Fair Work Act 2009

s.120 - Redundancy pay

Perth Landscaping Experts Pty Ltd Trading AS Perth Landscaping Experts

• [1] Perth Landscaping Experts Pty Ltd trading as Perth Landscaping Experts (Applicant) has applied to the Fair Work Commission (FWC) for an order pursuant to section 120 of the Fair Work Act 2009 (Cth) (FW Act), that the amount of redundancy pay due to Mr Mark Mason (Mr Mason) be reduced from 7 weeks of Mr Mason's base rate of pay for his ordinary hours of work to zero (Order), on the grounds that Perth Landscaping Experts does not have the capacity to pay Mr Mason his redundancy entitlements (Application).

• [2] The Application asserts that the ACN of Perth Landscaping Experts Pty Ltd is 604 734 698 and that the ABN is 44 604 734 698. The contact person nominated for the Applicant in the Application is Mr Thibaut Holl (Mr Holl) who is identified in correspondence to Chambers as the owner of 'Perth Landscaping Group'.

• [3] Mr Mason objects to the FWC making the Order sought by Perth Landscaping Experts Pty Ltd.

• [4] Directions were first issued to the parties (Directions) on 27 March 2025.

• [5] In accordance with the Directions, the parties filed an Agreed Statement of Facts which the parties were advised would be admitted into evidence and considered not in dispute.

• [6] The Directions contained an invitation for either party to make a request to be heard orally in relation to the Application. The parties were advised that, should neither party wish to make oral submissions, and subject to my review of the materials filed in accordance with the Directions, a conclusion about the Application may be made on the written materials filed.

• [7] No request to be heard orally was received from either party.

• [8] The Directions directed Perth Landscaping Experts Pty Ltd to file in the FWC and serve on Mr Mason an outline of submissions in support of the Application, any witness statements, authorities and copies of documents upon which it sought to rely for the Application.

• [9] In particular, the Directions required Perth Landscaping Experts Pty Ltd to file:

1. Audited balance sheet for the financial year ended 30 June 2024.
2. Audited profit and loss report for the financial year ended 30 June 2024.
3. A profit and loss report for the current financial year.
4. A balance sheet for the current financial year.
5. A cash flow statement for the 12 months to the date of the Application.
6. A statement detailing Perth Landscaping's current cash reserves as at the date of the Application.
7. A list of employees as at the date of the Application.

• [10] The Directions also required Mr Mason to file in the FWC and serve on the Applicant an outline of submissions in response to the Application, any witness statements, authorities and copies of documents upon which he sought to rely.

• [11] In response to the Directions the Applicant filed unaudited balance sheets, profit and loss reports and a cash flow statement for Perth Landscaping and Gardening Pty Ltd. The Applicant also filed a letter from its accountant Mr Ryan Brown (Mr Brown) stating that 'Perth Landscaping Experts' ceased trading on 30 September 2024.

• [12] Perth Landscaping Experts Pty Ltd was subsequently directed to file:

1. taxation returns for the financial years ending June 2023 and June 2024;
2. BAS statements for the 2024 to 2025 financial years;
3. signed and dated witness statement from the person who has prepared the company accounts filed; and
4. submissions in support of the Application.

• [13] Mr Holl was asked to confirm if Perth Landscaping Experts Pty Ltd was in administration or declared bankrupt.

1. a taxation return for the financial year ending 30 June 2023 for Perth Landscaping and Gardening Pty Ltd;
2. BAS statements for 'Perth Landscaping Experts' for December 2023, March 2024, June 2024, September 2024, December 2024; and
3. BAS statements for September 2023 for 'Perth Landscaping and Gardening Pty Ltd'.

• [15] After further prompting from Chambers, the taxation return for Perth Landscaping & Gardening Pty Ltd and a witness statement from Mr Brown was also filed.

• [16] The Applicant did not ultimately file any substantive written submissions in support of the Application.

• [17] In accordance with the Directions, Mr Mason filed written submissions and a witness statement from his accountant. These submissions raised questions with respect to the identity of the legal entity which actually employed Mr Mason, the movement of funds between the related businesses and the potential impact of this on the genuineness of the Applicant's incapacity to pay Mr Mason's severance entitlements.

• [18] The Applicant was invited to respond to these submissions. Mr Holl submitted that the financial position of the related entities was irrelevant. Mr Holl was directed to file:

1. Financial statements, tax returns, and BAS lodgements for all related entitles for the period 30 June 2024 to 31 March 2025.
2. A breakdown of the transactions between the related entities (e.g. management fees, shared costs, or any overheads charged across entities) for the period 30 June 2024 to 31 March 2025.

• [19] Mr Holl initially filed the following BAS:

1. BAS for Perth Landscaping Group ABN 70667711015 December 2023, June 2024, March 2024, September 24, December 2024,;
2. BAS for Perth Reticulation Experts Pty Ltd ABN 74651261531 - September 2023, December 2023, June 2024, September 2024;
3. BAS Perth Garden Experts Pty Ltd ABN 20651262109 - September 2023, December 2023, March 24, June 2024, September 2024; and
4. BAS Perth Reticulation Experts Pty Ltd ABN 74651261531 - September 2023, December 2023, March 2024, December 2024.

1. A consolidated profit and loss for 2024 and year to date 2025 for each business unit.
2. Balance sheets for Perth Garden Experts Pty Ltd, Perth Landscape and Gardening Pty Ltd, Perth Landscaping Group and Perth Reticulation Experts Pty Ltd as at 31 March 2025
3. Ledger for inter-entity charges.
4. Wages reports for the wages received by Mr Holl and Ms Randall from Perth Landscaping and Gardening Pty Ltd for the period from 1 July 2023 to 30 June 2024, from Perth Reticulation Experts Pty Ltd for the period from 1 July 2024 to 30 June 2025.

• [21] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

• [22] Section 120 of the FW Act states that:

"120 Variation of redundancy pay for other employment or incapacity to pay

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

(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."

• [23] The Application identifies the Applicant as 'Perth Landscaping Experts Pty Ltd' and asserts that ACN of Perth Landscaping Experts Pty Ltd is 604 734 698 and the ABN is 44 604 734 698.

• [24] According to the Australian Securities and Investments Commission's register (Register) 'Perth Landscaping Experts' is a business name not a company. There is no record on the Register of a company named 'Perth Landscaping Experts Pty Ltd'.

• [25] The ACN and ABN cited in the Application belong to Perth Landscaping & Gardening Pty Ltd (PL&G). 'Perth Landscaping Experts' was a trading name for PL&G from 22 February 2018 to 2 November 2024. According to the Register, Ms Cindy Randall (Ms Randall) is the Director of PL&G and Mr Holl is the only shareholder. Ms Randell and Mr Holl both have a common address in Hilton Western Australia.

• [26] Mr Holl concedes that Mr Mason was in fact employed by PL&G. The parties agree that Mr Mason commenced employment with PL&G on 6 September 2021 and that he was retrenched on 30 September 2024. Mr Thibaut confirms that PL&G is not in liquidation or administration.

• [27] Both Mr Holl and Mr Brown assert that Perth Landscaping Experts ceased trading on 30 September 2024. Given that this is a business name and not a company, it is unclear what Mr Holl or Mr Thomas mean by this. Particularly since the Register reveals that the business name 'Perth Landscaping Experts' has, since 11 October 2024, been a trading name for Perth Landscaping Group Pty Ltd (PLG).

• [28] The ABN for PLG is 70 667 711 015 and the ACN is 667 711 015. PLG was registered on 4 May 2023. PLG has also traded under the business name of 'Perth Landscaping & Gardening' since 16 October 2024. According to the Register, the Director of PLG is Ms Randall and the only shareholder is Mr Holl.

• [29] The 'Perth Landscaping Group' has been a business name Perth Reticulation Experts Pty Ltd (PRE) since 9 November 2024. PRE was registered on 22 June 2021. The ABN for PRE is 74 651 261 531. PRE has also traded under the business name 'Retic World' since 1 May 2025. The Director of PRE is Cindy Randell and Mr Holl is the only shareholder.

• [30] Mr Holl is also the sole shareholder of Perth Garden Experts Pty Ltd. The ABN for PGE is ABN 20 651 262 109. PGE was registered on 22 June 2021. Ms Randell is the Director of this company.

• [31] The evidence of Mr Mason is that during his employment, PL&G was a part of a group of businesses trading under the names:

1. Perth Garden Experts; and
2. Perth Landscaping and Gardening; and
3. Perth Reticulation Experts; and
4. Perth Landscaping Experts; and
5. Perth Landscaping Group.

• [32] According to Mr Mason, while the entities generally had separate jobs, employees would commonly work together on the same projects and sometimes employees from one entity would work for another entity if an entity was short staffed.

• [33] An interrelationship between these various businesses is also reflected in the financial records filed by Mr Holl in support of the Application. For example, the balance sheet of PL&G as at 30 June 2024 includes loans to Perth Garden Experts' and 'Perth Landscaping Group' and a loan from 'Perth Reticulation Experts'. The balance sheet as at 31 March 2025 reveals a doubling in the size of the loan to Perth Garden Experts. The 2024 taxation return includes an expense an amount of $280,872 described as PLG Group Overhead'.

• [34] The BAS for the related entities reveal multiple transactions attributed to 'PLG Group Overhead'; loans to and from the Holl Family Trust and loans from 'Perth Landscaping Experts' to other related companies. According to Mr Brown 'Perth Landscaping Experts' paid $31,208, a month to Perth Reticulation Experts for PLG overhead recovery from 1 October 2023 to 1 June 2024 amounting to a total of $280,872. In the same period Perth Gardening Experts only paid $164,874. No explanation was provided as to the services provided by Perth Reticulation Experts, the costs incurred by Perth Reticulation Experts in providing those services or the reason for the differential contribution by Perth Garden Experts. The amounts continued to be charged to Perth Landscaping Experts after Perth Landscaping Experts are said to by Mr Holl to have ceased trading.

• [35] Mr Mason says that there were at least three outstanding scopes of work as at the date he was made redundant. This is consistent with the BAS for PLG for Dec 2024 which records the purchase of plants on behalf of 'Perth Landscaping Experts' and the September 2024 BAS for PLG which records revenue from the payment of invoices issued by 'Perth Landscaping Experts'.

• [36] In his witness statement Mr Brown reports that PL&G was anticipated to have a $478,205 tax loss for the 2024 financial year. I note that this loss includes the $280,872 described as 'PLG Group Overhead'. The balance sheet as at 31 March 2025 is negative $80,762.

• [37] I note that the balance sheet for Perth Landscaping and Gardening Pty Ltd as at 31 March 2025 records as assets a loan still owing from Mr Holl and related entities in excess of $26,000. It also records fixed assets of in excess of $96,828 and cash in the bank of $4,723 as compared to $50,168 as at 30 June 2024.

• [38] The related companies appear to be trading strongly.

1. The June 2024 BAS for Perth Reticulation Experts Pty Ltd ABN 74651261531 reported sales of $544,075. The December 2024 BAS reports income of $923,940.
2. The September 2024 BAS for Perth Landscaping Group reported sales of $160,000 and the December BAS $28,500.
3. The June 2024 BAS for Perth Garden Experts Pty Ltd ABN 20651262109 reported sales of $160,944, the March 2024 BAS reported sales of $156,696 and the September 2024 BAS reported sales of $156,407.

Although the precise financial situation is difficult to assess given the use of the same business names by different legal entities.

• [39] The general approach taken by the FWC for a variation in relation to an employer's obligation for redundancy pay due to incapacity to pay is summarised by Hampton C in Mildren Automotive Pty Ltd[1] as follows:

• "The provision means that the Commission "may" determine to reduce the amount of redundancy pay up to an amount of nil, indicating that the granting of full or partial relief from the obligation is an exercise of discretion in the circumstances of the case. The employer bears the onus of establishing that there are grounds justifying the exercise of the discretion.

• The employer must satisfy the FWC that it is not financially competent or possessed of the necessary funds to make the payment and has no reasonable source of funds.

• The assessment of financial competence will include consideration of the financial standing of the business including its cash position and the assets of the business.

• The effect upon the employees immediately concerned will be considered including whether making an order prevents the employee from recovering the entitlement through other means should the company be liquidated; the effect that any order may have on the status of employees as potential creditors should the company become insolvent; and the impact of any order on the employee's rights under the General Employee Entitlements and Redundancy Scheme (GEERS) or similar schemes.

• The effect upon the continuation of the business, including whether reducing the entitlement of dismissed employees may have a beneficial effect on other employees, thereby enhancing their prospects of being able to remain in employment, are also relevant considerations." (citations omitted)

• [40] The Applicant has not satisfied me that it is appropriate to reduce the amount of redundancy payments payable to Mr Mason.

• [41] The Applicant 'Perth Landscaping Experts Pty Ltd' is not Mr Mason's employer. The parties agree that Mr Mason's employer was in fact PL&G. I am not satisfied that the Applicant has standing to make the Application.

• [42] Even if his employer was correctly identified in the Application, I am not satisfied that it is appropriate to exercise my discretion to reduce the amount of redundancy payments payable to Mr Mason on the evidence before me.

• [43] The Application has not been supported by submissions of any substance. The initial materials filed in support of the Application were, without explanation, for a differently named legal entity than the Applicant. The materials were unaudited and unsupported by witness evidence attesting to their accuracy or explaining their content. Subsequent materials filed unaccompanied by any submissions of substance do not adequately demonstrate a clear inability to pay.

• [44] The use of the same trading name by multiple related entities has made the analysis of the true financial state of Mr Mason's employer difficult to accurately ascertain. The evidence of Mr Brown that 'Perth Landscaping Experts' is no longer trading is of limited weight given the Register reveals that this is a business name not a company and that the business name is now being used by a different related entity.

• [45] The initial evidence filed by the Applicant did not disclose the existence of the related entities and the extent of the financial interrelationship between them. This only became apparent from transactions within the financial records the Applicant was directed to file and subsequent directions to file further materials. This revealed multiple transactions on a regular basis between the various related entities and trust funds held by Mr Holl. This financial interrelationship is consistent with Mr Mason's evidence that in practice, work and the labour of employees were shared among the related entities. No effort was made by the Applicant to explain the nature of these transactions. For example, why PL&G was contributing more to corporate overheads than other entities.

• [46] As the Applicant was unrepresented, they were provided with multiple opportunities to demonstrate a lack of financial capacity. No effort was made by the Applicant to provide any substantive submissions about the financial position of PL&G or the related entities other than to simply file financial records as directed.

• [47] Given the use of business names (which replicate the names of the various related legal entities) in many of the financial records filed, it is difficult to be certain as to the precise financial position of the various entities and businesses.

• [48] While PL&G has a balance sheet loss, no submissions were made as to the order of priority in applying its assets to its liabilities. For example, why payment of corporate overheads should take priority over the payment of redundancy.

• [49] Given the extent of the financial, ownership and operational interrelationships between the related entities it is appropriate to take into account the financial capacity of the other entities to assist PL&G to pay Mr Mason his entitlements. These entities appear to be experiencing strong sales.

• [50] In all the circumstances I am not satisfied it is appropriate to make the order sought.

• [51] I therefore dismiss the Application.

• [52] An order to this effect[2] will issue with this decision.

[1] [2013] FWC 2113 at [44].

[2] PR788798.

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