Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113

Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113

The exception to redundancy pay in s 119(1)(a) of the Fair Work Act applies only where, from the inception or nature of the employment, objectively, termination at the relevant time was both ordinary and customary for jobs of that kind. Where employees have a reasonable expectation of ongoing employment based on the contract, history, and communications, termination upon loss of contract does not fall within the ordinary and customary turnover of labour, and redundancy pay is required.

Jurisdiction
Australia
Judgment Date
01 July 2020
Procedural Posture
Appeal / Federal Court Full Court Decision
Outcome
Appeals dismissed
Legal Topics
['redundancy Pay' 'national Employment Standards' 'fair Work Act S 119(1)(a)' 'ordinary and Customary Turnover of Labour' 'statutory Interpretation']
['employment Law' 'industrial Relations'] ['redundancy Pay' 'national Employment Standards' 'fair Work Act S 119(1)(a)' 'ordinary and Customary Turnover of Labour' 'statutory Interpretation']

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Procedural Posture

Appeal / Federal Court Full Court Decision

Legal Issues

  1. 1 ["What is the meaning of 'ordinary and customary turnover of labour' in s 119(1)(a) of the Fair Work Act 2009 (Cth)?" 'Does the exception in s 119(1)(a) apply where employment is terminated after the employer loses a contract and no longer requires the job to be done?' 'Are the expectations of employees relevant to application of the exception?']

Ratio Decidendi

The exception to redundancy pay in s 119(1)(a) of the Fair Work Act applies only where, from the inception or nature of the employment, objectively, termination at the relevant time was both ordinary and customary for jobs of that kind. Where employees have a reasonable expectation of ongoing employment based on the contract, history, and communications, termination upon loss of contract does not fall within the ordinary and customary turnover of labour, and redundancy pay is required.

Court Disposition

Appeals dismissed

Orders

  • ['The appeal in QUD 285 of 2018 be dismissed.' 'The appeal in WAD 76 of 2019 be dismissed.']