WORKPLACE RELATIONS ACT 1996 - SECT 346ZG Employee is entitled to compensation in respect of no-disadvantage test period
This legislation has been repealed.
WORKPLACE RELATIONS ACT 1996 - SECT 346ZG
Employee is entitled to compensation in respect of no-disadvantage test period(1) This section applies to an employee who is entitled to compensation under this section on and from a particular day because a workplace agreement to which Subdivision D applies that was binding on the employee's employer did not pass the no‑disadvantage test.
Note 1: Sections 346V, 346W and 346ZA specify the day on which an employee's entitlement to compensation takes effect.
Note 2: An employee may be able to recover compensation even where a workplace agreement that initially does not pass the no‑disadvantage test is varied so that it subsequently passes the no‑disadvantage test--see section 346ZA.
(2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employer must pay to the employee the amount of the shortfall:
(a) the total value of the entitlements to which the employee was entitled, under the workplace agreement, and under any other applicable law, agreement or arrangement that operated in conjunction with the workplace agreement, in respect of one or more periods of employment during the no‑disadvantage test period for the workplace agreement;
(b) the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the no‑disadvantage test period, worked out in accordance with the assumptions set out in subsection (3).
(3) For the purposes of working out the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the no‑disadvantage test period, it is to be assumed that, during that period or those periods of employment:
(a) the employee's employment was subject to:
(i) the instrument or instruments that, but for the workplace agreement, would have bound the employer in relation to that period or those periods of employment of the employee; or
(ii) if there is no such instrument--the designated award in relation to the employee; and
(b) the employer was bound, under a designated provision relating to the agreement, by a redundancy provision that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
(c) the employer was bound under section 394 by any undertaking that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
(d) the employee's employment was subject to any other applicable law, agreement or arrangement that would have operated in conjunction with the instrument or instruments referred to in subparagraph (a)(i), or the designated award referred to in subparagraph (a)(ii), as the case requires.
(4) An employer breaches this section if the employer does not pay to the employee the amount of the shortfall calculated under subsection (2) within whichever of the following periods is applicable:
(a) if the employee is entitled to compensation because of the operation of section 346V in respect of the workplace agreement--the period of 14 days beginning on the seventh day after the date of issue specified in the notice under section 346U in relation to the workplace agreement;
(b) if the employee is entitled to compensation because of the operation of section 346W in respect of the workplace agreement--the period of 14 days beginning at the end of the relevant period (within the meaning of section 346W) in relation to the workplace agreement;
(c) if the employee is entitled to compensation because of the operation of section 346ZA in respect of the workplace agreement--the period of 14 days beginning on the seventh day after the date of issue specified in the notice under section 346Z in relation to the workplace agreement.
Note: Compliance with this section is dealt with in Part 14--this section is an applicable provision within the meaning of section 717.
(5) In this section:
"designated provision" has the same meaning as in section 346ZD.
"instrument" has the same meaning as in section 346ZB.
"no-disadvantage test period" , in relation to a workplace agreement, means:
(a) the period:
(i) beginning on the day on which the workplace agreement was lodged; and
(ii) ending on the day on which the workplace agreement ceased to operate (whether because of the operation of this Division or otherwise); or
(b) if the workplace agreement is continued in operation because of the operation of subsection 346W(4) or section 346ZA--the period:
(i) beginning on the day on which the workplace agreement was lodged; and
(ii) ending on the day on which the variation of the workplace agreement was lodged under section 346W or, if the workplace agreement had been varied before that day in such a way as to pass the no‑disadvantage test, on that earlier day.
"redundancy provision" has the same meaning as in section 346ZD.