Earlier decisions

Berkeley Challenge v United [2020] FCAFC 113

BC argued they were not liable for redundancy payments because dismissal of their employees was within ‘the ordinary and customary turnover of labour’9.  Rejecting this, the court held (at [188]) that the legislative motivation in re-enacting the words in question was that they play the ‘same role as they did under the pre-existing law’. 

Both legislative history and decided cases provided a ‘historical context in which to read the words’10. This case shows how caselaw experience, as part of the wider context, may be a valuable guide to meaning.  iTip – legislation is not approached like a goldfish seeing everything as new each and every time.

This principle is from Episode 65 of interpretation NOW!


9 s 119(1)(a) of the Fair Work Act 2009 (Cth).

10 cf Gageler (2011) 37(2) Monash ULR 1 (at 1), Mason 90 ALJ 324 (at 328).