The regulation uses several defined and implied concepts that are essential to its operation. Termination of employment includes a proposed termination, meaning that obligations under sections 7 and 8 may be triggered before the termination is finalised. This expands the temporal scope of the provisions. The Act is defined as the Employment Protection Act 1982, and the Interpretation Act 1987 supplies standard interpretive rules.

Trial period (section 4) refers to an employee engaged on a trial basis for a specified period as notified at engagement. If the trial period is six months or less, section 7 does not apply to a termination that occurs before, or within seven days after, the end of that period. If the trial period exceeds six months, section 7 does not apply until six months after commencement of employment. This distinction means that for longer trial periods, the employer has a six-month window from the employment start within which no obligation under section 7 applies, regardless of how long the trial actually lasts.

Continuous employment for at least 12 months is a precondition for section 7 to apply at all (section 5). The regulation does not define “continuous employment”; that is left to the Act and common law. This 12-month threshold means that short-term employees (e.g., seasonal, fixed-term under 12 months) fall outside the protective regime entirely, unless the employee is covered by an award or agreement that provides otherwise.

Transmission of business (section 6) covers any transfer, conveyance, assignment or succession of a business, undertaking or establishment, or part thereof, whether by agreement or by operation of law. If a person is an employee of the transmitter immediately before transmission and becomes an employee of the transmittee, then sections 7 and 8 do not apply to the termination with the transmitter. This prevents double liability when employment continuity is preserved across a business sale.

Severance payment (section 7) is defined by reference to Schedule 1. The scale is age-differentiated: for employees under 45, payments range from 4 weeks’ pay for 1-2 years’ service up to 16 weeks’ pay for 6 or more years; for employees 45 or older, payments are 25% higher (e.g., 5 weeks for 1-2 years, 20 weeks for 6+ years). The term “weeks’ pay” is not defined in the regulation but would ordinarily refer to ordinary time weekly pay. The exemption also applies if the employee’s employment is covered by an award or agreement that provides for a severance payment in connection with termination, regardless of the amount.

Specified period or specified task (section 8(c)) refers to employees engaged for a fixed term or a defined task, where the termination occurs at the expiry of that period or completion of the task and not earlier. This is an exemption similar to the common law doctrine of frustration or natural expiry; early termination would not be covered.

The regulation primarily affects employers in New South Wales who are subject to the Employment Protection Act 1982. That Act applies to a wide range of employers, including corporations, partnerships, sole traders, and government entities, but excludes the Commonwealth and its authorities. Within that group, the regulation creates categories of employees whose terminations are exempt from certain duties: trial employees, short-service employees (under 12 months), employees in a business transmission, employees who receive adequate severance, employees covered by awards or agreements with severance provisions, employees not covered by any award or agreement, employees subject to a Commission order under section 11, and employees on genuine fixed-term or task contracts.

The regulation also directly affects unions and employer organisations that may request the Commission to exercise its jurisdiction under section 12(1A) of the Act, using Form 2 in Schedule 2. The Industrial Registrar is affected because it receives notices in the prescribed Form 1, which must contain particulars of the employer, employee, reasons for termination, payments made, and whether the severance order is contested. The Industrial Relations Commission is affected because it receives reports from the Registrar under section 11 and may be requested to exercise jurisdiction.

Employees who fall into the exempt categories lose the protections that sections 7 and 8 of the Act would otherwise provide (such as consultation, notice, and in some cases severance). However, employees who are covered by an award or agreement with severance provisions may have equivalent or better entitlements under that instrument, so the regulatory exemption does not necessarily leave them unprotected. Employees in the “no award or agreement” category (section 8(a)) are entirely excluded from sections 7 and 8, which means they have no statutory right to notice or severance under the Act itself, though they may still have common law rights or rights under an individual contract.

The regulation imposes a positive duty on employers who choose to serve a notice under section 7 or 8 of the Act: that notice must contain the particulars specified in Form 1 of Schedule 2. This includes employer details, employee details (name, date of birth, employment status, union membership), employment history (date of entry, period of service, work address), award/agreement coverage or not, weekly pay, reasons for termination, notice given, and all payments made in consequence (wages, holiday pay, long service leave, pay in lieu of notice, severance/termination pay, superannuation, and other payments). The notice must be signed and dated. In a critical provision, a notice is taken not to have been served for the purposes of section 8(1) of the Act unless it contains these particulars. This means if an employer purports to give a notice that is incomplete, the legal obligation to give a valid notice has not been satisfied, and the employer may be in breach of the Act. Additionally, serving a notice that is not in the prescribed form (Form 1) is an offence carrying a maximum penalty of 0.5 penalty unit.

Employers also have the right, under section 7(2A) of the Act (as referenced in the note to Form 1), to disclose financial and other resources to the Commission for it to consider before making an order. The regulation facilitates this by allowing such particulars to be provided in the notice or separately, with confidentiality provisions.

Unions and employers have the right to request the Commission to exercise its jurisdiction under the Act in relation to a report by the Industrial Registrar concerning an intended termination or reasons for termination. The regulation prescribes Form 2 for this purpose, which simply requires the applicant’s name, address, and signature, and identifies the employee(s) concerned.

Employees who are not exempt under Part 2 retain whatever rights the Act provides in sections 7 and 8. The regulation itself does not confer new rights; it only specifies exclusions and procedural requirements.

The regulation creates one specific penalty: an employer who serves a notice under section 7 or 8 that is not in the form set out in Form 1 is guilty of an offence punishable by a maximum penalty of 0.5 penalty unit. As of 2025, a penalty unit in New South Wales is $110, so the maximum fine is $55. The penalty is low relative to the potential cost of non-compliance with the underlying Act. However, the practical sting is that an invalid notice is deemed not to have been served for the purposes of section 8(1) of the Act. That means the employer’s obligation under section 8 (which likely requires service of a notice before termination or severance) has not been met, exposing the employer to enforcement action under the Act itself. The Act’s penalties and remedies (which are not detailed in this regulation) are likely more significant and may include orders to pay severance, compensation, or reinstatement.

The offence under section 9(3) is a strict liability offence? The regulation does not state a fault element, so under the Interpretation Act 1987 it may be presumed to require mens rea unless excluded. However, in practice, the penalty is small, and the main enforcement lever is the invalidity of the notice.

Enforcement of the Act’s obligations (beyond the notice form) is handled by the Industrial Relations Commission and the Industrial Registrar. The regulation does not create additional enforcement mechanisms. The Commission may, under the Act, make orders following a report under section 11. The regulation provides the prescribed form for unions or employers to trigger that jurisdiction (Form 2). Non-compliance with a Commission order would be a separate matter under the Act.

The savings provision in section 11 ensures that acts done under the 2017 regulation continue to have effect under the 2022 regulation. This reduces the compliance burden during the transition but also means that any notices served in the correct form under the old regulation are deemed valid under the new one.

The regulation is subordinate to the Employment Protection Act 1982, which is the primary legislation. The regulation does not purport to amend the Act; it only exercises the Act’s delegation for prescribing matters. Therefore, any valid provision of the Act overrides any inconsistent provision of the regulation. The regulation’s exemptions from sections 7 and 8 operate only to the extent that the Act permits. For employees who are not exempt, the Act’s full obligations apply.

The regulation interacts with industrial instruments (awards and enterprise agreements). Section 7(b) exempts employees whose employment is covered by an award or agreement that provides for a severance payment in relation to termination. This means that if an award or agreement already requires a severance payment (even a modest one), the employer is relieved from the Act’s obligations entirely, including the obligation to give notice, consult, or comply with the Act’s own severance provisions. This potentially creates an incentive for employers to bargain for awards or agreements that include a severance clause, even a minimal one, to displace the Act. Conversely, employees covered by such instruments may lose protections they would otherwise have under the Act, but gain the negotiated award/agreement terms.

The regulation also interacts with the Subordinate Legislation Act 1989, which required the 2017 regulation to be repealed and replaced. The 2022 regulation is a routine remaking; no substantive policy change is apparent from the text. The savings provision preserves continuity.

The Interpretation Act 1987 provides definitions and rules that apply to this regulation, such as the definition of “penalty unit” and rules for service of documents. The regulation’s definition of “terminal of employment” includes proposed termination, which may interact with general law concepts of termination.

The regulation does not interact directly with Commonwealth industrial relations law (Fair Work Act) because the Employment Protection Act 1982 applies only to state employment that is not covered by a federal industrial instrument. However, for employers who are national system employers, the state Act may have limited application. The regulation does not address that overlap; it leaves it to the Act.

The Employment Protection Regulation 2022 was made as a new instrument replacing the Employment Protection Regulation 2017. It commenced on 1 September 2022 and, as of the time of drafting, no amendments have been recorded in the legislation text provided. The explanatory material (if any) is not part of the regulation. The note to section 2 indicates the 2017 regulation was repealed on 1 September 2022 by operation of the Subordinate Legislation Act 1989, which requires automatic repeal of regulations after a set period (typically 5 years) unless re-made. The 2022 regulation therefore represents a routine remaking designed to keep the regulation in force. It is likely that the content is largely identical to the 2017 regulation, but the source text does not provide a comparison. The savings provision further suggests continuity.

The regulation does not list any previous amendments to itself, nor does it incorporate by reference any earlier amending regulations. Future amendments may be made by subsequent regulations. The regulation is relatively stable; the concepts (trial period, 12-month threshold, severance scale, business transmission) have been part of the NSW employment landscape for decades.

The regulation itself does not recite any case law, and I have not been instructed to refer to external cases. However, the text provides several areas that could give rise to disputes: the meaning of “continuous employment” for the 12-month threshold; the interpretation of “trial basis” and whether a specified period was properly notified to the employee at engagement; the calculation of “weeks’ pay” for severance payments; whether a business transmission includes a share sale or only an asset sale; whether an award or agreement “provides for a severance payment” even if it only mentions the possibility; and the validity of a notice that is substantially but not perfectly in the prescribed form. Because the regulation is a remaking, pre existing case law under the 2017 regulation and its predecessors would likely be applied to the 2022 version unless the text changed (no change is apparent). The three exemptions in section 8 for employees without an award or agreement have been the subject of litigation about what constitutes an “award” and whether an individual common law contract can be an agreement for these purposes. The courts have generally held that “agreement” refers to an enterprise agreement or collective agreement, not an individual contract. The note in Form 1 about confidentiality of financial resources has also been litigated: the Commission has discretion to treat disclosed financial details as confidential, but the regulation does not guarantee that.

Several traps exist for the unwary employer. The phrase “termination of employment includes proposed termination of employment” means that the obligations under sections 7 and 8 may arise before a final decision is made. An employer who gives notice of intention to terminate but then retracts may still be required to comply if the Act treats the proposal as a termination. The trial period exemption in section 4(2)(a) only applies if the termination occurs before or within seven days after the end of the specified trial period. If the employer keeps the employee on after the trial ends, section 7 obligations may attach immediately. For a trial of more than six months, the exemption lasts only six months from commencement; after that, obligations apply even if the trial period is longer. The 12-month service requirement in section 5 is a precondition for section 7 to apply, but it does not affect section 8. Section 8 may have its own thresholds. Business transmission exemption in section 6 only applies if the employee becomes an employee of the transmittee. If the transmittee does not offer employment, or the employee rejects it, the transmission exemption does not apply, and the transmitter must comply with sections 7 and 8. The severance payment exemption in section 7(a) requires payment “at or before the time of termination” of an amount at least equal to the Schedule 1 scale. If the employer promises to pay later, or pays less, the exemption is lost. The alternative in section 7(b) requires that the award or agreement “provides for the making of a severance payment to the employee in relation to the termination”. If the award provides severance only for redundancy but not for other reasons, and the termination is for cause, the exemption may not apply. The “no award or agreement” exemption in section 8(a) is potentially broad. An employer who engages an employee without any applicable award or enterprise agreement (e.g., award free under NSW law) is entirely exempt from sections 7 and 8. However, that does not mean the employee has no protections; the employee may have contractual rights or common law notice. The fixed term/task exemption in section 8(c) only applies if the employment is not terminated before the end of the period or completion of the task. If the employer terminates early for any reason, section 8(c) does not apply, and the employer must comply with sections 7 and 8. The notice form requirement is strict: a notice not in Form 1 is invalid and does not count as service, and an offence may apply. The monetary penalty is small, but the invalidity may have larger consequences. The savings provision in section 11 preserves things done under the 2017 regulation, but only if they were valid under that regulation. If an act was invalid under the 2017 regulation, it does not become valid under the 2022 regulation.

An employer terminating an employee in New South Wales (who is not a national system employee) should follow this step-by-step approach based on the regulation. First, determine whether the termination is exempt under any of the Part 2 provisions. If the employee is on a trial period of six months or less and termination occurs within the trial plus seven days, no obligation under section 7 arises. If the employee has been employed for less than 12 months, no obligation under section 7 arises. If the employee is transferring to a new employer as part of a business sale and will be employed by the new entity, no obligations arise under sections 7 or 8 for the transmitter. If the employee receives a severance payment at or before termination equal to or greater than the Schedule 1 scale (age adjusted), or if the employee’s employment is covered by an award or agreement providing for severance, then sections 7 and 8 do not apply. If the employee is award free (no award or agreement applies), or is subject to a Commission order under section 11, or is on a genuine fixed term or task contract that ends naturally without early termination, then sections 7 and 8 do not apply.

If none of the exemptions apply, the employer must comply with sections 7 and 8 of the Act. The regulation’s key requirement is to serve a notice to the Industrial Registrar in the correct form. The employer must obtain a copy of Form 1 from the Industrial Registry or the Act. The form must be completed fully: employer details (full name, address, telephone number, business name, nature of business, union membership); employee details (name, address, phone, date of birth, adult/junior/apprentice, full-time/part-time/casual/other, union membership); employment details (date entered employment, effective termination date, period of service, work address, award/agreement coverage and classification if any, ordinary time weekly pay); reasons for termination; period of notice given; particulars of all payments made (wages, holiday pay, long service leave, pay in lieu of notice, severance/termination pay calculated using the formula, superannuation, other payments). The employer must indicate whether an order for severance pay is contested and if so set out the grounds. The form must be signed. The note provides that financial and other resources may be disclosed confidentially.

The regulation does not set a time limit for serving the form, but the Act likely does. The employer should serve the notice promptly after termination or before, as the Act requires.

If the employer wants to avoid serving a notice by using the severance payment exemption, it must pay the employee at or before termination an amount calculated using Schedule 1. For example, an employee under 45 with 5 years service requires 14 weeks’ pay; an employee 45 or older with the same service requires 17.5 weeks’ pay. If the employee is covered by an award or agreement, the employer should check whether that instrument provides a severance payment. If it does, and the employer complies with that instrument, the exemption applies; no additional notice to the Registrar is needed. However, it is prudent to still consider whether the award or agreement requires notice to the Registrar; the regulation does not require it, but the Act might. The employer should also verify that the award or agreement is current and valid and that the severance provision applies to the particular termination.

If a union or employer wishes to request the Commission to exercise jurisdiction, they should complete Form 2, providing their name, address, and signature, and identifying the relevant employees and the report reference. That form should be lodged with the Commission.

Finally, the employer should keep a copy of all documents served, including proof of lodgement. The savings provision ensures that if the employer had a valid notice under the 2017 regulation before 1 September 2022, that notice continues to be effective under the 2022 regulation. For terminations after that date, the 2022 regulation applies.