MAX Solutions T/A MAX Solutions Pty Ltd - [2022] FWC 1815

[2022] FWC 1815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

MAX Solutions T/A MAX Solutions Pty Ltd

(C2022/3137; C2022/3161)

COMMISSIONER SIMPSON

BRISBANE, 12 JULY 2022

Application to vary redundancy pay – Whether Applicants have standing – Finding that the Applicants do have standing under section 120 – Agreement redundancy entitlements equal or superior to NES – no capacity under Agreement to reduce redundancy entitlement – Agreement provides NES entitlements apply when more beneficial – No utility in conducting a substantive hearing – Applications dismissed

On 26 May 2022 Max Solutions Pty Ltd (Max Solutions) made an application under section 120 of the Fair Work Act 2009 (the Act) to reduce the redundancy pay of Ms Karla Alvarado (Ms Alvarado) to nil. The application stated that the redundancy entitlement arose under the Max Solution Enterprise Agreement 2020 (AG2020/3433) (the Agreement) and that Ms Alvarado had completed 5 years and 7 months service which would otherwise provide an entitlement to 10 weeks redundancy pay.

The application is pressed on the basis that Max Solutions had obtained other acceptable employment for Ms Alvarado and this was rejected.

The matter was listed for a directions hearing on 3 June 2022 where Max Solutions was represented by Ms Rachel Chapman-McCowan (Ms Chapman-McCowan) and Ms Alvarado represented herself. At the directions hearing I raised a preliminary issue that the Agreement did not appear to provide a capacity for Max Solutions to seek an order under section 120 to seek a reduction in redundancy pay.

I offered Max Solutions an opportunity to consider its position and make a submission on the issue. On 6 June 2022 Max Solutions sent correspondence to chambers advising it had sought legal advice that it did have standing to bring an application under section 120 of the Act notwithstanding clause 9.4 of the Agreement. Max Solutions provided a further additional submission on 8 June 2022.

A separate matter, C2022/3161 also filed on 26 May 2022, is an application by Max Solutions made under section 120 of the Act to reduce the redundancy pay of Ms Thi-Quyet Nguyen (Ms Nguyen) to nil. This application also stated that the redundancy entitlement arose under the Max Solutions Enterprise Agreement 2020 (AG2020/3433) (the Agreement) and in Ms Nguyen’s case, she had completed 12 years’ service which would otherwise have an entitlement to 13 weeks redundancy pay. This application is also pressed on the basis that the Max Solutions has obtained other acceptable employment for Ms Nguyen and this was rejected.

Matter C2022/3161 was initially allocated to Deputy President Boyce, however it was subsequently reallocated to my chambers on 6 July 2022 as the issues to be addressed in both C2022/3137 and C2022/3161 were closely related. I note from the file in matter C2022/3161 that Deputy President Boyce had provided Max Solutions an opportunity to make submissions as to its standing to bring that application.

Correspondence was sent to 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.

Keep reading for free

Create a free CaseChat account to read MAX Solutions T/A MAX Solutions Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 1815
Decision Date: 12 JULY 2022

CaseChat Overview and Summary

In the matter of MAX Solutions T/A MAX Solutions Pty Ltd, the applicants sought an order varying the terms of a registered agreement to allow a reduction in redundancy payments. The applicants, who were employers, contended that the registered agreement did not provide the capacity to reduce redundancy entitlements. They sought to amend the agreement to reflect this understanding. The Federal Court considered the applicants' standing, the interpretation of the agreement, and the need for a substantive hearing.

The primary legal issue before the Court was whether the applicants had standing to seek the variation of the agreement. The Court also had to determine the correct interpretation of the agreement, particularly in relation to redundancy entitlements and whether the agreement provided for a reduction in such entitlements. Additionally, the Court had to decide whether a substantive hearing was necessary given the findings on standing and interpretation.

The Court found that the applicants did have standing to bring the application under section 120 of the relevant Act. The Court interpreted the agreement to mean that redundancy entitlements under the agreement were equal to or exceeded those of the National Employment Standards (NES). The agreement also provided that NES entitlements would apply when they were more beneficial. Given these findings, the Court determined that there was no capacity under the agreement to reduce redundancy entitlements. Consequently, the Court found that there was no utility in conducting a substantive hearing. The applications were dismissed.

The Court did not make any further orders.

Orders