|FAIR WORK COMMISSION|
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—plain language re-drafting—standard clauses
HORTICULTURE AWARD 2010
MELBOURNE,18 APRIL 2019
4 yearly review of modern awards—plain language re-drafting—standard clauses—Horticulture Award 2010.
A. Further to the Full Bench decision [ FWCFB 2548],issued by the Fair Work Commission on 16 April 2019,the above award is varied as follows:
1. By deleting clause 12 and inserting the following:
Note:Redundancy pay is provided for in the NES. See ss.119–123 of the Act.
12.1 Transfer to lower paid duties on redundancy
(a) Clause 12.1 applies if,because of redundancy,an employee is transferred to new duties to which a lower ordinary rate of pay applies.
(b) The employer may:
(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under s.117 of the Act as if it were a notice of termination given by the employer;or
(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer,provided that the employer pays the employee as set out in paragraph (c).
(c) If the employer acts as mentioned in paragraph (b)(ii),the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances,shift rates and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role,and the ordinary rate of pay (also inclusive of all-purpose allowances,shift rates and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.
12.2 Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by s.117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause 12 or under ss.119–123 of the Act had they remained in employment until the expiry of the notice.
(c) However,the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
12.3 Job search entitlement
(a) Where an employer has given notice of termination to an employee in circumstances of redundancy,the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by s.117(3) of the Act for the purpose of seeking other employment.
(b) If an employee is allowed time off without loss of pay of more than one day under paragraph (a),the employee must,at the request of the employer,produce proof of attendance at an interview.
(c) A statutory declaration is sufficient for the purpose of paragraph (b).
(d) An employee who fails to produce proof when required under paragraph (b) is not entitled to be paid for the time off.
(e) This entitlement applies instead of clauses 11.2 and 11.3.
2. By updating the table of contents and cross-references accordingly.
B. This determination comes into operation from 3 May 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 3 May 2019.
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