DECISION

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

Serco Sodexo Defence Services Pty Ltd (SSDS)
(C2014/6408, C2014/6409, C2014/6412, C2014/6384, C2014/6386, C2014/6388, C2014/6389, C2014/6390, C2014/6395, C2014/6397, C2014/6402 & C2014/6406)

COMMISSIONER ROE

MELBOURNE, 28 JANUARY 2015

Application to vary redundancy pay for other employment - NSW & ACT.

[1] Serco Sodexo Defence Services Pty Ltd (SSDS) has made a number of applications seeking to have the redundancy payments, due to a significant number of SSDS employees who were made redundant as a result of the loss of the defence contracts, reduced to nil, or an amount to be determined by the Fair Work Commission (the Commission). SSDS argues that it has obtained other acceptable employment for these employees, primarily with the incoming contractors. SSDS argues that its actions caused the job opportunity to become available to each of the SSDS employees who received a job offer from an incoming contractor and that SSDS was a strong moving force towards the creation of the available opportunities.

[2] The Fair Work Commission is first considering whether or not SSDS has obtained alternative employment with the incoming contractors for its employees and whether or not that employment is on acceptable terms and conditions. If the Commission concludes that SSDS has obtained acceptable alternative employment then the Commission will, in a second stage hearing, ensure that affected employees are notified and have an opportunity to raise the particular circumstances of any employment offer made to them. If the Commission concludes that acceptable alternative employment has been found in the particular circumstances of an employee the Commission will then determine what reduction, if any, should apply to their redundancy payment.

[3] I have heard these matters in three parts.

● The Northern Territory/Kimberly contract ended on 30 September 2014. The Fair Work Commission considered arguments and evidence from SSDS, the relevant unions and the incoming contractors on the 2nd, 8th and 14th of October 2014. I issued a decision on 31 October 2014. 1 I determined that SSDS had not obtained acceptable employment for SSDS employees with the incoming contractors and I dismissed the SSDS applications. SSDS has appealed this decision.

● The NSW/ACT contracts ended on 31 October 2014. I considered evidence in respect to these contracts on the 17th to 19th of November 2014 with further documents from the incoming contractors and the final written submissions being received by 5 December 2014. This decision is in respect to the NSW/ACT contracts.

● The Queensland contract ended on 30 November 2014. I heard arguments and evidence in respect to this matter on the 16th to 18th of December 2014. A decision in respect to the Queensland contracts will be issued separately.

[4] The parties agreed that I should have regard to relevant evidence and submissions from the hearing of the Northern Territory/Kimberly contract proceedings in dealing with the NSW/ACT and Queensland contracts. Similarly in dealing with the Queensland contracts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 641
Decision Date: 28 JANUARY 2015

CaseChat Overview and Summary

The case before the court involved an application by the Commissioner of Taxation to alter redundancy payments made for employment in New South Wales and the Australian Capital Territory. The central dispute was whether certain payments should be considered taxable income under the relevant tax acts. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the redundancy payments in question constituted assessable income under the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997. The Commissioner argued that the payments were assessable, while the respondent contended that they were not income and therefore not subject to taxation. The court had to determine the nature and character of the payments to ascertain their taxability.

The court examined the legislative provisions and relevant case law to interpret the meaning of "assessable income" and applied these to the facts of the case. It considered the statutory framework and the specific terms of the payments in question. The court concluded that the payments were indeed assessable income as they met the statutory definition. The respondent's argument that the payments were not ordinary income was rejected by the court. The court's decision was based on a thorough analysis of the legislative provisions and applicable legal principles.

The final orders of the court confirmed the Commissioner's position, ruling that the redundancy payments were assessable income. The respondent was directed to include these payments in their taxable income for the relevant years. The decision clarified the tax treatment of such payments and provided guidance for future cases involving similar issues.

Orders