Clarus Glass and Aluminium Pty Ltd

[2017] FWC 62

[2017] FWC 62

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Clarus Glass and Aluminium Pty Ltd
(C2016/7146)

COMMISSIONER WILLIAMS PERTH, 6 JANUARY 2017

Variation of redundancy pay.

[1] This decision concerns an application by Clarus Glass and Aluminium 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 Wayde Buck (Mr Buck).

[2] The application states that Mr Buck is entitled to redundancy pay under the Building and Construction General On-Site Award 2010 (the Award). The application states that the Applicant has not obtained other acceptable employment for the employee, however is making this application because the business is not able to pay the employee the redundancy entitlements.

[3] Having considered the application I wrote to the Applicant on 7 December 2016, advising that the Award includes Clause 17 – Industry Specific Redundancy Scheme which is the source of the entitlement for Mr Buck’s redundancy pay. The correspondence explained that because this clause includes an Industry Specific Redundancy Scheme the provisions of the National Employment Standards in the Act do not apply and as a result section 120 of the Act, which otherwise would allow an employer to make an application to reduce an employee’s redundancy pay where the employer argues they cannot pay the amount, does not apply. Consequently I explained it was my preliminary view that the application cannot proceed and would be dismissed. I invited the Applicant to make any submissions concerning these matters by 19 December 2016 however as at the date of this decision no response from the Applicant has been received.

[4] Section 123 of the Act states that sections 119 to 122 of the Act do not apply to an employee to whom an Industry Specific Redundancy Scheme in a Modern Award applies. As explained above this is the case in this instance. Mr Buck is entitled to redundancy pay by virtue of the Award Clause 17 not by virtue of section 119 of the Act and consequently the Applicant is not able to make an application to vary the redundancy pay amount.

[5] Consequently my decision is that this application must be dismissed. There is no variation to the amount of redundancy pay to which Mr Buck is entitled under the Award.

[6] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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