WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. The Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch and Bell Basic Industries Ltd and Others. No. 187 of 1992. COMMISSIONER R.N. GEORGE. 2 June 1992. Order. HAVING heard Mr P. Harris on behalf of the Applicant and Mr S. Macaree on behalf of the Respondents, and by consent, the Commission, being satisfied that the matter is consistent with the Principles enunciated by the State Wage Case decision —January 1992 and pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby Orders — That the Earth Moving and Construction Award be varied in accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 20th day of May 1992. (Sgd.) R.N. GEORGE, [L.S.] Commissioner. Schedule. 1. Appendix II. Immediately following subclause (21) Liberty to Apply of this Appendix add a new subclause as follows: (22) Termination/Redundancy (a) This clause shall apply where an employee ceases, for any reason to be employed by an employer Respondent to this award other than for reasons of misconduct. (b) Severance Pay: (i) An employee, leaving his/her employer on account of a decision in accordance with paragraph (a) hereof shall be entitled to the following amount of severance pay in respect of continuous periods of service. PERIODS OF SEVERANCE PAY CONTINUOUS SERVICE Less than one year $20.00 for each com- pleted week of serv- ice to a maximum of two weeks' pay One year but less Two weeks' pay plus than two years $20.00 for each com- pleted week of serv- ice to a maximum of four weeks' pay Two years but less Four weeks' pay plus than three years $20.00 for each com- pleted week of serv- ice to a maximum of six weeks' pay Three years but less Seven weeks' pay than four years After four years of Eight weeks' pay service (ii) In lieu of the $20.00 specified in subpara- graph (i) hereof, after 14 October 1991 the rate of accrual shall be $25.00 for each completed week of service, with the maxi- mum accrual as specified. (iii) "Weeks' Pay" shall mean the ordinary weekly rate of wage for the employee concerned, as set out in Clause 27. —Wages of this award, and shall not include site, disability or travel allowances. (iv) For the purpose of this clause "service" shall mean all work within the scope and applica- tion of this Appendix done by an employee engaged in one of the classifications set out in Clause 27. —Wages of this award but shall not include: (aa) service as an apprentice under the terms of this award (v) For the purpose of implementing this clause, employees who have been continuously employed with an employer on the site since the commencement of Phase 3 construction shall have service with the employer for that time counted in calculation of their length of service. For all other employees length of service shall be calculated on the time of continuous service with their current employer on-site. (vi) For the purpose of this clause, continuity of service shall not be broken on account of— (aa) any interruption or termination of em- ployment by the employer if made merely with the intention of avoiding obligations hereunder in respect of leave of absence; or (bb) any absence from work on account of personal sickness or accident for which an employee is entitled to claim sick pay as prescribed by this award or on account of leave lawfully granted by the employer; or (cc) any absence, with reasonable cause, proof whereof shall be provided by the employee; and Provided that in the calculation of continu- ous service under this subclause, any time in respect of which an employee is absent from work, except to claim annual leave, sick pay, long service leave and public holidays as prescribed by this award, shall not count as service for the purposes of this clause. (vii) Service by employees with a business which has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with sub- clause (3) of Clause 2. of the Long Service Leave Provisions published in Volume 66 of the Western Australian Industrial Gazette at pages 1 to 4 shall also constitute continuous service for the purpose of this clause. (viii) An employee who terminates his/her em- ployment before the completion of four weeks' continuous service with the employer shall not be entitled to the provisions of this clause. (c) Employee Leave During Notice: An employee whose employment is to be terminated in accordance with this clause may terminate his/her employment during the period of notice and if this occurs, shall be entitled to the provisions of this clause as if the employee remains with the employer until such expiry of such notice. Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice. (d) Incapacity to Pay: An employer in a particular severance/redun- dancy case may make application to the Commis- sion to have the general severance pay prescrip- tion varied on the basis of the employer's incapacity to pay. 1330 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 72 W.A.I.G. (e) Alternative Employment: An employer in a particular severance/redun- dancy case, may make application to the Commis- sion to have the provisions of this clause varied if the employer obtains acceptable alternative employment for an employee which shall include, but not be limited to, transfer from one site to another and/or transfer to a workshop. (f) Termination Fund: Employers may, at their discretion, utilise a fund to meet their liabilities to their employees accrued pursuant to the term of this clause, provided that such fund shall provide a level of benefits equal to those prescribed by this clause. ELECTORATE OFFICERS AWARD 1986 No. A 18 of 1986