United Voice v Valspar (WPC) Pty Ltd

United Voice (the applicant) sought to enforce an enterprise agreement against Valspar (WPC) Pty Ltd (the respondent) in the Fair Work Commission. The dispute concerned whether the respondent had breached clause 10.1 of the Enterprise Agreement by failing to pay its employees the correct redundancy pay. The applicant alleged that the respondent had failed to pay redundancy pay in accordance with the terms of the Enterprise Agreement, which stipulated a payment of 4 weeks' pay for each year of continuous service. The respondent contended that the redundancy pay provisions of the Enterprise Agreement were superseded by the National Employment Standards (NES) under the *Fair Work Act 2009* (Cth), and that it had complied with its obligations under the NES.

The central legal issue before the Commission was whether the redundancy pay provisions of the Enterprise Agreement were valid and enforceable, or if they were rendered invalid by the NES. Specifically, the Commission had to determine if the Enterprise Agreement purported to provide for redundancy pay that was less than the minimum entitlement prescribed by the NES, and if so, whether the NES provisions displaced the Enterprise Agreement provisions.

The Commission found that the redundancy pay provisions in the Enterprise Agreement were indeed less favourable than those stipulated in the NES. Under the NES, redundancy pay is calculated based on years of continuous service, with a minimum entitlement of four weeks' pay for employees with two to five years of service, and eight weeks' pay for employees with five or more years of service. The Enterprise Agreement, however, provided for a maximum of four weeks' pay for redundancy, regardless of the length of service. The Commission applied the principle that where an enterprise agreement provides for terms and conditions that are less favourable than the NES, the NES provisions prevail to the extent of the inconsistency. Therefore, the redundancy pay obligations under the Enterprise Agreement were superseded by the NES.

The Commission concluded that the respondent had not breached the Enterprise Agreement as alleged, because its redundancy pay obligations were governed by the NES. The application to enforce the Enterprise Agreement was dismissed.