Bates and Secretary, Department of Employment

Bates and the Secretary, Department of Employment were parties to a dispute concerning the calculation of advances payable under the Fair Entitlements Guarantee (FEG) scheme. The applicant, Mr. Bates, sought to have his entitlements, including annual leave, long service leave, payment in lieu of notice, redundancy pay, and wages, calculated by reference to his terms of employment over many years, rather than his terms at the time of the company's liquidation. The matter came before Deputy President S A Forgie of the Tribunal.

The central legal issue before the Tribunal was the proper basis for calculating the "ordinary hours of work" for the purpose of determining FEG advancements. Specifically, the Tribunal had to determine whether this calculation should be based on the terms of employment at the precise moment of liquidation, or whether it could take into account the terms of employment over a longer period, particularly where the employer had previously required the employee to reduce their hours. The interpretation of an Enterprise Agreement, approved by Fair Work Australia, was also relevant to this determination.

The Tribunal affirmed the decision of a delegate of the respondent, which had affirmed an earlier decision. The reasoning applied was that the "ordinary hours of work" for the purpose of the FEG scheme are determined by reference to the terms of employment at the time of liquidation. This principle was applied to the facts of the case, meaning that any prior reductions in hours, even if mandated by the employer over many years, did not alter the basis for calculating the entitlements at the point of liquidation. The Tribunal found that the Enterprise Agreement did not require a different approach.

Consequently, the Tribunal decided to affirm the delegate's decision.