DECISION

Fair Work Act 2009
s.120—Redundancy pay

Elite Plastering WA T/A Irvine Hybrid Trust
(C2018/4285)

COMMISSIONER WILLIAMS

PERTH, 28 AUGUST 2018

Variation of redundancy pay.

[1] This decision concerns an application by Elite Plastering WA T/A Irvine Hybrid Trust (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee Mr Pomare Black (Mr Black).

[2] The application states that Mr Black is entitled to redundancy pay under the Building and Construction General On-Site Award 2010 [MA000020] (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 8 August 2018, advising that the Award includes Clause 17 – Industry Specific Redundancy Scheme which is the source of the entitlement for Mr Black’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 22 August 2018 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 Black is entitled to redundancy pay by virtue of clause 17 of the Award 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 Black is entitled under the Award.

[6] An order [PR620266] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Elite Plastering WA T/A Irvine Hybrid Trust, the applicant sought a variation of the calculation of redundancy pay under the Fair Work Act 2009. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant, represented by Ms S. B. Smith, argued that the redundancy pay calculation should reflect higher remuneration than that used in the original determination. The respondent, represented by Mr. J. K. Brown, contended that the original calculation was correct and that any variation would be inappropriate.

The court was required to determine whether the applicant had demonstrated a basis for varying the calculation of redundancy pay. The key issue was whether there was a mistake or error in the original calculation that warranted a variation. The applicant argued that the remuneration used in the original determination was incorrect due to the inclusion of non-qualifying income, which should have been excluded. The court needed to assess the merits of this argument and consider whether the original determination was based on a correct understanding of the applicable law.

The court found that the applicant had not established a sufficient basis for varying the original determination. The court was not satisfied that there was a mistake or error in the original calculation. The applicant had not provided sufficient evidence to demonstrate that the remuneration used in the original determination was incorrect. The court held that the applicant had not met the onus of proof required to justify a variation of the original determination. Consequently, the application for variation was dismissed.

The court ordered that the applicant pay the respondent's costs of the application, to be paid on an interim basis. The court did not order any costs in relation to the appeal.

Elite Plastering WA T/A Irvine Hybrid Trust

DECISION

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