Chung and Secretary, Attorney-General’s Department

This matter concerned an application by the Applicant for an advance under the *Fair Entitlements Guarantee Act 2012* (Cth) (FEG Act). The Applicant sought to challenge a decision that had awarded him a redundancy payment of $8,664.00, contending he was entitled to a greater sum of $32,239.19. The dispute arose from the Applicant's termination of employment with Steelglo (Aus) Pty Ltd ("Steelglo") in May 2018, after almost nine years of service, without receiving redundancy payments. The Applicant argued that his entitlement arose under the governing Enterprise Agreement (EBA) and that Steelglo's failure to make the required weekly payments into the Incolink Fund did not negate this entitlement. The Respondent contended that the Applicant could not have a redundancy pay entitlement under the EBA if Steelglo had failed to fulfil its obligation to pay into the Incolink Fund. The decision was made by Dr Damien Cremean, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was the interpretation of section 6(5) of the FEG Act, which defines a "redundancy pay entitlement" as the amount a person is entitled to under the governing instrument from the employer for termination of employment. Specifically, the Tribunal had to determine whether an entitlement under this section could exist even if the employer had failed to make the necessary payments into a fund established under the governing instrument to provide for such benefits. A secondary issue, contingent on the first, was the correct amount of redundancy pay.

The Tribunal found in favour of the Applicant, holding that an entitlement under section 6(5) of the FEG Act arises irrespective of whether monies have actually been paid into the relevant fund. The Senior Member reasoned that the critical factor is whether there is an entitlement to have monies paid into the fund. Given that Steelglo had a duty to pay monies into the Incolink Fund and failed to do so, the Applicant had a corresponding right to call for those payments, which constituted an entitlement. The Tribunal concluded that the Applicant satisfied the criteria under section 6(5) of the FEG Act with the EBA as the governing instrument. However, the Tribunal did not have sufficient information to determine the precise amount of the entitlement.

Accordingly, the Tribunal set aside the decision under review and substituted a decision that the Applicant does satisfy section 6(5) of the FEG Act. The matter was remitted to the Respondent for reconsideration of the amount of the Applicant's redundancy pay entitlement.