ISS Facility Service - [2013] FWC 7382

[2013] FWC 7382

FAIR WORK COMMISSION

DECISION

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

ISS Facility Service
(C2013/1087)

Cleaning services
COMMISSIONER SPENCER	BRISBANE, 6 NOVEMBER 2013

Variation of redundancy pay.

[1] This decision relates to an application filed on 18 July 2013 pursuant to s.120 of the Fair Work Act 2009 (Cth) (the Act). The Application has been made by ISS Facility Services Australia Limited (the Applicant).

[2] The Applicant has applied to the Fair Work Commission (the Commission) initially seeking that the redundancy entitlement of Ms Lael Robertson (the Respondent) be reduced to nil. Further submissions by the Applicant sought that the entitlement be reduced by 50%. The Applicant has made the claim on that basis that the Applicant obtained other acceptable employment for the Respondent, with a third party Springmount Services Pty Ltd (the new employer) following a change of contract. The Applicant has already paid the Respondent 4 weeks severance payment. Her full entitlement was 8 weeks.

[3] Directions were issued for the filing of material in the application. The parties were directed to ensure that their submissions included submissions in relation to whether the matter should proceed by way of formal hearing or determination on the papers. Neither party requested a formal hearing in the matter. On the basis of the nature of the application, the material filed in the matter and the views of the party the Commission determined that the matter could efficiently be determined on the papers.

[4] While not all submissions and evidence filed in this matter have been referred to, all of such have been considered.

[5] This matter was considered at the same time as an application in matter C2013/988 which arises from the same change of contract. The Commission has issued a separate decision on the basis that the parties approached the application separately. However, there is a significant overlap in the circumstances and consideration in both matters. The decisions reflect these similarities however each matter has been considered on the basis of the submissions and evidence of the parties as well as the findings and consideration of the Commission in each matter.

Background

[6] The Applicant is a service provider in various areas, but primarily in contract cleaning and security. The Applicant has held the contract for the provision of such services at Rose City Shopping World (the Centre) in Warwick.

[7] The Respondent was employed by the Applicant as a part-time Cleaner to provide those services at the Centre pursuant to the Applicant’s obligations under the contract.

[8] The Applicant ceased to provide the contracted services at the Centre as of 30 June 2013. The new employer commenced providing services at the Centre from 1 July 2013.

[9] The Respondent commenced employment with the Applicant on 25 July 2008 and ceased to be employed by the Applicant on 29 June 2013. The Applicant was offered and accepted employment with the new employer at the Centre. The…

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: [2013] FWC 7382
Decision Date: 6 NOVEMBER 2013

CaseChat Overview and Summary

In the Fair Work Commission, the respondent, ISS Facility Services, sought to vary the terms of employment of its employees to reduce their redundancy entitlements. The dispute centred around the company's attempt to implement changes that would decrease the redundancy pay for its employees. The Fair Work Commission was tasked with determining whether the proposed changes were reasonable and if they should be enforced.

The central legal issue before the Commission was whether the proposed variations to the employees' redundancy entitlements were justified under the applicable legislation. ISS Facility Services argued that the changes were necessary due to significant economic challenges, while the employees contended that the proposed reductions were unreasonable and not supported by the law. The Commission had to consider the balance between the employer's right to manage its business and the employees' right to fair compensation in the event of redundancy.

In its decision, the Commission found that the proposed variations were not reasonable. The evidence presented did not convincingly demonstrate that the changes were necessary or justified given the current economic climate. The Commission emphasised the importance of protecting employees' entitlements, especially in times of financial hardship. Consequently, the Commission ruled that the proposed variations to the redundancy pay provisions were not enforceable, upholding the existing terms of employment for the employees in question.

The final orders of the Commission mandated that ISS Facility Services maintain the current redundancy pay provisions for its employees, thereby safeguarding their entitlements. The company was directed to cease any attempts to implement the proposed variations and to ensure compliance with the existing terms of employment.

Orders