The Federal Court held that a 'waiting time payment' clause in an enterprise agreement — requiring the employer to pay eight hours' pay per day (including weekends) for every day that accrued entitlements remain unpaid after termination — was void under s 253(1)(a) of the FW Act as not pertaining to the employment relationship, because the entitlement arises only after employment ends and is calculated entirely by reference to a post-employment period. The Court also held that where an EA provides a specific redundancy notice entitlement (cl 17.8, requiring payment in lieu of notice), it displaces the general notice of termination provision (cl 15.1) by application of generalibus specialia derogant, so the two are not cumulative. The Court further held that employer contributions to the Incolink portable sick leave scheme discharged the obligation to pay accrued personal leave on termination under the incorporated award, but Incolink redundancy fund contributions did not discharge the separate obligation to pay in lieu of notice under cl 17.8. The failure to pay in lieu of notice was not a 'serious contravention' under s 557A because the evidence was insufficient to establish knowing contravention or a systematic pattern of conduct.
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