Application by Black Cat (Paulsens) Propriety Limited
[2025] FWC 1130
•23 APRIL 2025
| [2025] FWC 1130 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Application by Black Cat (Paulsens) Propriety Limited
(C2025/444)
| COMMISSIONER LIM | PERTH, 23 APRIL 2025 |
Variation of redundancy pay – whether other acceptable employment offered – alternate role constituted other acceptable employment – redundancy payment reduced by 50%.
Introduction
Black Cat (Paulsens) Propriety Limited has applied pursuant to s 120 of the Fair Work Act2009 (Cth) to vary its obligation to pay redundancy pay under s 119 of the Act. The application is in relation to a former employee, Mr Dean Clark. Black Cat seeks to reduce Mr Clark’s entitlement to redundancy pay from 12 weeks to nil on the basis it obtained other acceptable employment for Mr Clark. Mr Clark does not agree.
Black Cat relies on the evidence of Ms Karen Johnson (Human Resources Manager) and Mr Scott Bailey (Processing Manager). Mr Clark relies on his evidence.
After filing their material, the parties sought for the matter to be determined on the papers. I am satisfied it is appropriate to do so.
Having considered the evidence and materials in this matter, I am satisfied that Black Cat obtained other acceptable employment for Mr Clark. I have decided to exercise my discretion to reduce Mr Evans’ redundancy entitlement from 12 weeks to 6 weeks in the circumstances.
My detailed reasons follow.
Background
2.1 Timeline of Events
The following facts are not contested between the parties:
(a)Mr Clark commenced his employment at Paulsens Gold Operation in May 2012. In December 2017, PGO entered into a care and maintenance phase.
(b)In June 2022, Black Cat bought PGO. Mr Clark’s employment transferred to Black Cat and Black Cat recognised his service for all service-related entitlements.
(c)At the time Black Cat bought PGO, Mr Clark was in the role of Caretaker. The role of Caretaker involved general maintenance around the site and of specific areas such as the swimming pool; assisting with the cleaning of facilities and cooking of meals; general monitoring; general compliance with OSH-related mechanisms; managing the Waste Water Treatment Plant; ensuring water and power supply; facilitating deliveries; and assisting with environmental and heritage surveys.[1]
(d)Prior to filling the position of Caretaker, Mr Clark had also performed the following roles at PGO:[2]
(i)Geology/Field Technician (from March 2016 – March 2018): This role required the collection, transport and processing of core from underground and exploration drilling. This included core saw cutting, logging of samples and preparing samples for laboratory analyses. The role also included assisting with rehabilitation of drill holes; bus driving; and bore monitoring and sampling.
(ii)Administration Assistant (from 2012 -March 2016): This role provided support services to FIFO operations. This included airstrip operations; bus driving; camp and pool maintenance; minor general maintenance; freight runs; gardening and weeding across site; bore run testing; and water sampling.
(e)In 2024, Black Cat commenced a refurbishment process of the processing plant on site.[3] Ms Johnson and Mr Bailey had extensive discussions reviewing the organisational structure and employee roles.[4]
(f)Given Mr Clark’s experience, Black Cat decided that Mr Clark would retain his duties relating to the water treatment plant, RO plant, bore monitoring and sampling. Mr Clark’s other duties were to be redistributed amongst other new roles. It was also decided that Mr Clark could then have the capacity to support trades personnel in the maintenance and repair of fixed plant assets; assisting with camp maintenance activities; and assisting with installation and removal of dewatering infrastructure. Mr Bailey and Ms Johnson found that this new role designed for Mr Clark should be referred to as a ‘Trades Assistant’ role.[5]
(g)On Wednesday 9 October 2024, Ms Johnson and Mr Bailey met with Mr Clark to tell him that his position would be made redundant later in the year when PGO resumed operations, but that Black Cat did not want to lose Mr Clark. Mr Clark was asked to consider the role of trade assistant as outlined in (f)[6].
(h)Mr Clark was also told that Black Cat wanted him to transition from his 8 days on, 6 days off roster, to the operational employees’ roster of 15 days on, 13 days off.[7] Mr Clark was asked to let Black Cat his views when he returned from scheduled annual leave.
On Tuesday 26 November 2024, Ms Johnson called Mr Clark after he had returned from leave to seek his feedback on the change in roster. Mr Clark told Ms Johnson that the additional time gave him greater opportunity to see his family in Perth.[8]
(j)During this phone call, Ms Johnson informed Mr Clark that she would send him the Trade Assistant position description and formalise his options in writing.
(k)On Tuesday 3 December 2024, Ms Johnson sent Mr Clark the Trade Assistant position description and a letter summarising discussions to date. The letter confirmed that his remuneration would remain the same with the Trades Assistant position. The letter also put Black Cat’s view that the Trades Assistant position was suitable alternative employment as per s 120(1)(b)(i) of the Act. Mr Clark was asked to provide his views by Sunday 15 December 2024.
(l)On Sunday 15 December 2024, Mr Clark called the Black Cat General Manager to convey he would not be accepting the new Trades Assistant role.
(m)On Wednesday 18 December 2024, Ms Johnson met with Mr Clark to discuss his decision. Mr Clark raised concerns that the role required butt welding, which he did not do. Ms Johnson informed him that he did not have to do butt welding and that a trades person could take responsibility for that duty.[9]
(n)On Thursday 19 December 2024, Mr Clark sent an email to Ms Johnson advising that he did not wish to accept the new position.
(o)Ms Johnson spoke further with Mr Bailey about Mr Clark’s concerns. They reviewed the position description for the Trades Assistant role and removed anything that required butt welding, fault finding and work orders.
(p)Ms Johnson spoke with Mr Clark on Tuesday 24 December 2024 to inform him of the revised position description and asked him to reconsider. Ms Johnson sent the revised position description to Mr Clark on Wednesday 25 December 2024 and asked him to contact her if there was anything else he would like to discuss or change about the position description.
(q)Mr Clark advised that he did not wish to accept the revised position.
(r)Mr Clark’s employment ended on 31 December 2024.
Legislation
Section 119 of the Act provides for the following redundancy pay entitlements:
“119 Redundancy pay
Entitlement to redundancy pay
(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.Amount of redundancy pay
(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:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
Section 120 of the Act provides:
“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 specific 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.”
Consideration
In this matter, I am satisfied on the evidence that Mr Clark was entitled to be paid 12 weeks redundancy pay in accordance with s 119 of the Act.
Black Cat does not contend that it cannot pay the amount.
In relation to s 120(1)(b)(i) of the Act, the Full Bench in Australian Commercial Catering Pty Ltd Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[10] set out that the test in relation to s 120(1)(b)(i) of the Act is an objective one and is not determined by reference to whether the employment is subjectively acceptable to the employee.[11] Further, that once the preconditions in s 120(1) are satisfied, the determination of whether to reduce an employee’s entitlement to redundancy pay requires the exercise of a broad discretionary power.[12]
In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia,[13] a Full Court of the Federal Court found that an employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.
In Spotless Services Australia Limited t/as Alliance Catering,[14] Deputy President Sams helpfully summarised authorities on what “other acceptable employment” means and relevantly stated:
“[65] The above decisions have some common features, including:
·The test of what constitutes ‘acceptable employment’ is an objective one It does not mean it must be acceptable to the employee.
·Acceptable employment is not identical employment, as no two jobs could be exactly the same.
·An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.
·An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable.’
·The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.
·There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”
4.1 Did Black Cat obtain other acceptable employment?
In this matter, it is not contested – and I am satisfied – that Black Cat obtained the Trade Assistant role for Mr Clark. The question is whether the new role was acceptable employment.
Mr Clark’s position is that he was not skilled, trained or competent in the tasks of looking after the waste water treatment plant or the RO plant.
Mr Clark submits that he had been completing the tasks to the best of his knowledge, but that PGO to moving out of care and maintenance into operational would change the level of responsibility. Mr Clark further submits that the role should require some form of qualification.
Mr Clark also contends that he has never been employed as a trades assistant and that he is unfamiliar with work associated with the processing plant. Mr Clark believes that the role is more suited to a younger person who has experience in the processing plant of a gold mine.
Black Cat submits that PGO becoming operational would not have materially changed Mr Clark’s duties. Ms Johnson submitted the camp utilisation numbers which show from June 2024 to December 2024 there were on average 75 people on site. Ms Johnson’s uncontested evidence is that once operational, site numbers would be approximately 94 people on average. I accept Ms Johnson’s evidence.
In her evidence, Ms Johnson submitted a Role Comparison of Mr Clark’s Caretaker role against the Trades Assistant position. Mr Clark did not contest the accuracy of the Role Comparison and I accept this evidence from Ms Johnson. The Role Comparison is attached to this decision as Annexure A.
Mr Clark also did not contest Ms Johnson’s evidence that his prior role of Caretaker involved management of the waste water treatment plant as well as duties regarding the RO plant. Mr Clark also did not provide any contrary evidence of what the role of Caretaker involved.
Based on the evidence provided, I find that the Trades Assistant role had a high degree of overlap with the role of Caretaker and that it was offered to Mr Clark with the same remuneration and roster that he had recently transitioned to. I find that Black Cat removed the duties that Mr Clark was uncomfortable with from the Trades Assistant role. I do not find Mr Clark’s argument that he was not skilled, trained or competent in tasks relating to the waster water treatment plant or the RO plant persuasive given Ms Johnson’s evidence that he was already performing those tasks.
I similarly do not accept Mr Clark’s argument that the role was not acceptable as he had never been employed as a trades assistant before. Whilst Mr Clark may have found the title of the role daunting, the duties that comprised the role were substantially the same as his Caretaker role. Mr Clark’s submission that the role was better suited to a younger person is not the relevant test for this type of matter.
I am satisfied that the role of Trades Assistant that was offered to Mr Clark was acceptable employment.
4.2 Is it appropriate to reduce Mr Clark’s redundancy entitlement?
The answer to the above is ‘yes’, but not to nil as Black Cat has requested. I have taken into account the parties’ submissions and given weight to the following:
· I find that Black Cat were genuine in wanting to provide Mr Clark alternative employment and acted on the feedback he provided.
· Mr Clark did not raise his concerns regarding training with Black Cat until after his employment ended.
· Mr Clark’s considerable length of service.
In the circumstances, I find it appropriate to reduce Mr Clark’s redundancy entitlement to six weeks. An Order to this effect will issue separately.[15]
COMMISSIONER
Hearing details:
Determined on the papers.
[1] Witness statement of Karen Johnson, Attachment 2 “Caretaker Position Description”.
[2] Ibid at [9] – [12].
[3] Ibid at [8].
[4] Witness statement of Scott Bailey at [9].
[5] Ibid at [10]; Witness statement of Karen Johnson at [17].
[6] Witness statement of Scott Bailey at [11].
[7] Witness statement of Karen Johnson at [20].
[8] Ibid at [27].
[9] Ibid at [30].
[10] [2016] FWCFB 5467.
[11] Ibid [37].
[12] Ibid.
[13] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 (FBIS).
[14] [2016] FWC 4505.
[15] PR786360.
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