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. Page 1 of 1 AIG 9600b 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.
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