Termination of agreement; Stand-down - employer questions about WorkChoices

Q&A

Termination of agreement; Stand-down - employer questions about WorkChoices

Here are some questions and answers addressing two separate issues: termination of a pre-reform state agreement; and stand-down in the WorkChoices environment.

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Here are some questions and answers addressing two separate issues: termination of a pre-reform state agreement; and stand-down in the WorkChoices environment.

As with all articles with respect to WorkChoices the commentary is based on the presumption that the employer is a constitutional corporation, unless otherwise specified.

Terminating a pre-reform State agreement

Q. We wish to stand down some of our employees without pay because the premises were recently damaged by fire. The employees have so far agreed to take their accrued annual leave, but the site won't be operational for another two months. Their employment conditions are currently covered by a NAPSA which does not provide for stand-down. Is there any relief provided by WorkChoices?

A. If a preserved collective State agreement is terminated and not replaced by a new workplace agreement under WorkChoices the employees minimum conditions of employment will be governed by the Australian Fair Pay and Conditions Standard (AFPCS) and the other conditions prescribed by the WRAct.

Minimum conditions

Minimum conditions include: the Federal minimum wage ($12.75 p/hr), default casual loading (20%), 38 hour week, four weeks' annual leave, 10 days' personal/carer's leave, 52 weeks unpaid parental leave, unpaid meal break of 30 minutes after five hours work, prescribed paid public holidays, two days compassionate leave per occasion, and notice of termination by the employer.

Stand-down

Q. We wish to stand down some of our employees without pay because the premises were recently damaged by fire. The employees have so far agreed to take their accrued annual leave, but the site won't be operational for another two months. Their employment conditions are currently covered by a NAPSA which does not provide for stand-down. Is there any relief provided by WorkChoices?

A. Under common law an employer has no unilateral right to stand down an employee without pay unless provided by the applicable industrial instrument, contract of employment or employment legislation.

There is no right under WorkChoices to stand down employees and so this situation has remained unchanged. In this instance, unless there is a specific provision in the NAPSA that allows the employer to stand down employees without pay, the employer has only two options - to terminate the employees (giving proper notice) due to redundancy and paying out all relevant termination entitlements, or continue to pay employees until the particular premises becomes operational.

Related

No termination of preserved state agreement

What's unenforceable in pre-reform federal awards

  

 

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