Mi and Secretary, Department of Employment

The applicant, Ms Mi, sought review of a decision by the Secretary of the Department of Employment that she was not entitled to a redundancy payment under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act). Ms Mi commenced employment with Wilcom International Pty Ltd in 2001. In 2012, Auto Tuft acquired certain business lines and assets from Wilcom International, and Ms Mi accepted an offer of employment with Auto Tuft, with her accrued leave and period of service recognised. Auto Tuft subsequently went into administration in September 2013 and liquidation in November 2013, at which point Ms Mi's employment was terminated. A delegate of the respondent determined that Ms Mi was entitled to certain leave and notice payments but not redundancy pay. An internal review affirmed this decision, leading to Ms Mi's application to the Tribunal.

The primary legal issue before the Tribunal was whether Ms Mi had an entitlement to redundancy pay under the FEG Act, specifically considering the definition of a "governing instrument" and the circumstances of her employment with Auto Tuft. It was agreed by the parties that Ms Mi's contract of employment with Auto Tuft did not contain any provision for redundancy pay, nor was her employment covered by an award, enterprise agreement, written determination, or order. Consequently, the relevant governing instrument for determining her redundancy entitlement was the National Employment Standards (NES) within the Fair Work Act 2009 (Cth).

The Tribunal reasoned that under the NES, redundancy pay is only an entitlement if it is provided for in a modern award, enterprise agreement, or other instrument that governs the employment. As these were absent in Ms Mi's case, and her contract of employment with Auto Tuft did not provide for redundancy pay, she did not have a redundancy pay entitlement under the applicable governing instruments. The Tribunal acknowledged that this was an unfortunate outcome but concluded that the law in relation to the FEG Act and governing instruments was clear, leading to the determination that Ms Mi was not entitled to redundancy pay. The decision under review was therefore affirmed.