AP815828CRV - Australian Workers' Union Construction and Maintenance Award 2002
[17 substituted by PR966526 ppc 10Nov05]
17.1 Definition
Redundancy means a situation where an employee ceases to be employed by an employer, respondent to this award, other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning.
17.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the 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 rate of pay and the new ordinary time rate for the number of weeks of notice still owing.
17.3 Severance pay
17.3.1 In addition to the period of notice prescribed for ordinary termination in clause 16 - Termination of employment of this award, 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:
Period of continuous service |
Severance pay |
1 year or more but less than 2 years |
2.4 weeks pay plus, for all service in excess of 1 year, 1.75 hours pay per completed week of service up to a maximum of 4.8 weeks pay |
2 years or more but less than 3 years |
4.8 weeks pay plus, for all service in excess of 2 years, 1.6 hours pay per completed week of service up to a maximum of 7 weeks pay |
3 years or more but less than 4 years |
7 weeks pay plus, for all service in excess of 3 years, 0.73 hours pay per completed week of service up to a maximum of 8 weeks pay |
4 years or more |
8 weeks pay |
17.3.2 Provided that an employee employed for less than twelve months shall be entitled to a redundancy/severance payment of 1.75 hours per week of service if, and only if, redundancy is occasioned otherwise than by the employee.
17.3.3 Week’s pay means the ordinary time rate of pay for the employees concerned.
17.3.4 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.
17.4 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.
17.5 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.
17.6 Time off during notice period
17.6.1 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 for the purpose of seeking other employment.
17.6.2 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 he/she shall not receive payment for the time absent. For this purpose, a statutory declaration will be sufficient.
17.7 Superannuation benefits
17.7.1 Subject to further order of the Commission, where an employee who is terminated receives a benefit from a superannuation scheme, he/she shall only receive, under clause 17.3 hereof, the difference between the severance pay specified in that clause and the amount of the superannuation benefit he/she receives which is attributable to employer contributions only.
17.7.2 If this superannuation benefit is greater than the amount due under clause 17.3 hereof, then he/she shall receive no payment under that clause.
17.8 Transmission of business
17.8.1 Where a business is, before or after the date of this award, transmitted from an employer (in this clause called the transmittor) to another employer (in this clause called the transmittee) and an employee, who at the time of such transmission, was an employee of the transmittor in that business becomes an employee of the transmittee:
17.8.1(a) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
17.8.1(b) 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.
17.8.2 In this clause business includes trade, process, business or occupation and includes part 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.
17.9 Employees exempted
This clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including inefficiency within the first fourteen days, neglect of duty or misconduct, and, in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specific task or tasks.
17.10 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.
17.11 If an employee dies with a period of eligible service which would have entitled that employee to redundancy pay, such redundancy pay entitlement shall be paid to the estate of the employee.
17.11.1 Any period of service as a casual shall not entitle an employee to accrue service in accordance with this clause for that period.
17.11.2 Service as an apprentice will entitle an employee to accumulate credits towards the payment of a redundancy benefit in accordance with this clause if the employee completes an apprenticeship and remains in employment with that employer for a further twelve months.
17.12 An employer bound by this award may utilise a fund to meet all or some of the liabilities created by this clause. Where an employer utilises such a fund:
17.12.1 payments made by a fund designed to meet an employer's liabilities under this clause, to employees eligible for redundancy/severance pay, shall be set off against the liability of the employer under this clause, and the employee shall receive the fund payment or the award benefit, whichever is the greater, but not both; or
17.12.2 where a fund, which has been established pursuant to an agreement between unions and employers, does not make payments in accordance with this clause, contributions made by an employer on behalf of an employee to the fund shall, to the extent of those contributions, be set off against the liability of the employer under this clause, and payments to the employee shall be made in accordance with the rules of the fund or any agreement relating thereto and the employee shall be entitled to the fund benefit or the award benefit, whichever is greater, but not both.
