Fair Work Act 2009

Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

the employee’s period of continuous service with the employer (other than periods of employment as a casual employee of the employer) is less than 12 months; or

the employer is a small business employer.

A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:

incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and

provide that the incorporated term covers some or all of the employees who are also covered by the award term.

Despite subsection (1), an employee whose employment is terminated is entitled to be paid redundancy pay in accordance with this Division if:

at the time of the termination, section 119 did not apply to the termination because the employer was a small business employer; and

the employer is bankrupt or in liquidation (other than only because of a members’ voluntary winding up); and

the employer is a small business employer because the employment of one or more employees was terminated; and

those terminations occurred:

on or after the day that is 6 months before the employer became bankrupt or went into liquidation; or

if there was an insolvency practitioner (the last insolvency practitioner) for the employer on the business day before the employer became bankrupt or went into liquidation—on or after the day that is 6 months before the insolvency practitioner was appointed; or

if, before the last insolvency practitioner was appointed, other insolvency practitioners for the employer were appointed without any intervening business days between any of those appointments—on or after the day that is 6 months before the first of those insolvency practitioners was appointed; or

due to the insolvency of the employer.

A members’ voluntary winding up is a winding up under section 495 of the Corporations Act 2001.

If a liquidator takes action under section 496 of the Corporations Act 2001 (company turns out to be insolvent) in relation to a small business employer whose liquidation began as a members’ voluntary winding up, then, for the purposes of subparagraph (4)(d)(i), the time the employer goes into liquidation is the time the employer goes into liquidation because of the members’ voluntary winding up.

For the purposes of subsection (4), a small business employer that is a partnership is not bankrupt or in liquidation unless each partner of the partnership is bankrupt or in liquidation, as the case requires.