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Redundancy Payout - Continuous Service with Associated Entities

Discussion in 'Employment Law Forum' started by Maroon0987, 22 July 2014.

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  1. Maroon0987

    Maroon0987 Member

    22 July 2014
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    I would like to get clarification on what I am entitled to for a redundancy payout based on continuous service with associated entities. I have studied the Fair Work Act, but the wording around this issue is confusing for me.

    01 September 2009 - Hired by Company A (Foreign Office). I was hired as a local in that country, not an expat from Australia. I am Australian citizen, but able to work due to residency via marriage
    15 June 2012 - Finished work with Company A (Foreign Office)
    25 June 2012 - Started work with Company A (Australian Office)
    16 August 2014 - End of notice period due to redundancy

    Company A (Foreign Office) is wholly owned subsidiary or branch office of Company A (Australian Office). According to the FWA this makes them associated entities, and because the break in employment was < 3 months this means it should count as continuous service.

    Have been told I will receive 6 weeks pay for redundancy (excluding all other payments such as A/L, notice period etc). This is correct based on service with Company A solely in Australia, but I am trying to find out if I am eligible for 8 weeks based on continuous service over the whole 4 year period. I am not asking about LSL, A/L, notice period, or any other benefit, just redundancy for length of service.

    HR have told me I am not because:
    1) You were not employed by Company A in Australia prior to being employed by the foreign entity – i.e. you did not transfer from Company A to the foreign entity for an assignment for a specified period. You were a direct hire into the foreign entity with no prior Company A employment.
    2) Your employment in foreign entity was terminated and you were paid out all required entitlements. You were then hired directly by Company A (Australian Office).
    3) For purpose of redundancy and in line with legislation, only service with an Australian entity counts.

    With regards point 2, I was paid out all entitlements such as annual leave etc., but because I resigned there was no redundancy involved.

    Thanks for any assistance.
  2. Owens Lawyers

    Owens Lawyers Well-Known Member

    13 June 2014
    Likes Received:
    Hi @Maroon0987

    This seems to be a complicated issue, and you may want to consider contacting an employment lawyer for some legal advice.
    It's arguable that if you resigned from the previous (foreign) job then service probably wouldn't be recognised and your entitlements wouldn't carry over.

    Even if you hadn't resigned I'm not sure if Company A (foreign) would have been subject to the Fair Work Act, so therefore you would only be a national system employee (and protected by the Fair Work Act) once you started working for Company A (Australian).

    However, the Fair Work Act does not expressly exclude someone in your situation, which is why you may want to consider getting legal advice.

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