Redundancy query

[sebandem2012]

Hi,

Myself and a few other colleagues are about to be made redundant and are having a few issues around shift loading. The company (let's call it Co.X) that we work for outsourced to Co.Y and then 6 years later Co.X in-sourced us back.

Before we were outsourced to Co.Y back in 2006 we contacted Co.X's HR to make sure we had our redundancy policy and we were told if we were to be made redundant we would receive shift loading as part of our redundancy package. Just to give you a background on our working conditions, we receive shift loading for all purposes whether we are sick, on annual leave or on long service leave, it's a permanent shift loading basically.

As part of being transitioned to Co.Y we were also told that we would be no worse off and that Co.Y would honour Co.X's redundancy policy

On being in-sourced back to Co.X 18 months on they are making us redundant. Problem is they are refusing to honour our original redundancy policy we had with them back in 2006, saying their policy has changed and does not include shift loading. They won't even pay shift loading on our leave component of our redundancy, even though if I was to take the leave before being made redundant shift loading would be paid.

Myself and my other colleagues have all refrained from taking leave over the past 6 months due to us believing that they would have to pay our shift loading, so we're all pretty angry. Due to being transitioned as part of our jobs moving to Co.Y then back into Co.X we were always told we would be no worse off than before but with Co.X refusing to pay us shift loading on our redundancy we are quite significantly worse off.

Do we have a case against Co.X?

Looking forward to your replies!

[Greg Schmidt]

The minimum entitlements for redundancy are set out in the National Employment Standards (see sections 119-122 of the Fair Work Act). The minimum rate of pay for redundancy pay under the Act is the employee's base rate of pay for a specified number of weeks. The NES therefore does not require your employer to include shift loadings in the calculation of redundancy pay.

Conversely, the applicable rate of pay for a Payment In Lieu of Notice is the employee's full rate of pay. Therefore, whether you work through your notice period or are given a PILN, you should receive the shift loadings for the relevant period.

Going back to the redundancy payments, your best hope is that there is an applicable Modern Award or Enterprise Agreement that contains some specific redundancy provisions that require the shift loading to be included. Without a relevant Award/Agreement to give some backing to your claim, you would basically be asking a court to enforce an employer's old policy - which is not likely to succeed.

Greg