Redundancy; AWAs; Paying wages - employer questions  		about WorkChoices

Q&A

Redundancy; AWAs; Paying wages - employer questions about WorkChoices

This article is the sixth in a series that summarises the employer position under WorkChoices. The focus of this article is on questions relating to redundancy; AWAs; and paying wages in the new WorkChoices environment.

WantToReadMore

Get unlimited access to all of our content.

This article is the sixth in a series that summarises the employer position under WorkChoices. The focus of this article is on questions relating to redundancy; AWAs; and paying wages in the new WorkChoices environment.

While many views have been given on some of the issues, nothing is conclusive until determined by the relevant courts.

These articles provide a snapshot of the types of questions that have frequently been asked by employers since the introduction of WorkChoices.

Note re pre-reform awards and agreements

All answers below are on the basis that the employee is covered under a pre-reform federal award or a notional agreement preserving state awards (NAPSA).

Pre-reform agreements not covered by Standard

The WorkChoices Standards do not apply to an employee covered under a pre-reform certified agreement, preserved state agreement, pre-reform AWA, or a preserved state individual agreement.

Redundancy

Are there provisions for redundancy payments in WorkChoices?
I understand there there are different severance pay conditions for companies with fewer than 15 employees.

Although WorkChoices makes no provision for redundancy or severance pay, an employee under a pre-reform federal award, NAPSA, pre-reform certified agreement, preserved state agreement, pre-reform AWA or a preserved individual state agreement that contains redundancy pay provisions will continue to have an entitlement.

Ordinary resignation

Terms under a pre-reform award or NAPSA that provide redundancy payments in ordinary resignation situations (eg some building industry awards) are not considered redundancy and are, therefore, unenforceable.

Fewer than 15 employees

WorkChoices also prohibits any redundancy pay provision in a pre-reform award or NAPSA that provides an entitlement to employees where the employer employs fewer than 15 employees.

The redundancy pay provision with respect to a non-award employee is subject to the employee's individual contract of employment.

New WorkChoices agreement

A new workplace agreement made under WorkChoices is not required to contain redundancy pay provisions, nor is redundancy pay a protected award matter. This means if redundancy pay provisions are omitted from a new workplace agreement, whether deliberately or inadvertently, there is no entitlement. Its inclusion in an agreement is subject to negotiation by the parties.

Australian Workplace Agreement (AWA)

Does an AWA originally negotiated by an employer that is a constitutional corporation continue to apply if the business is transmitted to a non-constitutional corporation (eg sole trader or partnership)?

No.

The new employer is not a constitutional corporation and cannot be a party to an AWA. The employment conditions would default to the applicable federal or state industrial instrument, or state employment legislation.

Can you have only one employee on an AWA and no other employees in the workplace?

Yes.

An AWA is an individual agreement and can be negotiated even where most other employees in the workplace are covered by a collective agreement.

Payment of wages

WorkChoices deals with a guarantee of payment of salaries in arrears. We have some staff under pre-reform federal awards, NAPSAs and common law contracts that are paid half in advance and half in arrears.
Must all these staff now be paid in arrears or may they still be paid as currently the case?

The existing pay arrangements would be lawful.

WorkChoices continues the operation of the pay frequency provisions of pre-reform federal awards and NAPSAs. Where there is no frequency provision under either of these instruments, or the employee is not covered by one, pay frequency can be determined by a workplace agreement, or contract of employment.

WorkChoices applies when instrument silent

If all these sources are silent about frequency of payment, payment is fortnightly in arrears. There appear to be no restrictions about pay frequency imposed on contracts of employment, rather the WorkChoices guarantee applies where the contract (and any workplace agreement) is silent.

Related

See other 'Common questions from employers about WorkChoices'

Redundancy, notice of termination and WorkChoices

Australian Workplace Agreements (AWAs) and WorkChoices



  

 

Post details