Redundancy pay is generally notpayable under the National Employment Standards (‘the NES’) to any of the following:
- an employee whose period of continuous service with the employer is less than 12 months;
- an employee of a small business employer (a small business employer, for the purpose of determining redundancy pay under the NES, is an employer who employs fewer than 15 employees – this is based on a simple head count of employees immediately before the relevant person was terminated, or at the time when the person was given notice of termination (whichever happened first));
- an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
- an employee whose employment is terminated because of serious misconduct;
- a casual employee;
- an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
- an apprentice;
- an employee to whom a industry-specific redundancy scheme in a modern award applies;
- an employee to whom a redundancy scheme in an enterprise agreement applies if both:
- the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation
- the employee is covered by the industry-specific redundancy scheme in the modern award.
A modern award, or enterprise agreement which incorporates modern award redundancy provisions, may provide that an employee will not get redundancy pay if their employer finds other suitable/alternative employment.
The NES also allow Fair Work Australia to reduce an employee’s redundancy pay on application by an employer, if the employer either:
- finds other acceptable employment for the employee; or
- is unable to pay the full redundancy pay entitlement.