Application by Blackdown Accommodation Services Pty Ltd

[2021] FWC 4578

[2021] FWC 4578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 —Redundancy pay

Application by Blackdown Accommodation Services Pty Ltd
(C2021/2594)

DEPUTY PRESIDENT LAKE BRISBANE, 29 JULY 2021

Variation of redundancy pay – redundancy pay varied

[1] Blackdown Accommodation Services Pty Ltd (Blackdown) has made an application pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Commission reduce the redundancy entitlement of Harriet Dodd, a former employee of the company whose employment ended for reason of redundancy.

[2] Under the Blackdown Accommodation Services Pty Ltd North Goonyella Operations Enterprise Agreement 2015, Ms Dodd is entitled to the redundancy provisions in the National Employment Standards. Given the Applicant was employed for a period of at least one year but less than two years, her entitlement to redundancy under s.119(2) of the Fair Work Act 2009 (Cth) (the Act), is equivalent to 4 weeks’ pay.

[3] The company contends that Ms Dodd’s redundancy entitlement should be reduced because it offered her four alternative roles in the company, which constituted ‘other acceptable employment’ for the purpose of s.120(1)(b)(i) of the Act.

[4] I issued directions to the parties to file and serve submissions and any witness statements or other documents on which they sought to rely. I then heard the application on Tuesday, 22 June 2021.

Statutory framework

[5] Section 119(1)(a) of the Act relevantly provides that an employee is entitled to be paid redundancy pay by the employer if their employment is terminated 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. The section goes on to provide for the amount payable to an employee who is made redundant, which is dependent on their length of continuous service.

[6] 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. Section 120(1) applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer “obtains other acceptable employment” for the employee. These are jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) states that the Commission may reduce the redundancy pay to a specified amount it considers appropriate, which may be nil. If the Commission makes an order under s.120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s.120(3)).

[7] The key question in the present case is whether the Respondent obtained ‘other acceptable employment’ for the Applicant, and if so, whether I should exercise my discretion to reduce the amount of the Applicant’s redundancy pay.

The meaning of “other acceptable employment”

[8] In Spotless Services Australia Limited t/as Alliance Catering[2016] FWC 4505 (Spotless), Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission:

“[60] The question of what constitutes ‘other acceptable employment’ in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.

This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as “acceptable” merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is “acceptable”.

…

The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.’ (my emphasis)

[61] In Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901 (‘Oscar Oscar’), Commissioner Asbury (as Her Honour then was), said at paras [18]-[19]:

‘[18] The question of whether alternative employment is acceptable, must be assessed on an objective basis. It is relevant to the assessment that redundancy payments are not made solely for the purpose of assisting employees to find alternative employment. Redundancy payments are intended to tide an employee over during the search for alternative employment, and to compensate the employee for loss of credits for sick leave, long service leave and other entitlements based on length of service. The question of whether previous service with the previous employer is recognised as service with the new employer, will also be relevant.

[19] Other considerations will be whether the alternative employment is of a like nature; a reasonable distance from the previous employment; whether pay and conditions are comparable; hours of work and job security in relation to the new position. The fact that an alternative position does not meet the personal preferences of an employee, may place the right to receive full redundancy pay at risk, where the employee refuses a position that is found to be acceptable on an objective basis.’

[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:

‘[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.

…

[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.’

[63] In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘Vicstaff’), Bissett C said at paras [29]-[30]:

‘[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.’

[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others [2016] FWC 461, I said at para [183]:

‘[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:

•  rate of pay;

•  hours of work;

•  work location;

•  seniority;

•  fringe benefits;

•  workload;

•  job security;

•  continuity of service;

•  accrual of benefits;

•  probationary periods;

•  carer’s responsibilities; and

•  family circumstances.

This list is not exhaustive. There may be other relevant factors.’

[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.”¹

[9] In Stabler & Howlett Veterinary Surgeons Pty Ltd T/A Stabler & Howlett Veterinary Surgeons², the Commission was asked to consider if the steps taken by an employer in relation to the role it proposed for the employee were sufficient as to have “obtained” employment for the employee and whether that employment was an acceptable alternative. In that case, the parties had engaged in ongoing discussions in relation to alternative employment following the redundancy of the employee’s role. Deputy President Ashbury found:

“I am therefore not satisfied that the Applicant “obtained” alternative employment for [the employee] in the sense that it established an opportunity which suited [the employee] and which crystallised as alternative employment. This is because the numerous exchanges and discussions with [the employee] did not result in an offer which could reasonably have been accepted by [the employee] on the basis that the first time it was set out in written form was in a letter stating that [the employee] had not accepted the offer and her employment was terminated”.3

[10] The view taken was that discussions about a proposed role are not equivalent to obtaining other acceptable employment, particularly where there is no final offer made and that negotiating an offer is not the same as “obtaining” employment for the employee. Further, an offer of employment must be in a form that the employee can accept or reject.

Respondent’s Submissions

[11] The Respondent was employed by the Applicant from June 2015 until January 2019. She was initially employed as a full-time Utility at Peabody’s Accommodation Facility at North Goonyella Mine (North Goonyella Village), where she had a variety of responsibilities including housekeeping, catering and working in the North GoonyellaVillage shop and bar. In or about January 2017, the Respondent was promoted to the role of Housekeeping Supervisor. In or about September 2017, she was officially transferred to the Applicant’s Administration department. In December 2018, the Respondent resigned from her employment with the Applicant and her employment came to an end in or around January 2019.

[12] Around May 2019, the Respondent recommenced working for the Applicant in the role of Administration Assistant at North Goonyella Village. The employment was governed by a contract of employment dated 7 May 2019 (the Employment Agreement).

[13] In or about November 2020, the Respondent was informed by the Applicant that the North Goonyella Village would be shutting down over the Christmas and New Year period (the Shut Down). All the Applicant’s employees at the North Goonyella Village were directed to take Annual Leave from 19 December 2020 to 15 January 2021.

[14] During a telephone conversation in around early-December 2020, the Applicant was informed that the North Goonyella Village will be moving to Care and Maintenance and, as a result, the Administration Assistant role will no longer be required after the Shut Down.

[15] While the Applicant was on annual leave, she received correspondence from payroll that suggested she may have resigned. The Respondent spoke with the Applicant to confirm that she had not resigned, and a conversation ensued that indicated that other roles were available.

[16] The consultation process, as such, was a confused affair with the Applicant at some stages asserting that the Respondent had resigned and later that she had abandoned her employment.

[17] What followed were discussions regarding several roles that might be available to the Respondent with other parties of the Applicant’s business. However, none of these options were satisfactory to the Applicant, either because the role itself was different, the distance to travel was significantly further or the roster pattern was not the same. The Applicant prepared the table below to outline each of the options presented to the Respondent:

Role	Date informed of role	Information provided	Contract provided	Job description provided	Proposed commencement date
North Goonyella housekeeping role	Early-December 2020	Housekeeper/Utility/Minesite cleaner role Monday-Friday roster Would not be offered a new contract	No	No	N/A
Moree admin role	11 January 2021	N/A	No	No	April/May 2021
Glenden housekeeping role	11 January 2021	Interim role until the Moree role became available 14 days on, seven days off roster	No	No	27 January 2021
New North Goonyella admin role	27 January 2021	Monday-Friday roster Applicant to “gross up” the amount it was paying the Respondent to assist with the cost of additional flights	No	No	N/A
Tieri admin role	27 January 2021	“like for like”	No	No	N/A
Glenden admin role	27 January 2021	“like for like”	No	No	N/A

[18] The Respondent described the consultation process as follows:

“On 27 January 2021, I received a letter from Mr Marsh dated 26 January 2021 with subject “Re Position with Blackdown Accommodation Services Pty Ltd”. … Relevantly, the 26 January 2021 letter:

- stipulates I can remain at North Goonyella Village in the role I was doing, however, that the role was now a Monday to Friday role and that the Applicant would “gross up” the amount it was paying me to assist with the cost of additional flights;

- reiterates Mr Leckie’s suggestion that I could be placed into a housekeeping role on a temporary basis until the Moree Role commenced; and

- suggests the Applicant could offer me an exact “like for like” role at either the Applicant’s Tieri or Glenden projects.

As set out in Mr Marsh’s letter of 20 January 2021, the Housekeeper role available at North Goonyella Village after the Shut Down was an “alternative position on a change of roster” and therefore not the same as the role I had been doing, which I had been told in early-December 2020 had become redundant.

In addition, given that I had been employed in an administration role prior to the Shut Down, I did not consider a redeployment into a housekeeping role for a number of months in anticipation of the Moree Role commencing to be acceptable. Since recommencing employment with the Applicant in May 2019, I had been employed exclusively in an administration capacity, had begun to perform more managerial duties and had not been engaged to do housekeeping work for several years. Notwithstanding the proposed placement in a housekeeping role was to be temporary, I did not consider it to be other acceptable employment in the context of my engagement as an Administration Assistant pursuant to the Employment Agreement.

Mr Marsh’s letter of 26 January 2021 was also the first time that an administration role at either Tieri or Glenden had been mentioned to me. Prior to this, the only roles discussed with me, with the exception of the Moree Role, which could not commence for several months, were housekeeping roles. When I spoke to Mr Leckie before the Shut Down in December 2020 and to Mr Spencer during the Shut Down in January 2021, each told me that the Applicant had no administration roles available. In addition, I had not seen either of these roles advertised and, given I had been told in December 2020 that the North Goonyella Role was no longer required, I had been looking at job advertisements.

The 26 January 2021 letter offers no detail about the administration roles purported to be available at Tieri and/or Glenden nor the roster that either role would operate upon. Working at Tieri would require significantly more time spent travelling each roster and may have jeopardised my ability to spend time with my partner, who also works on a fly-in/fly-out basis. In addition, I understand that each of the Applicant’s sites do not uniformly operate in the same way, meaning that the administration role and systems in place were not necessarily the same.

On 27 January 2021, I responded to Mr Marsh by email outlining the advice I had received from my lawyer about the redundancy of the North Goonyella Role. Attached and marked “HD-10” is a copy of that email.

Also on 27 January 2021, I was paid by the Applicant for the last time. This pay consisted of monies owed to me up to 20 January 2021 when I concluded the Annual Leave I was directed to take over the Shut Down.”

[19] From the time the Respondent was informed that her role was no longer required in early-December 2020 until 27 January 2021, the Applicant maintained it did not have any administration roles into which the Respondent could be imminently redeployed. Further, the first acknowledgement by the Applicant of the Respondent having any legal entitlements associated with the redundancy of her role was in making the Application to the Fair Work Commission.

[20] The Respondent claims the Applicant has been vague about the future of the Respondent’s continued employment with the Applicant, including in purporting to offer the Respondent similar administration roles at either Tieri or Glenden which occurred at the last minute with little or no detail regarding the roster pattern. Whilst accepting that the Tieri role had similar travel time and was an administrative role, there was no detail or formal offer made. In the Respondent’s mind it was not an offer that could be accepted or rejected, and thus, in her mind the employer had not obtained suitable alternative employment for her to the requisite standard.

[21] The Respondent’s employment with the Applicant ceased on 22 February 2021. The Applicant has not paid wages to the Respondence after 20 January 2021, nor any form of notice period, accrued annual leave or redundancy.

The Applicant’s evidence/submission

[22] The Applicant contends they made considerable efforts to accommodate the Respondent’s preferences by offering four alternative roles:

“(a) That Ms Dodd takes on the new administration role in Moree when it became available in April 2021. This would require her to temporarily work as a housekeeping supervisor at the nearby Glendon location until the role became available, however she would maintain her roster and rate of pay while performing her temporary role and in the future role. (the Moree Role)

(b) That Ms Dodd remains at North Goonyella in her current role with an amendment to her roster from a “14 on, 7 off” to a standard Monday to Friday roster. The Applicant offered to gross up the amount that they were paying on Ms Dodd’s behalf to assist with the cost of extra flights. (the New North Goonyella Role)

(c) That Ms Dodd be employed in an exact like for like role with her administration role at North Goonyella at the Tieri project. (the Tieri Role)

(d) That Ms Dodd be employed in an exact like for like role with her administration role at North Goonyella at the Glendon project. (the Glendon Role)”

[23] The Applicant set out the details of each offer in the following table:

Criteria considered	Previous Role	The Moree Role	The New North Goonyella Role	The Tieri role	The Glendon Role
Work Location	North Goonyella, approximately 163 Km from the Mackay Airport	1 Carmine Munro Avenue, Moree New South Wales NSW 2400	North Goonyella, approximately 163 Km from the Mackay Airport	Tieri, approximately 296 Km from the Mackay Airport	Glendon, approximately 164 km from the Mackay Airport
Travel Time (Google mapped)	1 hour and 51 minutes from the Mackay Airport. 1 hour and 52 minutes to the Mackay Airport.	3 Minutes from the Moree Airport. 2 Minutes to the Moree Airport.	1 hour and 51 minutes from the Mackay Airport. 1 hour and 52 minutes to the Mackay Airport.	3 hours and 13 minutes from the Mackay Airport. 3 hours and 17 minutes to the Mackay Airport	1 hour and 53 minutes from the Mackay Airport. 1 hour and 52 minutes to the Mackay Airport
Roster	14 on, 7 off	14 on, 7 off	5 on, 2 off	14 on ,7 off	14 on, 7 off
Seniority	Current Seniority	Same as Current Seniority, however a brief period where the Applicant would have been a Housekeeping Supervisor.	Same as Current Seniority	Same as Current Seniority	Same as Current Seniority

[24] The Applicant submitted the rate of pay, hours of work, fringe benefits, workload, job security, continuity of service, accrual of benefits, probationary period, carer’s responsibilities and family circumstances are identical between the roles offered and the Respondent’s previous job.

[25] The Applicant submitted that Ms Dodd has not been willing to work with the Applicant or meaningfully engage in the process to place her in acceptable alternative employment. They claim that she had advised on multiple occasions that she did not wish to accept a new job within the Applicant.

Consideration

[26] The Respondent objected to the roles on several grounds. Firstly, the original offer regarding North Goonyella (the Respondent’s existing role), was to move her off a 14/7 roster to a 5/2 roster. She asserted that this in itself was a significant change, but that the nature of the work would also differ as the camp was going into care and maintenance and she would be employed in a housekeeper role. I do not consider that this offer constituted acceptable alternative employment given the changes in duty and roster. I accept that roster changes may be possible with appropriate consultation, however as the Respondent was a fly in fly out employee, the change in roster would have significant impact on her life and therefore was not acceptable alternative work. The fact that this change was required at the North Goonyella Village, initiated the possibility of the Respondent becoming redundant if no acceptable employment was obtained by the employer.

[27] The next role discussed with the Applicant was the Moree role which had similar administrative work, however, it would not become available until April or May, some three months’ time. The Applicant proposed that the Respondent would have to take up an alternative role in the meantime and proposed the Gleneden role. The Respondent claimed that this role was not similar and stated it would be returning to work as a housekeeper/cleaner whereas she had been working in administrative role at the time that these discussions took place. I am satisfied this proposal did not constitute acceptable alternative work, given the comparable work would not be available for three months’ and the interim role was not an acceptable alternative.

[28] In the final round of proposals by the Applicant on 26 January 2020, the possibility of two administrative roles at Teieri and Glendon were raised. These roles at a high level were generally more comparable, with matching travel times, roster patterns and administrative duties as compared to the Respondent’s role. However, these roles seemingly came at the last minute with little detail regarding the proposed offers. The Respondent had been informed earlier in January that there were no administrative roles available. Further no detailed information was provided about these roles and they were not in the form of an offer or contract that the Respondent could accept.

[29] By this stage in the negotiations the Applicant had not yet ‘obtained’ acceptable alternative employment for the Respondent The offers were not in a form that the Respondent could accept or reject, and the Applicant had yet to recognize that the Respondent may have any right to a redundancy.] I find that these two proposals do not fit the criteria for ‘obtaining’ employment.

[30] A mere mention or discussion of a potential role does not meet the standard of the employer ‘obtaining’ employment. The employee should be informed that their role is being made redundant and then be provided with the details of any alternative, available roles in a clear and unambiguous form, that is capable of being accepted by the employee. It will be clear then that the offer is a genuine effort on the employer’s part to obtain alternate acceptable employment, in which case the employee would have a limited ability to claim a redundancy, if indeed the offered role constituted acceptable alternative work that met the requisite tests.

[31] The Applicant did not initially acknowledge that the Respondent’s role was redundant. On 14 January 2021, when no clear role had been provided to her and she was still employed, the Respondent sent an email stating, “I’ve decided I do not wish accept a new job within the company as I don’t want to be in the current type environment being portrayed”. She further requested that her redundancy and notice period be paid out by the 24 January 2021. This was a clear indication by the Respondent that she was no longer going to engage in the process of identifying alternative work. Given that no role had yet been offered that was acceptable alternative, this is not surprising. However it seems the Applicant reconsidered its position and, on 26 January, made another round of suggestions. By this stage the Respondent was no longer considering alternatives and had clearly decided to no longer engage with the process and was determined to take a redundancy. This is unfortunate as the two roles mentioned in the employers email on the 26 January may well have been acceptable alternative work and, if she had properly engaged with the Applicant at that time, an offer that she could accept may have transpired. However, this was not the case and the Respondent continued to rebuff the efforts of the Applicant in identifying acceptable alternative work.

[32] In this case, the employer obfuscated the fact that the role was redundant until this application was made, that is, until after the termination. The first two offers proffered were not equivalent and the latter two (given after months of discussion) have the appearance of a last-minute attempts to avoid redundancy. They lacked specificity and accordingly were not capable of being accepted or rejected by the Respondent. On that basis, they cannot constitute the Applicant obtaining employment for the Applicant. However, if the Respondent had truly engaged with the process, the latter two offers may have crystalised into an offer that was capable of being accepted.

[33] The consultative process was not a model one, however there was a lack of genuine engagement during the latter part of the process and therefore I determine that the redundancy of four weeks to be reduced by one week. Therefore, I order that the redundancy payment payable to the Respondent be varied to be 3 weeks.

[34] Though I am not empowered to make orders regarding the Respondent’s other unpaid entitlements, I note that she is entitled to be paid up until the end of her employment, plus a notice period and any accrued leave. At the time of the hearing, these entitlements had not yet been paid.

DEPUTY PRESIDENT

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1 Spotless Services Australia Limited t/as Alliance Catering[2016] FWC 4505.

2 [2019] FWC 1208.

3 [2019] FWC 1208 at [45].