Fair Work Commission Decides "maximum term" employees' case
- Brian AJ Newman LLB
- 11 minutes ago
- 2 min read
The Fair Work Commission (FWC) is set to arbitrate an important employment dispute involving former employees of the Florey Institute of Neuroscience and Mental Health, who claim entitlement to redundancy payments after the conclusion of their maximum term contracts.
In the recent decision, Commissioner Oanh Tran addressed preliminary objections raised by the Florey Institute, which argued that only the National Tertiary Education Union (NTEU), and not the individual former employees, had standing to file an application under section 739 of the Fair Work Act 2009. The dispute originated from employment contracts described by the institute as "maximum term," concluding in December 2024.
Commissioner Tran determined that the dispute resolution provisions in clause 43.5 of the Florey Institute’s 2024 enterprise agreement enable the Commission to arbitrate matters brought forward by individuals, provided the NTEU had previously raised the dispute on their behalf. Crucially, the Commissioner emphasized that jurisdiction under section 739 remains active until the dispute is resolved, regardless of whether employment contracts have ended or the enterprise agreement itself has ceased operating due to replacement or termination.
The former employees had lengthy service histories with the Florey Institute—one spanning nearly 15 years and another approximately seven years. Both argued they were entitled to redundancy payments, while the Florey Institute countered that these were not genuine redundancies. Instead, the institute claimed their employment simply expired as initially agreed due to funding constraints.
The institute attempted to narrowly interpret the dispute provisions, asserting that only the initiating party, in this case the NTEU, could bring the dispute to arbitration. However, Commissioner Tran rejected this interpretation, clarifying that the agreement’s language inherently includes both the NTEU and the individual employees represented.
She underscored the principle that dispute resolution clauses must not diminish an individual's agency or restrict their ability to pursue personal workplace disputes, particularly when such disputes remain unresolved following union representation.
A case management conference has been scheduled to arrange the subsequent arbitration steps, where the FWC will definitively address whether redundancy payments are warranted.
This case highlights essential considerations for employment contracts described as "maximum term" and underscores the importance of clearly defined dispute resolution mechanisms within enterprise agreements.
For comprehensive employment advocacy or assistance navigating similar issues, contact 1800ADVOCATES.
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