AP839843 - Health Services Union of Australia (NSW/ACT Private Medical Imaging) Award 2004
12.1 Definition
Redundancy occurs when 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.
12.2 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.
12.3 Severance pay
12.3.1 In addition to the period of notice prescribed for ordinary termination in 11.2 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:
12.3.1(a) If an employee is under 45 years of age, the employer will pay in accordance with the following scale:
Years of service |
Entitlement under 45 years of age |
Less that 1 year |
Nil |
1 year and less that 2 years |
4 weeks |
2 years and less that 3 years |
7 weeks |
3 years and less than 4 years |
10 weeks |
4 years and less than 5 years |
12 weeks |
5 years and less than 6 years |
14 weeks |
6 years and over |
16 weeks |
12.3.1(b) Where an employee is 45 years of age or over, the entitlement will be in accordance with the following scale
Years of service |
Entitlement 45 years of age and over |
Less than 1 year |
Nil |
1 year and less than 2 years |
5 weeks |
2 years and less than 3 years |
8.75 weeks |
3 years and less than 4 years |
12.5 weeks |
4 years and less than 5 years |
15 weeks |
5 years and less than 6 years |
17.5 weeks |
6 years and over |
20 weeks |
12.3.2 Week’s pay means the ordinary time rate of pay for the employees concerned.
12.3.3 Severance will not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee’s normal retirement date.
12.4 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.
12.5 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.
12.6 Time off during notice period
12.6.1 During the period of notice of termination given by the employer an employee will be allowed up to one days time off without loss of pay during each week of notice for the purpose of seeking other employment.
12.6.2 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 will, at the request of the employer, be required to produce proof of attendance at an interview or he or she will not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
12.7 Superannuation benefits
12.7.1 Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, they will only receive under 12.3 the difference between the severance pay specified in that clause and the amount of the superannuation benefit they receive which is attributable to employer contributions only.
12.7.2 If this superannuation benefit is greater than the amount due under 12.3 then they will receive no payment under that clause.
12.8 Employees exempted
12.8.1 This clause will not apply where employment is terminated as a consequence of conduct that justifies instant dismissal including inefficiency within the first 14 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.
12.8.2 Notwithstanding the foregoing provisions trainees who are engaged for a specific period of time will, once the traineeship is completed and provided that the trainee services are retained, have all service including the training period counted in determining entitlements. In the event that a trainee is terminated at the end of his or her traineeship and is re-engaged by the same employer within six months of such termination, the period of traineeship will be counted as service in determining any future redundancy entitlements.
12.9 Employers exempted
Subject to an order of the Commission, in a particular redundancy case, this clause will not apply to employers who employ less than 15 employees.
12.10 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.
12.11 Transmission of business
Where the business or part of the business is transmitted from one employer to another, an employee whose employment is transferred from one employer to the other at the time of the transmission will have the service with both employers deemed to be continuous. In this sub-clause transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transmitted has a corresponding meaning.
