Spano Enterprises Qld Pty Ltd
[2011] FWA 3672
•14 JUNE 2011
[2011] FWA 3672 |
|
DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Spano Enterprises Qld Pty Ltd
(C2011/4158)
COMMISSIONER SIMPSON | BRISBANE, 14 JUNE 2011 |
Change to redundancy payments for six employees.
[1] On 27 April 2011, Spano Enterprises Qld Pty Ltd (“the Applicant”) made application to vary the redundancy pay otherwise due under the Spano’s Supa IGA Stafford (The Retailers Association) Employee Collective Agreement 2009 (“the Agreement”) and the National Employment Standards for certain employees listed below in paragraph 4.
[2] The application is made pursuant to s.120 of the Fair Work Act 2009 (“the Act”) and the Applicant states that the reason why it is seeking to vary the redundancy pay of employees is that it has obtained alternative acceptable employment for the affected employees.
[3] Clause 19.8 of the Agreement provides for the Employer making an Application to have the general severance pay prescription amended if the Employer obtains acceptable employment for an Employee. Based on the language in clause 19.8 I have interpreted it as requiring the same tests to be met as those required for s.120(1)(b)(i) of the Act.
[4] The affected employees are Ms Donna Travia, Mr Andrew Chitts, Ms Maree Johnson, Mr Steven Brown, Ms Michelle Hohipa -O’Donnell and Ms Catherine Fryer.
[5] The application was the subject of a hearing on 6 May 2011 and a further hearing on 31 May 2011. The NES provides for the same or a more beneficial entitlement compared to the Agreement for service up to 10 years, and the agreement provides a more beneficial entitlement for service of greater than 10 years.
[6] Section 120 of the Act provides:
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.”
EVIDENCE
[7] The six employees affected by the application were sent the notice of listing for the hearing on 6 May 2011. They were also provided with the notice of listing for the second hearing and served the affidavits of Natalie Spano and Wayne Ridgely relied on by the Applicant.
[8] Any employee seeking to oppose the application was required to file material by 27 May 2011. No material was filed and no employee sought to appear at either hearing date to oppose the Application.
[9] Ms Spano gave evidence that she was responsible for obtaining employment for four of the six affected employees at Woolworths Stafford, Coles Lutwyche, Woolworths Keperra and Woolworths Warner.
[10] Ms Spano’s evidence was that the staff were advised on 28 March 2011 that the Spano’s Supa IGA Stafford would cease to operate and close on 8 May 2011. The staff were advised that Ms Spano would immediately do “everything possible” to find employment for them.
[11] Her affidavit sets out Ms Spano was highly active on behalf of the affected employees in establishing direct discussions with Woolworths, Drakes Supermarket Group, Ritchies Supermarket Group, The Hopper Supermarket Group and IGA head office to secure employment for her staff.
[12] Four of the six affected employees provided written statements which are annexed to the affidavit of Ms Spano attesting to the fact that Ms Spano’s involvement was the reason they had secured new employment.
[13] Mr Ridgley’s affidavit sets out his discussions with Woolworths which were ultimately successful in securing employment for number of staff. His evidence also describes his discussions with Coles Lutwyche on behalf of Mr Chitts.
[14] It was the evidence of Ms Spano that two affected employees, Michelle Hohipa-O’Donnell and Steven Brown elected not to participate in the discussions arranged to secure other acceptable employment, and that the Applicant would have successfully arranged that employment had those two employees taken the opportunity to do so.
[15] It was also the evidence of Ms Spano that there were 12 other ex-employees of Spano’s IGA who did not qualify for an entitlement for redundancy but who were also found alternative employment through the efforts of the Applicant.
CONCLUSION
[16] In assessing this application it is necessary to determine whether the relevant employer obtains other acceptable employment. In the case of the four employees who accepted alternative employment they are undertaking comparable or more senior roles and responsibilities to those which they were carrying out with the Applicant and I am satisfied the Applicant was the driving force behind this occurring.
[17] On the basis of the nature of the work, the location, pay arrangements and the written statements provided by four employees attributing their new employment to the Applicant I am satisfied that the new employment falls within the meaning of other acceptable employment. The evidence has also persuaded me that the same would be the case for the two affected employees who elected not to accept the offer of the Applicant to obtain alternative employment had they decided to do so.
[18] On the basis of the material before me and there being no opposition to the Application I am satisfied that Applicant has obtained other acceptable employment for the affected employees pursuant to s.120(1)(b)(i) of the Act, and clause 19.8 of the Agreement.
[19] In these circumstances, I will issue an Order that the amount or redundancy pay to be paid by Spano Enterprises Qld Pty Ltd to Ms Donna Travia, Mr Andrew Chitts, Ms Maree Johnson, Mr Steven Brown, Ms Michelle Hohipa -O’Donnell and Ms Catherine Fryer is reduced to nil.
COMMISSIONER
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