TAW Trading Pty Ltd T/A Everflo Plumbing v Adam Ahmadzai

[2018] FWC 6993

[2018] FWC 6993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

TAW Trading Pty Ltd T/A Everflo Plumbing
v
Adam Ahmadzai; Michael Douglas; Raymond Fair; Billy Angelis; Campbell Ayton
(C2018/5946, C2018/5947, C2018/5948, C2018/5949, C2018/5950)

DEPUTY PRESIDENT MASSON MELBOURNE, 19 NOVEMBER 2018

Variation of redundancy pay – applications dismissed for want of jurisdiction.

[1] This matter involves five applications made pursuant to s.120 of the Fair Work Act2009 (the Act) for variation of the obligation to pay redundancy pay pursuant to s.119 of the Act. The application is made by TAW Trading Pty Ltd T/A Everflo Plumbing (the Applicant), in relation to five former employees, Mr Adam Ahmadzai (C2018/5946), Mr Michael Douglas (C2018/5947), Mr Raymond Fair (C2018/5948), Mr Billy Angelis (C2018/5949) and Mr Campbell Ayton (C2018/5950) who were made redundant by the Applicant.

[2] The Applicant asserts that its financial position is such that it is unable to meet the cost of its redundancy obligations due to Messrs Ahmadzai, Douglas, Fair, Angelis and Ayton.

[3] The matter was listed for a mention hearing on 31 October 2018 at which Mr Terry Watson appeared on behalf of the Respondent. None of the former employees participated in the mention hearing.

[4] Subsequent to the mention hearing, the Commission wrote to the Respondent on 1 November 2018 and advised that on the basis of the materials filed it appeared that the applications could not be made or approved for want of jurisdiction. The reason outlined by the Commission was that the employees were covered by an industry specific redundancy provision contained in the Plumbing and Fire Sprinklers Award 2010 1 (the Award) which could not be varied.

[5] In the Commission’s correspondence of 1 November 2018, the Applicant was invited to withdraw the applications or advise if it wished to press the applications, in which case, directions would be issued for programming. No reply was received to the Commission’s correspondence. Further correspondence was sent by the Commission on 13 November 2018 seeking confirmation as to the course of action that the Applicant wished to take and requested a response by 4.00pm on 14 November 2018. The Applicant was advised that failure to provide a response would result in the Commission determining the matter on the materials before it. A response was not received within the required timeframe.

[6] I intend to now deal with the applications on the material before me.

[7] Section 120 of the Act enables an application to be made to vary the National Employment Standards (the NES) entitlement provided for at s.119 of the Act. Importantly however, Subdivision B including ss.119 and 120 do not apply in the case of employees covered by an industry specific redundancy scheme. That is by reason of s.123(4) of the Act which states as follows:

“(4) Subdivision B does not apply to:

(b) An employee who is an apprentice; or

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

……..” 2

[8] The consequence of the operation of s.123(4) is that ss.119 and 120 do not apply therefore an application cannot be made or approved to vary the redundancy obligations arising from an industry specific scheme provided for in a modern award.

[9] The employment of the five former employees was, according to the applications filed, covered by the Award. The Award contains an industry specific redundancy scheme, which is detailed at clause 18 of the Award, and which displaces the NES. The relevant provision of the Award states as follows:

“18.1 The following redundancy clause for the plumbing and fire sprinklers contracting industryis 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.

………….”

[10] It is clear on the basis of the materials filed by the Applicant that the five former employees were covered by the Award which contains an industry specific redundancy scheme. Sections 119 and 120 of the Act do not apply.

[11] It follows from the above that the applications to vary the redundancy pay obligations for reasons of incapacity to pay cannot have jurisdiction as the section only applies if an employee is entitled to be paid an amount of redundancy pay by the employer in accordance with s.119 of the Act.

[12] For the above reasons, I dismiss the applications for want of jurisdiction. Orders reflecting this decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

T Watson for the Applicant.

Hearing details:

2018.

Melbourne.

October 31.

Printed by authority of the Commonwealth Government Printer

<PR702311>

 1   MA000036

 2   Fair Work Act 2009 (Clth), section 123(4)