AN140296 – Teachers' Award - Non-Governmental Schools 2003
4.11.1 Consultation before terminations
(a) Where an employer decides that the employer no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the employer shall consult the employee directly affected and where relevant, their union or unions.
(b) The consultation shall take place as soon as it is practicable after the employer has made a decision, which will invoke the provisions of clause 4.11.1(a) and shall cover the reasons for the proposed terminations, measures to avoid or minimise the terminations and/or their adverse affects on the employees concerned.
(c) For the purpose of the consultation the employer shall, as soon as practicable, provide in writing to the employees concerned and, where relevant, their union or unions, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be carried out:
Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be adverse to the employer's interests.
4.11.2 Transfer to lower paid duties
(a) Where an employee is transferred to lower paid duties for reasons set out in clause 4.11.1 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 under clause 4.7.
(b) The employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former amounts the employer would have been liable to pay and the new lower amount the employer is liable to pay the employee for the number of weeks of notice still owing.
(c) The amounts must be worked out on the basis of:
(i) the ordinary working hours to be worked by the employee; and
(ii) the amounts payable to the employee for the hours including for example, allowances, loadings and penalties; and
(iii) any other amounts payable under the employee's employment contract.
4.11.3 Transmission of business
(a) Where a business is, whether before or after the date of insertion of this clause in the Award. transmitted from an employer (transmittor) to another employer (transmittee), and an employee who at the time of such transmission was an employee of the transmittor of the business, becomes an employee of the transmittee:
(i) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
(ii) the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee.
(b) In clause 4.11.3, 'business' includes trade, process, business or occupation and includes a part or subsidiary (which means a corporation that would be taken to be a subsidiary under the Corporations Law, whether or not the Corporations Law applies in the particular case) of any such business and 'transmission' includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and 'transmitted' has a corresponding meaning.
4.11.4 Time off during notice period
(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.11.1(a), the employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment.
(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. For this purpose a statutory declaration will be sufficient.
4.11.5 Notice to Centrelink
Where a decision has been made to terminate employees in the circumstances outlined in clause 4.11.1, the employer shall notify Centrelink as soon as possible giving all relevant information about the proposed terminations, including a written statement of the reasons for the terminations, the number and categories of the employees likely to be affected, the number of workers normally employed and the period over which the terminations are intended to be carried out.
4.11.6 Severance pay
(a) In addition to the period of notice prescribed for ordinary termination in clause 4.7, and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in clause 4.11.1(a), shall be entitled to the following amounts of severance pay:
Period of Continuous Service |
Severance Pay |
(weeks' pay) | |
Less than 1 year |
nil |
1 year but not more than 2 years |
4 |
More than 2 years but not more than 3 years |
6 |
More than 3 years but not more than 4 years |
7 |
More than 4 years but not more than 5 years |
8 |
More than 5 years but not more than 6 years |
9 |
More than 6 years but not more than 7 years |
10 |
More than 7 years but not more than 8 years |
11 |
More than 8 years but not more than 9 years |
12 |
More than 9 years but not more than 10 years |
13 |
More than 10 years but not more than 11 years |
14 |
More than 11 years but not more than 12 years |
15 |
More than 12 years |
16 |
(b) 'Weeks' Pay' means the ordinary time rate of pay for the employee concerned:
Provided that the following amounts are excluded from the calculation of the ordinary time rate of pay: overtime, penalty rates, disability allowances, shift allowances, special rates, fares and travelling time allowances, bonuses and any other ancillary payments.
4.11.7 Superannuation benefits
An employer may make an application to the Commission for relief from the obligation to make severance payments in circumstances where:
(a) the employer has contributed to a superannuation scheme which provides a particular benefit to an employee in a redundancy situation; and
(b) the particular benefit to the employee is over and above any benefit the employee might obtain from any legislative scheme providing for superannuation benefits (currently the federal Superannuation Guarantee levy) or an award based superannuation scheme.
4.11.8 Employee leaving during notice
An employee whose employment is terminated for reasons set out in clause 4.11.1(a), may terminate such employment during the period of notice, and, if so, shall be entitled to the same benefits and payments under this clause had such 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.
4.11.9 Alternative employment
An employer, in a particular case, may make application to the Commission to have the general severance pay prescription amended if the employer obtains acceptable alternative employment for an employee.
4.11.10 Employees with less than one year's service
Clause 4.11 shall not apply to employees with less than one year's continuous service and the general obligation on employers should be no more than to give relevant 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.
4.11.11 Employees exempted
Clause 4.11 shall not apply:
(a) where employment is terminated as a consequence of misconduct on the part of the employee; or
(b) to employees engaged for a specific period or task(s); or
(c) to casual employees.
4.11.12 Employers exempted
(a) Subject to an order of the Commission, in a particular redundancy case, clause 4.11 shall not apply to an employer including a company or companies that employ employees working a total of fewer than 550 hours on average per week, excluding overtime, Monday to Sunday. The 550 hours shall be averaged over the previous 12 months.
(b) A 'company' shall be defined as:
(i) a company and the entities it controls; or
(ii) a company and its related company or related companies; or
(iii) a company where the company or companies has a common Director or common Directors or a common shareholder or common shareholders with another company or companies.
4.11.13 Exemption where transmission of business
(a) The provisions of clause 4.11.6 are not applicable where a business is before or after the date of the insertion of this clause into the Award, transmitted from an employer (transmittor) to another employer (transmittee), in any of the following circumstances:
(i) where the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor, and any prior transmittor, to be continuous service of the employee with the transmittee; or
(ii) where the employee rejects an offer of employment with the transmittee:
(A) in which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transmittor; and
(B) which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service of the employee with the transmittee.
(b) The Commission may amend clause 4.11.13(a)(ii) if it is satisfied that it would operate unfairly in a particular case, or in the instance of contrived arrangements.
4.11.14 Incapacity to pay
An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription amended on the basis of the employer's incapacity to pay.
