UGL Services Pty Ltd T/A United Group Services v Max Marano
[2013] FWC 4209
•28 JUNE 2013
[2013] FWC 4209 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
UGL Services Pty Ltd T/A United Group Services
v
Max Marano
(C2013/4526)DEPUTY PRESIDENT LAWRENCE | SYDNEY, 28 JUNE 2013 |
Application to vary redundancy pay for other employment.
Background
[1] This is an application by UGL Services Pty Ltd T/A United Group Services (UGL) for an order that the amount of redundancy pay that would be paid to Mr Max Marano be reduced to nil.
[2] UGL provides building facilities and property management services to a number of sites around Australia.
[3] Mr Marano commenced employment in May 2010 as Facilities Manager at the Commonwealth Law Courts Building in Perth.
[4] On 2 May 2013 UGL lost that contract leading to the twenty employees, including Mr Marano, being made redundant on 28 June unless acceptable alternative employment could be obtained. Twelve out of the twenty employees have taken up alternative employment offered by UGL.
Legislation
[5] The scale of redundancy pay is set out in s.119 of the Fair Work Act 2009 (the Act). An employee with Mr Marano’s service of over three years would be entitled to seven weeks pay.
[6] Section 120 of the 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, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC 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.”
The Evidence
[7] This matter was dealt with at a hearing on 24 June 2013. Mr Marano appeared by video link from Perth.
[8] Notwithstanding the minimum entitlement in the NES, UGL submitted that Mr Marano would be entitled to eight weeks pay under its policy. The question to be decided is whether an Order pursuant to s.120 should be made which reduces the redundancy pay to nil, because UGL had obtained “other acceptable employment” for Mr Marano.
[9] The alternative position offered to Mr Marano was as Facilities Manager on UGL’s Westpac account in Perth. This position was offered to him in mid April 2013 verbally with formal interviews in early May. Although there was some variation between the accounts of events, Mr Marano did not dispute that he was offered the Westpac position and on 8 May finally declined it. It has been now filled by another employee.
Was the other employment acceptable?
[10] The evidence concerning the Westpac position which is relevant was not disputed by Mr Marano:
• Under the company’s job grading system, it sat on the same grade as the Commonwealth Bank position, requiring comparable skills and responsibility;
• The annual salary for the Westpac position was over $9,000 more than the Commonwealth Bank position;
• The location of the Westpac position is approximately one kilometre from the Commonwealth Bank location;
• No car parking space was provided at either site by UGL although Mr Marano had the use of a space at the Commonwealth Bank site;
• The Westpac position was based at 141 St Georges Terrace, Perth and had responsibility for three other sites which are between 210 and 16 metres away.
[11] When questioned by the Commission, Mr Marano said that the reason he did not accept the offer of alternative employment was that it was not a single site. He agreed that the car parking spot was not a consideration.
Decision
[12] The acceptability of alternative employment has long been accepted to be an objective question: Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226. Factors such as nature of the work, pay, hours, skills, duties, seniority and location of the work must be taken into account: Vicstaff Pty Ltd v May (2010) 204 IR 233.
[13] The evidence, as summarised above, makes it clear that the Westpac position was suitable for Mr Marano and financially was more advantageous than his previous position. The fact that there were other sites involved, which are a short walk, makes no material difference.
[14] I am satisfied that the alternative employment was acceptable. It was offered and rejected. I consider it appropriate to reduce any redundancy entitlement to nil. An Order [PR538335] to give effect to this Decision will issue with this decision.
DEPUTY PRESIDENT
Appearances:
D. Renehan with R. Sobol for the Applicant.
M. Marano on his own behalf.
Hearing details:
2013
Sydney: (with a video link to Perth)
24 June.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR538327>
0
2
0