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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The McNab Family Trust T/A Narrogin Earthmoving and Concrete Pty Ltd, the dispute centred on the variation of redundancy pay. The Fair Work Commission (FWC) was tasked with determining the matter. The employer, Narrogin Earthmoving and Concrete Pty Ltd, argued for a reduction in the redundancy pay owed to the employee, John McNab, based on the claim that he had received a payment from a prior employer. The employee contended that the previous payment should not affect the redundancy pay owed under the current employment terms.

The central legal issue was whether the redundancy pay owed by the employer could be varied due to the employee's receipt of a payment from a prior employer. The court had to consider the applicability of the relevant sections of the Fair Work Act 2009, particularly section 5-2-4, which outlines the calculation of redundancy pay. The employer argued that the redundancy pay should be reduced by the amount received from the prior employer, while the employee maintained that such a reduction was not permissible under the statutory framework.

The FWC found in favour of the employee, ruling that the redundancy pay owed by the employer could not be reduced due to the employee's receipt of a payment from a prior employer. The decision was based on the interpretation of the relevant legislative provisions and the principle that redundancy pay is calculated based on the terms of the employment relationship with the employer from whom the redundancy arises. The court held that the redundancy pay owed by the employer was not subject to reduction by payments from other employers. This interpretation ensured that the employee's entitlement to redundancy pay was protected and not diminished by unrelated payments from previous employers.

The final order of the FWC was that the employer, Narrogin Earthmoving and Concrete Pty Ltd, must pay the full redundancy amount to the employee, John McNab, without any reduction based on payments received from a prior employer. This decision upheld the statutory entitlements of the employee and clarified the scope of redundancy pay calculations under the Fair Work Act 2009.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established