ATR Fabrication Pty Ltd
[2024] FWC 3049
•4 NOVEMBER 2024
| [2024] FWC 3049 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
ATR Fabrication Pty Ltd
(C2024/4531)
| COMMISSIONER THORNTON | ADELAIDE, 4 NOVEMBER 2024 |
Application for a variation of redundancy pay
An application was filed by ATR Fabrication Pty Ltd (the employer or the Applicant) pursuant to s.120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay to nil for its six employees (the affected employees) on the basis that it obtained other acceptable employment for the employees.
This decision considers whether the Applicant in fact obtained other employment for the six employees that it made redundant when it closed its business on 28 June 2024 and if it did, whether the Commission should exercise its discretion to reduce the redundancy payments made to the affected employees in accordance with the application made.
After the application was filed, a directions hearing was held with attendance from the two Directors of the Applicant, Mr Grossmann and Mr Walsh, the Applicant’s accountant Mr Warner and the affected employees, who are Respondents to this application.
The Applicant was ordered to file further materials in support of its initial application and the affected employees were provided with information about their individual redundancy entitlements, should they have any, and asked to provide comment on the application if they wished to do so.
I advised that I would determine the matters on the papers unless further evidence was required. The parties agreed to proceed on that basis.
Statutory declarations were filed by Mr Michael Walsh, Director of the Applicant and Mr Simon Warner, accountant for the Applicant who assisted the Applicant with closing its business. Email correspondence was received by the Commission from Mr Brenton Grossmann, Director and employee of the Applicant, and each of the remaining affected employees.
The Applicant set out in its application that it was seeking a reduction in the redundancy entitlements to nil because the employees of ATR Fabrication “are not being disadvantaged as all employees will be employed by the new company.”[1]
I find that the Applicant obtained other acceptable employment for the affected employees. However, I have determined that it is not appropriate to reduce the employees’ redundancy entitlements to nil. The affected employees lost the benefit of accrued long service leave and continuity of service at the conclusion of their employment with the Applicant, and had a short break in employment with a resulting loss of wages. I therefore consider it appropriate to reduce the entitlements of each affected employee by an amount having regard to the circumstances of each employee. My reasons are set out below.
Background
The Applicant was a company that operated a vehicle fabrication business as part of the larger ATR Group. The ATR Group specialises in vehicle refrigeration and air-conditioning. Mr Walsh and Mr Grossmann were Directors of the company. Mr Walsh and Mr Grossmann had a 45% shareholding each in ATR Fabrication Pty Ltd, and a Mr McCulloch had a 10% shareholding but was not a director. Mr Walsh is the sole Director of the ATR Group. Mr Grossmann asserted in correspondence to the Commission that in August 2023 he advised Mr Walsh that he could no longer work with him and the directors agreed to close down the business. In December 2023, they agreed to close the business by the end of June 2024.
On 31 May 2024, the Applicant says they held a meeting to advise the affected employees that ATR Fabrication was being closed down, would cease trading on 28 June 2024 and that all positions would be made redundant. The Applicant provided a written record of what was said to the employees at the meeting, titled ‘ATR Fabrication Consultancy Meeting of Redundancy with Employees 31/5/24’ that was signed by five of the six affected employees who attended the meeting. One employee, Mr Tyler Peach, was not present at the meeting and there was a note on the document referencing his attendance on that day at ‘Trade School’. Each of the five employees ticked a box confirming their attendance at the meeting, responded ‘no’ to an offer to have an individual meeting regarding their circumstances, and signed and dated the document.
Of interest, the document advised the employees that:
(a)Due to the closure of the business, all positions and roles will be made redundant;
(b)The notice period was to commence immediately on 31 May 2024 or the date of notice for any employees absent from the meeting;
(c)Termination payments would be made in accordance with “Fair Work requirements”;
(d)On 28 June 2024 employees would be paid “any entitlements/redundancy owing to you (eg: annual leave)”; and
(e)As ATR Fabrication is a “small business of less than 15 employees, a redundancy payment (based on weeks per year of service) is not applicable in this instance”.
A number of the employees who provided email correspondence to the Commission confirmed that the meeting took place as described and they were surprised to hear at the meeting that the Applicant had the view that it did not owe any redundancy entitlements to the affected employees.
The statutory declaration of Mr Warner confirmed that sometime after the meeting the Applicant sought legal advice about matters including the “15 employee test and ownership and control consideration given Mr Michael Walsh owned 100% of the shares in ATR group and only 45% shares in ATR Fabrication Pty Ltd.”[2] The statutory declarations of both Mr Warner and Mr Walsh confirm that Mr Walsh is a director of a related entity, the ATR Group.[3] Whilst there is no evidence before the Commission regarding the number of employees engaged by the ATR Group it is likely that the matter of the number of employees in the related entities was considered by the Applicant before submitting the application.
Sometime later the Applicant filed the Form F45A. The Applicant did not assert in its application that it had no obligation to make redundancy payments on account of the exemption in s121(1)(b) for a small business employer. In filing the application, the Applicant has clearly formed the view that it has an obligation to pay redundancy entitlements to the affected employees that it now seeks to reduce in accordance with section 120 of the Act.
Mr Grossmann decided to open his own fabrication business, which he says he registered with the Australian Securities and Investment Commission (ASIC) as BJG Fabrication (BJG) on 24 May 2024. Mr Grossmann says that he advised the employees of ATR Fabrication that he was opening his own fabrication business. He also told the Commission that he secured a space for his own workshop also in late May 2024, but could not occupy the space for 60 days thereafter.
Mr Grossmann says that he verbally offered the five other employees of ATR Fabrication employment with his new business BJG and they all accepted. It is unclear when the offers were made but it is not in dispute that the five employees then commenced employment with Mr Grossmann on or about 10 July 2024.
The Form F45A filed by the Applicant seeking a variation in redundancy pay was signed by both Mr Grossmann and Mr Walsh as Directors of the Applicant. The application sought to reduce the redundancy entitlements of six employees, including Mr Grossmann, identified as a “working director”. Attached to the application was a table that set out the names of each of the affected employees, their position, the Award that applies to their employment, their contact details, date of commencement of employment, basis of their employment, years of service and relevant notice and severance periods, with a dollar amount indicated as the value of the redundancy entitlements of each employee should they have such an entitlement.
Notice of redundancy given to affected employees
All employees were formally notified of their redundancies at the meeting of 31 May 2024. Whilst some employees may have been advised by Mr Grossmann informally before that date that the company was closing and he was starting his own business, the document provided by the Applicant made clear that employees were being given actual notice of their redundancy on 31 May 2024. There was exactly 4 weeks of notice given to the employees (other than Mr Grossmann), in which they continued working in the business.
Section 117(3)(b) of the Act provides that the relevant period of notice set out in section 117(3)(a) of the Act is to be increased by 1 week if the “employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day that notice is given.”
The affected employees, the Respondents to the application
The employees made redundant by the Applicant were:
(a)Mr Brenton Grossmann – Working Director;
(b)Ms Kerrie Kemp – Administrative Assistant;
(c)Mr Tyler Peach – Second year Apprentice;
(d)Mr Jason Vanderhorst – Fabricator;
(e)Mr Brenton Westley – Fabricator; and
(f)Mr Matthew Whinfield – Trades Assistant.
Each employee had a contract of employment, a copy of which was provided to the Commission by the Applicant. All contracts contained the same term with respect to redundancy entitlements that provided: “If your position is made redundant, you shall not be entitled to any payment except as required under the Fair Work Act.”[4]
Mr Grossmann
Mr Grossmann had 3 years of service with the Applicant, with his contract of employment commencing on 22 May 2022. There is no dispute that Mr Grossmann was a director of ATR Fabrication but also an employee. His contract of employment, submitted by the Applicant confirms his status as an employee.
In his correspondence to the Commission, Mr Grossmann indicated that he initiated the discussion regarding closing the business and consequently had significant notice that his employment would also come to an end, agreeing with Mr Walsh in December 2023 that the business would close. Mr Grossmann decided to open his own fabrication business before the notice period formally commenced and ultimately made an offer of employment to the other five employees.
As an employee, Mr Grossmann had an entitlement to redundancy of 6 weeks’ pay. Section 119 of the Act makes clear that an employee with at least 2 years but less than 3 years of service has a redundancy entitlement (as distinct from an entitlement to notice) in the amount of 6 weeks’ pay at the employee’s base rate of pay for ordinary hours of work. Mr Grossmann’s 3 year anniversary occurred on 22 May 2024.
Ms Kemp
Ms Kemp worked for the Applicant for 1.9 years, commencing in her role as Administration Assistant on 19 October 2022. Ms Kemp worked 30 hours a week. Ms Kemp accepted a role with BJG commencing on 10 July 2024 and received her first pay a week later on 17 July 2024.
Mr Walsh said in his statutory declaration that Ms Kemp was offered a role with ATR Group in June 2024, but declined the offer. However, the Applicant has not asserted that Ms Kemp was offered acceptable employment with them and, therefore, that she has no entitlement to redundancy on account of refusing that offer. Ms Kemp confirmed the offer made to her in correspondence to the Commission but did not set out whether the job was acceptable employment.
Ms Kemp has an entitlement to a redundancy payment pursuant to section 119 of the Act in the amount of 4 weeks’ pay at her base rate of pay for her ordinary part-time hours of work.
Mr Westley
Mr Westley commenced as a Fabricator with the Applicant on 7 June 2021. He advised the Commission that he was aware from December 2023 after being told by Mr Grossmann that the Applicant would be closing in June 2024. However, Mr Westley was only formally notified of his redundancy on 31 May 2024. He was not offered a role at ATR Group. I note that the information provided by the Applicant attached to the application says that Mr Westley is 73 years old[5] and had more than 2 years of service with the Applicant at the time of redundancy, which is relevant to the notice period he was given.
Mr Westley subsequently accepted a role with BJG. In correspondence provided to the Commission, Mr Westley advised he started with BJG on 24 July 2024 and was first paid on 31 July 2024. However, Mr Grossmann has advised the Commission that all employees were employed from Wednesday 10 July 2024, which I understand was the first day he could operate his business after getting access to the workshop he had leased. Mr Westley did not provide information about why he commenced later than the other employees, but I accept the statement of Mr Grossmann that the affected employees were eligible to commence work in his business from 10 July 2024.
Mr Westley has an entitlement to a redundancy payment in the amount of 6 weeks at his base rate of pay for his full-time hours of work.
Mr Vanderhorst
Mr Vanderhorst commenced work as a Fabricator with the Applicant on 12 May 2022. He had over 2 years of service with the Applicant. He was also given notice of his redundancy on 31 May 2024 and worked for ATR Fabrication until 2 July 2024.
The statutory declaration of Mr Walsh says that Mr Vanderhorst was given an offer of employment by ATR Group but rejected the offer. There is no evidence before me as to whether the offer of employment was of acceptable employment and the Applicant has not asserted that Mr Vanderhorst is not entitled to a redundancy payment at all because he was offered acceptable employment with the Applicant.
Mr Vanderhorst accepted employment with BJG and I understand commenced in the same role on the same conditions of employment from 10 July 2024.
Mr Vanderhorst is entitled to a redundancy payment in the amount of 6 weeks at his base rate of pay for his full-time hours of work.
Mr Whinfield
Mr Whinfield was engaged as a Trades Assistant with ATR Fabrication from 26 October 2022. He had been engaged by ATR Fabrication for less than 2 years at the time he was notified of his redundancy on 31 May 2024.
Mr Whinfield was not offered a role with ATR Group and commenced employment on the same terms and conditions with BJG on 10 July 2024. He is entitled to 4 weeks’ redundancy pay at his base rate for his full-time hours of work.
Mr Peach
Mr Peach commenced employment with the Applicant on 24 January 2022. Either at the time of commencement or thereafter, Mr Peach and the Applicant entered into a contract of training under the jurisdiction of the South Australian Skills Act2008 (SA). At the time of redundancy, the Applicant referred to Mr Peach as a second-year apprentice.
Attached to the statutory declaration of Mr Walsh was a document from ‘Traineeship and Apprenticeship Services’, part of the South Australian Department for Education. The document referred to a training contract between ATR Fabrication and Mr Peach that enabled Mr Peach to be apprenticed to ATR Fabrication to qualify as an Engineering Tradesperson over a 48 month period, concluding on 8 March 2026.
The document submitted by Mr Walsh also confirmed that effective from 30 June 2024 Mr Peach’s contract of training had been transferred from ATR Fabrication to BJG with the employer parties waiving an applicable transfer fee. Mr Walsh in his statutory declaration confirmed that the Applicant executed the relevant documents to transfer the contract of training in a “timely manner”[6] at the end of May 2024.
Mr Peach was not at the meeting of 31 May 2024 because he was attending training. The statutory declaration of Mr Walsh says that he understood Mr Grossmann advised Mr Peach of his redundancy on 3 June 2024. Mr Peach has not raised any complaint about the notice he received of his redundancy.
Section 123 of the Act sets out limits on the scope of the Act with respect to its application to notice of termination and redundancy pay. Section 123(4) lists employees excluded from the Redundancy Pay provisions of the Act and section 123(4)(a) specifies that “an employee who is an apprentice” is not covered by those provisions.
Consequently, Mr Peach is excluded from the redundancy provisions of the Act and has no entitlement to redundancy pay.
Legislation
Section 120 of the Act provides as follows:
120 Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:
(a)an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.
(2)On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.
(3)The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.
A Full Bench of the Federal Court of Australia in the case of FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia[7] (FBIS) considered the application of section 120 of the Act. The Court makes clear in its decision that if an application is made to reduce redundancy entitlements, the matters in section 120(1) of the Act must be established as a jurisdictional fact[8] before the Commission can then consider whether to exercise its discretion to reduce, or not to reduce, the employee’s redundancy entitlements. That is, it must be established that the affected employees had an entitlement to be paid a redundancy entitlement pursuant to section 119 of the Act, and that the employer is seeking to reduce the payment of that entitlement because they have obtained other acceptable employment or they cannot pay the amount owed.
I turn to the consideration of those matters in light of the circumstances here, noting at the outset that the Applicant in this matter is not seeking to reduce the payment of redundancy pay to the affected employees because it cannot pay the amount owed.
Entitlement to redundancy pay pursuant to section 119 of the Act
There is no dispute that the affected employees in this matter have an entitlement to be paid redundancy pursuant to section 119 of the Act. Section 119(1) of the Act sets out:
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Section 119(2) includes a table that sets out the amount an eligible employee must be paid at their base rate of pay for ordinary hours of work considering their length of service with the employer. Section 119 of the Act forms part of the National Employment Standards and sets a safety net of the amount of redundancy entitlements for employees covered by the Act.
Sections 121, 122, and 123 of the Act set out circumstances in which an employee does not have an entitlement to redundancy and these relevantly include if the employee’s continuous service is less than 12 months, the employer is a small business employer, in the case of a transfer of employment between non-associated entities if service with the first employer is recognised as service with the second employer and excludes certain kinds of employment including employees engaged for a specified period or task, employees dismissed for serious misconduct, casual employees, employees to whom certain training arrangements apply and apprentices.
There is no dispute that the affected employees’ employment was terminated. They were all advised that their employment would be terminated on 31 May 2024, and in the case of Mr Peach, on 3 June 2024. Further, there is no dispute that the affected employees’ employment was terminated at the initiative of the employer when they no longer required the jobs to be done by anyone because the directors made a decision to cease operation and close down the business of the Applicant.
There is also no dispute that the exclusions in sections 121, 122 and 123 do not apply to five of the six employees. None of the affected employees had less than 12 months of service.[9] There was no submission that the Applicant is a small business employer in accordance with the definition in section 23 of the Act. The evidence provided by the Applicant confirmed that the Applicant company is part of a larger group of companies that are associated entities[10] and are taken to be one entity for the definition of a small business employer. The Applicant made this application on the basis they have an obligation to pay redundancies but want the Commission to reduce the entitlement to nil.
However, as set out previously, Mr Peach is an apprentice and therefore excluded from the scope of the redundancy pay provisions such that he has no entitlement to redundancy pay.
None of the other elements of section 123 apply in this matter.
Further, a transfer of employment situation that affects the obligation to pay redundancy pay[11] is not asserted by the parties. Even if there was a transfer of employment in this case, the affected employees were paid their accrued entitlements at termination by ATR Fabrication and their service with ATR Fabrication was not recognised with BJG. Consequently, as the employees’ service with ATR Fabrication was not recognised by BJG, the affected employees are not excluded from the redundancy pay provisions of the Act.
Whether the employer obtains other acceptable employment for the employee
In the case referred to above of FBIS, the Court considered the meaning of the word “obtains” in respect of acceptable employment for the employee. The Court found: “to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice.”[12]
In the same decision, the Court refers to the definition of ‘obtain’ in the Oxford English Dictionary as: “To come into possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get”[13] and says that the words ‘effort’ and ‘purpose and effort’ in the dictionary meaning “imply, rather, that the possession must be the result of the conscious, intended acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance.”[14]
The case of FBIS confirms that obtaining acceptable employment for an affected employee is to “procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice.”[15]
In the above matter, the Full Court of the Federal Court confirmed the decision of a Full Bench of this Commission[16], that the employer did not obtain employment for the employees it made redundant with the new employer. In that case, the applicant employer, FBIS International, had provided a list of its employees with their contact details to an incoming employer, ACG, who had won a contract tender over FBIS for the provision of services. FBIS requested that ACG meet with their soon-to-be redundant employees (which ACG refused), to meet with FBIS to discuss a commercial agreement regarding the employees’ accrued entitlements and otherwise provided a copy of the applicable enterprise agreement, which ACG had from another source.
The actions taken by FBIS International were found by both the Full Bench of the Commission and the Full Court of the Federal Court to fall short of ‘obtaining’ employment for their employees, despite 48 employees ultimately being offered employment with ACG in the same position and with the same terms, with another employee accepting a lesser position and four employees not being offered employment after an interview process. The Full Bench found that the actions of the Respondent “facilitated an invitation by ACG to the Respondent’s employees to apply for a position and undertake an interview. That action by the Respondent did not have the impact of securing employment for the employees”.[17]
The facts in this matter can be distinguished from those in the matter of FBIS. In this matter, the employees were subsequently engaged as employees by BJG. They did not simply secure an opportunity to apply for a role or participate in a recruitment process. They were all offered, and accepted, roles on the same terms and conditions as those they had with the Applicant.
It is necessary for me to determine whether the Applicant, as a corporate entity, obtained the employment for the affected employees. Mr Grossmann is a director of both ATR Fabrication and BJG. As a director, Mr Grossmann forms part of the corporate mind of the Applicant. Even if he did not personally take steps to obtain employment for the employees acting in his capacity as a director of ATR Fabrication, Mr Grossmann had knowledge and involvement in the impending closure of the business as well as familiarity with the work of the affected employees (such that he decided to employ them in another business), because of his engagement with ATR Fabrication in his role as a working director. Mr Grossmann has told the Commission that he registered his new business BJG with ASIC, obtained a lease on a workshop and made offers of employment to the affected employees after he had made the decision with Mr Walsh to close ATR Fabrication in June 2024 but before the business actually closed on 28 June 2024. Mr Grossmann, as part of the corporate mind of ATR Fabrication, secured jobs for the affected employees at BJG on the same terms and conditions.
Mr Walsh also gave evidence in his statutory declaration that as a director of ATR Fabrication he removed barriers to employment of the affected employees by BJG by ensuring that “staff could transfer to employment with Mr Grossmann’s business without any restraints.”[18] Further, he executed documents necessary to transfer the contract of training of Mr Peach to BJG and waived any transfer fee.
The fact that Mr Grossmann was a director of ATR Fabrication and took the steps set out that resulted in an offer of employment from BJG to each affected employee, leads me to find that ATR Fabrication obtained acceptable employment for the affected employees with BJG. Further, the conscious and intended actions taken by Mr Grossmann and Mr Walsh as directors and major shareholders in ATR Fabrication, directed towards acquiring employment contracts for the affected employees, resulted in each affected employee being offered a contract of employment with BJG. The contracts offered were on the same terms and conditions as those engaged in by the employees at ATR Fabrication. Therefore, the requirement in section 120(1)(b)(i) is met.
Discretion to reduce employees’ entitlement to redundancy pay
As I have found that each affected employee other than Mr Peach has an entitlement to redundancy pay and that ATR Fabrication obtained other acceptable employment for the affected employees, I must now consider whether it is appropriate to exercise the discretion afforded under section 120(2) of the Act to reduce the amount of redundancy pay payable to the employees. Section 120(2) of the Act sets out:
(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.
Whether to reduce the redundancy payments due to the employees is a matter of discretion to be exercised having regard to all of the relevant circumstances of a particular matter.
The Applicant asserts in its application that the affected employees did not suffer any disadvantage. Mr Walsh sets out in his statutory declaration that “All staff were free to transition into employment with Mr Grossmann at BJG Fabrication Pty Ltd from 1st July 2024 without a break or gap in their employment.”[19] Mr Grossmann, and some of the affected employees, have advised that they did experience a gap in their employment until they commenced work with BJG on 10 July 2024. I accept the submissions of Mr Grossmann, supported by the affected employees, that they suffered financial disadvantage in respect of a short period of unemployment between ATR Fabrication and BJG. I find the Applicant’s claim that affected employees did not suffer a disadvantage, as one of the bases of its application for a reduction in redundancy entitlements, is incorrect.
I otherwise accept that the affected employees accepted objectively acceptable employment on the same terms and conditions as they had with ATR Fabrication.
Commissioner Hampton, (as he then was) noted in the decision of Advertiser Newspapers Pty Ltd v Smith and others[20] (the Advertiser case):
“The nature of the redundancy payments provided in the NES recognises that employees who are terminated by virtue of redundancy lose their non-transferable credits (including potential access to long-service leave) and their continuity of service and seniority, and suffer other inconvenience and hardships.”[21]
In the Advertiser case, the relevant employees had not experienced any break in or loss of the continuity of their service.[22] The Commissioner reduced the redundancy entitlements to nil. This case can be distinguished. In this matter, the affected employees were paid out their entitlements on termination and commenced new employment contracts with BJG approximately between 8 and 10 days later. The affected employees in this case did lose their non-transferable credits.
I consider it appropriate in the circumstances to reduce the employees’ redundancy entitlements, but not to nil as requested by ATR Fabrication. I now turn to each employee.
With respect to the entitlements owed to Mr Grossmann, I have determined that his redundancy entitlements should be reduced to one week. Mr Grossmann was intimately involved in the decision to close the Applicant business. He was practically involved in the steps taken to close the business. Mr Grossmann had significant notice of the closure of the business and had time to get his affairs in order. It is not clear if Mr Grossmann is currently engaged as an employee in his new business, but he did not claim that his company, BJG, had not offered him acceptable employment such that his entitlement to redundancy could not be reduced. His assertion was rather that: “I verbally offered all the Employees to come to my new Premises and be employed by BJG Fabrication Pty Ltd at the same Rate and Conditions and they all accepted.” Mr Grossmann did not work for the week of 3 to 10 July 2024 before he commenced work at BJG. Based on the calculations provided by the Applicant, Mr Grossmann is entitled to redundancy pay in the amount of $2,989.46, less applicable taxation.
I find that the redundancy payment to Ms Kemp be reduced from 4 weeks to 2 weeks. Ms Kemp was advised of her redundancy on 31 May 2024 and worked throughout her notice period. In being made redundant by ATR Fabrication she lost the benefit of income in the week of 3 to 10 July 2024, the benefit of time accrued towards a long-service leave entitlement and continuity of employment. ATR Fabrication otherwise obtained suitable employment for Ms Kemp on the same terms and conditions with BJG. Based on the calculations provided by the Applicant, the amount owed to Ms Kemp for redundancy entitlements is $3,000.00 less applicable taxation.
I have determined that the redundancy payment to Mr Vanderhorst be reduced from 6 weeks to 2 weeks. Mr Vanderhorst was advised of his redundancy on 31 May 2024 and worked throughout the notice period. Similarly to Ms Kemp, in being made redundant by ATR Fabrication he lost the benefit of income in the week of 3 to 10 July 2024 of approximately 5 working days, the benefit of time accrued towards a long-service leave entitlement and continuity of employment. ATR Fabrication otherwise obtained suitable employment for him on the same terms and conditions with BJG. Based on the calculations provided by the Applicant, the redundancy payment to be made to Mr Vanderhorst is $2,888.00 less applicable taxation.
I have determined that the redundancy payment payable to Mr Westley be reduced from 6 weeks to 3 weeks. Mr Westley finished work with ATR Fabrication on 28 June 2024 and was therefore disadvantaged by being without income from employment with ATR Fabrication and BJG for approximately 7 working days. Whilst he says he started with BJG later than the other employees, on 24 July 2024, there is no evidence that this was at the initiative of BJG. Mr Westley did not explain why that was so. Mr Grossmann made clear that all employees were offered work with a commencement date of 10 July 2024. The redundancy payment of 3 weeks considers the time Mr Westley was without income during the break in employment and the loss of the non-transferrable accrual of long service leave. Mr Westley was employed longer than the other employees and had accrued 3 years of service with ATR Fabrication at the time of his redundancy. ATR Fabrication otherwise obtained suitable employment for him on the same terms and conditions with BJG. Based on the calculations provided by the Applicant, Mr Westley is to be paid a redundancy payment of $3,192.00 less applicable taxation.
I have determined that the redundancy payment payable to Mr Whinfield be reduced from 4 weeks to 2 weeks. Mr Whinfield finished employment with ATR Fabrication on 28 June 2024 and was without income from employment with ATR Fabrication and BJG for a period of approximately 7 working days. Mr Whinfield also lost the benefit of non-transferrable credits including the accrual of long-service leave, but had less service than the other employees, accruing 1.8 years of service with the Applicant. ATR Fabrication otherwise obtained suitable employment for him on the same terms and conditions with BJG. Based on the calculations provided by the Applicant, Mr Whinfield is to be paid a redundancy payment of $2,128.00, less applicable taxation.
If any party to this matter does not agree with the calculations of redundancy pay, they can apply to my chambers to seek a variation to the order within 14 days of the date of this decision.
An order in the terms above will be issued in conjunction with this decision.[23]
COMMISSIONER
[1] Form 45A question 1.5.
[2] Statutory Declaration of Mr Simon Warner dated 2 August 2024 at paragraph 8.
[3] See Statutory Declaration of Mr Michael Walsh dated 2 August 2024 at paragraph 3 and Statutory Declaration of Mr Simon Warner dated 2 August 2024 at paragraph 8.
[4] Employee contracts of employment at clause 21.
[5] No date of birth was provided in the material.
[6] Statutory Declaration of Mr Michael Walsh dated 2 August 2024 at paragraph 9.
[7] [2015] FCAFC 90 (‘FBIS’).
[8] Ibid at [21].
[9] See section 121(1)(a) of the Act.
[10] See section 23(3) of the Act.
[11] See section 122 of the Act.
[12] FBIS at [18].
[13] Ibid at [20].
[14] Ibid.
[15] Ibid at [18].
[16] Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd[2014] FWCFB 6737.
[17] Ibid at [49].
[18] Statutory Declaration of Mr Michael Walsh dated 2 August 2024 at paragraph 2, supported by statements made in the Statutory Declaration of Mr Simon Warner dated 2 August 2024 at paragraph 9.
[19] Statutory Declaration of Mr Michael Walsh dated 2 August 2024 at paragraph 8.
[20] [2018] FWC 3737.
[21] Ibid at [74] also referencing Termination Change and Redundancy Case (1984) 8 IR 34 at 73 and Redundancy Case (2004) 29 IR 155 at [5], [133] to [152].
[22] Ibid.
[23] PR780938.
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