The McNab Family Trust T/A Narrogin Earthmoving and Concrete Pty Ltd

[2020] FWC 6610

[2020] FWC 6610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

The McNab Family Trust T/A Narrogin Earthmoving and Concrete Pty Ltd
(C2020/8548)

COMMISSIONER WILLIAMS PERTH, 8 DECEMBER 2020

Variation of redundancy pay.

[1] This decision concerns an application by The McNab Family Trust T/A Narrogin Earthmoving and Concrete Pty Ltd (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee Mr Trevor Bartlett (Mr Bartlett).

[2] The application states that Mr Bartlett is entitled to redundancy pay under the Building and Construction General On-Site Award 2010 [MA000020] (the Award). The application states that Mr Bartlett handed in his notice to the Applicant because he has accepted another job. The application explains that the business has had a downturn of more than 30% and the Applicant is therefore not able to pay Mr Bartlett his redundancy entitlement.

[3] Section 123(4)(c) of the Act states that sections 119 to 122 of the Act do not apply to an employee to whom an Industry Specific Redundancy Scheme in a Modern Award applies. The Award in this case contains an Industry Specific Redundancy Scheme. Mr Bartlett is entitled to redundancy pay by virtue of clause 17 of the Award not by virtue of section 119 of the Act.

[4] Clause 17 of the Award does not include a provision that allows for any variation of redundancy pay owing under the Award.

[5] Consequently, the Applicant is not able to make an application to vary the redundancy pay amount either under the Act or the Award and so the application must be dismissed. There is no variation to the amount of redundancy pay to which Mr Bartlett is entitled under the Award.

[6] An order [PR725262] to that effect will be issued in conjunction with this decision.

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