Adrian Roberts v Pilbara Access Pty Ltd T/A Pilbara Access

[2016] FWC 4089

[2016] FWC 4089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Roberts
v
Pilbara Access Pty Ltd T/A Pilbara Access
(U2016/1581)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN PERTH, 22 JUNE 2016

Application for relief from unfair dismissal.

[1] On 5 April 2016 Mr Roberts lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Pilbara Access Pty Ltd T/A Pilbara Access (Pilbara Access). Pilbara Access objected to the application on the basis that it asserted that the termination of Mr Roberts’ employment was a case of genuine redundancy.

[2] This genuine redundancy issue was considered in a determinative conference in Perth on 22 June 2016. At this conference Mr Roberts represented himself. Pilbara Access was represented by Ms Moran, of Counsel pursuant to an unopposed grant of permission made under s.596(2)(a) of the FW Act. Because of the circumstances surrounding the termination of Mr Roberts’ employment I was satisfied that Ms Moran’s involvement would enable the matter to be determined more efficiently.

[3] The background to the application is that Pilbara Access undertakes scaffolding work in the mining, construction and oil and gas industries. The majority of its employees (some 250) are engaged on a casual basis. Mr Roberts was employed as one of a number of trainee scaffolders from March 2015. That employment was on a weekly hire basis. In early 2016 there were six weekly hire trainee scaffolders. Pilbara Access advised that in January 2016 two of its major clients advised of changed shut down arrangements so that shut downs and associated scaffolding work was less frequent.

[4] In February 2016 Pilbara Access determined that it would not continue to engage the trainee scaffolders on a weekly hire basis.

[5] Section 385 of the FW Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] Section 389 states:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[7] Consequently, if the termination of Mr Roberts’ employment met this definition of a genuine redundancy, his dismissal cannot be regarded as unfair. I have considered the evidence before me in this context.

[8] Mr Smith is the Pilbara Access Chief Operating Officer. His evidence went to the nature of the Pilbara Access business. Mr Smith gave evidence about the general casual employment arrangements adopted by Pilbara Access and the specific circumstances that led to Mr Roberts and other trainee scaffolders being engaged on a weekly hire basis. He detailed the nature of the scaffolding work undertaken and the extent to which this was predominantly arranged around shutdown requirements. His evidence went to the changed requirements of its two major clients from January 2016. Mr Smith detailed the management consideration of the impact of these changed shut down arrangements and the extent to which Pilbara Access concluded that there was insufficient work for the weekly hire trainee scaffolders. Mr Smith advised that Pilbara Access determined that this meant there was less scaffolding work in overall terms, but, more particularly the nature of the engagement of scaffolders meant that full time weekly hire work could not be sustained. 1 He concluded that the employment of these trainee scaffolders could only be retained on a casual basis and he detailed the actions taken to advise the trainee scaffolders of this. Five of the six trainee scaffolders accepted this casual employment arrangement. Mr Smith advised that Pilbara Access considered the possibility of redeploying Mr Roberts to the Wheatstone Project but discounted this because Mr Roberts did not have the requisite scaffolding experience. He advised that, with the exception of six advanced scaffolders engaged on a weekly hire basis on the Wheatstone Project, all of the Pilbara Access scaffolders, including persons engaged after March 2016, were casual employees. Mr Smith also confirmed that he considered redeployment opportunities at all of the Pilbara Access sites but that the work requirements meant that Pilbara Access was unable to commit to permanent employment as distinct from casual employment.2 He also confirmed other redundancies within Pilbara Access, including a number of previously full time scaffolding supervisors who took up casual employment. Mr Smith explained that, since the changed shut down requirements began to take effect, there were higher spikes in casual employment numbers but that the work requirements were now more irregular.3 He detailed the effect of this on various employees in terms of longer periods without casual work4 and advised any existing weekly hire scaffolder positions were now being replaced by casual appointments.5

[9] Mr Smith confirmed that Pilbara Access has a number of associated entities but that only one of these, a training company, was an employing entity. This company had also reduced its scaffolding personnel and, in any event those scaffolding jobs required substantially more experience than Mr Roberts had. 6

[10] Ms Rowe is the Recruitment Co-ordinator for Pilbara Access. Her evidence went to her work function and the significant number of email and telephone discussions she had with Mr Roberts in early March over the changes proposed to his employment arrangements. When Mr Roberts refused the option of casual employment, Ms Rowe discussed the position with Mr Smith and ultimately, issued a letter confirming the termination of his employment. Ms Rowe confirmed that the offer of casual employment formally put to Mr Roberts on 3 March 2016 7 was made on the basis that there was no available full time work.8 Ms Rowe’s evidence went to her involvement in the ongoing recruitment of casual employees for Pilbara Scaffolding and the extent to which no new weekly hire employees had been engaged.

[11] Mr Roberts’ evidence went to his assertion that other weekly hire positions existed and his assertion that ongoing regular scaffolding work was available within Pilbara Access. His evidence was that, on 2 March 2016 two other trainee scaffolders were transferred into rostered site based roles in Port Hedland.

[12] Mr Roberts’ evidence went to the communications he had with Pilbara Access management in early March 2016 in relation to his proposed redundancy and the offer of ongoing casual work. He advised that he did not consider that Pilbara Access had properly answered any of the concerns he had identified, including concerns about his job security as a casual employee. Mr Roberts’ evidence went to his understanding that Pilbara Access had effectively threatened him that, unless he agreed to accept casual work, he would not be offered any further work with Pilbara Access. 9 Mr Roberts asserted that Pilbara Access was continuing to employ persons to do the same work which he had been doing.

Findings

[13] In terms of s.389(1)(a), I am satisfied that the change in shut down frequency by the two major Pilbara Access customers meant that Mr Smith and the Pilbara Access Managing Director , Mr Easterbrook concluded that:

“Stephen and I agreed that:

a. the business could not afford to maintain the permanent employment of the Trainee Scaffolders as it was likely that there would not be enough work;

b. if Pilbara Access maintained the employment of the Trainee Scaffolders on a permanent basis there would be longer periods during which the Trainee Scaffolders were not utilised while being paid as a full time employee with no work being available; and

c. the Trainee Scaffolders (who were permanent employees) should be offered casual employment and added to Pilbara Access’ casual labour pool.”

[14] I am satisfied that the evidence establishes that Pilbara Access no longer required the full time weekly hire job undertaken by Mr Roberts to be undertaken by anyone as a consequence of the changed requirements of its clients. I do not consider that the Pilbara Access decision to effectively replace the majority of its weekly hire employees with casual employment arrangements detracts from the reality that it did not require those full time weekly hire functions to be performed. That is clear from the supplementary material provided by Mr Smith. 10 It is also clear from Mr Smith’s supplementary statement that the weekly hire employees referred to by Mr Roberts were working on a permanent roster prior to Mr Roberts’ position being made redundant.

[15] My conclusion that the change in work requirements for Pilbara Access meant that it did not require the full time weekly hire job previously undertaken by Mr Roberts to be done by anyone else on the same weekly hire basis because of changes to the operational requirements of the Pilbara Access enterprise is consistent with the approach to situations of this nature by the Commission. 11 It is simply the case that I am satisfied that the work requirements meant that Pilbara Access could not sustain Mr Roberts’ ongoing full time weekly employment. The casual employment offer extended to Mr Roberts was an entirely separate employment arrangement albeit that I accept that the casual employment offer was a legitimate attempt to mitigate the effect of the operational change made by Pilbara Access to the way in which it employed Mr Roberts.

[16] Further, the fact that, at the time of the termination of Mr Roberts’ employment, there were other weekly hire employees who may not have been selected for redundancy, does not detract from the redundancy circumstance. 12

[17] Consequently, I am satisfied that the requirements of s.389(1)(a) are met in this instance.

[18] In terms of s.389(1)(b), Mr Roberts’ employment was regulated by The Pilbara Access Pty Ltd Enterprise Agreement 2014 (AE409236) (the Agreement). The Agreement deals with redundancy and consultation in the following terms:

“25.0 REDUNDANCY

25.1 There may be circumstances where the Company no longer wishes the job an Employee has been doing to be done by anyone. In such circumstances the Employee will be made redundant.

25.2 Where the Company has decided to make an Employee's position redundant, the employee is entitled to be informed by the Company as soon as reasonably practicable after the decision has been made.

25.3 The Company must also discuss with the employee the likely effects of the redundancy in respect of the employee and any measures that may be taken by the employee or the Company to avoid or minimize a significant effect.

25.4 In cases of downturn in work, when the employer decides not to make the employee redundant, the parties may agree to suspend the contract of employment for a specified period of time, provided that such agreements shall be in writing and signed by both parties.

25.5 In cases of the suspension of the contract the employee shall not accrue entitlements to annual leave, sick leave or public holidays.

25.6 Where suspension of the contract has been agreed between the Company and the employee it may be further agreed that the employee have access to any paid annual leave accrual if so requested by the employee.

25.7 An employee who is informed that he or she has been, or will be, made redundant is entitled to paid leave of up to eight (8) hours for the purpose of being interviewed for further employment

25.8 In the event that an employee's position is made redundant, the employee is entitled to severance payments in accordance with the Building and Construction General Onsite Award 2010.

26.0 CONSULTATION

26.1 The Company will consult with employees to whom this Agreement applies of any decision to introduce major change when the Company has made a definite decision to introduce a major change to production program, organisation structure, or technology in relation to its enterprise and the change is likely to have a significant effect on employees of the enterprise; or proposes to introduce a change to the regular roster or ordinary hours of work of employees.

26.2 A major change is likely to have a significant effect on employees if it results in:

26.2.1 the termination of the employment of employees; or

26.2.2 major change to the composition, operation or size of the Company’s workforce or to the skills required of employees; or

26.2.3 the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

26.2.4 the alteration of hours of work; or

26.2.5 the need to retrain employees; or

26.2.6 the need to relocate employees to another workplace; or

26.2.7 the restructuring of jobs.

26.3. The employees may appoint a representative for the purposes of consultation.

26.4 The Company is not required to disclose confidential or commercially sensitive information to the relevant employees or their appointed representative.

26.5 The Company will give genuine consideration to any matters raised about the major change by the employees.”

[19] I have concluded that the evidence of Ms Rowe establishes that, soon after the decision to make organisational changes which made Mr Roberts’ position redundant was made, discussions and email communications with him about that change were initiated. Mr Roberts may not have agreed with the outcome of those communications and may not have been at all satisfied about the proposal to offer him casual employment, put to him as an alternative to redundancy but it is very clear that there was consultation with him about the organisational change.

[20] Consequently, I am satisfied that the requirements of s.389(1)(b) have been met.

[21] Finally, s.389(2) requires that I am satisfied that it was not reasonable, in all the circumstances for Mr Roberts to be redeployed within the Pilbara Access business or that of a related entity.

[22] Mr Smith’s evidence was that:

“When considering whether there were any alternative permanent positions available to the relevant permanent scaffolders, including the Applicant, all sites were considered, but the Wheatstone Project is the only site which had any vacant positions for permanent scaffolders employed by Pilbara Access. As set out in annexure AS3 to my Initial Statement, all employees employed since March 2016 have been employed on a casual basis.”

[23] Mr Smith addressed the Wheatstone position in the following terms:

“Having dealt with Bechtel representatives on the Wheatstone Project, I was aware in March 2016 that as part of Bechtel’s onboarding process, all scaffolders on this project needed to have held an intermediate scaffolders ticket for at least 3 years to be able to work on the Wheatstone Project. None of the 6 Trainee Scaffolders met this requirement as at March 2016.”

[24] Further, in the hearing Mr Smith confirmed that regard had been had to other sites on which Pilbara Access was working.

[25] In the hearing, Mr Smith confirmed that Pilbara Access has no related entities that employ persons such that redeployment with such an entity was possible.

[26] I am not satisfied that Mr Roberts’ evidence or contentions disprove the advice provided by Mr Smith and have concluded that the requirements on s.389(2) are met in this instance.

Conclusion

[27] For the reasons I have set out above, I am satisfied that the termination of Mr Roberts’ employment was consistent with the definition of a genuine redundancy in s.389. Accordingly, this employment termination cannot be regarded as unfair. An Order (PR581942) dismissing the application consistent with this decision will be issued.

Appearances:

A Roberts on his own behalf.

E Moran of DLA Piper Australia for the respondent.

Hearing details:

2016.

Perth:

June 22.

 1   Transcript 22 June 2016 at 9:32 a.m.

 2   Ibid., at 9:47 a.m.

 3   Ibid., at 9:30 a.m.

 4   Ibid., at 9:20 a.m.

 5   Ibid., at 9:26 a.m. and 9:43a.m.

 6   Ibid., at 9:50 a.m.

 7   Exhibit A2 Attachment AR5.

 8   Transcript 22 June 2016 at 10:03 a.m.

 9   Ibid., 10:19 a.m.

 10   Exhibit P3 Attachment AS1.

 11   See for example [2014] FWC 5604 at [44]-[47], [2015] FWC 3930 at [20]-[34], [2010] FWA 674 at [27] and [2010] FWAFB 3488 at [19].

 12   Dibb v Commissioner of Taxation (2004) 136 FCR 388 at [404].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581941>