In some cases, when an agreement is terminated, any redundancy provisions in that agreement continue to apply for up to 24 months after the termination date.
Redundancy provisions continue to apply after the termination date of the agreement for:
- individual agreements [usually individual transitional employment agreements (ITEAs) or Australian Workplace Agreements (AWAs) made under the former Workplace Relations Act 1996
- collective agreements (state or federal) and individual State agreements made before 27 March 2006.
The provisions apply when the agreement has passed its nominal expiry date and the employer applies to Fair Work Australia to unilaterally terminate the agreement.
Time-frame for preserved redundancy provisions
Preserved redundancy provisions generally apply for up to 24 months after the date of termination unless:
- the employer no longer employs the employee, or
- the time when another workplace agreement under the former Workplace Relations Act 1996 came into operation
- from 1 July 2009 an ITEA (which could only be made until 31 December 2009), enterprise agreement or workplace determination starts to apply to the employee.
Transfer of business before 1 January 2010 & preserved redundancy provisions
Occasionally, a business will be transferred to another employer and an employee of that business will be covered by a preserved redundancy provision.
The preserved redundancy provision will still continue to apply if the new employer employs that employee for the same time frame as set out above.
Notification of transfer of preserved redundancy provisions
The new employer must take reasonable steps to give written notice to all (transferring) employees that the preserved redundancy provision applies to them within 28 days of employing them.
The notice must contain certain content including a statement that the preserved redundancy provisions continue to apply. The notice must also identify those redundancy provisions.
The new employer must also provide a copy of the written notice to FWA.
The written notice doesn’t have to be given if an ITEA, enterprise agreement or workplace determination starts to apply to the employee within 14 days of being employed by the new employer.
Written notice requirements
The notice must:
- identify the redundancy provision(s)
- state that the provision(s) apply to the new employer and the transferring employee(s)
- specify the date when the 24-month period ends
- state that the provision(s) will continue to apply to the new employer and the transferring employee until that date or an earlier date (if the employee ceases to be employed by the employer or an ITEA, enterprise agreement or workplace determination starts to apply to the employee).