Baptistcare Incorporated

[2014] FWC 7770

[2014] FWC 7770

FAIR WORK COMMISSION

DECISION

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

Baptistcare Incorporated
(C2014/6721)

COMMISSIONER CLOGHAN PERTH, 31 OCTOBER 2014

Variation of redundancy pay.

[1] On 10 October 2014, 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 Mr John Winch-Buist (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] This application was the subject of a conference on 28 October 2014. The Employee attended the conference.

[4] The Employee advised the Commission that he was aware of the application, verified the facts set out in the application relating to a reduction of 8.0 hours per week and revision of his duties. The Employee’s preferred position was to remain in the revised position with the Employer and have a reduction in 8.0 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 $2,013.12 less the appropriate tax. An order will be issued to reflect this Decision.

COMMISSIONER

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