Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:12a_2:p1
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 12A cl 2 (pt 1/2)
Character Range: 433156–435799

2  Meaning of small business employer, for unfair dismissal purposes, prior to 1 January 2011
(1) For the purposes of the application of Part 3‑2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer's number of full‑time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):
 (a) the time when the person is given notice of the dismissal;
 (b) immediately before the dismissal.
(2) The employer's number of full‑time equivalent employees at the notice or dismissal time is worked out as follows:

      Method statement
           Step 1. For each person who was an employee of the employer at any time during the period of 4 weeks immediately preceding the day on which the notice or dismissal time occurs, work out the number of ordinary hours (including parts of hours) of the person as the employer's employee during the period.
                  Note: Subitem (3) sets out what are a person's ordinary hours.
           Step 2. If, during the period, the person took leave to which subitem (4) applies, work out the number of hours of leave to which that subitem applies that the person took during the period.
           Step 3. Add together all of the numbers of ordinary hours worked out under step 1, and subtract all of the number of hours of leave worked out under step 2.
           Step 4. Divide by 152 the number worked out under step 3. The result is the employer's number of full‑time equivalent employees at the notice or dismissal time.
                  Note: The number 152 is based on the maximum number of hours that a full‑time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.
(3) For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer's employee are:
 (a) to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or
 (b) to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person's ordinary hours of work under item 33 of Schedule 3; or
 (ba) to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person's ordinary hours of work under item 48 of Schedule 3A; or
 (c) to the extent that:
 (i) a State