768BMNES—working out non-accruing entitlements

768BM NES—working out non‑accruing entitlements

Application of this section

(1) This section applies for the purposes of determining the entitlements of a transferring employee under the National Employment Standards, other than entitlements to:

(a) paid annual leave; or

(b) paid personal/carer’s leave.

Note: For entitlements to paid annual leave and paid personal/carer’s leave under the National Employment Standards, see section 768BN.

No double entitlement

(2) If, before or after the employee’s termination time, the employee has the benefit of an entitlement, the amount of which is calculated by reference to a period of service, then subsection 768BL(1) does not result in that period of service with the old State employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.

(3) To avoid doubt, subsection (2) does not require the employee to serve any initial qualifying period of service for long service leave again.

Limitation on application of general rule to redundancy pay

(4) If the terms and conditions of employment that applied to the employee’s employment by the old State employer immediately before the employee’s termination time did not provide for an entitlement to redundancy pay, then subsection 768BL(1) does not apply in relation to the employee and the new employer for the purposes of Subdivision B of Division 11 of Part 2‑2 (which deals with redundancy pay).

(5) If a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described), had the employee’s employment been terminated for redundancy (however described) before the employee’s termination time, then:

(a) the terms and conditions of the employee’s employment referred to in subsection (4) are taken to have provided for an entitlement to redundancy pay; and

(b) paragraph 121(1)(b) does not apply in relation to the employee during the 12 months starting at the employee’s re‑employment time.

Note: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 if the employee’s employment is terminated by the new employer during the 12‑month period starting at the employee’s termination time, even if the new employer is a small business employer.