WVCT Oz Pty Ltd Trading as Western Victorian Crane Trucks v Andrew Mcleod

[2025] FWC 2559

[2025] FWC 2559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

WVCT OZ Pty Ltd Trading AS Western Victorian Crane Trucks
v
Andrew Mcleod

(C2025/7752)

COMMISSIONER MIRABELLA MELBOURNE, 1 SEPTEMBER 2025

Application for variation of redundancy pay – application to pay redundancy entitlement in instalments – application granted

1. This decision concerns one of five related applications made by WVCT Pty Ltd trading as Western Victorian Trucks (the company) under s.120 of the Fair Work Act 2009 (the Act) to pay the redundancy entitlements of their employees in instalments instead of a lump sum. I have decided to issue separate decisions in each matter. The five decisions are necessarily very similar.

1. Mr Mcleod was employed as a Diesel Engine Mechanic. His final day of employment was 29 August 2025. The company’s business includes the provision of cranes and trucks for transportation and hire.

1. There is no dispute that Mr Mcleod worked for the company for about 7 years and 4 months and that he is entitled to 13 weeks’ redundancy pay of $27,170.00 pursuant to s.119 of the Act.

1. The company has applied to pay Mr Mcleod’s redundancy by instalments because it cannot pay the redundancy amount as a lump sum.

1. Section 120 of the Act gives the Fair Work Commission (the Commission) the discretion to vary a redundancy pay amount to which an employee would otherwise be entitled under s.119 of the Act. Section 120 applies if the employee is entitled to an amount of redundancy pay under s.119 (s.120(1)(a)) and the employer either obtains ‘other acceptable employment’ or cannot pay the amount of the redundancy pay (s.120(1)(b)). The Commission’s discretion in s.120(2) to vary the redundancy pay to a specified amount (including a nil amount) that it considers appropriate can only be exercised if the conditions of s.120(1) are met. Where an order under s.120(2) is made, the reduced redundancy pay to which the employee is entitled will be the amount specified in the determination (s.120(3)).

Background

1. The company operates a crane and truck business at 112 Whitelaw Avenue, Delacombe in Victoria. The company largely relocated to a site at 2/12 Motto Court, Hoppers Crossing on approximately 15 July 2025.

Submissions

1. In the Form F45A, the company indicated that they obtained other acceptable employment for Mr Mcleod because they offered him a position at the Hoppers Crossing site with adjusted duties. Mr Mcleod did not accept the position because he could not commute from Delacombe to Hoppers Crossing on a daily basis. The distance is approximately 105 kilometres and the driving time is between 1 hour 18 minutes to 1 hour 30 minutes.

1. Curiously, the company asserts that they provided ‘other acceptable employment’ but do not make an application to reduce the redundancy entitlement.

1. Rather, the company appears to be relying on s.120(1)(b), because they submit that due to a financial crisis they cannot pay the redundancy entitlement as a lump sum, but are willing to pay the full amount of the redundancy entitlement over 7 fortnights, coinciding with the fortnightly payroll cycle, with an amount of $4,180.00 per fortnight for 6 fortnights and a final payment of $2,090 on the seventh fortnight.

Consideration

1. It is not in dispute that the company obtained other employment for Mr McLeod. The company offered him a role at their business site in Hoppers Crossing. The question of whether the other employment is ‘acceptable’ is an objective assessment. The ‘other employment’ may necessarily be different in some regard to the existing employment. In assessing whether other employment is acceptable, it is relevant to consider the differences between the existing employment and the role that has been offered by the company and not accepted by Mr Mcleod.

1. The daily drive of anything between 2.6 hours and 3 hours is clearly sufficiently onerous that I cannot find the offer of employment was other acceptable employment. I accept the company’s submissions that they cannot pay the redundancy entitlement as a lump sum. Mr Mcleod does not oppose the application to be paid in instalments as described above.

1. For the purposes of s.120(1)(b)(ii), I find that the company cannot pay the amount as a lump sum. In my view and taking all the relevant matters into consideration, it is appropriate to exercise my discretion to allow the redundancy entitlement to be paid in instalments of $4,180.00 over a period of 6 fortnightly payments, with a final instalment of $2,090.00 on the seventh fortnight.

1. An order will be issued separately reflecting this decision.

COMMISSIONER

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