The Fair Work Act 2009 (FWA) sets out provisions for the minimum periods of notice required for terminating employment for employees under the national system. This article outlines who is covered by these provisions, who is excluded, and the specific notice periods mandated by the FWA.

Coverage of Employees

Section 117 of the Fair Work Act specifies that national system employees are entitled to minimum periods of notice upon termination. This provision applies broadly, with no income cap affecting coverage. However, Section 123 of the Fair Work Act delineates several categories of employees who are excluded from these minimum notice requirements.

Employees Excluded from Minimum Notice Requirements

Under subsection 123(1), the following employees are not entitled to minimum notice periods:

  • Employees hired for a specified period, task, or season: These employees are engaged for a predetermined duration or specific assignment.
  • Employees terminated due to serious misconduct: Serious misconduct includes theft, fraud, assault, and other significant breaches of employment terms.
  • Casual employees: Casual employees, due to the nature of their engagement, are excluded.
  • Employees under training arrangements: This includes apprentices, except when their employment extends beyond the training period.
  • Employees prescribed by regulations: Certain employees may be excluded by specific regulations.

Under subsection 123(3), additional exclusions include:

  • Daily hire employees in the building and construction industry: This encompasses those involved in the erection, repair, renovation, maintenance, ornamentation, or demolition of buildings or structures.
  • Daily hire employees in the meat industry: Those engaged in the slaughter of livestock fall under this exclusion.
  • Weekly hire employees in the meat industry: Employees whose employment is terminated due to seasonal factors.
  • Employees prescribed by regulations: Similar to subsection 123(1), some exclusions are determined by specific regulations.

It’s important to note that if an employee is hired with the intention of attempting to avoid the notice period requirements, the notice period provisions will still apply.

Notice Period Requirements

According to Section 117 of the Fair Work Act, employers must provide written notice of termination to employees. The notice period must comply with the minimum periods outlined in subsection 117(3) (as set out below), or the employer must pay the employee in lieu of notice.

Minimum Notice Periods

The minimum notice periods required by the Fair Work Act are as follows:

  • Less than 1 year of service: 1 week
  • 1 to 3 years of service: 2 weeks
  • 3 to 5 years of service: 3 weeks
  • More than 5 years of service: 4 weeks

Additionally, the notice period increases by one week if the employee is over 45 years old and has completed at least two years of continuous service.

Payment in Lieu of Notice

If an employer chooses not to provide the required notice period, they must pay the employee the full rate of pay for the hours the employee would have worked until the end of the minimum notice period.

Conclusion

The Fair Work Act ensures that employees under the national system are given notice or payment in lieu of notice when their employment is terminated. Most employment agreements will also include reciprocal provisions requiring that employees give employers the same amount of notice of their resignation.   If an employee is eligible to make an unfair dismissal claim, it is important to keep in mind that some other factor warranting dismissal must be present before an employer can terminate an employee, even if the required period of notice of termination is provided.  While certain categories of employees are excluded from the notice requirements, the provisions aim to provide a balanced approach to employment termination, safeguarding the rights of most employees.

If you or someone you know is an employer or employee and in need of employment advice, you can contact our team of experts by contacting us at 9525 8688.

Resources

Fair Work Act s117 & s123

Fair Work Ombudsman: https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/dismissal-and-notice