Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 306NA

Determining amounts of payments relating to termination of employment

Application of this section

  (1)   This section applies if:

  (a)   a regulated employee's employment is or is to be terminated; and

  (b)   the employee is or has been covered by a regulated labour hire arrangement order.

Determining amounts of payments relating to termination of employment

  (2)   Subject to subsection   (5), if an amount that the employee's employer is required to pay to the employee (or to a person on the employee's behalf) in relation to the termination of the employment is to be determined wholly or partly on the basis of a rate of pay in relation to the employee, the rate of pay for the purposes of determining the amount is:

  (a)   if the employee is covered by subsection   (3) in relation to the amount--the applicable rate of pay that results from the operation of this Part; or

  (b)   in any other case--the applicable rate of pay to which the employee is entitled apart from the operation of this Part.

  (3)   This subsection covers the employee in relation to the amount if:

  (a)   immediately before the termination of the employment occurs or is to occur, the employee is or will be covered by a regulated labour hire arrangement order in force in relation to work performed by the employee for a regulated host; and

  (b)   the termination of the employment occurs or is to occur during a period in which the employee is performing work for the regulated host, including a period when the employee is taking paid or unpaid leave, or is absent, in connection with that work and the leave or absence is authorised:

  (i)   by the employee's employer; or

  (ii)   by or under a term or condition of the employee's employment; or

  (iii)   by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law; and

  (c)   the rate of pay mentioned in paragraph   (2)(a) is higher than the rate mentioned in paragraph   (2)(b); and

  (d)   unless the amount is a payment in lieu of notice of termination--the employee has not performed work for any other regulated host in relation to the employee's employment with the employer.

  (4)   If the performance of the work for the regulated host relates to a joint venture or common enterprise engaged in by the regulated host and one or more other persons, then for the purposes of paragraph   (3)(d), disregard any work that is taken to be performed for those other persons because of the operation of paragraph   306D(2)(c).

Excluded subject matters

  (5)   If the employer is a national system employer only because of section   30D or 30N, nothing in this Part, including the determination of any rate of pay under or in accordance with this Part, affects any amount:

  (a)   that the employer is required to pay to the employee (or to a person on the employee's behalf) in relation to the termination of the employment; and

  (b)   which relates to an excluded subject matter within the meaning of subsection   30A(1) or 30K(1).

Interaction with fair work instruments etc.

  (6)   This section applies despite:

  (a)   a fair work instrument that applies to the employee; or

  (b)   a covered employment instrument (other than a fair work instrument) that applies to the employee; or

  (c)   the employee's contract of employment.


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