GfK Retail & Technology Australia Pty Ltd

[2015] FWC 6249

[2015] FWC 6249

FAIR WORK COMMISSION

DECISION

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

GfK Retail & Technology Australia Pty Ltd
(C2015/5644)

DEPUTY PRESIDENT SAMS SYDNEY, 8 SEPTEMBER 2015

Application to vary redundancy pay – full time to part time employment – consent of employee – redundancy payments reduced by 40% - determination made.

[1] This is an application, filed on 7 August 2015 by GfK Retail & Technology Australia Pty Ltd (the ‘applicant’), pursuant to s 120 of the Fair Work Act 2009 (the ‘Act’) to vary redundancy pay in respect to one of its employees, Ms Irina Balykova (the ‘employee’) who has been offered and accepted part time employment.

[2] In the application, Ms E Nguyen, HR Manager, explained that Ms Balykova had worked for the applicant for 16 years and ten months and is employed as a Data Entry and Coding Officer. Due to the recent automation of the applicant’s processes, the business no longer requires this job to be a full time position and, as a consequence, has Ms Balykova to a part time role performing the work two days per week. From a yearly salary of $52,500, Ms Nguyen extrapolated, on the basis of a 37.5 hour working week, that Ms Balykova’s total redundancy entitlement in these circumstances is $12,115.38. Accordingly, the applicant sought from the Commission that the respondent’s total redundancy entitlement be reduced by 40% ($4,846.15) to $7,269.23.

[3] Ms Balykova provided a statutory declaration dated 25 August 2015, which was expressed as follows:

‘I, Irina Balykova understand that the GFK Retail & Technology Pty Ltd has made an application to reduce my redundancy entitlements by 40% (as set out in cl 1.5 of the form F45A) and I give my consent to reduce my redundancy entitlements by 40% because I was offered and accepted the part time position – 2 days per week, and this arrangement began from 1st of July 2015.’

In light of the consent of Ms Balykova to the application, I advised the parties that this matter would be dealt with ‘on the papers’.

The statutory context and relevant authorities

[4] The legislative provisions relevant to this application are to be found in ss 119 and 120 of the Act as follows:

119 Redundancy pay

Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

[5] Having considered the material filed by the parties, I find that the offer of part time re-employment of two days per week, accepted by Ms Balykova, constitutes ‘acceptable employment’ within the meaning of s 120 of the Act. Given these circumstances, it is appropriate that the total redundancy entitlement due to Ms Balykova of $12,115.38 should be reduced by 40% to $7,269.23. A determination to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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