Kelly Group (Administration) Pty Ltd

[2023] FWC 2650

[2023] FWC 2650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Kelly Group (Administration) Pty Ltd

(C2022/8000)

COMMISSIONER SCHNEIDER PERTH, 11 OCTOBER 2023

Variation of redundancy pay

1. This decision concerns an application made by Kelly Group (Administration) Pty Ltd (the Applicant) to reduce the amount of redundancy pay to which an employee, Ms Maria Paparella (the Respondent), is entitled under section 119 of the Fair Work Act 2009 (Cth) (the Act).

1. The Applicant seeks to reduce the Respondent’s redundancy pay from four weeks to nil on the grounds that it obtained other acceptable employment for the Respondent.

1. The parties have provided written materials outlining their respective positions. Having considered the evidence and submissions, I have determined that the application will be granted, in part, and there will be a 25% reduction in the redundancy payment to which the Respondent is entitled.

1. My reasons are as follows.

Background

1. The Respondent commenced employment at the Applicant on 14 February 2021.

1. The Respondent ceased employment at the Applicant on 21 October 2022.

1. The Respondent was engaged to work 38 hours a week.

1. The terms and conditions of her employment were governed by the Clerks-Private Sector Award 2020 (the Award) and her employment contract.

1. The application form notes that the Respondent is entitled to four weeks redundancy payment.

1. During the redundancy process, the Applicant claims it obtained the Respondent another position in an associated business. The Respondent is now working in that role.

1. The Applicant seeks to reduce the redundancy payment to nil on the basis that it obtained other acceptable employment.

1. The Respondent objects to the application on the grounds that the alternative role mentioned in the application, although similar, is not other acceptable employment due to what she claims are differences to her redundant role.

Submissions

Applicant

1. The Applicant’s submissions regarding other positions offered to the Respondent are brief and read as follows:

“The employee was advised that due to the restructuring of the administration function of the business, her role would become redundant.

The Applicant spoke with another business in the same industry as to whether they had a role for the employee.  A role was available.  The Applicant negotiated with the potential new employer, and it was agreed that they would recognize the employee's service and transfer all entitlements if she became employed by the business.

The position was a similar role working the same roster on the slightly more money.  The hours of work increase from 38 hours to 40 hours per week with the additional hours being compensated for. The employee was familiar with this business as the owners of her current employer were on good terms with her potential future employer.  The employee was offered the position and accepted the role.

The Applicant is currently employed in that position.”

(Note: references to Applicant in this passage do not necessarily correlate to the use of that term in this Decision)

Respondent

1. The Respondent concedes that the new role and her redundant role are similar. However, the Respondent notes several items to reflect the differences in the positions:

“The new owners Accounts personnel set up a meet and greet explaining the job

a.  There were no salary negotiations - even when I asked
          b.  Hours of work went from 38 to 40 per week
          c.  No working hours flexibility
          d.  No work from home flexibiiity (sic)
          e.  Have to pay for parking

The role is similar yes but to say I am on more money is working more hours and paying for parking has put me behind than at Kelly Group. The job is not like for like with no salary negotiation and my flexibility requests not taken into consideration.”

Legislation

1. The relevant provision of the Act is set out below:

“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.”

1. I must first be satisfied that the position in question was obtained by the Applicant, as required by the Act. Only after determining that the position was obtained will I then determine whether the position is acceptable. If the position is found to be obtained and acceptable, I must then consider whether to reduce the amount owing to the Respondent.

1. In relation to the question of whether the Applicant obtained the position, the Full Bench has clarified that “an employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.”[1] Mere facilitation of employment opportunities falls short of the obtain requirement.[2]

Consideration

1. On assessment of the materials before the Commission, it is clear and uncontested that the alternative role was obtained by the Applicant.

1. The primary contention between the parties is the similarity between the new role and the redundant role.

1. It has generally been accepted by the Commission that the following factors should be considered in relation to section 120(b)(i) of the Act:

·   The nature of the work;

·   The comparability of the work with that performed in the current role;

·   Pay levels;

·   Hours of work;

·   Seniority;

·   Fringe benefits;

·   Workload and speed;

·   Job security;

·   Whether the employee will have continuity of service in the new role;

·   Location and/or the need to relocate;

·   Travel and/or the cost of travel that is additional to that relevant to the original employment;

·   Carer’s responsibilities; and

·   Family circumstances.[3]

1. The Respondent disputes the Applicant’s submission that the new position pays more. Notably, the Respondent highlights that the new position requires her to work two more hours per week and she is also required to pay for parking. The Respondent concludes that these additional burdens put her behind the remuneration in the redundant role.

1. The Respondent also submits that the benefits, largely in relation to flexible working arrangements, differ between the roles. Notably, the new role offers, what appears to be, no flexibility or accommodations. The Respondent was also unable to negotiate the salary for the new position.

1. I am not satisfied that the additional two hours or a slight reduction in remuneration constitutes any notable difference. I am also not satisfied that the lack of flexible working arrangements and the inability to negotiate salary constitutes any notable difference between the positions. These conclusions are made only in reference to whether the new role is other acceptable employment as specified in the Act. I do not doubt that the items raised by the Respondent reflect differences in the terms and conditions of the two positions and understandably are not beneficial to the Respondent.

1. The Respondent, in their materials, concedes that the roles are similar. Due to the similarity between the roles themselves, and the extent and nature of the differences noted by the Respondent, I am satisfied that the role is other acceptable employment for the purposes of the Act.

1. Nevertheless, I accept the Respondent’s submissions that the change in flexible working arrangements would constitute a departing from the position made redundant.

1. In the circumstances, I am satisfied that the position offered by the Applicant is other acceptable employment but, I am not satisfied the redundancy amount owing to the Respondent should be reduced to nil.

Conclusion

1. Having considered all the factors outlined above, and the submissions provided by the parties, I have determined that the position offered and accepted was other acceptable employment for the purposes of section 120(1)(b)(i) of the Act. 

1. I note that the Applicant was seeking the Commission to reduce the redundancy payment the Respondent is entitled to nil.

1. I have considered the submissions, competing interests, nature of changes, the extent of the changes, and other factors outlined above and determine that, in this instance, the redundancy payment payable to the Respondent will be reduced by 25%.

1. An Order to that effect will be issued.[4]

COMMISSIONER

[1] [2022] FWCFB 173, [49].

[2] [2022] FWCFB 173, [47].

[3] [2019] FWC 756, [24]; [2016] FWC 2880, [11].

[4] [PR767137].

Printed by authority of the Commonwealth Government Printer

<PR767136>