United Voice v Berkeley Challenge Pty Limited [2018] FCA 224

United Voice v Berkeley Challenge Pty Limited [2018] FCA 224

The Notice Letter did not comply with s 117(1) because, objectively, it notified employees of Spotless' loss of the Lend Lease contract and raised termination only as a future contingency, without unambiguously stating that Berkeley was terminating employment on a certain future day. Berkeley therefore contravened ss 44(1) and 117(1). The s 119(1)(a) exception was not established because the relevant employer was Berkeley, not the Spotless Group generally, and Berkeley adduced little or no evidence that making the affected employees' jobs redundant on loss of the contract was, for Berkeley, common or usual and a matter of long-continued practice; the evidence of a 20-year contractual...

Jurisdiction
Australia
Judgment Date
02 March 2018
Procedural Posture
Application for Compensation and Pecuniary Penalties Under the Fair Work Act 2009 (cth) for Alleged Contraventions of the National Employment Standards / Reasons for Judgment After Hearing
Outcome
Berkeley was found to have contravened ss 44 twice, 117 and 119 of the Fair Work Act 2009 (Cth). The affected employees were held variously entitled to compensation under s 545(2), with pre-judgment interest, and penalties were left for later hearing.
Legal Topics
['notice of Termination' 'redundancy Pay' 'national Employment Standards' 'ordinary and Customary Turnover of Labour' 'statutory Construction' 'compensation' 'pecuniary Penalties']
['industrial Law' 'employment and Industrial Relations'] ['notice of Termination' 'redundancy Pay' 'national Employment Standards' 'ordinary and Customary Turnover of Labour' 'statutory Construction' 'compensation' 'pecuniary Penalties']

Case Brief

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Procedural Posture

Application for Compensation and Pecuniary Penalties Under the Fair Work Act 2009 (cth) for Alleged Contraventions of the National Employment Standards / Reasons for Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Notice Letter constituted a valid notice of termination under s 117(1) of the Fair Work Act 2009 (Cth).' 'Whether the exception in s 119(1)(a) of the Fair Work Act 2009 (Cth), "except where this is due to the ordinary and customary turnover of labour", applied to Berkeley\'s decision to terminate the affected employees\' employment.']

Ratio Decidendi

The Notice Letter did not comply with s 117(1) because, objectively, it notified employees of Spotless' loss of the Lend Lease contract and raised termination only as a future contingency, without unambiguously stating that Berkeley was terminating employment on a certain future day. Berkeley therefore contravened ss 44(1) and 117(1). The s 119(1)(a) exception was not established because the relevant employer was Berkeley, not the Spotless Group generally, and Berkeley adduced little or no evidence that making the affected employees' jobs redundant on loss of the contract was, for Berkeley, common or usual and a matter of long-continued practice; the evidence of a 20-year contractual...

Court Disposition

Berkeley was found to have contravened ss 44 twice, 117 and 119 of the Fair Work Act 2009 (Cth). The affected employees were held variously entitled to compensation under s 545(2), with pre-judgment interest, and penalties were left for later hearing.

Orders

  • ['Within 21 days the parties file orders in an agreed form to give effect to these reasons.']