Details  Created: 25 June 2020

The Industrial Magistrate has dismissed a claim for additional redundancy pay by a union acting on behalf of two members who worked at Racing and Wagering Western Australia.

Background

Both members were employed by the respondent for over 23 years, until their positions were made redundant on 30 November 2018. They were entitled to a redundancy payment in accordance with cl 28 of the RWWA General Staff Agreement 2015 (Cth), made under the Fair Work Act 2009 (Cth).

Clause 28(4)(b) of the Agreement states that employees who had commenced service before 1 September 2009 (pre-September 2009 Employees), which included both the members, are entitled to redundancy pay for service up to 31 August 2012, calculated on the basis of 3 weeks per year of service with a maximum of 52 weeks’ pay (preserved calculation).

The parties were in dispute on whether cl 28 results in additional redundancy pay for service after 31 August 2012. Clause 28(4)(b) states that, for pre-September 2009 Employees, additional redundancy pay for the period after 31 August 2012 is based on cl 28(2)(a).

Clause 28(2)(a) sets out a table by which entitlement to severance pay is determined for an employee whose role is made redundant. The table sets out the number of weeks salary applicable to each year of the employee’s period of continuous service with the respondent on termination, with a maximum of 16 weeks’ pay for 9 years of service or over.

Submissions

The claimant contended that the result of the application of cl 28(2)(a) to pre-September 2009 Employees is for additional redundancy pay to be calculated for the portion of service after 31 August 2012 as if service commenced on 31 August 2012 and ended on the date of redundancy. The result is that the members are each entitled to additional redundancy pay of 11 weeks for their 6 years of service between 2012 and 2018.

The respondent argued that additional redundancy pay is calculated for only the portion of the whole period of service that occurs after 31 August 2012, where the whole period of service is 30 years for the first member, and 23 years for the second member.

The respondent contended that a consequence is that the maximum entitlement to redundancy pay is reached 9 years after the commencement of the actual date of service. This means that any further service, including service after 31 August 2012 does not, under cl 28(2)(a), attract any further redundancy pay.

On this view, Flynn IM noted that because the members reached a maximum of 9 years or over before 31 August 2012, cl 29(2)(a) did not provide for any additional redundancy pay for service after that date.

Analysis and conclusion

In his analysis, Flynn IM considered the meaning of the clause in light of the facts, the ambiguity of the clause, the ordinary meaning of the words, a similar agreement made in 2009, and the context, purpose and objective of the whole agreement. Flynn IM found that the respondent’s interpretation of the clause had the meaning that best conformed to the intention of the parties.

Flynn IM found that the members were only entitled to the preserved calculation pay of 52 weeks as a redundancy payment, and not the additional redundancy pay of 16 weeks for service after 31 August 2012.

The decision can be read here.