Determination under subsection 22(1) of the Air Passenger Ticket Levy (Collection) Act 2001 (Cth)

COMMONWEALTH OF AUSTRALIA

DETERMINATION UNDER SUBSECTION 22(1) OF THE

AIR PASSENGER TICKET LEVY (COLLECTION) ACT 2001

I, ANTHONY JOHN ABBOTT, Minister for Employment and Workplace Relations, pursuant to subsection 22(1) of the Air Passenger Ticket Levy (Collection) Act 2001 (‘the Act’), repeal all previous determinations made under that provision, and make the following new determination.

I determine that the terms of the Special Employee Entitlements Scheme for Ansett group employees (‘the Scheme’) are as set out in the Schedule to this instrument.

The Scheme as set out in this determination will remain in force until the Scheme is terminated or replaced by a subsequent determination under subsection 22(1).

Tony Abbott

Minister for Employment and Workplace Relations

Dated 9 August 2002

Schedule to the Determination under subsection 22(1) of the
Air Passenger Ticket Levy (Collection) Act 2001

TERMS OF THE SCHEME

Part 1. Companies that are to be covered by the Scheme

(a)     The following companies are covered by the Scheme:

Company	ACN	Date[1]
(i)	501 Swanston Street Pty Limited (Administrators Appointed)	005 477 618
(ii)	Aeropelican Air Services Pty Limited (Administrators Appointed)	000 653 083	7 Mar 2002
(iii)	Airport Terminals Pty Limited (Administrators Appointed)	053 976 444
(iv)	Aldong Services Pty Limited (Administrators Appointed)	000 258 113
(v)	Ansett Aircraft Finance Limited (Administrators Appointed)	008 643 276
(vi)	Ansett Australia Holdings Limited (Administrators Appointed)	004 216 291
(vii)	Ansett Australia Limited (Administrators Appointed)	004 209 410
(viii)	Ansett Aviation Equipment Pty Limited (Administrators Appointed)	008 559 733
(ix)	Ansett Carts Pty Limited (Administrators Appointed)	005 181 215
(x)	Ansett Equipment Finance Limited (Administrators Appointed)	006 827 989
(xi)	Ansett Finance Limited (Administrators Appointed)	006 555 166
(xii)	Ansett Holdings Limited (Administrators Appointed)	065 117 535
(xiii)	Ansett Internationa1 Limited (Administrators Appointed)	060 622 460
(xiv)	Bodas Pty Limited (Administrators Appointed)	002 158 141
(xv)	Brazson Pty Limited (Administrators Appointed)	055 259 008
(xvi)	Eastwest Airlines (Operations) Limited (Administrators Appointed)	000 259 469
(xvii)	Eastwest Airlines Limited (Administrators Appointed)	000 063 972
(xviii)	Kendell Airlines (Aust) Pty Limited (Administrators-Appointed)	000 579 680
(xix)	Morael Pty Limited (Administrators Appointed)	003 286 440
(xx)	Northern Airlines Limited (Administrators Appointed)	009 607 069
(xxi)	Northern Territory Aerial Work Pty Limited (Administrators Appointed)	009 611 321
(xxii)	Rock-It-Cargo (Aust) Pty Limited (Administrators Appointed)	003004 126
(xxiii)	Show Group Pty Limited (Administrators Appointed)	002 968 989	25 Oct 2001
(xxiv)	Skywest Airlines Pty Limited (Administrators Appointed)	008 997 662	21 Feb 2002
(xxv)	Skywest Aviation Limited (Administrators Appointed)	004 444 866	21 Feb 2002
(xxvi)	Skywest Holdings Pty Limited (Administrators Appointed)	008 905 646	21 Feb 2002
(xxvii)	Skywest Jet Charter Pty Limited (Administrators Appointed)	008 800 155	21 Feb 2002
(xxviii)	South Centre Maintenance Pty Limited (Administrators Appointed)	001 286 660
(xxix)	Spaca Pty Limited (Administrators Appointed)	006 773 593
(xxx)	Traveland International (Aust) Pty Limited (Administrators Appointed)	000 275 936
(xxxi)	Traveland International Pty Limited (Administrators Appointed)	000 598 452
(xxxii)	Traveland New Staff Pty Limited (Administrators Appointed)	080 739 037
(xxxiii)	Traveland Pty Limited (Administrators Appointed)	000 240 746
(xxxiv)	Walgali Pty Limited (Administrators Appointed)	055 258 921
(xxxv)	Westintech Limited (Administrators Appointed)	009 084 039
(xxxvi)	Westintech Nominees Pty Ltd (Administrators Appointed)	009 302 158
(xxxvii)	Whitsundays Affairs Pty Ltd (Administrators Appointed)	009 649 553
(xxxviii)	Whitsundays Harbour Pty Ltd (Administrators Appointed)	010 375 470
(xxxix)	Wridgways Holdings Limited (Administrators Appointed)	004 449 085
(xxxx)	Wridgways (Vic) Pty Limited (Administrators Appointed)	004 153 413
(xxxxi)	Hazelton Airlines Limited	061 965 642
(xxxxii)	Hazelton Air Charter Pty Ltd	065 221 356	1 Aug 2002
(xxxxiii)	Hazelton Air Services Pty Ltd	000 242 928	1 Aug 2002
(xxxxiv)	Ansett Australia and Air New Zealand Engineering Services Ltd	089 520 696

[1] See subparagraph (b)(iii) of Part 2.

(b)     A company identified in paragraph (a) of this Part is an ‘eligible company’ for the purposes of the Scheme, unless the Minister determines otherwise.

Part 2. Employees that are to be covered by the Scheme

(a)     Subject to paragraph (b) of this Part, a person, employed under Australian law, who has had their employment with an eligible company terminated, as a result of the insolvency of that company, is an eligible employee for the purposes of the Scheme.

(b)     The following persons are not eligible employees for the purposes of the Scheme:

(i)      an employee of an eligible company who was a shareholding executive director of the eligible company;

(ii) a Relative (as defined in s.9 of the Corporations Act 2001) of a person described in subparagraph (b)(i) of this Part;

(iii)     unless the Minister determines otherwise and notwithstanding subparagraph (iv), in respect of an eligible company that has a date listed beside it in paragraph (a) of Part 1, a person whose employment is not terminated by that company on or before that date;

(iv) unless the Minister determines otherwise, an employee of an eligible company whose employment is terminated at any time after the shares in that company have been sold by the persons who were insolvency practitioners (being either an administrator or a liquidator as those terms are defined in the Corporations Act 2001) of that company prior to that sale, except where, on the sale of that eligible company, those persons who were insolvency practitioners of that company prior to that sale have retained or otherwise incurred a liability in respect of the employee’s entitlements - in such circumstances employees of that company in respect of whom employee entitlements have been so retained or incurred would continue to be eligible employees but only to the extent of that retained or incurred liability.

(c)     For the purposes of the Scheme, an employee who resigns from an eligible company during a period of stand down shall be taken to have been terminated as a result of the insolvency of the particular eligible company if the employee consults with the employer prior to resignation and the employer consents in writing to the employee’s resignation being treated as a redundancy.

(d)     For the avoidance of doubt, the estate of a deceased eligible employee will be entitled to receive any amount that the eligible employee would have otherwise been entitled under the Scheme.

Part 3. Entitlements that are covered by the Scheme

(a)     An amount may be paid under the Scheme in respect of an eligible employee on account of the following entitlements that are unpaid by the eligible company:

(i)      all unpaid wages including unpaid amounts in respect of paid leave already taken and allowances such as shift allowance and overtime;

(ii)      all unpaid annual leave (including annual leave loading);

(iii)     all unpaid long service leave;

(iv)     all unpaid pay in lieu of notice; and

(v)     unpaid redundancy pay (an amount paid under the Scheme on account of unpaid redundancy pay will not exceed an amount equal to 8 weeks pay, less redundancy payments already received).

(b)     For the purpose of calculating entitlements under the Scheme:

(i)      unpaid wages will not include extraordinary payments (such as bonuses) or backdated payments; and

(ii)      a week’s pay will be calculated as follows:

A.      for a person working regular hours, a week’s pay is the amount the person is entitled to receive under their contract of employment for a week’s work, inclusive of regular allowances as at the date of notice or the date they should have received notice;

B.      for a person whose pay, but not hours of work, varies from week to week, a week’s pay is the average weekly pay received over the last 12 completed weeks of work; and

C.      for a person whose hours of work and pay varies from week to week, a week’s pay is the average hourly earnings over the last 12 completed weeks of work multiplied by the average weekly hours over that same period.

Part 4. Payments under the Scheme

(a)     Entitlement payments, including by way of a loan, under the Scheme will be made either:

(i)      on behalf of the Commonwealth, by the Department; or

(ii)      by a third party under an arrangement approved by the Department.

(b)     The entitlement payments made under paragraph (a) of this Part will be by way of a loan and, subject to paragraph (c) of this Part, all such entitlement payments will be made as an advance to the eligible company, through the relevant Insolvency Practitioner, for the exclusive purpose of enabling the eligible company to make the payments described in Part 3 to eligible employees.

(c) If directed, ordered or declared by a Court, the entitlement payments will be an ‘expense’ within the meaning of s.556(1)(a) of the Act, and will be payable by the Insolvency Practitioner in accordance with the priority afforded by the Court.

(d)     No entitlement payments will be made under the Scheme unless the Insolvency Practitioner has provided such information as may be required by the Department and/or the third party (referred to in this Part) to satisfy itself that an entitlement payment is payable under the Scheme.

(e)     The Department, on behalf of the Commonwealth, may make other payments to meet any obligations arising under an arrangement referred to in subparagraph (a)(ii) of this Part.