AN160308 – Teachers' Aides' (Independent Schools) Award 1988
(1) Definitions
The following definitions shall apply for the purposes of this clause:
(a) Business includes trade, process, business or occupation and includes part of any such business.
(b) Redundancy occurs where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone.
(c) Transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding meaning.
(d) Weeks’ pay means the ordinary time rate of pay for the employee concerned. Provided that such rate shall exclude:
(i) overtime;
(ii) penalty rates;
(iii) disability allowances;
(iv) shift allowances;
(v) special rates;
(vi) fares and travelling time allowances;
(vii) bonuses; and
(viii) any other ancillary payments of a like nature.
(2) 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 that decision may lead to termination of employment, the employer shall consult the employee directly affected and if an employee nominates a union to represent him or her, the union nominated by the employee.
(b) The consultation shall take place as soon as is practicable after the employer has made a decision to which subclause 2(a) of this clause applies 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 if an employee nominates a union to represent him or her, the union nominated by the employee, 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 an employer shall not be required to disclose confidential information, the disclosure of which would be adverse to the employer’s interests.
(3) Transfer to lower paid duties
(a) Where an employee is transferred to lower paid duties by reason of redundancy 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.
(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, loading and penalties; and
(iii) any other amounts payable under the employee’s contract of employment.
(4) Severance Pay
(a) In addition to the period of notice prescribed for ordinary termination, an employee whose employment is terminated by reason of redundancy must be paid, subject to further order of the Commission, the following amount of severance pay in respect of a continuous period of service, provided that the entitlement of any employee whose employment terminates on or before 1 February 2006 shall not exceed 8 weeks’ pay:
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 less than 8 years |
13 weeks’ pay |
8 years and less than 9 years |
14 weeks’ pay |
9 years and less than 10 years |
16 weeks’ pay |
10 years and over |
12 weeks’ pay |
(b) 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.
(c) 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 the obligations of this clause in respect of leave of absence;
(ii) any absence from work on account of leave 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 any time in respect of which any employee is absent from work except time for which an employee is entitled to claim paid leave shall not count as time worked.
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 clause 2(3) or (4) of the Long Service Leave Provisions published in Part 1 (January) of each volume of the Western Australian Industrial Gazette shall also constitute continuous service for the purpose of this clause.
(5) Employee leaving during notice period
An employee whose employment is terminated by reason of redundancy may terminate his/her employment during the period of notice and, if so, will be entitled to the same benefits and payments under this clause had they remained with the employer until the expiry of such notice. However, in this circumstance the employee will not be entitled to payment in lieu of notice.
(6) Alternative employment
(a) An employer, in a particular redundancy case, may make application to the Commission to have the severance payment prescribed varied if the employer obtains acceptable alternative employment for an employee.
(b) This subclause does not apply in circumstances involving transmission of business as set out in subclause (7) of this clause.
(7) Transmission of business
(a) The provisions of Clause 24 are not applicable where a business is before or after 1 June 2005, transmitted from an employer (in this subclause called “the transmittor”) to another employer (in this subclause called “the 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:
(aa) 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
(bb) which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service with the transmittee.
(b) The Commission may vary subclause (7)(a)(ii) if it is satisfied that this provision would operate unfairly in a particular case.
(8) Notice to Centrelink
Where a decision has been made to terminate employees in the circumstances outlined in subclause (2) of this clause, 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 employees normally employed and the period over which the terminations are intended to be carried out.
(9) Employees exempted
This clause does not apply:
(a) where employment is terminated as a consequence of serious misconduct that justifies dismissal without notice;
(b) except for subclause (2) of this clause, to employees with less than one year’s service;
(c) except for subclause (2) of this clause, to probationary employees;
(d) to apprentices;
(e) to trainees;
(f) except for subclause (2) of this clause, to employees engaged for a specific period of time or for a specified task or tasks; or
(g) to casual employees.
(10) Employers Exempted
Subject to an order of the Commission, in a particular redundancy case, subclause (4) of this clause shall not apply to employers who employ less than 15 employees.
(11) Incapacity to pay
An employer or a group of employers, in a particular redundancy case, may make application to the Commission to have the severance payment prescribed varied on the basis of the employer’s incapacity to pay.
