s.739 - Dispute resolution

Dispute under enterprise agreement - calculation of continuous service for employees with full-time and part-time service - interaction with NES - dispute resolved in favour of the university

• [1] Kate Roloff was employed by Western Sydney University (WSU) from 31 May 2005 until her employment ended by reason of redundancy on 17 October 2025. Ms Roloff was employed full-time as an Employment Experience Coordinator when her employment ended. Lisa Stevens commenced employment with WSU on 18 November 2010, and her employment will end by reason of redundancy on 19 December 2025. Ms Stevens is currently employed full-time as a People Services Advisor. Ms Roloff and Ms Stevens have had periods of full-time and part-time employment with WSU. Disputes have arisen between Ms Roloff and Ms Stevens and WSU about the calculation of their redundancy payments under the Western Sydney University Professional Staff Agreement 2022 (Agreement). The dispute relates to an unusual provision in the Agreement which is directed at how continuous service is determined for employees that have a mixture of full-time and part-time service. This decision is concerned with the resolution of those disputes.

• [2] WSU raised jurisdictional objections to both applications including on the ground that Ms Roloff and Ms Stevens had not complied with the required steps in the dispute resolution procedure in clause 11 of the Agreement. Ms Roloff's employment with WSU also ended before she lodged a dispute with the Commission on 20 October 2025.

• [3] Given Ms Roloff and Ms Stevens' disputes concern the same substantive issue, I decided to hear the disputes together via video on 12 December 2025. This was not opposed by the parties. I granted permission for WSU to be represented at the hearing because I was satisfied granting permission would enable the matter to be dealt with more efficiently. Ms Roloff and Ms Stevens opposed permission being granted to WSU. The parties have raised a range of jurisdictional and substantive issues that have varying degrees of complexity. I considered the range of issues, and the degree of complexity, justified granting permission to WSU.

• [4] At the beginning of the hearing on 12 December 2025, I expressed a provisional view which I then confirmed after hearing from WSU, that Ms Stevens had complied with the dispute resolution procedure in clause 11 of the Agreement. Clause 11.11 of the Agreement allows a party to refer a dispute to the Commission without following the normal dispute resolution processes "if there is an identified urgent need to resolve the matter." I determined there was an urgent need for Ms Stevens to seek assistance from the Commission when she filed her dispute on 15 October 2025. WSU had communicated in writing to Ms Stevens that it would not be changing its position on Ms Stevens' redundancy entitlements. Ms Stevens' employment is due to end on 19 December 2025. Ms Stevens obviously and understandably wants the dispute resolved before her employment ends. I was satisfied these circumstances provided an "urgent need" for Ms Stevens' dispute to be resolved and this allowed Ms Stevens to take her dispute straight to the Commission under clause 11.11.

• [5] Given I had determined I had jurisdiction to resolve Ms Stevens' dispute, I did not consider it was necessary to separately determine whether Ms Roloff complied with the dispute resolution procedure in the Agreement. The resolution of Ms Stevens' dispute will also resolve Ms Roloff's dispute, given the disputes are directed at the same provisions in the Agreement. I did not consider there was utility in determining the potentially complicated issue of whether Ms Roloff complied with the dispute resolution procedure in those circumstances. The parties were content with this approach.

• [6] In Skene v Workpac Pty Ltd[1], the Full Court of the Federal Court of Australia summarised the principles for interpreting an enterprise agreement as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)."

• [7] The contentious provision in the Agreement is clause 55.20 which states:

55.20 For the purposes of calculating an Employee's redundancy or retrenchment entitlements under this clause, where an Employee has a combination of full-time and part-time service, the Employee's part-time service will be converted to the full-time equivalent and payment made at the Employee's full-time Base Rate of Pay."

• [8] The redundancy payment provisions are then set out in clause 55.22 which states:

"A displaced Employee who elects redundancy will be entitled to:

(a) a notice payment equal to 20 weeks at the Employee's Base Rate of Pay; and

(b) payment equal to 3 weeks at the Employee's Base Rate of Pay for each completed year of Continuous Service, up to a maximum of 60 weeks; or

(c) where the Employee is displaced as a result of outsourcing, payment equal to 4 weeks at the Employee's Base Rate of Pay for each completed year of Continuous Service, up to a maximum of 60 weeks."

• [9] Ms Stevens argued she is entitled to a payment of 45 weeks of severance pay pursuant to clause 55.22(b) because she has over 15 years of continuous service: 15 years x 3 weeks per year = 45 weeks.

• [10] WSU's position is that Ms Stevens' periods working part-time must be converted to the full-time equivalent when determining Ms Stevens' continuous service in accordance with clause 55.20. For example, if Ms Stevens worked 5 years part-time at 0.8FTE and the remaining 10 years full-time, the calculation of continuous service would be (these are hypothetical figures only):

• 10 years, plus
• 5 years x 0.8 FTE = 4 years
• TOTAL = 14 years of continuous service

• [11] Applying the methodology above, WSU has calculated that Ms Stevens' continuous service is 13.92 years and that Ms Stevens is entitled to: 13 years x 3 weeks = 39 weeks of severance pay.

• [12] I understand why Ms Stevens and Ms Roloff have taken issue with WSU's approach to their redundancy calculations. WSU's approach gives the impression that Ms Stevens and Ms Roloff's years spent working part-time are not fully recognised as years of service with WSU. This can be perceived as devaluing years spent working part-time, when people often work part-time to manage family responsibilities, and part-time employment is more commonly performed by females.[2]

• [13] However, I consider the approach adopted by WSU is clearly consistent with the words used in the Agreement. Clause 55.20 of the Agreement states:

"... where an Employee has a combination of full-time and part-time service, the Employee's part-time service will be converted to the full-time equivalent and payment made at the Employee's full-time Base Rate of Pay."

The words "part-time service will be converted to the full-time equivalent" can only be sensibly understood as requiring periods of part-time service to be reduced according to the full-time equivalent of the hours worked.

• [14] Ms Stevens and Ms Roloff argue that the effect of clause 55.20 is that periods of part-time employment are treated as periods of full-time employment where an employee has a mixture of full-time and part-time service. It would have been quite easy to reflect that approach in the words used in clause 55.20. However, that is not what the clause says. The clause requires periods of part-time service to be "converted to the full-time equivalent." I consider the interpretation sought by Ms Stevens and Ms Roloff would require clause 55.20 to be redrafted and that approach would be contrary to authority[3] and s.739(5) of the Fair Work Act 2009 (Cth) (FW Act).

• [15] Although I consider clause 55.20 has a clear meaning, the operation of the clause is not without issues. I raised a hypothetical example during the hearing of a person who:

• Worked part-time for one day per week or 0.2 FTE for five years.
• Then worked full-time for one year and was made redundant as a full-time employee.

Under the NES, the employee would have six years of continuous service and would be entitled to 11 weeks of redundancy pay at the full-time base rate of pay under s.119(2) of the FW Act. Under the Agreement, the employee's continuous service calculated in accordance with clause 55.20 would be:

5 x 0.2 FTA = 1 year + 1 year full-time = 2 years of continuous service.

The employee would seemingly be entitled to six weeks of severance pay under clause 55.22(b) of the Agreement, in circumstances where the NES entitlement is 11 weeks. It appears in this scenario the employee would be entitled to the higher NES entitlement of 11 weeks of redundancy pay in accordance with the NES precedence clause in 4.1 of the Agreement. There may be merit in the parties addressing this issue during the current bargaining process for a new Agreement.

• [16] Ms Roloff referred to WSU's interpretation being discriminatory towards females who are more likely to have periods of part-time employment. However, it appears the practical effect of clause 55.20 will not be uniform. An employee who has worked full-time for most of their employment but is working part-time when they are made redundant would benefit from being paid redundancy entitlements at the full-time rate of pay under the Agreement rather than the part-time rate which would apply under the NES. In any event, the Federal Court has determined that the prohibition on discriminatory terms in a modern award which applies via s.153 of the FW Act is confined to direct discrimination and does not include indirect discrimination.[4] It appears inevitable that the same outcome would follow in terms of discriminatory terms in enterprise agreements under s.195 of the FW Act.

• [17] Ms Stevens and Ms Roloff have identified that the definitions of "continuous service" in clause 2.1(h) of the Agreement and s.22 of the FW Act do not distinguish between periods of part-time and full-time service.

• [18] In relation to the general definition of continuous service in clause 2.1(h) of the Agreement, I consider the more specific provision in clause 55.20 directed at how continuous service is counted when determining redundancy entitlements must be applied rather than the general definition in clause 2.1(h). That is consistent with the rule of interpretation that the more specific provision prevails over a general provision.[5]

• [19] In relation to the definition of continuous service in the FW Act, this does not generally apply under the Agreement because the Agreement contains its own definitions. In any event, the Federal Court has determined that the operation of provisions in the NES, such as the definition of continuous service which applies in relation to NES entitlements, is limited to minimum NES entitlements, and the provisions do not apply in relation to superior supplementary benefits prescribed in an enterprise agreement.[6] In this case, Ms Stevens' and Ms Roloff's entitlements under the Agreement are far in excess of the 12 weeks of redundancy pay they would be entitled to under the NES. It does not appear that the definition of continuous service in s.22 of the FW Act can be applied in relation to the superior redundancy entitlements contained in the Agreement.

• [20] For the reasons identified above, I resolve the dispute between Ms Stevens and WSU by determining that clause 55.20 of the Agreement requires part-time service to be reduced to the full-time equivalent in relation to employees that have a mixture of full-time and part-time service. I consider WSU has applied the correct interpretation of clause 55.20.

• [21] The parties provided differing information regarding the length of time that Ms Stevens has worked part-time for WSU during her career. I do not have sufficient information to calculate Ms Stevens' continuous service in accordance with clause 55.20 of the Agreement. My decision is not an endorsement of WSU's calculations. My decision only confirms that WSU has applied the correct methodology to calculating Ms Stevens' redundancy entitlements.

• [22] It is regrettable that Ms Stevens and Ms Roloff have found the end of their lengthy careers with WSU to be so upsetting. I suspect that will leave Ms Stevens and Ms Roloff with largely negative sentiments towards WSU. Hopefully WSU will reflect upon why that has occurred and how a similar process could be managed better in the future.

Mr D Burchell and Ms K Roloff representing Ms Roloff.

Mr A Denton of counsel instructed by Minter Ellison for WSU_._

[1] [2018] FCAFC 131; (2018) 280 IR 191 at [197].

[2] Gender indicators | Australian Bureau of Statistics.

[3] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 379.

[4] Shop, Distributive and Allied Employees Association v National Retail Association and Another (No 2) [2012] FCA 480; (2012) 219 IR 382 at 395.

[5] The generalia specialibus non derogant presumption: White v Mason [1958] VicRp 16; [1958] VR 79, Herring CJ at 79 - 82.

[6] CFMEU v Glendell Mining Pty Ltd (2017) 249 FCR 495; [2017] FCAFC 35 at [116] to [119].

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