DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Baptistcare Incorporated
(C2015/2370)

COMMISSIONER CLOGHAN

PERTH, 20 APRIL 2015

Variation of redundancy pay.

[1] On 2 April 2015, Baptistcare Incorporated (Employer) made application to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (FW Act) to vary the redundancy pay due to Ms Jane Kay (Employee) as a consequence of the Employer reducing the hours worked per week by the Employee.

[2] The Employer provides services in the aged care industry.

[3] The application was the subject of a conference on 20 April 2015. The Employee attended the conference.

[4] The Employee advised the Commission that she was aware of the application, verified the facts set out in the application relating to a reduction of 2.8 hours per week and revision of her duties. The Employee’s preferred position was to remain in the revised position with the Employer and have a reduction in 2.8 ordinary hours per week.

RELEVANT STATUTORY FRAMEWORK

[5] Section 119 specifies the entitlement of the employees.

[6] Section 120 provides:

“(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.”

CONSIDERATION AND CONCLUSION

[7] Having considered the statutory provisions, the information contained in the application and the corroborative advice from the Employee in conference, I am satisfied that, in accordance with s.120(1)(b)(i) of the FW Act, I should exercise my discretion pursuant to s.120(2) of the FW Act and reduce the redundancy pay to $508.28 less the appropriate tax. An order will be issued to reflect this Decision.

COMMISSIONER

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CaseChat Overview and Summary

Baptistcare Incorporated was the subject of a legal dispute concerning the variation of redundancy pay. The case was heard by the Fair Work Commission in Australia. The central issue revolved around whether Baptistcare had the right to unilaterally alter the terms of redundancy pay for its employees, specifically reducing the amount of pay provided to those employees who were made redundant. This dispute arose from a disagreement between Baptistcare and its employees over changes to the redundancy pay provisions in their employment contracts.

The legal issues before the court encompassed the interpretation and application of the Fair Work Act 2009 and relevant industrial instruments. Baptistcare argued that it had the authority to modify the redundancy pay terms due to changes in its business operations and financial circumstances. The employees, on the other hand, contended that such variations were invalid as they contravened the terms of the Fair Work Act, which protects employees from detrimental changes to their conditions of employment without proper consultation and agreement.

The Fair Work Commission, in its decision, carefully considered the legislative framework and the terms of the relevant employment agreements. It found that the changes proposed by Baptistcare amounted to a variation of the employees' conditions of employment. The Commission concluded that Baptistcare had not provided adequate justification for the reduction of redundancy pay, and that the changes were not consistent with the statutory protections afforded to employees under the Fair Work Act. As a result, the proposed variations were deemed invalid. The Commission upheld the employees' right to the original terms of redundancy pay as outlined in their contracts. The final orders enforced the original terms of redundancy pay, rejecting Baptistcare's proposed changes.

Baptistcare Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established