Fink and Secretary, Attorney-General's Department

This matter concerned an appeal by Mr Fink to the Administrative Appeals Tribunal (AAT) following the refusal of his claim for redundancy pay under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act). Mr Fink commenced employment with Unlockd Operations Pty Ltd (Unlockd Operations) in January 2016 and was promoted in July 2017. Unlockd Operations was placed into voluntary administration on 12 June 2018, at which time it employed 33 staff, including Mr Fink. Subsequently, on 20 July 2018, Mr Fink's employment was terminated on the grounds of redundancy.

The primary legal issues before the Tribunal were whether Mr Fink was entitled to redundancy pay under the FEG Act, and whether his employment ceased in circumstances that would trigger such an entitlement. This involved considering the interaction between the FEG Act, the Corporations Act 2001 (Cth) (CA), and the Fair Work Act 2009 (Cth) (FW Act), particularly the National Employment Standards (NES). The Tribunal also had to determine the relevant "governing instrument" for Mr Fink's redundancy entitlements.

The Tribunal reasoned that Mr Fink's redundancy entitlement was governed by his Employment Agreement, which stipulated that upon termination in circumstances of genuine redundancy after 12 months of continuous service, he would be entitled to redundancy pay in accordance with the NES. The Tribunal found that the CA was not a "governing instrument" for employment and its provisions were irrelevant to assessing entitlement under the FEG Act, nor did they impact the operation of the FW Act. Consequently, the Tribunal concluded that Mr Fink's Employment Agreement provided him with a right to redundancy payment under the NES, meaning he was not entitled to an advance for redundancy under the FEG Act.

The Tribunal affirmed the decision under review, upholding the refusal of Mr Fink's claim for redundancy pay under the FEG Act.