The Trustee for Millard Family Trust Trading as National College of Vocational Education v Linda Towler

[2025] FWC 1023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

The Trustee For Millard Family Trust Trading AS National College Of Vocational Education
v

Linda Towler

(C2025/2300)

COMMISSIONER MATHESON

SYDNEY, 11 APRIL 2025

Application to vary redundancy pay for incapacity to pay – amount reduced on consent basis.

The Trustee For Millard Family Trust Trading AS National College Of Vocational Education (Applicant) has made an application to the Fair Work Commission pursuant to s.120 of the Fair Work Act 2009 (Act). The respondent employee is Ms Linda Towler (Towler).

Section 120(1) of the Act provides that s.120 applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of s.119; and

(b) the employer:

(i)obtains other acceptable employment for the employee; or
(ii)cannot pay the amount.

Section 120(2) of the Act provides that on application by the employer, the Fair Work Commission (Commission) may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the Commission considers appropriate.

Section 120(3) of the Act provides that the amount of redundancy pay to which the employee is entitled under s.119 is the reduced amount specified in the determination.

Ms Towler sought to be represented by a lawyer. The Applicant submitted that there is complexity involved in the matter as it concerns the Applicant’s financial status post conclusion of a period of voluntary administration and entering into a Deed of Company Arrangement and that granting permission for the Applicant to be represented by a lawyer would assist the Commission in dealing with the matter more efficiently having regard to that complexity. The Applicant did not object to Ms Towler being represented by a lawyer. Having regard to the complexity associated with the Applicant’s financial status and arrangements post voluntary administration I considered that granting permission to Mr Towler to be represented by a lawyer would enable the matter to be dealt with more efficiently and granted permission pursuant to s.596(2)(a) of the Act. As such the Applicant was represented by Mr Tate of Turner Freeman Lawyers.

It was not in contention that the Applicant is entitled to be paid an amount of redundancy pay by the employer because of s.119.

During a conference in relation to the matter conducted on 7 April 2025 the Applicant agreed that it was able pay a reduced amount of redundancy and the parties sought that orders be made concerning payment of that reduced amount on a consent basis. I determine that the amount of redundancy to be paid to the Applicant be reduced to $24,749.97, with that amount to be paid in accordance with the Orders made in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In this matter, The Trustee for Millard Family Trust Trading as National College of Vocational Education (the Applicant) applied to the Fair Work Commission to reduce the amount of redundancy pay owed to Linda Towler (the Respondent) under section 120 of the Fair Work Act 2009. The dispute arose from the Applicant's inability to pay the full amount of redundancy due to financial difficulties following a period of voluntary administration and a Deed of Company Arrangement. The Applicant sought a reduction in the redundancy pay amount due to Ms. Towler, which was agreed upon by both parties during a conference held on April 7, 2025.

The central legal issue before the Commissioner was whether the Fair Work Commission had the authority to reduce the amount of redundancy pay under section 120 of the Act, and if so, what amount would be appropriate given the circumstances. The Commissioner needed to consider the financial constraints of the Applicant and the implications of such a reduction on Ms. Towler's entitlements. Additionally, the Commissioner had to decide on the appropriate representation for the parties involved in the matter, balancing the complexity of the case against the potential for efficient resolution.

In determining the appropriate amount of redundancy pay, the Commissioner took into account the financial status of the Applicant post-voluntary administration, the terms of the Deed of Company Arrangement, and the agreement reached between the parties. The Commissioner concluded that the reduction was appropriate and set the amount of redundancy pay to be reduced to $24,749.97, which both parties had consented to during the conference. The Commissioner also granted permission for the Applicant to be represented by legal counsel, considering the complexity of the financial issues involved.

The final order of the Commissioner was that the amount of redundancy pay to be paid to Ms. Towler be reduced to $24,749.97. This amount was to be paid in accordance with the orders made in conjunction with the decision. The Commissioner also noted that both parties had agreed to the terms of the consent order, and thus no further hearing was necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established