Carlon Construction Pty Ltd
[2025] FWC 369
•7 FEBRUARY 2025
| [2025] FWC 369 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Carlon Construction Pty Ltd
(C2025/458)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 7 FEBRUARY 2025 |
Variation of redundancy pay – where employee is covered by an industry-specific redundancy scheme in the modern award – s.123 Limits on scope of this division – s.120 Variation of redundancy pay – Commission has no jurisdiction to vary redundancy pay
This decision concerns an application by Carlon Construction Pty Ltd (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee, Mr Clayton Jacobs (the Respondent).
The Respondent has been employed by the Applicant since 23 January 2023 and was made redundant on 3 January 2025.
The Applicant submitted that the Respondent was engaged under the Building and Construction General On-site Award 2020. The Respondent seeks an order to reduce the amount of redundancy payment on the basis that the Respondent obtained other acceptable employment for the Respondent pursuant to s.120(1)(a) of the Act.
My chambers wrote to the Respondent on 31 January 2025 and gave him an opportunity to respond to the application by 4pm on 10 February 2025, however the Respondent responded on 3 February 2025.
The Respondent submitted that given his entitlement to redundancy arose under an industry specific redundancy scheme in his Modern Award, that s.120 of the Act did not apply. The Respondent noted that whilst his new position was on a lesser rate of pay and entitlements, he acknowledged the Applicant had attempted to find him alternate employment, provided him with a $1,000 bonus at the end of his employment and also provided him with great learning opportunities and interesting work throughout his employment, he would agree to a reduction in the amount of redundancy pay owed to him.
The Act provides for Redundancy Pay in Division 11, Subdivision B. This part of the Act includes s.120 which gives the Commission power to reduce Redundancy pay on the grounds sought by the Applicant, however it also includes a provision that where an employee is covered by an industry-specific redundancy scheme in the modern award, Division 11, Subdivision B does not apply.[1] On that basis s.120 cannot apply to the Respondent and the Commission’s power to make an order to reduce redundancy pay is not enlivened.
In all of the circumstances I find that the Commission does not have any jurisdiction in which to make the orders sought even with the agreement of the Respondent. The application is dismissed and the Applicant is obligated to pay the Respondent his redundancy entitlements under the modern award.
DEPUTY PRESIDENT
[1] S.123(4)(c).
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