notice of termination ProFessional emPloyees award 2010 – claUse 12

Fact sheet
Professional Employees Award 2010 – CLAUSE 12
Notice of termination
Care must be taken when ascertaining the correct
notice of termination provisions under the Professional
Employees Award 2010 (the Award). This is because
although the Award refers to the National Employment
Standards (NES) for notice of termination provisions, the
Award itself also contains a termination of employment
clause. This clause provides for a notice period of
one month in order to terminate an employment
relationship. A notice period is the amount of notice
an employer, or an employee, must give if they
plan to terminate the employment relationship.
Casual employees are not entitled to notice of
termination under the NES or the Award.
The length of notice required to be provided under
this Award is not dependent on the time the employee
has been employed. It should be noted that the notice
of termination provisions contained in the NES do
depend upon the employee’s period of continuous
service with the employer. The notice period required
under the NES upon termination is set out in Section
117(3) of the Fair Work Act 2009 (the Act).
What is the NES entitlement to notice of termination?
Period of continuous service Notice period
Not more than 1 year 1 week
More than 1 year, but not more than 3 years
2 weeks
More than 3 years, but not more than 5 years 3 weeks
More than 5 years 4 weeks
Where the termination is effected by the employer,
the relevant notice period increases by 1 week if the
employee is over 45 years old and has completed at
least 2 years’ continuous service with the employer.
Which notice of termination provisions apply?
Awards may contain terms that are supplementary
to the NES provisions. Where the Award terms
are more generous to the employee than the NES
provisions the Award terms apply. As the NES provides
for a maximum of 5 weeks notice, this will need to
be compared to the Award’s one month’s notice.
Whichever notice period is more generous will apply.
Does an employee have to provide notice
of termination to their employer?
While the NES does not require an employee to provide
notice of termination to their employer when they
resign, the Award does require an employee to give
their employer a period of notice of termination.
As per clause 12.3 of the Award, the notice of termination
required to be given by an employee is the same as
an employer would be required to give if terminating
under the NES. However, there is no requirement
that the employee must give an additional week of
notice based on their age if over 45 years old.
If an employee fails to give the required period of notice,
the employer may withhold from any monies due to the
employee on termination. The amount must not exceed the
amount the employee would have been paid in respect of
the period of notice required under the Award or the NES,
less any period of notice actually given by the employee.
Can an employee take time off work to find a job?
Where an employer has dismissed an employee by giving
them notice of termination of employment, the Award
allows that employee to up to one day’s time off without
loss of pay for the purpose of seeking alternate employment.
The time off should be taken at times convenient to
the employee, after consultation with the employer.
Can an employer pay out the notice period in lieu of
requiring the employee to work the notice period?
Yes, the NES allows for payments to be made to employees
in lieu of having the employee work out the notice of
termination period. Where an employer has decided to
pay in lieu of notice, the payment is to be made at the
employee’s “full rate of pay” for the hours the employee
would have worked until the end of the notice period.
The Act defines the full rate of pay as the rate of pay payable
to the employee, including: incentive-based payments and
bonuses; loadings; monetary allowances; overtime or penalty
rates; and any other separately identifiable amounts.
If you would like any further information regarding
this fact sheet or the Professional Employees Award
2010, please contact Ai Group’s Fair Work Liaison
Officer ([email protected]).
In early 2011, the Fair Work Ombudsman (FWO) in conjunction with the Australian Industry Group (Ai Group) commenced a national education campaign on changes to the Professional Employees Award 2010. The campaign has
been funded by the Australian Government through the Fair Work Ombudsman’s Shared Industry Assistance Projects (SIAP) Grant Program, which aims to better inform employers (particularly small to medium businesses) about
changes to modern awards applicable to their industry sector. Following a competitive selection process, Ai Group was one of 15 successful organisations selected to deliver the education campaign in conjunction with the FWO.
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The Fair Work Ombudsman (FWO) is committed to providing useful, reliable information to help you understand your rights and obligations under workplace laws. The information contained in this publication is: general in
nature and may not deal with all aspects of the law that are relevant to your specific situation; and not legal advice. Therefore, you may wish to seek independent professional advice to ensure all the factors relevant to your
circumstances have been properly considered. This information was published on 11 April 2011. The FWO does not accept legal liability arising from or connected to the accuracy, reliability, currency or completeness of this information.