1
Fair Work Act 2009
s 739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
Fairfax Regional Media - Newcastle Newspapers (Herald)
(C2013/1581)
Clerical industry
DEPUTY PRESIDENT SAMS SYDNEY, 18 AUGUST 2014
Alleged dispute about any matters arising under the enterprise agreement and the
NES;[s186(6)].
[1] This opinion arises from a dispute notification lodged by the Australian Municipal,
Administrative, Clerical and Services Union (‘ASU’) pursuant to s 739 of the Fair Work Act
2009 (the ‘Act’). The Fair Work Commission (the ‘Commission’) convened a conference of
the parties on 15 August 2014. During the course of the conference, I proposed issuing an
opinion on the subject matter of the dispute (s 739(4).
[2] Shortly stated, the Union brings this application on behalf of five of its members, who
are former employees of the Fairfax Regional Media - Newcastle Newspapers (Herald). These
employees, along with a number of others, were made redundant in October 2013. All five of
the former employees have considerable periods of service with the Newcastle Herald.
However, these periods of service have included a significant proportion of time where they
were engaged and paid as casual employees. The Union maintains that in calculating the
amount of redundancy pay to be paid to the employees, both the periods of earlier casual
employment and later periods of permanent employment should be taken into account.
[3] The following factual circumstances are relevant;
[2014] FWC 5631
OPINION
E AUSTRALIA FairWork Commission
[2014] FWC 5631
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1. The affected employees were permanent employees at the time of their
redundancy and had been so engaged for many years (up to 18 years in one
case). The employees have between 2-15 years of continuous casual
employment.
2. The employees were covered by the Newcastle Newspapers Clerical
Enterprise Agreement 2012 [AE895221] (the ‘Agreement’).
3. The Agreement provides for redundancy pay calculated on the basis of four
weeks base rate of pay for each year of continuous service (cl 42.4.1).
4. The opening words of cl 42 state:
‘This clause provides redundancy provisions for permanent employees in
circumstances... [emphasis added]’
Unsurprisingly, the employer has resisted the Union’s claim and continued to do so at the
conference.
[4] While I can well understand why the employees feel aggrieved that their long periods
of unbroken casual service, are not included for the purposes of calculating redundancy, the
fact is that throughout this time they had received a 20% casual loading on their base rates of
pay. Casual loadings are intended to compensate a casual employee for the benefits and
entitlements otherwise available to permanent part time and full time employees; such as
annual leave, sick leave and redundancy payments. This has been a long-held and well known
principle under workplace law. The fact that long service leave was payable to the employees
according to State legislative provisions and that certain shift allowances, penalty rates and
overtime may be paid, does not alter the strict legal position.
[5] In any event, in my opinion, the Union faces an insurmountable hurdle to its claim
succeeding by the express and unequivocal wording of cl 42 of the Agreement. The clause
governing redundancy only applies to permanent employees. There is simply no other
construction which can be placed on the wording of the clause.
[2014] FWC 5631
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[6] In my opinion, the Union’s claim cannot succeed.
DEPUTY PRESIDENT
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Price code A, AE895221 PR554390
ORK WORK COMMISSION FAIR THE SEAL OF
