AN150039 – Clerks' (South Australia) Award
CLAUSE 4.4 REDUNDANCY
OPDATE 01:07:2005 on and from
4.4.1 Definitions
Redundancy in this clause means the loss of employment due to the employer no longer requiring the job the employee has been doing to be performed by anyone, and redundant has a corresponding meaning.
Small business means an employer who employs fewer than 15 employees
Week's pay means the ordinary time rate of pay for the employee concerned. Provided that such rate shall exclude:
4.4.2 Exclusion
4.4.2.1 This clause does not apply to employees with less than 1 year’s continuous service. The general obligation of employers should 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 such employees of suitable alternative employment.
4.4.2.2 This clause does not apply where employment is terminated as a consequence of conduct that at common law justifies instant dismissal or in the case of casual employees or employees engaged for a specific period of time or for a specified task or tasks.
4.4.3 Discussions Before Termination
4.4.3.1 Where an employer has made a decision that the employer no longer requires the job the employees have been doing done by anyone and that decision may lead to termination of employment, the employer must have discussions as soon as practicable with the employees directly affected and the Union. Discussions must include:
1 the reasons for the proposed terminations;
2 measures to avoid or minimise the terminations;
3 measures to mitigate the adverse effects of any terminations on the employees concerned.
4.4.3.2 For the purposes of such discussion the employer must as soon as practicable provide in writing to the employees concerned and the Union, all relevant information about the proposed terminations, including:
1 the reasons for the proposed terminations;
2 the number and categories of employees likely to be affected;
3 the number of workers normally employed; and
4 the period over which the terminations are likely to be carried out.
No employer is required to disclose confidential information the disclosure of which when looked at objectively, would be against the employer’s interests.
4.4.4 Period of Notice of Termination on Redundancy
4.4.4.1 If the services of an employee are to be terminated due to redundancy such an employee must be given notice of termination as prescribed by clause 4.3.
4.4.4.2 Employees to whom notification of termination of service is to be given on account of the introduction or proposed introduction by the employer of automation or other technological changes in the industry in relation to which the employer is engaged must be given not less than three months notice of termination.
4.4.4.3 Should the employer fail to give notice of termination as required in 4.4.4.1 or 4.4.4.2 the employer must pay to that employee the ordinary rate of pay for a period being the difference between the notice given and that required to be given. The period of notice to be given is deemed to be service with the employer for the purpose of the Long Service Leave Act 1987.
4.4.5 Time off During Notice Period
4.4.5.1 During the period of notice of termination given by the employer an employee is entitled to up to 1 day off without loss of pay during each week of notice for the purpose of seeking other employment.
4.4.5.2 If the employee has been allowed paid leave for more than 1 day during the notice period for the purpose of seeking other employment, the employees must, at the request of the employer, produce proof of attendance at an interview. If such proof is not produced the employee is not entitled to receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
4.4.5.3 The time off during notice period entitlements under this clause 4.4.5 apply in lieu of the provisions of 4.3.2.
4.4.6 Notification to Centrelink
Where a decision has been made to terminate the employment of an employee, or of employees, on account of redundancy the employer must notify Centrelink accordingly as soon as possible, giving relevant information including:
(a) a written statement of the reason(s) for the termination(s);
(b) the number and categories of the employees likely to be affected; and
(c) the period over which the termination(s) are intended to be carried out.
4.4.7 Severance Pay
4.4.7.1 Employees are entitled to severance pay as prescribed below in addition to the period of notice prescribed for termination in 4.3.1 and 4.4.4.
4.4.7.2 Severance pay - employees of a small business.
An employee of a small business as defined in 4.4.1 whose employment is terminated by reason of redundancy is entitled to the following amount of severance pay in respect of a period of continuous service:
Period of continuous service |
Severance pay |
Less than 1 year |
Nil |
1 year and less than 2 years |
4 weeks pay* |
2 years and less than 3 years |
6 weeks pay |
3 years and less than 4 years |
7 weeks pay |
4 years and over |
8 weeks pay |
* Week's pay is defined in 4.4.1.
4.4.7.3 Severance pay – other than employees of a small business
An employee, other than an employee of a small business as defined in 4.4.1, whose employment is terminated by reason of redundancy, is entitled to the following amount of severance pay in respect of a period of continuous service:
Period of continuous service |
Severance pay |
Less than 1 year |
Nil |
1 year and less than 2 years |
4 weeks pay* |
2 years and less than 3 years |
6 weeks pay |
3 years and less than 4 years |
7 weeks pay |
4 years and less than 5 years |
8 weeks pay |
5 years and less than 6 years |
10 weeks pay |
6 years and less than 7 years |
11 weeks pay |
7 years and over |
12 weeks pay |
4.4.7.4 Additional severance pay for employees aged over 45 years with 10 years or more continuous service
In addition to the severance pay in 4.4.7.3 an employee with not less than 10 years continuous service, who is over the age of 45 years, is entitled to an additional 4 weeks severance pay.
* Week's pay is defined in 4.4.1.
4.4.7.5 Continuity of service will be calculated in the manner prescribed by clause 4.5.
4.4.7.6 The severance payment need not exceed the amount which the employee would have earned if employment with the employer has proceeded to the employee’s agreed date of retirement or the employee’s eligibility date for social security benefits, and retirement from the workforce.
4.4.7.7 An employer may apply to the Commission for an order allowing the offsetting of all or part of an employee’s entitlement to severance payment on the basis that such payment of part thereof is already provided for or included in the contributions which the employer has made over and above those required by law to a superannuation scheme and which are paid or payable to the employee on redundancy occurring.
4.4.8 Incapacity to Pay
The Commission may vary the severance pay prescription on the basis of an employer's incapacity to pay. An application for variation may be made by an employer or a group of employers.
4.4.9 Alternative Employment
An employer may make application to the Commission to have the severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.
4.4.10 Written Notice
The employer must, as soon as practicable, but prior to the termination of the employee’s employment, give to the employee a written notice containing, among other things, the following:
4.4.10.1 the date and time to the proposed termination of the employee’s employment;
4.4.10.2 details of the monetary entitlements of the employee upon the termination of the employee’s employment including the manner and method by which those entitlements have been calculated;
4.4.10.3 advice as to the entitlement of the employee to assistance from the employer, including time off without loss of pay in seeking other employment, or arranging training or retraining for future employment; and
4.4.10.4 advice as to the entitlements of the employee should the employee terminate their employment during the period of notice.
4.4.11 Transfer to Lower Paid Duties
Where an employee whose job has become redundant accepts an offer of alternative work by the employer the rate of pay for which is less than the rate of pay for the former position, the employee is entitled to the same period of notice of the date of commencement of work in the new position as if the employee’s employment had been terminated. The employer may pay in lieu thereof an amount equal to the difference between the former rate of pay and the new lower rate for the number of weeks of notice still owing.
4.4.12 Employee Leaving During Notice
An employee whose employment is terminated on account of redundancy may terminate employment during the period of notice. In this case the employee is entitled to the same benefits and payments under the Clause as if remaining with the employer until the expiry of such notice. In such circumstances the employee is not entitled to payment in lieu of notice.
4.4.13 Transmission of Business
The provisions of this clause are not applicable where a transmission of business occurs and the conditions of 4.6.2 or 4.6.3 are met.
4.4.14 Contrived Arrangements
Subject to an order of the Commission, where an employer contrives arrangements wholly or partly to deprive employees of the severance pay set out in 4.4.7.3 or 4.4.7.4, then the employees will be entitled to the severance pay set out in those subclauses in lieu of that set out in 4.4.7.2.
