Steven Lennane v Daniel Hartley

[2012] FWA 6588

[2012] FWA 6588

FAIR WORK AUSTRALIA

DECISION

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

Steven Lennane
v
Daniel Hartley
(C2012/4586)

COMMISSIONER GOOLEY MELBOURNE, 14 AUGUST 2012

Application to vary redundancy pay for other employment or incapacity to pay.

[1] On 17 July 2012 Mr Steven Lennane (“the Applicant”) made an application pursuant to section 120(2) of the Fair Work Act 2009 (“the FW Act”) seeking an order that he not have to pay redundancy pay to his employee, because of an incapacity to pay.

[2] The matter was listed for hearing on 1 August 2012. The Applicant appeared on his own behalf and there was no appearance by the employee.

[3] Section 120 of the FW 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, 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.”

[4] The employee’s work was regulated by the Building and Construction General On-Site Award 2010 (“the Award”).

[5] The Award at clause 17 provides for an industry specific redundancy scheme.

[6] Section 17.1 of the Award provides as follows:

“The following redundancy clause for the on-site building, engineering and civil construction industry (as defined) is an industry specific redundancy scheme as defined in s.12 of the Act. In accordance with s.123(4)(b) of the Act the provisions of Subdivision B—Redundancy payof Division 11 of the NES do not apply to employers and employees covered by this award.”

[7] Section 123(4) of the FW Act provides as follows:

“Other employees not covered by redundancy pay provisions

(4) Subdivision B does not apply to:

(a) an employee who is an apprentice; or

(b) an employee to whom an industry-specific redundancy scheme in a modern award applies; or

(c) an employee to whom a redundancy scheme in an enterprise agreement applies if:

(i) the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and

(ii) the employee is covered by the industry-specific redundancy scheme in the modern award; or

(d) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.”

[8] Section 120 of the FW Act is found in Subdivision B. Therefore section 120 does not provide Fair Work Australia with the power to reduce the redundancy entitlement of an employee whose entitlement to redundancy pay is derived from an industry specific redundancy scheme.

[9] Consequently Fair Work Australia does not have the jurisdiction to grant the application and the application is dismissed.

COMMISSIONER

Appearances:

S Lennane on his own behalf.

Hearing details:

2012.
Melbourne:
August 1.

Printed by authority of the Commonwealth Government Printer

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