Fair Work Act 2009

An order for the payment of compensation to a person must be an order that the road transport business at the time of the termination pay compensation to the person in lieu of entering into a new services contract.

In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

the effect of the order on the viability of the road transport business; and

the remuneration that the person would have received, or would have been likely to receive, if the person had not been terminated; and

the efforts of the person (if any) to mitigate the loss suffered because of the termination; and

the amount of any remuneration earned by the person from work of any kind during the period between the termination and the making of the order for compensation; and

the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

any other matter that the FWC considers relevant.

If the FWC is satisfied that misconduct of a person contributed to the road transport business’s decision to terminate the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s termination.

The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

the amount worked out under subsection (6); and

half the amount of the contractor high income threshold immediately before the termination.

The amount is the total amount of remuneration received by the person or to which the person was entitled (whichever is higher) for any period during which the person performed work under the services contract during the 26 weeks immediately before the termination.