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[2020] FWC 3969
mixed. Redundancy pay reduced from four (4) weeks to three (3) weeks, being $3,749.46 gross, to be paid into Ms Grant's bank account within 14 days of the Decision (see [42]-[43]).
The employer applied to the Fair Work Commission under s.120 to reduce or eliminate a four-week redundancy it owed to a former employee, claiming it could not pay. The Commission found the employee was covered by the Clerks Award, that a nearby business co-owned by the employer was an associated entity so the employer was not a small business, and that the employer was in financial difficulty. Exercising its s.120 discretion, the Commission reduced the redundancy from four weeks to three weeks ($3,749.46), ordered payment within 14 days, and refused to reduce the amount to nil (see [21], [26]-[27], [37]-[42]).
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Techno Fitouts Pty Ltd (the employer) applied to the Fair Work Commission under s.120(1)(b)(ii) of the Fair Work Act 2009 to have the redundancy entitlement payable to Ms Sue Ann Grant reduced to nil on the basis the employer could not pay (see [1], [12]-[13]). Ms Grant had been employed from 15 October 2018 until 31 May 2020 (19 months), giving rise to a four week redundancy entitlement under the National Employment Standards and, as pleaded initially, under an industry-specific Joinery Award that also provides for a four week entitlement for that period of service (see [5], [14]). The employer contended COVID-19 related downturn, significant outstanding debts (about $88,000), and limited cash resources left it unable to pay the full redundancy; JobKeeper and other government payments had been received but the employer said cashflow remained constrained (see [6]-[8], [30]-[33]). The employer also initially listed the Joinery Award on the Form F45A, later asserting the Clerks Award applied; the employee performed administrative duties and ultimately conceded she fell under the Clerks Award (see [3], [4], [20]-[22]).
A contested factual issue concerned whether Australian Benchtop Specialists (ABS), a business across the road co-owned by the employer's owner Mr O'Brien, was an associated entity for the purposes of s.23 Fair Work Act 2009. If it was, employee numbers must be aggregated and Techno Fitouts would not qualify as a small business (see [23], [26]-[27]). The Commission found ABS to be an associated entity and that combined employee numbers were 25, so Techno Fitouts was not a small business and had an obligation to pay redundancy (see [26]-[27]). After assessing the parties' evidence about financial incapacity and other relevant considerations, Commissioner Spencer exercised the s.120 discretion to reduce the redundancy from four to three weeks, setting the payable sum at $3,749.46 and ordering payment within 14 days (see [37]-[43]).
The decision proceeds in three linked steps: determine award coverage, determine small business status via associated entity rules, and exercise the s.120 discretion.
Award coverage. The Commission looked to the character of Ms Grant's duties (estimating, sales, client liaison, ordering, invoicing, administrative assistance) and compared them to the classifications in the competing awards. The duties were administrative in nature and aligned with Level 1-2 under the Clerks Award rather than the labour and machine-orientated tasks envisaged by the Joinery Award. Consequently, the Clerks Award applied (see [20]-[22]). That finding matters because the Joinery Award contains an industry-specific redundancy scheme with different terms; the Clerks Award refers to the NES provisions for redundancy (see [14]-[15]).
Associated entity and small business status. Section 23 of the Fair Work Act requires that, for headcount purposes, associated entities be taken as one entity. The Commission applied the Corporations Act s.50AAA definition of associated entities and accepted the evidence that Mr O'Brien had a controlling interest in ABS and exercised control over it. On that basis the employee counts for Techno Fitouts and ABS were aggregated, taking the employer's total to 25 employees and removing the small business exemption from s.121(1)(b) (see [23], [26]-[27]).
Exercise of s.120 discretion. Section 120 permits the Commission, on application by an employer who cannot pay redundancy, to determine that the amount be reduced to a specified sum. The Commission examined financial documents (profit and loss statements showing March and April losses; May profit driven largely by JobKeeper and stimulus receipts), outstanding debts, lack of overdraft facilities, and evidence of a personal loan from the owner to keep the business going. The employer's submissions about commercial risk and scarcity of viable work were considered; the employee disputed those factual claims and relied on alleged alternative work being available. The Commission concluded there was financial incapacity to pay the full redundancy but that a nil reduction would be inappropriate given the employee's loss and the measures the employer had taken and received to mitigate hardship. Balancing these factors, the Commission reduced the redundancy by one week to avoid imposing an unrecoverable burden on the employer while still recognising the employee's entitlement (see [30]-[39], [42]).
The decision reflects a pragmatic application of s.120: it is not a mechanical formula but an evaluative judgement informed by contemporaneous financials, the receipt of government support, outstanding liabilities and the impact on the employee.
Before this decision the statutory framework was well-known: s.119 creates redundancy entitlements under the NES; s.120 gives the Commission discretion to reduce redundancy where the employer cannot pay; s.23 and s.121 set out small business definitions and exclusions. The Commission's decision applies those statutory rules to COVID-19 era facts but does not create new legal principles. It reaffirms established points:
After this decision practitioners have a concrete example of how the Commission balances business cashflow, government assistance, arrears, and employee hardship when applying s.120. The case does not alter statutory text but clarifies that an employer with some cash or government receipts may still be found unable to pay the full sum and that a partial reduction (one week here) can be an appropriate exercise of discretion.
This decision is fact-specific, but the main triggers for a similar outcome are:
Where these facts are present, a Commission is likely to consider a partial reduction; a nil reduction will be less likely if the employee's loss is clear and the employer retains some capacity or has received government assistance.
This decision is a single-member Fair Work Commission determination by Commissioner Spencer. It applies statutory provisions and award clauses to the facts. The decision itself does not cite higher-court authority as precedent, nor does it purport to change legal tests. Subsequent treatment by other tribunals or courts is not recorded in this decision. Practitioners should treat it as persuasive guidance on factual assessment under s.120 and on associated entity aggregation under s.23, but verify subsequently published decisions for any refinements.
Practitioners should use this decision as a practical example of how the Commission balances competing considerations under s.120, ensure documentary evidence of financial incapacity is comprehensive, and be prepared to address associated-entity aggregation arguments at an early stage.
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Application to vary redundancy pay - incapacity to pay - small business employer - existing associated entity - associated entity co-owned by business owner - not a small business - dispute regarding Award classification - redundancy pay reduced.
[1] Techno Fitouts Pty Ltd (the Applicant, the employer) has made an application pursuant to s.120(1)(b)(ii) and sought a determination under s.120(2) of the Fair Work Act 2009 (the Act) to have the Commission reduce to nil the redundancy entitlement of Ms Sue Ann Grant (the Respondent, the employee), a former employee of the Applicant, on the basis that the Applicant cannot pay the amount due.
[2] The parties agreed that the Applicant is a small business with less than 15 employees.
[3] In their Form F45A filed on 2 June 2020, the Applicant stated Ms Grant was employed under the Joinery and Building Trades Award 2010 (the Joinery Award) which contains an industry specific redundancy scheme.
[4] In later submissions, the Applicant submitted that Ms Grant was employed under the Clerks Private Sector Award 2010 (the Clerks Award).
[5] Ms Grant was employed for a period of 19 months from 15 October 2018 to 31 May 2020. In accordance with s.119 of the Act, the redundancy pay equivalent to this redundancy period is 4 weeks. The amount payable under the Joinery Award as laid out below is also 4 weeks.
[6] The Applicant said it is a small business employer in financial difficulty, and that at the time of redundancy, it employed four people. The Applicant said it had not been successful in obtaining any work of significant value in 2020, causing considerable financial pressure, and following the COVID-19 restrictions in March 2020, business was impacted even further. The Applicant said that accepting work in an unsettled market was financially high risk and the physical ability to complete work onsite was increasingly difficult with the added health and safety measures required during a pandemic.
[7] The Applicant said that at the end of March 2020 all employees were placed on stand-down without pay, and many efforts were to minimise and reduce ongoing overhead costs, including requesting rent relief from the landlord and re-negotiating insurances.
[8] The Applicant said that in April 2020, it applied for employees to receive the JobKeeper payment in the hope that it would assist the business and its employees to survive the COVID-19 pandemic. Mr Wayne O'Brien, the owner, decided that it was going to become exceptionally difficult to physically complete any work during and post COVID-19, and felt the effects were going to be far more long term than first anticipated. The Applicant said a decision was made at the beginning of May 2020 to make 3 employees redundant, and to cease their JobKeeper payments as of 31 May 2020. The Applicant said all employees were advised of this decision at the beginning of May 2020 via a group staff conference call.
[9] Section 119 and 120 of the Act provide:
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Employee's period of continuous service with the employer on termination
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."
[10] Section 121 of the Act provides:
121 Exclusions from obligation to pay redundancy pay
(1) Section 119 does not apply to the termination of an employee's employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) the employee's period of continuous service with the employer is less than 12 months; or
(b) the employer is a small business employer.
(2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee's employment.
(3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:
(a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and
(b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.
[11] Section 23 of the Act is also relevant in this matter. Section 23 provides:
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated."
[12] Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act.
[13] Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer cannot pay the amount. Section 120(2) then states that the Commission 'may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate'. If the Commission makes an order under , the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see " This matter requires the assessment of both parties' positions in relation to the incapacity to pay the redundancy pay.
"17.4 Redundancy pay for employee of small business employer
(a) Clause 17.4 applies to an employee of a small business employer except for an employee who is excluded from redundancy pay under the NES by sections 121(1)(a),123(1),123(4)(a) or 123(4)(d) of the Act.
(b) In paragraph (a) an employee is an employee of a small business employer if, immediately before the time the employee's employment is terminated, or at the time when the employee is given notice of termination as described in section 117(1) of the Act (whichever happens first),the employer is a small business employer as defined by section 23 of the Act.
(c) Subject to paragraphs (f) and (g), an employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(i) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(ii) because of the insolvency or bankruptcy of the employer.
(d) The amount of the redundancy pay in paragraph (c) equals the total amount payable to the employee for the redundancy pay period specified in column 2 of Table 2 - Redundancy pay period according to the period of continuous service of the employee specified in column 1,worked out at the employee's base rate of pay for his or her ordinary hours of work.
Employee's period of continuous service with the employer on termination
(e) In paragraph (d) continuous service has the same meaning as in section 119 of the Act.
(f) The terms of section 120 of the Act apply as if section 120 referred to 'paragraph 17.4(c) above' rather than 'section 119'.
NOTE: Under section 120 of the Act the Fair Work Commission can determine that the amount of redundancy pay under the NES is to be reduced if the employer obtains other acceptable employment for the employee or cannot pay that amount. Paragraph (f) applies these arrangements also to redundancy pay under clause 17.4.
(g) The terms of section 122 of the Act apply as if section 122 referred to 'clause 17.4'rather than 'this Subdivision' and to 'paragraph 17.4(c) above' rather than 'section 119'.
NOTE:Under section 122 of the Act transfer of employment situations can affect the obligation to pay redundancy pay under the NES and the Fair Work Commission can make orders affecting redundancy pay. Paragraph (g) applies these arrangements also to redundancy pay under clause 17.4."
[15] Clause 42 of the Clerks Award states that redundancy pay is provided for in the NES and specifically refers to sections 119 to 123 of the Act.
[16] As a threshold issue, it is necessary to determine whether Ms Grant was covered by the Joinery Award or the Clerks Award, and also whether the Applicant had any associated entities.
[17] As noted, in their initial Form F45A the Applicant indicated Ms Grant was employed under the Joinery Award. In their submissions, the Applicant contends Ms Grant was employed under the Clerks Award.
[18] The Applicant submitted that on 9 June 2020, Ms Grant was sent an email advising that they had spoken to the Fair Work Ombudsman and that under the Clerks Award and the National Employment Standards, no redundancy was due to Ms Grant and the matter was at an end. The email read:
Last Tuesday 2nd June, your final pay from Techno Fitouts was made to you. It was calculated to include one weeks Job Keeper payment, two weeks period of notice, and your remaining annual leave balance. No redundancy amount was made.
A F45a form was lodged with Fair Work last week, to discuss and finalise redundancy payment. You received a copy of this application. It has since been clarified by the Fair Work Ombudsman that your role at Techno Fitouts is categorised under the "Clerks Private Sector" award. Under this award, redundancy payment is guided by the National Employment Standards. I have copied in Clause 121(1) of the National Employment Standards, which stipulates the exemption of redundancy payments to an employee of a small business. A small business is classified as having less than 15 employees. Your Clerks Private Sector award does not include any Industry Specific clause to override this clause.
Therefore, I am informing you that under the National Employment Standards and your award, no further payment is payable to you from Techno Fitouts.
The F45a form with Fair Work has been withdrawn, and this process is at an end.
If you have any further questions around this, please don't hesitate to contact either myself or Wayne.
[19] Ms Grant said that in the F45a form that was sent to her on 2 June 2020, the Award she was employed under was listed as the Joinery Award and that this was changed in an email sent to her on 9 June 2020. Ms Grant said that at Q2.3 of the Form 45A, the Applicant did not state anywhere that she was not entitled to redundancy due to the Award she was employed under.
[20] After the hearing, Ms Grant wrote to my Chambers and said that she had read the classifications set out under the Joinery Award and the Clerks Award and considered she fit under the Clerks Award. She said her duties included estimating, sales, meeting with clients, ordering, liaising with clients and suppliers, helping and assisting with the factory day to day, invoicing, and drawing.
[21] The duties performed by Ms Grant appear from the evidence before the Commission to fit under the Clerks Award. The duties are analogous to the duties carried out by Level 1 and Level 2 employees under this Award. Ms Grant's duties appear largely administrative in nature, and do not involve labour or use of machines as contemplated by the Joinery Award.
[22] I am satisfied that Ms Grant's employment therefore falls under the Clerks Award and the redundancy provisions contained therein.
Is Australian Benchtop Specialists an associated entity of the Applicant?
[23] An associated entity is defined in s.50AAA of the Corporations Act 2001 (the Corporations Act). An entity will be an associated entity in the following circumstances:
the associate and principal are related bodies corporate;
the principal controls the associate;
the associate controls the principal and the operations, resources or affairs of the principal are material to the associate;
the associate has a qualifying investment in the principal, has significant influence over the principal and the interest is material to the associate;
the principal has a qualifying investment in the associate, has significant influence over the principal and the interest is material to the principal; or
a third entity controls both the principal and the associate and the operations, resources or affairs of the principal and the associate are both material to the third entity.
[24] Ms Grant submitted that Mr O'Brien owned another business, Australia Benchtop Specialist (ABS), which is located across the road from the Applicant's premises. Ms Grant said that ABS is an associated entity as they supply materials for the Applicant, and the Applicant assembles and installs this material. Ms Grant said that combined there were more than 15 employees at the time of her redundancy.
[25] The Applicant disputed that ABS was an associated entity. The Applicant acknowledged that Mr O'Brien was a joint owner of Australian Benchtop Specialists and said that ABS employed 21 full time employees and 1 casual employee, and Techno Fitouts employed 4 full time employees. The Applicant submitted that the 21 employees should be divided between the two business owners, allocating 10.5 employees each, and that with the 4 employees from the Applicant, Techno Fitouts Pty Ltd employed 14.5 employees in total and was thus a small business.
[28] Ms Grant submitted that there was no shortage of work, and the Applicant had numerous jobs on the board and also had five other new builders wanting to give the Applicant work while the Applicant's staff were stood down. Ms Grant said she had sent a text to Mr O'Brien on every occasion and tried numerous times to get back to work and Mr O'Brien said this wasn't possible. Ms Grant said that another employee, Mr Daniel Lazaar, had been paid his four weeks' redundancy on 9 June 2020.
[29] The Applicant submitted that employees of the business had received JobKeeper payments for April and May. The Applicant said Ms Grant received JobKeeper payments as well as two weeks' notice and two weeks' annual leave balance.
[30] The Applicant said that the business was not in a position to recover or trade its way out of the financial losses experienced in March & April, and that in addition, there is an outstanding debtor amount of approximately $88,000 from over 12 months which was unlikely to be repaid. The Applicant also submitted there is an outstanding rent owing to the landlord of some $5,121.
[31] The Applicant submitted that there is no overdraft facility arranged with a commercial bank, and that in order to keep the business functioning this year, Mr O'Brien took out a personal loan and deposited $50,000 into the business in order to keep it operational. The Applicant said that without this personal deposit (made as two deposits in April and May 2020), the employees would not have benefitted from receiving JobKeeper payments for two months, as staff payments needed to be funded by the business for a month prior to getting Australian Tax Office reimbursement the following month.
[32] The Profit and Loss statements provided by the Applicant show a total income of $62,082.65 for the three month period. This included a JobKeeper subsidy of $12,000 and a cash boost stimulus of $31,716.00, both received in May. The total expenses for the business were given as $70,551.79, for a loss of $8,469.14. The Profit and Loss statement for May showed an operating profit going forward of $22,541.22.
[33] The Applicant said Mr Lazaar was paid his redundancy in full because he was employed under the Joinery Award which contains an industry specific redundancy scheme and is not able to be varied or reduced. Mr O'Brien also said that he considered Mr Lazar's personal circumstances of being the sole income earner in his family household, and recently experiencing the birth of Mr Lazaar's second child during the COVID pandemic. Mr O'Brien said that Ms Grant's family household was benefitting from another high income, as well as her recently obtained casual income.
[42] When taking all of the criteria and circumstances into account, in accordance with s.120(1)(b)(ii) and (3), and for the reasons set out above, the redundancy payment of four (4) weeks is reduced to three (3) or $3,749.46 gross.
[43] This amount is to be paid into Ms Grant's bank account within 14 days of this Decision.
[44] I Order accordingly.
Printed by authority of the Commonwealth Government Printer
Techno Fitouts Pty Ltd
Mrs Sue Ann Grant [2020] FWC 3969
Redundancy pay reduced from four (4) weeks to three (3) weeks, being $3,749.46 gross, to be paid into Ms Grant's bank account within 14 days of the Decision (see [42]-[43]).
[14] The Joinery Award provides for redundancy pay for small business employees. Clause 174.4 of the Award sets out the entitlement as follows:
[26] I am satisfied that ABS is an associated entity of the Applicant. Mr O'Brien has a clear controlling interest in the business as a co-owner and exercises control over that business. Mr O'Brien did not deny that ABS is an associated entity but disputed the calculation of employee numbers at each business.
[27] As set out above, s.23 of the Act provides that when calculating the number of employees employed by an employer, associated entities are taken to be one entity. There is no division or separation of the employees. For the purposes of s.23 of the Act, the Applicant is taken to have 25 employees and is not a small business. The Applicant would therefore be required to pay Ms Grant a redundancy.
[34] Mr O'Brien said he had been reluctant to accept work at present as there was too much financial pressure to carry the cost of the jobs for 30-60 days before payment, and he did not wish to undertake large dollar value work with builders not known to him as there was a high risk of non-payment. Mr O'Brien said he was still chasing recovery of a very large outstanding debt from over 12 months ago. Mr O'Brien said that any minor work undertaken by himself in recent times, from known sources, is a basic shell existence, with little to no profit, and does not begin to recover the $50,000 personal debt he took out this year in an attempt to meet some of the outstanding business obligations of the Applicant.
[35] Ms Grant challenged this evidence and said that the builders she had spoken to were willing to make payment two weeks after completion of a job. Ms Grant said that Mr O'Brien did not look at the additional jobs clients had asked the Applicant to complete in the COVID stand down, or the amount of the jobs to even consider taking them on. Ms Grant said that none of the builders were unknown to the Applicant as they had been building a relationship with most builders over the time of her employment.
[36] Ms Grant said that the recent job completed by Mr O'Brien would have paid between $25,000 and $33,000. She argued that there is work available including gaming and said she was still estimating in the building and joinery industry, and there were plenty of gaming rooms to quote. Ms Grant said that as the Applicant specialised in gaming, and is one of only two specialists in gaming in the industry, there would be plenty more work to take on.
[37] I have considered the evidence of both parties. The Applicant does not have the means to pay the full redundancy amount or the money in the bank to do so. The Applicant has demonstrated a considerable business downturn and financial difficulty and significant outstanding debts. The Profit and Loss statements provided by the Applicant show losses of $49,972 in March and $22,585.66 in April. While the Applicant provided evidence of a profit for May of $22,541.22, $43,716 of reported income from May was made up by JobKeeper and government stimulus packages. Mr O'Brien's uncontested evidence was that he has only undertaken one further job since the redundancies, which was performed by Mr O'Brien and a casual employee.
[38] I do however note that the Applicant now has the benefit of the JobKeeper payments to assist in paying remaining staff, and is owed debts of some $88,000 by creditors. Additionally, Ms Grant was entitled to four weeks of redundancy pay and now faces the loss of permanent work. For that reason I do not consider it appropriate to reduce the redundancy pay to nil, but consider a reduction is appropriate.
[39] I consider a reduction in the redundancy pay owing of one week is appropriate. This takes into consideration the Applicant's current financial situation, the fact that it is unlikely that they will obtain money from new contracts in the near future, the notice period provided to Ms Grant, and the casual employment found by Ms Grant. I acknowledge businesses require cash on hand to operate but I also note that Mr O'Brien has given evidence he is not presently taking on new work.
[40] While I do not accept the Applicant's contention that Mr Lazaar's financial situation and familial situation justified paying his redundancy in full while not paying Ms Grant's redundancy, I accept Mr O'Brien's evidence that he believed he was required to pay Mr Lazaar's redundancy entitlement in full. The relevant industry specific redundancy provisions under the Joinery Award are prescriptive and require payment of redundancy by a small business. It is evident Mr O'Brien considered that the Applicant was a small business. While it appears it was open to Mr O'Brien to make an application under s.120 of the Act, as provided for by cl. 17.4(f) of the Joinery Award, it seems clear Mr O'Brien was not aware of this and considered he was required to make payment in full. Ms Grant further conceded she was under the Clerks Award, which has no industry specific redundancy clauses.
[41] Ms Grant was paid a rate of $32.89 per hour and worked 38 hours per week, for a total income of $65,000 per annum. Ms Grant was paid $1,249.82 per week. Her redundancy entitlement is therefore $3,749.46.