ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.119, 604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision arising under Clause 41 of Nilsen (SA) P/L – Contracting Division Collective Agreement 2013 (Agreement) – at first instance Commission found Clause 41.2(c) provided for pro rata redundancy payments for employees with less than 12 months’ service – Commission found nothing in agreement limited pro rata payment mechanism to employees who had completed at least one years’ service – appellant challenged decision on basis that Clause 41.2(c) did not provide for pro rata redundancy payments for employees who had completed less than one year’s service – Full Bench considered whether appellant’s argument on appeal was correct – considered sub clauses in clause 41 which had three elements – considered clauses against redundancy entitlements as per National Employment Standards under s.119 FW Act and exclusion of obligation to pay redundancy pay under s.121 of the FW Act – Full Bench found that s.121(1)(a) of the Act excluded employee from redundancy pay when they have not had 12 months’ service – Full Bench found that exemption also referred to in last item of Clause 41.3 of agreement – Full Bench found appellant’s arguments not properly advanced before Deputy President who decided matter on written submissions – Full Bench found that appellant never drew Senior Deputy President’s attention to s.121(a)(a) of the FW Act – usual principle is that party should not be permitted to argue case on appeal which was not raised at first instance [Coulton v Holcombe] – where new argument raises pure question of law which could not possibly be affected by any evidence, appellant court may allow the argument as, ‘it is expedient in the interests of justice that question should be argued and decided’ [O’Brien v Komesaroff] – Full Bench found that would be unjust to refuse permission to appeal – Full Bench found that redundant employee with less than 12 months service not entitled to redundancy payments under Clause 41.2(c) – permission to appeal granted – appeal upheld. Appeal by Nilsen (SA) P/L against decision of O’Callaghan of 5 April 2016 [2016] FWC 2095 Re: “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” (CEPU) v Nilsen (SA) P/L
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