McCartney and Secretary, Attorney General's Department

This matter concerned an application for review of a decision made under the Fair Entitlements Guarantee Act 2012 (Cth) regarding an advance payment for unpaid employment entitlements. The applicant sought an advance for annual leave, annual leave loading, pay in lieu of notice, redundancy pay, and long service leave following the insolvency of their employer. The Secretary, Attorney-General's Department, had determined the applicant was eligible for an advance, but calculated the redundancy pay entitlement at 11 weeks and pay in lieu of notice at three weeks, which the applicant sought to have reviewed.

The central legal issue before the Tribunal was whether the applicant's period of casual employment prior to their engagement as a part-time, fixed-term employee should be included in the calculation of their "continuous service" for the purposes of determining their redundancy pay entitlement under the relevant governing instruments. The governing instruments in question were the applicant's Employment Agreement and the FSG Australia Certified Agreement.

The Tribunal reasoned that under common law, each engagement of a casual employee typically constitutes a separate engagement, and neither the Employment Agreement nor the FSG Australia Certified Agreement expressly negated this principle. The Tribunal noted that the applicant's casual employment contract stipulated an "hour by hour basis" with no guarantee of regular or systematic employment, indicating a lack of continuity. Conversely, the applicant's subsequent engagement as a part-time, fixed-term employee required them to devote all their time and skills to the organisation on a regular basis. Therefore, the Tribunal concluded that the expression "continuous service" within the FSG Australia Certified Agreement and the Employment Agreement should be interpreted to include the period of employment as a part-time and fixed-term employee, but not the preceding period of casual employment. This interpretation was supported by case law, including a decision of the Fair Work Commission in the Unilever case, which held that a reference to continuous service in an enterprise agreement did not encompass prior service.

The Tribunal determined that the applicant's continuous service, for the purposes of the governing instruments, commenced on 27 February 2012 and concluded on 30 June 2018, totalling six years, two months, and three days. This period qualified the applicant for 10 weeks' severance pay under the Employment Agreement. Consequently, the Tribunal affirmed the decision that the applicant was entitled to 11 weeks of redundancy pay, as the initial calculation by the respondent had included an additional week not explicitly accounted for in the governing instruments.