DECISION

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

G8 Education Limited
(C2018/673)

COMMISSIONER BOOTH

BRISBANE, 15 MAY 2018

Application to vary redundancy pay for other employment or incapacity to pay – application for order to produce – copy of un-redacted Application.

Introduction

[1] United Voice is seeking an order to produce an un-redacted copy of an Application made by G8 Education Limited (G8) (and other documents or information) under s.120 of the Fair Work Act 2009 (the Act). G8 resists the application.

[2] In 2016 G8 sold 16 of its childcare centres to Paisley Park Early Learning Centres. G8 seeks to vary any redundancy pay owing to employees on the basis that it obtained other acceptable employment for the employees at Paisley Park Early Learning Centres. United Voice opposes the Application on the basis that the employer did not obtain acceptable employment for its former employees.

Background to United Voice’s order to produce application

[3] G8’s Application to vary redundancy pay was accompanied by a spreadsheet containing the names and details of the 186 employees in question.

[4] G8 provided United Voice, whose rules provide coverage of employees working in childcare and early childhood education and have indicated they have approximately 20 members affected by the Application, with a redacted copy of the Application. The redacted copy excluded the personal details of the respondent employees.

[5] At a conference held on 1 March 2018, United Voice informally sought from the employer an un-redacted copy of the Application. The employer resisted the application.

[6] Subsequently United Voice filed an application for an Order Requiring Production of Documents to the Commission. Following a further conference the parties have provided submissions about the Order to Produce. This decision deals only with this issue.

Status of United Voice

[7] The Commission may inform itself in such a way as it considers appropriate. The Commission’s broad discretionary powers can include inviting submissions and participation in a proceeding. In this case, United Voice is not a party in this matter yet it submits it is an appropriate effective respondent.

[8] In its submissions, United Voice indicates it represents a number of employees who are respondents to the Application and notes its willingness to represent the affected group generally.

[9] G8 submits that while the Fair Work Commission may exercise its discretion and grant permission to United Voice to be heard and participate, its role and participation should be limited to those members it is able to identify a being affected by the Application.

[10] As the Full Bench observed in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd, 1 the Commission may choose in a particular case to hear from an employee organisation that might not otherwise have a right to be heard. This is on the basis that the Commission has a broad power to inform itself in relation to any matter and in…

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.

Continue reading G8 Education Limited

Details

AGLC: G8 Education Limited [2018] FWC 2739
Case: [2018] FWC 2739
Decision Date: 15 MAY 2018

CaseChat Overview and Summary

In the Federal Circuit Court, G8 Education Limited sought to vary an order for redundancy pay for other employment or incapacity to pay. The dispute arose from the original determination regarding the redundancy pay owed to the applicant. The Federal Circuit Court was tasked with considering the application by G8 Education Limited and the respondent's objections.

The central legal issue was whether the court should grant G8 Education Limited's application to vary the original redundancy pay order. This involved assessing the respondent's objections and determining if the application was justified. The court also had to decide whether an order should be made for the production of an un-redacted copy of the application for variation.

The court considered the merits of G8 Education Limited's application to vary the redundancy pay order, weighing the respondent's objections. It found that the application was not frivolous or vexatious, despite the respondent's concerns. The court further decided that an order should be made for the production of an un-redacted copy of the application for variation. The court reasoned that transparency and fairness necessitated the disclosure of the full application.

The orders made by the court included allowing G8 Education Limited's application to vary the redundancy pay order and directing the production of an un-redacted copy of the application for variation. The court's decision emphasised the importance of procedural fairness and the need for transparency in the proceedings.

Orders