26Prescribed time — paragraph 149 (1) (c) of the Act

26 Prescribed time — paragraph 149 (1) (c) of the Act For the purposes of paragraph 149 (1) (c) of the Act, the prescribed time, in relation to a party not satisfying the Commission as provided by that paragraph, is: (a) the period of 21 days commencing on the day on which the party was notified of the industrial dispute and of the fact referred to in that paragraph; or (b) the period commencing on the day referred to in paragraph (a) and expiring at the end of the day on which the initial findings of the Commission in relation to the matters in dispute were made; whichever is the longer. Part 5A Minimum entitlements of employees Division 1 Termination of employment 30A Interpretation — Division 1 (1) In this Division: > authorised leave, in relation to an employee, means leave authorised: (b) by: (i) an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment; or (ii) a certified agreement, an AWA, a State employment agreement or an old IR agreement; or (c) by the employee’s contract of employment; or (d) by a law of the Commonwealth, or of a State or Territory. (2) An expression has the same meaning in this Division as in the Termination of Employment Convention. 30BB Specified rate For paragraphs 170CBA (5) (b) and (6) (b) of the Act, the specified rate is $64,000 per year, or that amount as affected by indexation in accordance with regulation 30BF. 30BC Rate of remuneration per year For paragraph 170CBA (6) (b) of the Act, the rate of remuneration per year that is taken to be applicable to an employee immediately before termination is: (a) for an employee who was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before termination — the greater of: (i) the remuneration that the employee actually received in that period; and (ii) the remuneration that the employee was entitled to receive in that period; or (b) for an employee who was continuously employed by the employer and was on leave without full pay at any time during the period of 12 months immediately before termination — the total of: (i) the actual remuneration received by the employee for the days during that period that the employee was not on leave without full pay; and (ii) for the days that the employee was on leave without full pay an amount worked out using the formula:  or (c) for an employee who was continuously employed by the employer for a period less than 12 months immediately before termination — the amount worked out using the formula:  30BD Fee for application to Commission to deal with termination (1) A fee of $50 is payable for lodging an application under subsection 170CE (1), (2), (3) or (4) of the Act. (2) However if a Registrar is satisfied that a person lodging an application will suffer serious hardship if the person pays the lodgment fee, no fee is payable for the application. (3) A lodgment fee paid by, or for, an applicant under subregulation (1), as in force before 31 December 2003, is to be refunded if, at least 2 days before the day on which the proceedings are first listed for attention by the Commission, the applicant discontinues the application in accordance with any rules made under section 48 of the Act. (4) Subregulations (1) and (2) cease to have effect on 31 December 2003. 30BE Amount taken to have been received by the employee For paragraph 170CH (8) (b) of the Act, an employee is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without pay or without full pay. 30BF Annual indexation of certain amounts (1) This regulation prescribes a formula under which each following amount (the indexable amount) is to be varied annually by the indexation factor (if any): (a) the amount mentioned in regulation 30BB; (b) the amount mentioned in paragraph 170CH (9) (b) of the Act. > base weekly earnings average means the last amount published by the Australian Statistician before 1 July 1996 as an estimate (except a preliminary estimate) of the average total weekly earnings (seasonally adjusted) for full time adult employees of all employees in Australia in a particular month. > current weekly earnings average, in relation to an indexation day, means the last amount published by the Australian Statistician before that day as an estimate (except a preliminary estimate) of the average total weekly earnings (seasonally adjusted) for full time adult employees of all employees in Australia in a particular month. > indexation day means 1 July 1997 or 1 July in a later year. > indexation factor, for an indexation day, means the number, worked out to 3 decimal places, resulting from the following formula:  (3) If at any time (whether before or after the commencement of this regulation) the Australian Statistician publishes an estimate of the average total weekly earnings (seasonally adjusted) for full time adult employees in a particular month in substitution for such an estimate (except a preliminary estimate) previously published by the Australian Statistician for that month, the publication of the later estimate is to be disregarded for the purposes of this regulation. (4) Subject to subregulation (5), if, on any indexation day, the indexation factor is greater than 1, then, on and after that day, until a later application of this subregulation, an indexable amount is taken to be replaced by the amount worked out by multiplying the indexable amount by the indexation factor. (5) If an amount worked out under subregulation (4) is not $100, or a multiple of $100: (a) if the amount is not $50, or a multiple of $50 — it is to be rounded up or down to $100, or the nearest amount that is a multiple of $100 as appropriate; or (b) if the amount is $50, or a multiple of $50 — it is to be rounded up to $100, or the next highest amount that is a multiple of $100 as appropriate. 30BG Schedule of costs (Act, s 170CJ) (1) For subsection 170CJ (5A) of the Act, the schedule of costs set out in Schedule 5 is prescribed. > Note 1 Under subsection 170CJ (7) of the Act, in awarding costs, the Commission is not limited to the items of expenditure mentioned in Schedule 5. However, if an item of expenditure is mentioned in Schedule 5, the Commission must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 5 for that item. > Note 2 An application for an order for costs must be made in accordance with Rule 47 of the Australian Industrial Relations Commission Rules 1998. (2) The Commission may allow the costs of briefing more than 1 counsel only if the Commission before which all counsel appear certifies that such attendance is necessary. > Note It is likely that certification under subregulation (2) would occur only in relation to a very large or complex case. (3) If the Commission considers it appropriate, a charge applicable to a solicitor in Schedule 5 is applicable to a person who: (a) is not a solicitor; and (b) is mentioned in section 42 of the Act. > Note Section 42 of the Act sets out who may represent a party to a proceeding before the Commission. (4) A bill of costs must identify, by an item number, each cost and disbursement claimed. (5) In exercising its discretion under item 1002 of Schedule 5, the Commission must have regard to commercial rates for copying and binding and is not obliged to apply the photographic or machine-made copy costs otherwise allowable in the Schedule. (6) In Schedule 5: > folio means 72 words. > Note There are generally 3 folios to a page. 30C Temporary absence because of illness or injury (1) For paragraph 170CK (2) (a) of the Act, an employee’s absence from work because of illness or injury is a temporary absence if: (a) the employee provides a medical certificate for the illness or injury within: (i) 24 hours after the commencement of the absence; or (ii) such longer period as is reasonable in the circumstances; or (b) the employee: (i) is required by the terms of an award, a certified agreement, an AWA, a State award, a State employment agreement or an old IR agreement to: (A) notify the employer of an absence from work; and (B) substantiate the reason for the absence; and (ii) complies with those terms. (2) Subregulation (1) does not apply if: (a) the employee’s absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or (b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences. (3) In this regulation: > medical certificate means a certificate signed by a medical practitioner that states that the employee is unable to work during a particular period. > medical practitioner means a person registered as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners. > Note Any finding that an absence is not a temporary absence for paragraph 170CK (2) (a) of the Act, is without prejudice to the rights of an employee whose employment has been terminated by an employer on the basis of such an absence: > Note: (a) to apply to the Commission for relief under subsection 170CE (1), on the ground, or on grounds including the ground, that the termination was harsh, unjust or unreasonable; or > Note: (b) to apply under a law of a State on the ground that the termination was harsh, unjust or unreasonable (however described); > Note: in respect of the termination of that employment. 30CA Required period of notice — exception for serious misconduct (1) For paragraph 170CM (1) (c) of the Act, serious misconduct includes: (a) wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and (b) conduct that causes imminent, and serious, risk to: (i) the health, or safety, of a person; or (ii) the reputation, viability or profitability of the employer’s business. (2) For subregulation (1), conduct that is serious misconduct includes: (a) the employee, in the course of the employee’s employment, engaging in: (i) theft; or (ii) fraud; or (iii) assault; or (b) the employee being intoxicated at work; or (c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. (3) Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable. (4) For this regulation, an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duty or with any duty that the employee may be called upon to perform. 30CB Required period of notice — ascertaining period of continuous service (1) For subsection 170CM (3) of the Act, in ascertaining an employee’s period of continuous service, the following actions and events must be disregarded: (a) a termination, suspension, stand down or other interruption imposed by the employer for the purpose of avoiding an obligation under section 170CM of the Act; (b) absence of the employee, on authorised leave, from work; (c) absence of the employee from work due to: (i) the employee’s illness; or (ii) an injury to the employee; (d) absence of the employee from work, if there was reasonable cause for the absence; (e) absence of the employee from work due to: (i) action that is protected action under section 170ML of the Act; or (ii) AWA industrial action within the meaning of subsection 170WB (1) of the Act; (f) any other absence from work, unless the employer has given the employee notice, under subregulation (4), that the employer will take an absence by the employee to break the employee’s continuity of service with the employer. (2) Paragraphs (1) (c) and (d) do not apply unless: (a) if the employee is required, under a relevant award, a certified agreement, an AWA, a State award, a State employment agreement or an old IR agreement to notify the employer of an absence and to substantiate the reason for the absence — the employee has done so; or (b) in any other case — the employee informs the employer within 24 hours after the commencement of the absence, or such longer period as is reasonable in the circumstances, of: (i) the employee’s absence; and (ii) whether the absence is due to illness, injury or other reason; and (iii) the likely duration of the absence. (3) Paragraph (1) (e) does not apply if the Commission or a State industrial authority has determined that, for the purpose of determining the employee’s entitlement to notice of termination or to compensation instead of notice, an absence is to be taken as breaking the employee’s continuity of service. (4) For paragraph (1) (f), notice must be given: (a) in writing; and (b) by delivering it to the employee personally or posting it to the employee’s last known address; and (c) during, or within 14 days after the end of, the period of absence. (5) A notice under paragraph (1) (f): (a) may be withdrawn by the employer; and (b) if withdrawn, is taken not to have been given. 30CC Compensation in lieu of required period of notice — commission or piece rates employees For paragraph 170CM (5) (c) of the Act, the amount taken to be payable, under an employee’s contract of employment, to an employee whose remuneration before termination was determined wholly or partly on the basis of commission or piece rates is the average actual remuneration received by the employee: (a) for an employee who was continuously employed by the employer for a period of 3 months or more immediately before termination — in the 3 months before termination; or (b) for an employee who was continuously employed by the employer for a period less than 3 months immediately before termination — in that period. 30CD Inapplicability of section 170CM of the Act — succession, assignment or transmission of business (1) There is excluded from the operation of section 170CM of the Act a termination of employment that occurs because of the succession, assignment or transmission of the business of the employer (the former employer) to another person (the new employer) if: (a) the employee is employed by the new employer after the succession, assignment or transmission; and (b) either: (i) the new employer is under an obligation, enforceable by the employee, to recognise, for subsection 170CM (2) of the Act, the employee’s entire period of service to the former employer as continuous with service to the new employer; or (ii) the new employer is under an obligation to: (A) give the period of notice that is equivalent to the relevant period; or (B) pay the relevant amount of compensation; in the event that the new employer terminates the employee’s employment (except for serious misconduct) during the period, starting from the date of succession, assignment or transmission, that is equivalent to the relevant period. > relevant period means the period of notice that, but for this regulation, the former employer would have been required to give to the employee under section 170CM of the Act by reason of the employee’s employment by the former employer having been terminated at the time when the succession, assignment or transmission occurred. > relevant amount of compensation means the amount of compensation equivalent to the amount of compensation instead of notice that the new employer would be required to pay to the employee under section 170CM of the Act if the required period of notice for the purposes of that section was equivalent to the relevant period. 30CE Prescribed notice of intended terminations  subsection 170CL (2) of the Act For subsection 170CL (2) of the Act: (a) the prescribed body is Centrelink; and (b) the prescribed form is Form 14. Division 2 Adoption leave