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Workplace Relations Amendment (Small Business Employment Protection) Bill 2005

Schedule 1 Redundancy pay by small business employers

   

Workplace Relations Act 1996

1  Paragraph 89A(2)(m)

Repeal the paragraph, substitute:

                    (m)  redundancy pay by an employer of 15 or more employees;

2  Subsection 89A(7)

Omit “Subsection (1)”, substitute “Subject to subsection (7A), subsection (1)”.

3  After subsection 89A(7)

Insert:

          (7A)  In spite of subsection (7), subsection (1) excludes from an industrial dispute the matter of redundancy pay by an employer of fewer than 15 employees.

4  After subsection 89A(8)

Insert:

Interpretation—redundancy pay provisions

          (8A)  For the purposes of paragraph (2)(m) and subsection (7A):

                     (a)  whether an employer employs 15 or more employees, or fewer than 15 employees, is to be worked out as at the time (the relevant time ):

                              (i)  when notice of the redundancy is given by the employer or by the employee who becomes redundant; or

                             (ii)  when the redundancy occurs;

                            whichever happens first; and

                     (b)  a reference to employees includes a reference to:

                              (i)  the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and

                             (ii)  any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).

5  After Part VI

Insert:

Part VIAA State and Territory laws etc. about redundancy payments by small businesses

   

167   Certain small businesses not bound by requirement to pay redundancy pay

             (1)  This section applies to a State law, a State award, a State authority order or a Territory law (each of which is an eligible instrument ).

             (2)  If an eligible instrument would, apart from this section, have the effect of requiring a relevant employer that employs fewer than 15 employees to pay redundancy pay, the eligible instrument does not have that effect.

             (3)  For the purposes of subsection (2):

                     (a)  whether a relevant employer employs fewer than 15 employees is to be worked out as at the time (the relevant time ):

                              (i)  when notice of the redundancy is given by the employer or by the employee who becomes redundant; or

                             (ii)  when the redundancy occurs;

                            whichever happens first; and

                     (b)  a reference to employees includes a reference to:

                              (i)  the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and

                             (ii)  any casual employee who, at the relevant time, has been engaged by the relevant employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).

             (4)  In this section:

relevant employer means:

                     (a)  in the case of a State law, a State award or a State authority order—a constitutional corporation; or

                     (b)  in the case of a Territory law—any employer.

State authority order means an order made, or any other thing done, by a State industrial authority.

State law means a law of a State (including any regulations or other instruments made under a law of a State), but does not include a State employment agreement.

Territory law means a law of a Territory (including any regulations or other instruments made under a law of a Territory).

6  At the end of section 170FA

Add:

             (3)  In so far as an order is made for the purposes of Article 12 of that Convention, the Commission must not make an order in relation to the matter of redundancy pay by an employer of fewer than 15 employees.

             (4)  For the purposes of subsection (3):

                     (a)  whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time ):

                              (i)  when notice of the redundancy is given by the employer or by the employee who becomes redundant; or

                             (ii)  when the redundancy occurs;

                            whichever happens first; and

                     (b)  a reference to employees includes a reference to:

                              (i)  the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and

                             (ii)  any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).

7  Application

(1)        The amendments made by items 1 to 4 apply to:

                     (a)  dealing with an industrial dispute by arbitration after the commencement of this Schedule; and

                     (b)  preventing or settling an industrial dispute by making an award or order after the commencement of this Schedule; and

                     (c)  maintaining the settlement of an industrial dispute by varying an award or order after the commencement of this Schedule;

whether the industrial dispute arose before or arises after the commencement of this Schedule.

(2)        The amendment made by item 5 applies to:

                     (a)  an eligible instrument made after the commencement of this Schedule that has the effect mentioned in subsection 167(2) of the Workplace Relations Act 1996 as inserted by that item; and

                     (b)  an eligible instrument, made before or after the commencement of this Schedule, that is amended or varied after the commencement of this Schedule with the result that it has that effect.

(3)        The amendment made by item 6 applies to the making of orders after the commencement of this Schedule.

8  Transitional—awards and orders of the Commission

(1)        If, during the period from the start of 26 March 2004 until the commencement of this Schedule, the Commission:

                     (a)  made an award or order that had the effect of requiring an employer of fewer than 15 employees to pay redundancy pay; or

                     (b)  varied an award or order, made before or during that period, with the result that it had that effect;

then, from the commencement of this Schedule, the award or order ceases to have that effect.

(2)        For the purposes of paragraph (1)(a):

                     (a)  whether an employer employs fewer than 15 employees is to be worked out as at the time (the relevant time ):

                              (i)  when notice of the redundancy is given by the employer or by the employee who becomes redundant; or

                             (ii)  when the redundancy occurs;

                            whichever happens first; and

                     (b)  a reference to employees includes a reference to:

                              (i)  the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and

                             (ii)  any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).

9  Transitional—eligible instruments

Item applies to eligible instruments with small business redundancy pay requirements just before commencement

(1)        This item applies if, just before the commencement of this Schedule, an eligible instrument contained provisions requiring some or all (the affected employers ) relevant employers that employ fewer than 15 employees to pay redundancy pay.

Eligible instruments that began to provide for small business redundancy pay between 26 March 2004 and commencement

(2)        If:

                     (a)  the eligible instrument was made before 26 March 2004 and just before 26 March 2004 the eligible instrument did not contain provisions requiring the affected employers to pay redundancy pay; or

                     (b)  the eligible instrument was made on or after 26 March 2004;

then, from the commencement of this Schedule, the provisions do not have the effect of requiring any affected employers to pay redundancy pay.

Eligible instruments where Federal award suppressed a small business redundancy pay requirement that was present just before 26 March 2004

(3)        If:

                     (a)  just before 26 March 2004, the eligible instrument contained provisions requiring the affected employers to pay redundancy pay; and

                     (b)  only because of a Federal award, the provisions did not, just before the commencement of this Schedule, have the effect of requiring a particular affected employer to pay redundancy pay;

then the provisions do not, at or at any time after the commencement of this Schedule, have that effect in relation to the particular affected employer.

Eligible instruments where certified agreement or AWA suppressed a small business redundancy pay requirement that was present just before 26 March 2004, and a Federal award would also have had that effect

(4)        If:

                     (a)  just before 26 March 2004, the eligible instrument contained provisions requiring the affected employers to pay redundancy pay; and

                     (b)  just before the commencement of this Schedule:

                              (i)  only because of a certified agreement or an AWA, the provisions did not have the effect of requiring a particular affected employer to pay redundancy pay; and

                             (ii)  disregarding the certified agreement or the AWA, the provisions would still not have had that effect, and this would have been so only because of a Federal award;

then the provisions do not, at or at any time after the commencement of this Schedule, have that effect in relation to the particular affected employer.

Eligible instruments where small business redundancy pay requirement was present just before 26 March 2004 and a future Federal award starts to apply

(5)        If:

                     (a)  just before 26 March 2004, the eligible instrument contained provisions requiring the affected employers to pay redundancy pay; and

                     (b)  neither subitem (3) nor subitem (4) applies; and

                     (c)  the eligible instrument contains the provisions from the commencement of this Schedule until a later time (the award time ) when a particular affected employer becomes bound by a Federal award; and

                     (d)  the Federal award applies in relation to some or all (the affected employees ) of the particular affected employer’s employees to whom the requirement to pay redundancy pay relates;

then, from the award time, the provisions do not have the effect of requiring the particular affected employer to pay redundancy pay in respect of the affected employees.

Definitions

(6)        In this item:

eligible instrument has the meaning given by subsection 167(1) of the Workplace Relations Act 1996 as inserted by item 5 of this Schedule.

Federal award means an award under the Workplace Relations Act 1996 .

relevant employer has the meaning given by subsection 167(4) of that Act as inserted by item 5 of this Schedule.

10  Protection of existing entitlements

Nothing in this Schedule, or an amendment made by this Schedule, affects any entitlement to a payment that had arisen before the commencement of this Schedule.

(249/04)