s.120 - Redundancy pay

The Trustee For Millard Family Trust Trading AS National College Of Vocational Education

Application to vary redundancy pay for incapacity to pay - amount reduced on consent basis.

• [1] The Trustee For Millard Family Trust Trading AS National College Of Vocational Education (Applicant) has made an application to the Fair Work Commission pursuant to s.120 of the Fair Work Act 2009 (Act). The respondent employee is Ms Linda Towler (Towler).

• [2] Section 120(1) of the Act provides that s.120 applies if:

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

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

• [3] Section 120(2) of the Act provides that on application by the employer, the Fair Work Commission (Commission) may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the Commission considers appropriate.

• [4] Section 120(3) of the Act provides that the amount of redundancy pay to which the employee is entitled under s.119 is the reduced amount specified in the determination.

• [5] Ms Towler sought to be represented by a lawyer. The Applicant submitted that there is complexity involved in the matter as it concerns the Applicant's financial status post conclusion of a period of voluntary administration and entering into a Deed of Company Arrangement and that granting permission for the Applicant to be represented by a lawyer would assist the Commission in dealing with the matter more efficiently having regard to that complexity. The Applicant did not object to Ms Towler being represented by a lawyer. Having regard to the complexity associated with the Applicant's financial status and arrangements post voluntary administration I considered that granting permission to Mr Towler to be represented by a lawyer would enable the matter to be dealt with more efficiently and granted permission pursuant to s.596(2)(a) of the Act. As such the Applicant was represented by Mr Tate of Turner Freeman Lawyers.

• [6] It was not in contention that the Applicant is entitled to be paid an amount of redundancy pay by the employer because of s.119.

• [7] During a conference in relation to the matter conducted on 7 April 2025 the Applicant agreed that it was able pay a reduced amount of redundancy and the parties sought that orders be made concerning payment of that reduced amount on a consent basis. I determine that the amount of redundancy to be paid to the Applicant be reduced to $24,749.97, with that amount to be paid in accordance with the Orders made in conjunction with this decision.

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