Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (55 of 2009)

Schedule 3   Continued existence of awards, workplace agreements and certain other WR Act instruments

Part 6   Preservation of redundancy provisions in agreements etc.

38   Preservation of redundancy provisions when agreement-based transitional instrument terminates

When this item applies

(1) This item applies if a termination of an agreement-based transitional instrument (the terminated instrument ) takes effect during the bridging period in either of the following circumstances:

(a) the instrument is a preserved collective State agreement or a pre-reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;

(b) the instrument is an individual agreement-based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.

Continuation of redundancy provisions

(2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.

Note: For how long the redundancy provision continues to apply, see subitem (6).

(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:

(a) the provisions of Parts 2, 3, 4 and 5 of this Schedule, other than subitem 20(2) and item 23; or

(b) any other provisions prescribed by the regulations.

Continued redundancy provisions generally prevail over other instruments

(4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).

Note: For how long the redundancy provision continues to apply, see subitem (6).

(5) However, if:

(a) an industry-specific redundancy scheme in a modern award applies to an employee; and

(b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;

then the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee.

Period for which redundancy provisions are continued

(6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:

(a) the end of the period of 24 months from the time the termination took effect;

(b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);

(c) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee.

Definitions

(7) In this item:

instrument means:

(a) an award-based transitional instrument; or

(b) a collective agreement; or

(c) a collective preserved State agreement; or

(d) a pre-reform certified agreement; or

(e) an old IR agreement.

redundancy provision means any of the following kinds of provisions:

(a) a provision relating to redundancy pay in relation to a termination of employment;

(b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

(c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.