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QLD Employer is Small Business - Am I Entitled to Redundancy?

Discussion in 'Employment Law Forum' started by Lily, 6 November 2014.

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  1. Lily

    Lily Member

    6 November 2014
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    I have been with my current employer for almost 5 years. My position is being made redundant at the end of this month but my boss advised I am not entitled to redundancy because we have less than 15 employees at the Brisbane (Pty Ltd) operation and are therefore a small business. Head office is in New Zealand so I advised that we (Brisbane) are an associated entity of them because we cannot operate without them. All decisions, accounts, management are based there. The Brisbane op handles basic admin, sales and distribution. The sales reps were made redundant last year and one came back as a contractor. He was let go last month.
    My boss replied with "regarding the associated entity, the Australian operation has less than 15 employees and it is the Australian operations only that this law covers. Associated entities need to be governed under the same jurisdiction"
    She is not disputing that we/they are an associated entity, only that it doesn't apply because we are in different countries therefore I am not entitled to any redundancy.
    Can anyone clarify if this correct? My Fairwork and various internet searches have provided nothing about trans-tasman associated entities etc.
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
    Likes Received:
    Dear Lily,

    Your employer is correct to the extent that some small businesses don’t have to pay redundancy pay when making an employee redundant (s121 Fair Work Act 2009). A small business is defined as one with 15 employees or less (counting any employees to be made redundant at the time of their termination). (s23 Fair Work Act 2009).

    Included in the number of employees when counting at time of redundancy are:
    • all permanent employees
    • any employees being terminated at that time
    • regular and systematic casual employees at time of redundancy; and
    • employees of associated entities.
    Associated entity has the definition given by the Corporations Act s50AAA - which provides a number of requirements regarding the extent of involvement and control that the principal company has with the associated entity. However this definition does not specify whether it applies to foreign companies as principals or associated entities.

    To me it would appear the statutory intention is that companies who are backed by larger operations are not immune to the requirement to pay redundancy and that you would be entitled to this. Perhaps someone with more experience in this area could clarify?

    In any event I think its worth arguing, I would contact the Fair Work Ombudsman to clarify and set things straight with your employer. Link is here:

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