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Answered in 21 minutes by:
12/11/2013
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1,601
Experience: Lawyer | Founder & CEO at Blue Ocean Law Group
VerifiedCustomer:
Hi, is your employer a small business with less than 15 employees ?
Customer:
Are you covered by the following award - MA000020 - Building and Construction General On-site Award 2010
Customer:
This award specifies the following...
Customer:
17. Industry specific redundancy scheme
[Varied by PR994519,PR538792]
[17.1 varied by PR994519 from 01Jan10]
17.1 The following redundancy clause for the on-site building,engineering and civil construction industry (as defined) is an industry specific redundancy scheme as defined in s.12 of the Act. In accordance with s.123(4)(b) of the Act the provisions of Subdivision B—Redundancy pay of Division 11 of the NES do not apply to employers and employees covered by this award.
17.2 Definition
For the purposes of this clause, redundancy means a situation where an employee ceases to be employed by an employer to whom this award applies,other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning.
Customer:
17.3 Redundancy pay
(a) A redundant employee will receive redundancy/severance payments,calculated as follows,in respect of all continuous service with the employer:
Period of continuous service with an employer | Redundancy/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 than 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 |
Customer:
In addition to redundancy pay.. you will also be entitled to a Long-Service Leave payout.. assuming that you have not already taken LSL.
Customer:
The following table outlines LSL entitlements in South Australia
Customer:
| State/Territory | Entitlement to Leave | Entitlement on Termination | Scope of Legislation | Ordinary Pay Where No Rate Fixed |
13 weeks leave after first 10 years of service and 1.3 weeks leave for each subsequent year. Cashing out of leave Employee may, by agreement, cash out leave upon entitlement to leave (ie upon 10 years service). Public holiday occuring during leave does not extend the period of leave. | After 10 years service On termination for any reason — 13 weks plus por rata leave. Between 7 & 10 years service 1.3 weeks leave for each completed year except when service is terminated: (a) on the grounds of serious & wilful misconduct, or (b) unlawfully by the worker. Less than 7 years service No entitlement | Any person employed under a contract of service. Does not apply to employees covered by theConstruction Industry Long Service Leave Act 1987 | If, in the preceding 3 years, the worker was employed on an hourly basis or the worker's ordinary hours per week were varied, then the ordinary weekly pay for purposes of long service leave calculation will be deemed to be the average of hours worked in that 3 year period multiplied by the current hourly rate. |
Customer:
You will also be paid out any accrued but not taken annual leave balance.
Customer:
Please let me know if I can be of further assistance, kind regards, James
JACUSTOMER-ba47qc4u- :
Could you please change the format to a Q&A format so I could fully view your answer?
Hi, unfortunately the test for the small business exemption to make redundancy payments is performed immediately prior to the termination.
Redundancy & small business
Under the National Employment Standards (NES), an employer who is defined as a small business employer is not required to provide redundancy pay. However, an employer may have redundancy pay obligations under an industrial instrument or contract of employment.
A small business employer, for the purpose of determining redundancy pay under the NES, is an employer who employs fewer than 15 employees. This is based on a simple head count of employees immediately before the relevant person was terminated, or at the time when the person was given notice of termination (whichever happened first).
When calculating the number of employees employed at a particular time, all the following factors are to be taken into account:
all employees employed by the employer at that time are to be counted
a casual employee is not be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis
associated entities are taken to be one entity
the employee being terminated, and any other employees being terminated at that time are counted.
If you are covered by the MA000020 - Building and Construction General On-site Award 2010, you are still entitled to redundancy pay as mentioned in my earlier comments. If you are covered by a different award you will need to check it carefully, as it may not contain any redundancy payment entitlements.. as normally a small business is not required to pay redundancy pay, regardless of your number of years of service.
I agree given 49 years if service, it is not a great result.. however without an award that specifies redundancy pay is payable, given your employer is classified as a small business, there would normally be no redundancy pay at all.
Please let me know if you need further assistance, kind regards, James
Alternately, please accept and rate my answer.
Redundancy & small business
Under the National Employment Standards (NES), an employer who is defined as a small business employer is not required to provide redundancy pay. However, an employer may have redundancy pay obligations under an industrial instrument or contract of employment.
A small business employer, for the purpose of determining redundancy pay under the NES, is an employer who employs fewer than 15 employees. This is based on a simple head count of employees immediately before the relevant person was terminated, or at the time when the person was given notice of termination (whichever happened first).
When calculating the number of employees employed at a particular time, all the following factors are to be taken into account:
all employees employed by the employer at that time are to be counted
a casual employee is not be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis
associated entities are taken to be one entity
the employee being terminated, and any other employees being terminated at that time are counted.
If you are covered by the MA000020 - Building and Construction General On-site Award 2010, you are still entitled to redundancy pay as mentioned in my earlier comments. If you are covered by a different award you will need to check it carefully, as it may not contain any redundancy payment entitlements.. as normally a small business is not required to pay redundancy pay, regardless of your number of years of service.
I agree given 49 years if service, it is not a great result.. however without an award that specifies redundancy pay is payable, given your employer is classified as a small business, there would normally be no redundancy pay at all.
Please let me know if you need further assistance, kind regards, James
Alternately, please accept and rate my answer.
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1,601
Experience: Lawyer | Founder & CEO at Blue Ocean Law Group
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