Ultimate 4WD Equipment (WA) Pty Ltd v S Singh

[2014] FWC 8891

[2014] FWC 8891 [Note: An appeal pursuant to s.604 (C2014/8292 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 6 March 2015 [[2015] FWCFB 1499] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Ultimate 4WD Equipment (WA) Pty Ltd
v
S Singh
(C2014/7992)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 9 DECEMBER 2014

Variation of redundancy pay.

[1] On 28 November 2014, Ultimate 4WD Equipment (WA) Pty Ltd (the Applicant) applied under s.120 of the Fair Work Act 2009 (the Act) for an order to vary the redundancy pay entitlement of Mr S Singh arising from s.119 of the Act (the National Employment Standards) to zero on the basis that, consequent upon a decision to make his position redundant, it had obtained other acceptable employment for Mr Singh.

[2] Upon receipt of the application, further information was sought from, and provided by, the Applicant and Mr Singh was afforded an opportunity to put submissions in relation to the application.

[3] Section 120 of the Act states:

“(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.”

[4] I am satisfied that the redundancy pay entitlement which the Applicant has applied to vary does arise from s.119 of the Act.

[5] I am also satisfied that the Applicant has obtained other acceptable employment for Mr Singh. The redundancy of his position arose from a decision by the Applicant to outsource the work. As part of the agreement with the outsourced company to perform the work, the Applicant negotiated that Mr Singh be employed on the same terms and conditions by the outsourced company undertaking the work he performed for the Applicant prior to the outsourcing, with the new employment to have effect one day following the redundancy having effect. Mr Singh’s accrued entitlements were paid out by the Applicant, although the new employer does not recognise his 3½ years service with the Applicant. Mr Singh accepted the offer of employment with the new employer, commencing his employment one day after he ceased his employment with the Applicant.

[6] I am satisfied that the new employment is acceptable employment, obtained by the Applicant as part of its agreement to transfer the work. The jurisdictional requirements for the making of the order sought are met.

[7] Mr Singh did not oppose the application.

[8] In all the circumstances, I am satisfied as a matter of discretion that the determination sought should be made. An Order 1 is issued with this decision.

SENIOR DEPUTY PRESIDENT

 1   PR558784.

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