Bullivant and Secretary, Attorney-General's Department

This matter concerned an application for a Fair Entitlements Guarantee (FEG) advance in respect of redundancy pay. The applicant, Ms. Bullivant, sought this advance following the liquidation of her employer. The Secretary of the Attorney-General's Department, as the respondent, had made a decision under review. The Tribunal, presided over by Emeritus Professor P A Fairall, Senior Member, was tasked with determining whether Ms. Bullivant had a statutory entitlement to the FEG advance for redundancy pay.

The central legal issue was whether an agreement for redundancy pay could be inferred or established, despite the applicant's written employment contract being silent on the matter. Specifically, the Tribunal had to consider whether the employer, at the time of termination, qualified as a small business employer (SBE) for the purposes of the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act), and if so, whether an agreement for redundancy pay could be considered the governing instrument of employment. The respondent argued that the employer was an SBE and that the Fair Work Act 2009 (Cth) (FWA) governed the applicant's entitlements, precluding redundancy pay.

The Tribunal reasoned that while section 121(1)(b) of the FEG Act excludes redundancy pay from the National Employment Standards for SBEs, it does not prevent an SBE from agreeing to redundancy pay. The decisive question was whether such an agreement existed. The Tribunal accepted the applicant's evidence that she was promised redundancy pay by the insolvency practitioners if she remained with the company. This promise, in the specific circumstances, was found to provide the basis for a FEG advance for redundancy pay. The Tribunal noted that the employer was not an SBE when administrators were appointed, but later became one. However, the existence of the promise was determinative.

The Tribunal set aside the reviewable decision made on 6 May 2019. The matter was remitted to the Secretary with a direction that the applicant is entitled to an advance for redundancy pay, to be calculated in accordance with section 119(2) of the FWA.