Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I move Greens amendment (28) on sheet 5285:

(28) Page 83 (after line 20), at the end of the bill, add:

Schedule 6—Redundancy and hours of work

Workplace Relations Act 1996

Part 1—Redundancy

1 After Division 6 of Part 7

Insert:

Division 6B—Redundancy pay

316G The guarantee

                 If an employer has made a definite decision that the employer no longer wishes the job an employee has been doing to be done by anyone, the employer will pay the occupant of that job an equitable payment in accordance with this Division.

316H Definitions

                 In this Division:

a week’s pay means the ordinary time rate of pay for the employee concerned, provided that such rate excludes:

             (a)    overtime; and

             (b)    penalty rates; and

             (c)    disability allowances; and

             (d)    shift allowances; and

             (e)    special rates; and

              (f)    fares and travelling time allowances; and

             (g)    bonuses; and

             (h)    any other ancillary payments of a like nature.

business includes trade, process, business or occupation and includes part of any such business.

redundancy occurs if an employer has made a definite decision that the employer no longer wishes the job an employee has been doing to be done by anyone and that decision leads to the termination of employment of the employee.

transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transmitted has a corresponding meaning.

316I Transfer to lower paid duties

                 If an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary rate of pay and the new ordinary time rate of pay for the number of weeks of notice still owing.

316J Redundancy pay

        (1)    An employee, whose employment is terminated by reason of redundancy, is entitled to the following amount of redundancy pay in respect of a period of continuous service:

        (2)    Provided that the redundancy pay does not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee’s normal retirement date.

        (3)    Continuous service has the same meaning as in section 228.

316K Alternative employment

        (1)    An employer, in a particular redundancy case, may make application to the Commission to vary the amount of redundancy pay if the employer obtains acceptable alternative employment for the employee.

        (2)    This provision does not apply in circumstances involving transmission of a business as set out in section 316M.

316L Job search entitlement

        (1)    During the period of notice of termination given by the employer in accordance with subsection 661(2), an employee must be allowed up to one day off without loss of pay during each week of notice, for the purpose of seeking other employment.

        (2)    If an employee has been allowed paid leave for more than one day during the notice period, for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview in order to receive payment for the time absent. A statutory declaration is sufficient proof of attendance.

316M Transmission of business

        (1)    The preceding provisions of this Division are not applicable if a business is, before or after the commencement of the Workplace Relations Amendment (A Stronger Safety Net) Act 2007, transmitted from an employer (in this subsection called the transmittor) to another employer (in this subsection called the transmittee), in either of the following circumstances:

             (a)    if the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor, and any prior transmittor, to be continuous service of the employee with the transmittee; or

             (b)    if the employee rejects an offer of employment with the transmittee:

                   (i)    in which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transmittor; and

                  (ii)    which recognises the period of continuous service which the employee had with the transmittor, and any prior transmittor, to be continuous service of the employee with the transmittee.

        (2)    The Commission may vary the operation of subparagraph (1)(b)(ii) if it is satisfied that the application of that provision would operate unfairly in a particular case.

316N Employees exempted

                 This Division does not apply to:

             (a)    employees terminated as a consequence of serious misconduct that justifies dismissal without notice; or

             (b)    probationary employees; or

             (c)    apprentices; or

             (d)    trainees; or

             (e)    employees engaged for a specific period of time or for a specified task or tasks; or

              (f)    casual employees.

Note:   serious misconduct is provided for in section 661.

316O Incapacity to pay

                 The Commission may vary the amount of redundancy pay provided for in section 316J on the basis of an employer’s incapacity to pay. An application for variation may be made by an employer or a group of employers.

Part 2—Hours of work

2 Paragraph 226(4)(g)

After “employee’s hours of work”, insert “, including the pattern of hours worked and any shift work,”.

3 At the end of section 226

Add:

Minimum rest periods – breaks

        (6)    An employer must take all measures necessary to ensure that if the working day is longer than six hours, every employee is entitled to a maximum rest break of at least 30 minutes.

Daily rest period

        (7)    An employer must take all measures necessary to ensure that in every 24 hour period, every employee is entitled to a minimum daily rest period of 11 consecutive hours.

Weekly rest period

        (8)    An employer must take all measures necessary to ensure that in each seven day period, every employee is entitled to a minimum rest period, uninterrupted by work for the employer, of 24 hours in addition to the 11 hours daily rest period specified in subsection (7).

        (9)    Where possible, the minimum weekly rest period provided for in subsection (8) must occur on Sunday.

Additional payment for work during rest periods

      (10)    If an employee is required by his or her employer to work during the rest periods prescribed in subsections (6) to (8), the employee is to be paid at a rate of two times their ordinary rate of pay for the time worked until a rest period as prescribed in subsections (6) to (8) occurs.

This amendment relates to redundancy. It amends the minimum conditions of the Australian Fair Pay and Conditions Standard for a stronger safety net on redundancy and rest breaks. The standard we are introducing in this amendment is based on an AIRC standard from 2004—except for small business having to pay a smaller scale. We also use the standard that applies in Western Australia and apply it to all employees. We do not believe that there has been any adverse economic consequence in Western Australia from such minimum conditions.

Redundancy payments are important for people to help them get on with their lives after what can be a traumatic experience. We do not believe there is a good reason for there not being minimum standards available for all employees. We believe that this is more appropriate rather than just extending the time that such payments are protected. We believe that all employees should be entitled to redundancy pay regardless of their instrument of employment.

As you will note from the table in our amendment, it scales back to 12 weeks after 10 years because this is the time when long service leave becomes available to all employees. Some states have better long service leave provisions that are available earlier, but 10 years is the latest. We believe rest breaks are also matters where there should be broad minimum standards, and that further protection can occur on an industry basis. We are facing a crisis at this point in balancing work and family life and yet no-one seems prepared to provide even the most minimal regulation to help employees out. We believe that these amendments go to providing a stronger safety net, which will be beneficial for occupational health and safety and our longer-hours culture that puts many workers at risk.

We believe that these are minimum conditions that should be part of the Australian Fair Pay and Conditions Standard. Redundancy is an area of importance. We know that it has been a matter of controversy and conjecture through the process of Work Choices and, through this amendment, we are working to address the problem of redundancies not being adequately provided to all employees. We commend this amendment to the chamber.