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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Clarus Glass and Aluminium Pty Ltd as the appellant, contesting the decision of the Fair Work Commission in relation to the calculation of redundancy pay awarded to a former employee, Mr. John Doe. The Federal Court of Australia was tasked with determining the appeal brought by Clarus Glass against the decision of the Fair Work Commission.

The primary legal issue before the court was whether the Fair Work Commission erred in its calculation of redundancy pay, particularly in relation to the period of notice that should be considered for the purpose of calculating Mr. Doe's redundancy entitlements. The appellant argued that the Fair Work Commission should have taken into account a contractual notice period that differed from the statutory minimum notice period provided under the Fair Work Act. This discrepancy arose due to the terms of Mr. Doe's employment contract, which stipulated a longer notice period compared to the statutory minimum.

The court examined the relevant provisions of the Fair Work Act and the contractual terms of Mr. Doe's employment. It determined that the Fair Work Commission had correctly applied the statutory minimum notice period for the calculation of redundancy pay, as it was the higher of the contractual and statutory periods. The court found no error in the Fair Work Commission's decision, affirming that the statutory minimum notice period was the appropriate measure for determining redundancy pay. The appeal was dismissed, and the decision of the Fair Work Commission was upheld.

No additional orders were made beyond the dismissal of the appeal and the affirmation of the Fair Work Commission's decision.

Clarus Glass and Aluminium Pty Ltd

DECISION

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Legal Principle Established