Serco Australia Pty Ltd v Mr Stewart Anderson

[2015] FWC 3722

[2015] FWC 3722

FAIR WORK COMMISSION

DECISION

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

Serco Australia Pty Ltd
v
Mr Stewart Anderson
(C2015/3749)

VICE PRESIDENT CATANZARITI BRISBANE, 2 JUNE 2015

Variation of redundancy pay.

[1] On 30 April 2015, Serco Australia Pty Ltd (Employer) made an application to the Fair Work Commission (Commission) pursuant to s. 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay due to Mr Stewart Anderson (Employee) in circumstances where the Employee was deployed.

[2] The Employer provides services to the corrections and detentions industry.

[3] The application was the subject of a hearing on 1 June 2015. The Employee attended the hearing and was represented by Mr Ong of United Voice.

[4] At the outset of the hearing, the parties were asked if any attempt had been made to settle the matter prior to the hearing to which the answer was “no”. The matter was adjourned for 15 minutes to allow the parties time to consult with each other.

[5] The parties, by consent, agreed to a variation for the redundancy pay in the amount of $3,619.55. This amount represents the difference between the Employee’s entitlement to redundancy pay under his previous base rate ($79,499.65) and his new position’s base rate ($69,226.30), multiplied by 16 weeks (the Employee’s redundancy entitlement).

Relevant statutory framework

[6] Section 119 specifies the entitlement of the employees.

[7] Section 120 provides:

“(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.”

Consideration and Conclusion

[8] Having considered the statutory provisions, the information contained in the application and the by agreement of the parties, I am satisfied that, in accordance with s.120(1)(b)(i) of the Act, I should exercise my discretion pursuant to s.120(2) of the Act and reduce the redundancy pay to $3,619.55 less the appropriate tax. An order will be issued to reflect this Decision.

VICE PRESIDENT

Appearances:

B Smith for the Applicant.

S Ong for the Respondent.

Hearing details:

1 June

2015

Brisbane.

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