Kuredale Pty Ltd v Fair Work Ombudsman

Kuredale Pty Ltd sought judicial review of a compliance notice issued by the Fair Work Ombudsman (FWO). The FWO contended that the compliance notice should be confirmed, while Kuredale argued for its cancellation. The dispute arose from allegations by two former employees, Victor Trigo and Mitchel ten Vaanholt, that they had not been paid redundancy entitlements. Kuredale employed these individuals under the Metro Lintels Offsite Enterprise Agreement 2016, and the FWO, through a Fair Work Inspector, issued the compliance notice based on a belief that Kuredale had contravened a term of this agreement.

The central legal issue before the Court was whether the compliance notice was validly issued, specifically concerning Kuredale's obligation to pay redundancy entitlements to Mr Trigo and Mr ten Vaanholt. Kuredale argued that the employees were not entitled to redundancy pay because they had resigned, and therefore their positions were not "redundant" in the ordinary dictionary sense of becoming superfluous. Alternatively, Kuredale contended that the National Employment Standards (NES) regarding redundancy should apply. The FWO maintained that the compliance notice correctly identified a contravention of the Agreement.

Kendall J rejected Kuredale's arguments. The Court found that clause 22.1 of the Agreement expressly stipulated that for offsite employees, the redundancy provisions of clause 17 of the Building and Construction General On-site Award 2010 applied, not the NES. Furthermore, section 123 of the Fair Work Act 2009 (Cth) excludes the NES redundancy provisions for employees covered by an industry-specific redundancy scheme, such as the one in the Award. Therefore, the Court concluded that the interpretation of the Agreement and the Award, as referenced in the compliance notice, was correct, and the employees were entitled to redundancy pay under the Award's provisions.

Consequently, the Court confirmed the compliance notice issued by the FWO, finding that Kuredale had failed to establish that the contravention alleged in the notice had not occurred and that the notice was otherwise compliant with section 716 of the Act. The application to cancel the notice was dismissed, and there were no orders as to costs.