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This information sheet contemplates some scenarios that may arise in your business if work reduces or a stoppage is enforced. The information provides options that you may want to consider to help manage staff in the appropriate way to protect you and your business.
If you are considering scaling down your operations for any reason please seek specific advice prior to making any changes.Modern Awards such as the Building and Construction General Onsite Award 2010 (Onsite Award) sets out a range of requirements regarding working hours, working arrangements and redundancy that may impact your decision making regarding these matters.
You must firstly consult with your employees about any potential views:
o Termination of employment, major changes in the composition, operation or size of the employers workforce, alteration of hours of work, the need for employees to be retrained or transferred to other work or locations or job restructure.
Consultation must comply with the requirements set out in the relevant modern award or enterprise agreement. It is important that a consultation process is genuine, this means that employees have the opportunity to provide feedback to influence the outcomes, and employers consider such feedback before implementing any changes.
Example: You are considering making some staff redundant as result of a downturn due to COVID-19. Before taking this action, you should take the following steps:
Where consultation processes are not followed, terms within modern awards and enterprise agreements provide for a Dispute resolution process, through which disputes can be referred to the Fair Work Commission for resolution.
Some options include:
If you would like further information on any of these options please contact a Workplace Adviser.
Yes, however penalty rates may apply.
Under the Onsite Award ordinary hours of work are 38 hours per week between 7am and 6pm Monday to Friday.
Hours can be worked outside of these times, however will be considered overtime and must be paid at the rate of time and half for the first 2 hours and double time thereafter.
Employers can only require an employee to work reasonable overtime. In order to determine if overtime is reasonable the following must be taken into account:
Yes, however before making any employees redundant it is important to ensure that the redundancy is a genuine redundancy, in order to protect you from potential unfair dismissal claims.
It is a defence to an unfair dismissal claim if the dismissal is a case of genuine redundancy, which occurs when the employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the business.
A down turn or slowdown in business would be considered a reason to support a genuine redundancy. However a dismissal will not be a genuine redundancy if it would have been reasonable for the employee to be redeployed in the business (or an associated business of the employer).
Under the Onsite Award an industry specific redundancy scheme applies and full time and part time employees made redundant are entitled to a redundancy payment.
The amount of redundancy pay will depend on your employee’s length of service in accordance with the following:
|Length of Service
|less than 12 months
|1.75 hours pay per week of service
|1 year but less than 2 years
|2.4 weeks pay plus, for time worked in excess of 1 years, 1.75 hours pay per completed week of service up to a maximum of 4.8 weeks pay
|2 years but less than 3 years
|4.8 weeks pay plus, for time worked in excess of 2 years, 1.6 hours pay per completed week of service up to a maximum of 7 weeks pay
|3 years but less that 4 years
|7 weeks pay plus, for all service in excess of 3 years, 0.73 hours pay per completed week of service up to a maximum of 8 weeks pay.
|Worked more than 4 years
|8 weeks pay
If you choose to go down this path you will also need to provide notice of termination or payment in lieu of notice in accordance with the following:
|Period of continuous service
|Not more than 1 year
|1 year but less than 3 years
|3 years but not more than 5 years
|More than 5 years
Should you require further information on this topic please call a HIA Workplace Adviser on 1300 650 620.
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