.1(b) Where an employee is 45 years old or over, the entitlement shall be in accordance with the following scale:
Years of Service |
45 Years of Age and Over Entitlement |
Less than 1 year |
Nil |
1 year and less than 2 years |
5 weeks |
2 years and less than 3 years |
8.75 weeks |
3 years and less than 4 years |
12.5 weeks |
4 years and less than 5 years |
15 weeks |
5 years and less than 6 years |
17.5 weeks |
6 years and over |
20 weeks |
4.4.5.1(c) "Weeks pay" means the all purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over award payments, shift penalties and allowances.
4.4.5.2 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 severance pay than that contained in subclause 4.4.5.1 above.
The 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 severance pay in subclause 4.4.5.1 above will have on the employer.
4.4.5.3 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 subclause 4.4.5.1 above if the employer obtains acceptable alternative employment for an employee.
