AN160140 – Gate, Fence and Frames Manufacturing Award
(1) 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 this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union.
(b) The discussion shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph (a) of this subclause and shall cover, among other things, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to minimise any adverse effect of any terminations on the employees concerned.
(c) For the purpose of such discussion the employer shall provide in writing to the employees concerned and their union, 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 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 be inimical to the employer's interests.
(2) Transfer to Lower Paid Duties:
Where an employee is transferred to lower paid duties for reasons set out in paragraph (a) of subclause (1) of this clause, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to had the employment 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 weekly rate of wage and the new lower ordinary weekly rate of wage for the number of weeks of notice still owing.
(3) Severance Pay:
(a) In addition to the period of notice prescribed in paragraph (a) of subclause (2) in Clause 5. - Contract of Service of this award, for ordinary termination, and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in paragraph (a) of subclause (1) of this clause shall be entitled to the following amount of severance pay in respect of a continuous period of service.
Period of Continuous Service |
Severance Pay |
Less than one year |
Nil |
One year but less than two years |
Four weeks |
Two years but less than three years |
Six weeks |
Three years but less than four years |
Seven weeks |
Four years and over |
Eight weeks |
"Week's pay" means the ordinary time rate of wage for the employee concerned.
Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date.
(b) For the purpose of this clause, continuity of service shall not be broken on account of -
(i) any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;
(ii) any absence from work on account of personal sickness or accident for which an employee is entitled to claim sick pay as prescribed by this award or on account of leave lawfully granted by the employer; or
(iii) any absence with reasonable cause, proof whereof shall be upon the employee.
Provided that in the calculation of continuous service under this subclause any time in respect of which an employee is absent from work, except time for which an employee is entitled to claim annual leave, sick pay, long service leave and public holidays as prescribed by this award, shall not count as time worked.
(c) Service by the employee with a business which has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with subclause (3) of Clause 2 of the Long Service Leave Provisions published in Volume 66 of the Western Australian Industrial Gazette at pages one to four shall also constitute continuous service for the purpose of this clause.
(4) Employee Leaving During Notice:
An employee whose employment is to be terminated for reasons set out in paragraph (a) of subclause (1) of this clause may terminate employment during the period of notice and, if so, 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.
(5) Alternative Employment:
An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.
(6) Time Off During Notice Period:
(a) During the period of notice of termination of employment given by an employer, an employee whose employment is to be terminated for reasons set out in paragraph (a) of subclause (1) of this clause shall, for the purpose of seeking other employment, be entitled to be absent from work during each week of notice up to a maximum of eight ordinary hours without deduction of pay.
(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.
(7) Notice to the Commonwealth Employment Service:
Where a decision has been made to terminate employees in the circumstances outlined in paragraph (a) of subclause (1) of this clause, the employer shall notify the Commonwealth Employment Service thereof 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.
(8) Superannuation Benefits:
(a) Subject to further order of the Commission, where an employee who is terminated receives a benefit from a superannuation scheme, the employee shall only receive, under subclause (3) of this clause, the difference between the severance pay specified in that subclause and the amount of the superannuation benefit the employee receives which is attributable to employer contributions only.
(b) If the superannuation benefit is greater than the amount due under subclause (3) of this clause, then the employee shall not receive payment under that subclause.
(9) Employees With Less Than One Year's Service:
This clause 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.
(10) Employees Exempted:
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.
(11) Employers Exempted:
Subject to an order of the Commission, in a particular redundancy case, this clause shall not apply to employers who employ less than 15 employees.
(12) Incapacity to Pay:
An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied on the basis of the employer's incapacity to pay.
(13) Dispute Settling Procedures:
Any dispute under these provisions shall be referred to the Commission.
