Seal One Pty Ltd

[2010] FWA 3416

[2010] FWA 3416

FAIR WORK AUSTRALIA

DECISION

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

Seal One Pty Ltd
(C2010/3261)

COMMISSIONER LEWIN BRISBANE, 29 APRIL 2010

Redundancy–NES–Application for exclusion–Acceptable alternative employment–Application refused.

Introduction

[1] In this matter Seal One Pty Ltd Pty Ltd (Seal One) has filed an application for an Order seeking an “exclusion to pay redundancy pay”. The application was made on 25 March 2010, on Form 1—Application (no specified form provided). Under “Part 1—Provision(s) under which application is made” the applicant has entered the following: “NES section 61–Variation of redundancy pay”. The application relates to the termination of the employment of Mr Ardie Cooney, the position in which Mr Cooney was employed by Seal One became redundant.

[2] Section 61 is presumably s.61 of the Fair Work Act 2009 (the Act) and the “obligation to pay redundancy pay” referred to in the application is presumably the obligation under Division II Subdivision B of Chapter 2, Part 2–2 of the Act. In particular, the application is taken to have been made under the provisions of s.120 of the Act, which are 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, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA 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.”

[3] On 26 March 2010 the matter was listed for Hearing at 2.00 pm on 29 March 2010. The matter was listed jointly with matter C2010/3046, an application for Fair Work Australia to deal with an alleged dispute between the Australian Worker’s Union, on behalf of Mr Cooney and Freedman Brothers Racing in relation to a claim for redundancy payments under the Horse and Greyhound Training Award 2010. On 24 March 2010, I received correspondence from Mr Anthony Freedman of Seal One advising that he did not intend to attend the Hearing in matter C2010/3046. The Tribunal was advised that Freedman Brothers Racing was not the employer of Mr Cooney, rather, the employing entity was Seal One.

[4] My Associate spoke to Ms Sue Willis of Freedman Brothers Racing on 26 March 2010. During that conversation, Ms Willis confirmed that Seal One would not be represented at the Hearing of the application in this matter on 29 March 2010. Ms Willis has provided written advice concerning the two matters on behalf of both Freedman Brothers Racing and Seal One.

[5] On 29 March 2010, Mr Lee Buntman filed in the Tribunal a form 53—Notice of representative commencing to Act in this matter. At the Hearing on 29 March 2010, Mr Lee Buntman of the Australian Workers’ Union appeared on behalf of Mr Cooney. There was no appearance by Seal One.

[6] At the Hearing on 29 March 2010 I proceeded to address the application in accordance with the intention expressed by Seal One on 24 March 2010 by email, and on 26 March 2010 by telephone to my Associate, such that the application in this matter be determined in the absence of Seal One. Mr Buntman made submissions in opposition to the application of Seal One. Mr Buntman provided information concerning the termination of Mr Cooney’s employment by reason of redundancy.

[7] On 9 April 2010 I wrote to Seal One to inform the Company that I intended to proceed to deal with the application on the material that was currently before the Tribunal. The letter was in the following terms:

“This matter was listed for Hearing at 2.00 pm on 29 March 2010. There was no appearance on behalf of the Applicant. A Mr Buntman appeared on behalf of Mr Cooney, who would be affected by any order made in accordance with the application. Mr Buntman opposed the application on behalf of Mr Cooney.

On 1 April 2010 you were forwarded a copy of the transcript of the Hearing on 29 March 2010.

Prior to the Hearing of this mater, you advised my Associate Ms Schaffner that the applicant did not intend to be represented at any Hearing in relation to this matter.

I shall therefore proceed on the basis that you are content to have the application dealt with having regard to the material currently before the Tribunal. As a precaution however, I shall allow until the close of business on Friday 16 April 2010 to receive any contrary advice before proceeding to determine the matter.”

[8] On 15 April Ms Willis filed material in the Tribunal which confirmed that Seal One consented to the determination of the application on the material currently before the Tribunal. Ms Willis also notified the Tribunal that Seal One had not received a copy of the Transcript of proceedings. Seal One was provided with a copy of the Transcript of the proceedings on 15 April 2010 electronically. On 16 April 2010 Seal One filed in the Tribunal a response to issues raised at the Hearing by Mr Buntman. I have given consideration to and had regard to the contents of that response.

Consideration

[9] There is no evidence before me, and I understand there to be no submission, that Seal One cannot pay the amount of redundancy pay to Mr Cooney which would be payable under the relevant provisions of the Act in the event that the order sought is not made.

[10] Therefore, in order to determine that the Tribunal may order a reduction in that amount, (which may be a nil amount), I would have to be satisfied that Seal One obtained acceptable alternative employment for Mr Cooney.

[11] Having regard to the nature of the jurisdiction and power provided by s.120(1)(ii) of the Act, the procedural and substantive onus to satisfy the Tribunal, on an objective basis 1, that an employer has obtained other acceptable alternative employment for an employee rests with the applicant employer2.

[12] In order to be satisfied that Seal One gained other acceptable alternative employment for Mr Cooney I consider that I should be satisfied, on a proper basis of evidence, that, among other things, the terms and conditions of employment of such other acceptable alternative employment were comparable or substantially similar to those which were applicable to the employment in respect of which Mr Cooney became redundant.

[13] The Grounds upon which the application are made, as shown on the Form 1, includes the following:

“An offer for employment at “Markdel” at reduced wages was verbally given to Mr Cooney in early/mid January, who refused the offer. On 21 January 2010 he was then informed there was no job at present and there may be something in the future, he would have to finish up and we would look at a redundancy package.”

[14] There is no evidence and only an outline of the substantive basis upon which Seal One asserts that other acceptable alternative employment was obtained for Mr Cooney. It appears, as best I can make out, that the alleged other acceptable alternative employment which forms the basis of the case for the applicant employer was to be at “reduced wages”. There is little further information concerning the terms and conditions of such employment. On the limited information before me I am unable to come to a sound and satisfactory finding that Seal One obtained other acceptable alternative employment for Mr Cooney. On the contrary, what evidence I have is that, at least, the wages which were payable in the alternative employment were to be less than those payable to Mr Cooney in the redundant position.

Conclusion

[15] In the absence of a positive finding that Seal One obtained other acceptable alternative employment for Mr Cooney, the discretionary power to make the order sought by the applicant does not arise.

[16] The application is dismissed.

COMMISSIONER

Appearances:

Mr Lee Buntman Representing Mr Ardie Cooney

Hearing details:

2010

29 March

Melbourne

Final written submissions:

Mr Anthony Freedman on behalf of Seal One Pty Ltd, 16 April 2010

 1   Australian Chamber of Manufacturers and Derole Nomineers, AIRC, PRJ4144 (12 September 1990).

 2   Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd 27 IR 226, in particular 230-1.

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