Australian Cabling Solutions Pty Ltd T/A Australian Cabling Solutions

[2024] FWC 2591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Australian Cabling Solutions Pty Ltd T/A Australian Cabling Solutions

(C2024/1575)

DEPUTY PRESIDENT LAKE BRISBANE, 23 SEPTEMBER 2024

Variation of redundancy pay

1. On 14 March 2024, Australian Cabling Solutions Pty Ltd (the Applicant) applied to the Fair Work Commission (the Commission) under s.120(2) of the Fair Work Act 2009 (the Act) to vary the redundancy entitlements of Mr Sylvain Bardelli (the Respondent) to nil or an amount deemed appropriate by the Commission.

1. The Respondents advised my Chambers that they opposed the variation of redundancy. The matters were listed for hearing on 17 May 2024. The Applicant was represented by Mr Michael Waters and Ms Lisa Midson from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) appeared for Mr Bardelli.

Should the Respondent’s redundancy be varied?

1. Section 120 of the Act states 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.”

1. Past Fair Work Commission decisions explain ‘other acceptable employment’ as the following:

1. This is assessed objectively. Other acceptable employment does not mean that the role must be acceptable to the employee. An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively acceptable.[1]

1. Acceptable employment is not identical employment, as no two jobs could be exactly the same. Alternative employment can be acceptable even there may be some inconvenience or some detrimental alteration to the terms and conditions of employment.[2] It is a matter of degree.

1. An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.[3] Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[4]

1. Identifiable comparisons of the redundant role and the alternate role can be considered in determining whether reasonable alternative employment has been offered with considerations including (but not limited to depending on what the Commission deems as appropriate):

a)nature of the work;

b)pay rates;

c)working hours;

d)skills;

e)duties;

f)seniority;

g)fringe benefits

h)workload and speed;

i)job security;

j)travelling time;

k)capacity to perform job;

l)location of work (which would now incorporate a requirement to work from home or in the office);[5]

m)loss of flexibility (such as caring responsibilities).[6]

1. The Applicant operates a company providing electrical and cabling services as a…