Sibelco Australia Limited

[2015] FWC 4046

[2015] FWC 4046

FAIR WORK COMMISSION

DECISION

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

Sibelco Australia Limited
(C2015/4024)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 JUNE 2015

Variation of redundancy pay.

[1] This is an application under s.120 of the Fair Work Act 2009 (“the Act”), by which the Applicant, Sibelco Australia Limited (“Sibelco”), has sought to reduce the amount of redundancy it must otherwise pay Mr Jarryd Rapkins to nil. The Applicant seeks the reduction on the basis that Sibelco has obtained other acceptable employment for Mr Rapkins, which he has accepted.

[2] At a Conference in relation to this matter, Mr Rapkins advised that he did not oppose the application for an order as sought by Sibelco. I directed that Mr Rapkins file a statutory declaration setting out the factual basis for the other acceptable employment. A statutory declaration of Mr Rapkins was filed on 24 June 2014.

Legislation

[3] Section 120 of the Act provides as follows:

“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.”

The Evidence

[4] Whilst the parties consent to an Order being made by the Commission to reduce Mr Rapkins’ redundancy entitlement to nil, it is nonetheless necessary for the Commission to have a factual basis upon which to exercise its power.

[5] Mr Rapkins has provided a statutory declaration in which he declares that his previous position of Project Engineer, Mineral Sands, has been made redundant; he was offered an alternate role as Maintenance Planner, Industrial Minerals; he has accepted the offer of alternate employment; he has commenced work in the role; and agrees to an order being issued to reduce his redundancy entitlement to nil.

Conclusion

[6] I am satisfied that Mr Rapkins is entitled to be paid an amount of redudancy pay by Sibleco because of s.119 of the Act. I am also satisfied that Sibelco has obtained other acceptable employment for Mr Rapkins, which he has accepted.

[7] I consider that an Order should be made to reduce the amount of redundancy pay otherwise payable to Mr Rapkins’ to nil. An Order to this effect will issue concurrently with this Decision.

DEPUTY PRESIDENT

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