Aristotle Cristobal v Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia
[2018] FWC 3002
•25 MAY 2018
| [2018] FWC 3002 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aristotle Cristobal
v
Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia
(U2017/9956)
COMMISSIONER CRIBB | MELBOURNE, 25 MAY 2018 |
Application for an unfair dismissal remedy - jurisdictional objection - genuine redundancy.
[1] Mr Aristotle Cristobal (the Applicant) has lodged an application under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application is in relation to his dismissal by Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia (the company, BAA, the Respondent). The Respondent advised of a jurisdictional objection, on the grounds that the Applicant’s dismissal was a case of genuine redundancy, on 22 September 2017.
[2] A Jurisdiction and Arbitration Conference/Hearing was held on 7 December 2017. Mr Cristobal represented himself while BAA was represented by Ms Melissa Brunning, in-house counsel for BAA. Mr Cristobal gave evidence as did, on behalf of the Respondent, Mr Michael Sorrenson, Director Supply Chain Management and Operations, Ms Emily Meldrum, currently HR Business Partner for the 787 program and Mr Jamie Gooding, currently Core Project Lead.
[3] Written closing submissions were provided by the Respondent on 29 January 2018 and by Mr Cristobal on 18 February 2018. Submissions in reply on behalf of the Respondent were filed on 26 February 2018.
Legislative framework
[4] Section 385 of the Act provides that a person has not been unfairly dismissed in cases of genuine redundancy. A genuine redundancy is defined at section 389 of the Act as follows:
“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.”
[1] With respect to section 389(1)(a) of the Act, Mr Cristobal stated that he accepted that there were changes in the operational requirements of the Respondent’s enterprise but challenged whether BAA no longer required his job to be performed by anyone. 1 Mr Cristobal also argued that the implementation of the Knowledge, Skills, Attributes (KSA) evaluation process for the selection of redundancies was unfair and that BAA had failed in its obligations to make genuine efforts to redeploy him.2
[2] In this matter, there does not appear to be a challenge by Mr Cristobal in relation to the requirements of section 389(1)(b) of the Act. Mr Cristobal, in his Closing Submissions, stated that there had been proper consultation and communication between the company and himself regarding the implementation of the involuntary redundancy process, in accordance with the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2014 (the BAA Agreement). 3
[3] Therefore, the summary of the witness evidence and the submissions will focus on the aspects of section 389 of the Act that are challenged by Mr Cristobal. These are whether BAA no longer required his job to be performed by anyone (section 389(1)(a) of the Act), the KSA assessment process and the issue of redeployment (section 389(2) of the Act).
[4] I will deal with each of these disputed issues in turn.
Was there a genuine redundancy – section 389(1)(a)?
[5] Whilst it was common ground between the parties that there were changes in the operational requirements of BAA, Mr Cristobal did not accept that BAA no longer required his job to be performed by anyone.
Witness evidence
Mr Sorrenson
[6] Mr Sorrenson provided a witness statement 4 and gave evidence that:
● BAA manufactures components for the Boeing 737, 747, 777 and 787 aircraft. 5
● in March 2017, it was announced that the company was decreasing the rate at which 777 aircraft were to be delivered to customers. The rate was being decreased from 7 aircraft to 3.5 aircraft per month. 6
● the rate reduction had an impact on the skill code per the enterprise agreement classifications rather than the specific area (e.g. 787 or 777). The company cast a very wide net in terms of skills across all of the programs. People on the same skill code worked in the 777, 787 and 737 programs. 7
● the different programs are not segregated or siloed from each other. 8 People are moved around from time to time. Just because an employee starts in a particular area, that person is not anchored to that area.9
● the classification of employees in the enterprise agreement is not tied to a particular program. 10
● once the company had determined the required reduction in headcount (due to the reduction in rate from 7 to 3.5 aircraft per month), he also then had to work out which parts of the business were going to be impacted and which classifications within each part of the business were going to be affected. The process set out in the BAA Agreement was then followed. 11
● when headcount needed to be reduced, the company does not take a program specific approach. Rather it looks at the impact on the skill code and not necessarily the area that someone is working in. The company develops work assessment groups (WAG) of employees e.g. fabrication operators, who perform the same role across the various programs (e.g. 777, 787 etc). This was why the reduction in headcount was not limited to employees in the 777 program. Mr Cristobal was part of the fabrication WAG which comprised 209 employees. 12
● the company assessed how many people were required in various areas (e.g. quality, engineering, supply management, manufacturing etc) and then which roles could be made redundant. 13
● there are different chemicals in use between the 777 program and the 787 program but the process was the same. 14
● employees are required to be specifically certified to work on the 787 (and the other) programs. All of the certifications required classroom-based training (about 5 hours) and then on-the-job training to prove that the employee can perform the role. The length of the on-the-job training and observation was from a week to months depending on the criticality of the task. 15
● for an employee to move from the 777 to the 787 program, they needed the certification (training). 16 The training needed to transfer to the 787 was different to the training required to transfer to the 777.17 Training was also required to move within an area e.g. within the 787 program, which was driven by the company’s quality system.18
● the reduction in the rate at which 777 aircraft were to be delivered to customers resulted in BAA looking at the skills across all of the programs based on the enterprise agreement classification. In relation to Mr Cristobal, this was the fabrication operator classification and the company needed to reduce the number of fabrication operators across the board and not just those working in the 777 program. 19
● it was custom and practice (10 years plus) for the company to approach redundancies on the basis of the classification of the employees. This was because the skills were transferable across programs. Mr Sorrenson explained that, limiting the knowledge, skills and attributes assessment to one area was limiting as it would not guarantee the best outcome for the employees or the company in terms of the knowledge, skills and attributes of the remaining employees. 20
● 19 positions in the fabrication WAG were made redundant. Five of the operators made redundant came from the 777 program and 13 came from the 787 program. 21
Ms Meldrum
[7] Ms Meldrum provided a witness statement 22 and also gave oral evidence. At the time of Mr Cristobal’s redundancy, Ms Meldrum was the HR Manager.23
[8] It was Ms Meldrum’s evidence that:
● her role in relation to the redundancy process was to oversee HR support for the process with her team being involved in the process. Ms Meldrum was part of the steering committee for the process. 24
● the unions and the workforce were advised on 6 March 2017 that 65 roles were to be made redundant. 25
● BAA undertook a process to identify how each WAG would be comprised and the employees who would be included in each WAG. 26
● the AMWU requested more time to approve the WAGs. In relation to the fabrication WAG, the union had a couple of very small concerns. Mr Cristobal was part of the fabrication WAG (209 employees). 27
● the final list of employees to be made redundant was presented to the steering committee on 15 August 2017. There was a discussion at the steering committee meeting about the rankings and the voluntary redundancy applications that the company had accepted. No concerns were raised by the union about Mr Cristobal being selected for redundancy. 28
Mr Gooding
[9] Mr Gooding provided a witness statement 29 and gave oral evidence. At the time of Mr Cristobal’s redundancy, Mr Gooding was in the role of HR Business Partner for the 787 program.
[10] It was Mr Gooding’s evidence that:
● BAA determined it required a “redundancy by work program” in accordance with Part 11 of the BAA Agreement. This was because it was impossible to identify specific redundant roles as it was a headcount reduction across a designated work area that was required. 30
● from a manufacturing point of view, BAA is structured into two parts – fabrication and assembly. 31
● it was the same layout process (except for some minor differences) for the 777 program as for the 787 program. 32
● Mr Cristobal was covered by the aerospace worker 2B classification in the BAA Agreement. The classification included workers from different programs. 33
● he was the focal point for the fabrication team and the fabrication team WAG. 34
● he and Mr Sorrenson met with Mr Cristobal and notified him of his involuntary redundancy, on 16 March 2017. 35
● in the letter to Mr Cristobal, dated 22 August 2017, 36 in response to Mr Cristobal’s letter of appeal, the company talked through the reasons why the work he was doing was encompassed by the WAG aerospace worker and not specific to the 787 program. It was recalled that the enterprise agreement referred to redundancy by work area.37
Mr Cristobal
[11] Mr Cristobal provided a witness statement together with a number of documents and also gave evidence.
[12] It was Mr Cristobal’s evidence that:
• he was employed as an aerospace worker under the BAA Agreement.
• he was working in the tool preparation area as an aerospace worker at the time of the redundancy.
• he did not apply for a mix-and-match because he strongly believed that BAA did not have any vacancies. Mr Cristobal stated that the mix-and-match process was explained but not clarified.
• he also did not complete a mix-and-match application because he did not feel his redundancy was justified.
• he doubted the credibility of the KSA scores and so did not respond and organise a meeting to discuss the scores (and his appeal).
• after being notified of his redundancy, he was assigned to train employees from the 777 program and to perform his work in the 787 program.
• the 777 program functions were not interchangeable with the 787 program as the employees did not know the specific technicalities of the 787 work. In addition, one of the employees had to undergo training and certification before being allowed to perform the function he was performing.
Submissions
BAA
[13] It was submitted by BAA that circumstances where an employer “no longer requires the person’s job to be performed by anyone” included where an employee no longer has a function or duties to perform following a reorganisation. The Commission was referred to the decision in Ulan Coal Mines Limited v Howarth and others 38 (Ulan Coal v Howarth) in this regard. The Explanatory Memorandum to the Fair Work Bill 2008 was also highlighted by the company. It was stated that the Explanatory Memorandum included a situation where an employer is experiencing a downturn and might only need three people to do a particular task instead of five.39
[14] The company explained that, due to a decision by BAA’s parent company (the Commercial Airplanes division of The Boeing Company), in March 2017, the resultant decrease in production meant that the work required to be done by employees on the 777 program was halved. It was stated that the company determined that it needed to reduce its overall headcount by 57 permanent positions including 22 positions in the aerospace worker 2+ classification (aerospace tradespeople working in layout) – Mr Cristobal’s classification. The company indicated that the headcount reduction was undertaken in accordance with Part 11 of the BAA Agreement which provides for redundancy by work area i.e. where it is not possible to identify a specific individual whose job has disappeared. 40
Mr Cristobal
[15] Mr Cristobal submitted that his dismissal was not a case of genuine redundancy because BAA still required the person’s job to be performed by someone. 41 It was argued by Mr Cristobal that, even after considering the decrease in the rate at which 777 aircraft would be produced, his job as a tool preparation worker in the 787 program continued to exist and that he was replaced by a worker from the 777 program.42 This was on the basis that, after receiving notification that he was to be made involuntarily redundant, he was assigned to train employees from the 777 program to perform his work on the 787 program. Mr Cristobal also stated that, after he was made redundant, his work was being performed by another employee.43
[16] In addition, Mr Cristobal contended that work activities on the 787 project could not be considered redundant because the 787 program was one of the more in demand programs. It was stated that, during the last few months, employees on the 777 program had been transferred to the 787 program to increase the number of employees on that program. Mr Cristobal also explained that, from 2011 until his redundancy, he had been specifically assigned work duties on the 787 and not the 777 program. 44
[17] Mr Cristobal stated that his position as a tool preparation worker in the 787 program was not automatically interchangeable with a tool preparation worker position in the 777 program. This was because workers did not simply slide across programs. Mr Sorrenson’s evidence was highlighted in relation to annual certifications and the requirement for classroom and on-the-job training before an employee is certified to perform new tasks across programs. 45 Mr Cristobal’s view was that at least three months was required of each employee before they could acquire certification to perform a new job across and within programs. Mr Cristobal pointed to the 42 trainings and certifications he had obtained during his six years of employment.46
[18] Mr Cristobal contended that employees needed to be expert in their own work as what was being made was not toy planes but Boeing aircraft. A precondition of working in the 787 program was said to be the completion of a number of training programs. 47
[19] Given that the goal of BAA was to reduce headcount as the result of operational changes in the 777 program, Mr Cristobal argued that it would have been logical to implement the redundancies only within the 777 program. It was contended that, for BAA to have done otherwise, suggested that there was another (real) reason for his dismissal. This was said to have been to filter out employees across the 777, 787 and 737 programs based on their KSA rating. 48
[20] Further, Mr Cristobal submitted that, if the aim of the redundancy program was to reduce headcount due to the operational changes, there was no justification for the company to reject applications for voluntary redundancy. Ms Meldrum’s evidence that the company had rejected some applications because the employees concerned had too high a KSA ranking, was referred to. 49
Considerations and conclusions
[21] In dealing with the Respondent’s jurisdictional objection, the Commission is required to be satisfied that BAA no longer required Mr Cristobal’s job to be performed by anyone because of changes in BAA’s operational requirements (section 389(1)(a) of the Act). Mr Cristobal disputed two aspects of section 389(1)(a) – whether BAA no longer required his job to be performed by anyone and the process used by the company to determine that he was to be made redundant. These matters will also be dealt with as part of consideration of BAA’s jurisdictional objection.
[22] As has been pointed out earlier, it was common ground that there were changes in the operational requirements of the employer’s business. These were a reduction (halving) in the number of 777 aircraft required to be manufactured at Port Melbourne each month. The reduction was the consequence of a decision by BAA’s parent company in the USA. The consequence of the parent company’s decision was a decision by BAA that it needed to reduce its headcount by 57 permanent employees who were covered by the BAA Agreement. The reduction in the overall number of employees was spread across the quality, PSE, Engineering, Supplier Management and Manufacturing functions of the business. The largest reduction in positions (22) was in Manufacturing (layup rooms and supporting areas) in the fabrication operator classification (aerospace worker 2+). 50
[23] It was submitted by the company that Mr Cristobal’s redundancy was a genuine redundancy and that it fell into the category of redundancy that was the subject of examination by the Full Bench in Ulan Coal v Howarth and was referred to as an example of a genuine redundancy in the Explanatory Memorandum. BAA contended that the company needed to reduce the total number of employees across its operations including 22 aerospace worker 2+ classified positions in fabrication.
[24] On the other hand, Mr Cristobal contested that his redundancy was a genuine redundancy on the grounds that he had trained employees from the 777 program to perform his role and that, after his dismissal, these employees continued to do his work. It also did not make sense to Mr Cristobal that, although the cut in production was to the 777 program, his position in the 787 project was being made redundant as a result.
[25] Of the 22 employees made redundant, it was Mr Sorrenson’s evidence that five of the operators made redundant came from the 777 program and 13 came from the 787 program.
[26] The situation that occurred at BAA and Mr Cristobal’s redundancy is similar to what occurred at Ulan Coal Mines in relation to Mr Howarth which was the subject of consideration by a Full Bench of the Commission in the Ulan Coal v Howarth decision. In that decision, the Full Bench dealt with a situation where, due to changes in operational requirements, the employer needed to reduce the total number of mine worker positions. Ultimately, the company decided that 14 permanent non-trades mine workers would have to be retrenched. The Full Bench observed that, as the redundant employees were not selected according to an individual approach (based on the particular position or work being performed), the need to reduce the overall number of non-trades mine workers meant that mine workers from different parts of the operations would be retrenched with other mine workers needing to be reallocated into available mine worker jobs. 51 In its decision, the Full Bench found that the 14 non-trades mine workers that were made redundant in these circumstances were genuine redundancies.52
[27] The Full Bench also noted that the Explanatory Memorandum to the Fair Work Bill 2008 provided examples of cases of genuine redundancy. One of these examples was when an employer, due to a downturn in business, needed three rather than five people to do a particular task. 53
[28] It was concluded by the Full Bench in the Ulan Coal v Howarth decision that:
“[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the BAA Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.
[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.”
[29] This decision is the leading authority on the question of the meaning of “the person’s employer no longer required the person’s job to be performed by anyone”. I respectfully adopt this approach.
[30] The situation that occurred at BAA was similar to the one that the Full Bench considered in the quote above. In this case, there were also operational changes which resulted in the employer identifying that there were a number of particular positions which were surplus to the company’s requirements. These included 22 fabrication operator positions. The selection of the employees who were to be made redundant, in both cases, was made in accordance with the applicable Agreement.
[31] The Full Bench, in paragraph 19 of the quote above, also specifically stated that the redundancies:
“… did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers.”
[32] Applied to this matter, the Full Bench was saying that the redundancies at BAA did not mean that Mr Cristobal’s duties were no longer required to be performed and that Mr Cristobal’s position continued although it was being undertaken by an employee transferred from another part of the business.
[33] Further, the Full Bench observed that:
“However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.” 54
[34] This is the same situation that occurred at BAA. The company required fewer aerospace worker 2+ classified positions due to the changes resulting from the decrease in 777 aircraft production. Therefore, in accordance with the Full Bench decision, the jobs of the 22 fabrication operators could be said to no longer exist.
[35] On the basis of the considerations set out above, I find that Mr Cristobal’s dismissal was the result of BAA no longer requiring Mr Cristobal’s position to be performed by anyone.
KSA selection process
[36] Mr Cristobal also challenged the way in which the selection process for redundancies (KSA evaluation) was implemented by BAA and argued that it was not fair. 55 As was indicated during the hearing, in deciding whether a dismissal is a genuine redundancy, the Commission is not required to address the process for selecting individual employees for redundancy. This is set out in the Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1553. This question was also dealt with in the Full Bench decision in UES (Int’l) Pty Ltd v Leevan Harvey56(UES).
[37] In that decision, the Full Bench noted that:
“[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much.”
[38] In accordance with the Full Bench authority in UES, the Commission notes and understands the concerns raised by Mr Cristobal but finds that the process used by BAA is not relevant to the question of whether a dismissal was a case of genuine redundancy.
[39] Taking all of this into account, the Commission is satisfied that the requirements of section 389(1)(a) of the Act have been met. As it was common ground between the parties that BAA had complied with the consultation requirements in the BAA Agreement, on the basis of the material before me, the Commission considers that the requirements of section 389(1)(b) of the Act have also been met.
Would it have been reasonable for Mr Cristobal to have been redeployed - section 389(2)?
[40] The parties disagreed about whether it would have been reasonable in all of the circumstances for Mr Cristobal to have been redeployed either within BAA or with one of its associated entities.
Witness evidence
Ms Meldrum
[41] Ms Meldrum gave evidence that:
● on 18 August 2017, Ms Rossi, HR Business Partner, emailed Mr Cristobal to advise that there were currently no internal vacancies at BAA but that updates would be provided on any new roles that became available in the next 4 weeks. 57
● the email contained a link to BAA’s current vacancies. The only vacancies at the time were for an engineering graduate program commencing in 2018. Ms Meldrum stated that Mr Cristobal did not have the skills, experience and qualifications to be considered for this. 58
● Boeing Defence Australia (BDA) was explained to be one of seven subsidiaries (associated entities) that sit as part of Boeing Australia Holdings (BAH) (a holding company). 59
● Mr Cristobal did not contact HR about job opportunities at BDA. There was no link to the job opportunities at BDA in the email as BDA and BAA have separate recruitment and HR systems. 60
● BAA did not share with BAH, HR policies or recruitment systems or have a common HR director. 61
● the HR team made an assessment that Mr Cristobal did not have the skills, experience and qualifications to be redeployed into any suitable vacancies in the other subsidiary companies. This was based on the work undertaken by the subsidiaries. 62
● HR knew that there were vacancies at BDA and one vacancy at Insitu. 63
● based on HR’s knowledge of these vacancies and their knowledge of Mr Cristobal, HR decided that there was not a match. 64
● the email from Ms Rossi was asking employees if they would like to hear about opportunities at BDA. The intent was said to have been that employees should register interest and HR would work, on a one-on-one basis, with employees about each of the opportunities. It was explained that there were quite a few opportunities and it was felt that the content of the email was a better approach than sending out a long list of roles. 65
● the email was about reaching out to understand interest. Once interest was obtained, it was then working through each role with employees. It was about understanding whether employees were prepared to work in Brisbane with BDA as it was presumed that everyone understood that BDA was in Brisbane. 66
● if an employee was interested in a position in another subsidiary, the employee would need to apply directly to that business. HR did not have access to the other businesses’ systems because they all had different systems. 67
● the intent of the email was for the employee to register interest to work at BDA in Brisbane and HR would then work with the employee to understand their interest and suitability for the roles. 68
● the mix-and-match process was different to there being open vacancies. With mix-and-match, it was the individual’s responsibility to identify what roles they felt they could perform. 69
● confirmed that, as a result of a reduced requirement to manufacture 777 components, less fabrication operators needed to be employed by BAA in Port Melbourne. 70
● everyone was bundled in together and it did not matter whether they worked on the 777 or 787 program. 71
Mr Gooding
[42] Mr Gooding gave evidence that:
● Mr Cristobal did not talk to him about alternative jobs. 72
● he was not aware of any jobs Mr Cristobal had applied for. 73
● there were no roles available at BAA and, on the website, there wasn’t a particular role which reflected Mr Cristobal’s skills and attributes that HR discussed with Mr Cristobal. 74
● he did not have any involvement in conversations with Mr Cristobal regarding other roles outside BAA. 75
● there were no successful mixes and matches within the fabrication WAG and there were no requests by any of the fabrication employees. In one of the other WAG’s, there were 6 out of 9 successful mixes and matches. 76
● there are no shared HR systems between BAA, BAH and Insitu. It was explained that all of the subsidiaries are quite distinct and separate entities. There are some similarities in terms of recruitment – all of the roles that are available within the broader BAA are available on the intranet. All of the other HR systems are quite separate. 77
● all of the available job vacancies were on the intranet and available to Mr Cristobal at the time he was made redundant. 78
● BAA and BDA both use Springboard to advertise roles both internally and externally. However, they do not share the same recruitment system. 79
Mr Cristobal
[43] Mr Cristobal gave evidence that:
● he confirmed that, in the letter of 16 August 2017, 80 option 4 was that he could apply for open job opportunities within BAA. Mr Cristobal stated that he did not apply for any jobs at BAA because it was the responsibility of the employer to deploy the redundant employee.81
● there were no available jobs communicated at that time so how could he apply. Also, Mr Cristobal indicated that he did not apply because there was no advertised vacancy during that time. 82
● he did not have an engineering degree but was currently doing a dual Masters degree in HRM and Business Administration. 83
● in relation to the email from Ms Rossi, dated 18 August 2017, 84 he could not remember if he had received the email (he was on sick leave for 3 or 4 days on and off) or whether he had opened it. Mr Cristobal said that it was most likely that he had not read the email.85
● when he was at work, he did not have time to check or open his emails. 86
● at the time he was made redundant, there were requirements to perform laid-up, de-bag, dearth drill and oven job functions in the 787 program. Mr Cristobal stated that he had the required training and certifications to perform these roles. He was not offered to fill these jobs on the 787 program. Mr Cristobal said that they were filled by 777 program employees who needed to comply with the required training and certification to perform those roles. 87
Submissions
BAA
(a) Redeployment within BAA
[44] BAA argued that the evidence showed that the only roles within the company were for engineering graduates commencing in 2018. This was because the business was undergoing a wide-scale redundancy process and there were no available positions for Mr Cristobal or the other redundant fabrication employees to perform in the 787 program. It was stated that, as the redundancy program was a spill and fill, the existing work was required to be redistributed amongst a smaller number of (remaining) employees. BAH explained that the engineering graduate roles were determined to be unsuitable for Mr Cristobal because he did not have the skills or engineering experience and qualifications to perform the role or with a reasonable period of training. It was stated that an engineering degree was a requirement for these positions. 88
[45] With respect to the mix-and-match process provided by the BAA Agreement, the company stated that Mr Cristobal was advised of this process but chose not to participate in it. 89
(b) Redeployment within an associated entity
[46] The company stated that Boeing Australia Holdings Pty Ltd (BAH) is a holding company with 7 subsidiaries, one of which is BAA. It was explained that BAH does not have its own HR Director and that there is very limited managerial integration between the subsidiaries. Each subsidiary was said to have its own HR teams which report into different business units in the parent company in the USA. The company also indicated that the subsidiaries do not share common HR policies or systems or recruitment tools and that BAA had no authority to redeploy Mr Cristobal into an available position in another subsidiary. 90
[47] It was also explained that there was no shared intranet site which showed the job vacancies across the subsidiaries. Rather, there was only an external website which contained externally posted roles and not roles which were being internally advertised only. 91
[48] BAA submitted that the Commission is to be concerned with whether redeployment would have been reasonable at the time of Mr Cristobal’s dismissal. It was stated that, at the relevant time, Ms Meldrum was not aware of any vacancies at BTPSA, Jeppeson or Aviall. Ms Meldrum was said to have become aware of one vacancy each at Insitu and BAH after Mr Cristobal’s dismissal. BAA explained that, in any event, neither of these roles was relevant in terms of Mr Cristobal’s skills, capabilities and experience. 92
[49] It was stated that Ms Meldrum was aware of the BDA vacancies at the time of Mr Cristobal’s dismissal because the BDA HR team periodically contacted the BAA HR team to advise of open vacancies in BDA. As a result, the Respondent advised Mr Cristobal and the other redundant employees to contact HR if any of them were interested in the BDA opportunities. BAA argued that the intent behind the email was to understand whether employees would be interested in a BDA role in Brisbane. 93
[50] With respect to Mr Cristobal’s conflicting evidence about whether or not he received the 18 August 2017 email, the company argued that the evidence suggested that Mr Cristobal was aware of the 18 August 2017 email at the relevant time. 94
[51] BAA argued therefore that it was not reasonable in all of the circumstances to redeploy Mr Cristobal either within BAA or one of the associated enterprises. 95
Mr Cristobal
[52] Mr Cristobal submitted that BAA had failed to comply with the obligation to make genuine efforts to redeploy him rather than make him redundant. 96 It was argued that the Fair Work Act required an employer to offer a redundant employee reasonable redeployment opportunities within the enterprise or associated enterprises. Mr Cristobal stated that this was a strict obligation on the employer and not an option or discretionary.97
[53] It was contended by Mr Cristobal that, at the time of his redundancy, there were positions available in the 787 program to which he was eligible to be redeployed. These included the de-bag, lay-up, dearth drill and oven positions for which he had the required certifications and training. 98
[54] The Commission was referred to the Full Bench decision in Ulan Coal Mines Limited v Honeysett and others 99 (Honeysett) where the Full Bench was said to have stated that reasonable redeployment requires an employer to transfer an employee rather than assist them to find an alternative position.100
[55] Mr Cristobal argued that BAA had failed to genuinely assist him to find an alternative position. 101 This was on the basis that he was not provided with effective guidance to information about possible vacancies in the other subsidiaries. It was stated that the link in Ms Rossi’s email of 18 August 2017 was only to BAA vacancies and not to job opportunities in BDA or elsewhere. Mr Cristobal contended that reasonable redeployment efforts meant at least the provision of sufficient knowledge about vacancies in BAA and the other subsidiaries.102 It was stated that, without a list of available roles, Mr Cristobal could not have made a knowledgeable decision about whether or not he was qualified to apply for the available roles.103
[56] Further, it was contended that it was redundant employee’s decision whether to apply for a vacant position interstate and not for the company to decide not to inform the employee. Mr Cristobal stated that sending an email asking employees if they would be interested in roles in BDA was insufficient on the employer’s part. 104
[57] Finally, Mr Cristobal argued that BAA had underestimated his skills by assuming that his qualifications were limited to his tool preparation position in the 787 program. It was said to have been incumbent on the employer to exhaust efforts to identify his potential skills. 105
Considerations and conclusions
[58] It was submitted by the company that, at the time of Mr Cristobal’s dismissal, there were no roles, either internally or in one of the other subsidiaries, that it would have been reasonable to deploy Mr Cristobal into. This was on the basis that the only roles available within BAA were for engineering graduates in 2018 and Mr Cristobal did not have the necessary engineering skills, experience or qualifications to perform these roles, even with a reasonable period of training. With respect to potential redeployment to one of the other subsidiaries, the company argued that, at the time of Mr Cristobal’s dismissal, the only known vacancies were at BDA and that Mr Cristobal was notified of these vacancies in the email from Ms Rossi on 18 August 2017. The company stated that Mr Cristobal did not contact HR in relation to the BDA vacancies nor participate in the mix-and-match process. Finally, BAA stated that the subsidiaries did not share common HR policies or systems or recruitment tools and that there was very limited managerial integration between them. In addition, there was no shared intranet site which showed job vacancies across all of the subsidiaries.
[59] On the other hand, it was Mr Cristobal’s argument that BAA was required to offer him, as a redundant employee, reasonable redeployment opportunities within BAA or its associated enterprises. Mr Cristobal was of the view that this was a strict obligation on BAA and not discretionary. It was contended by Mr Cristobal that BAA had failed to genuinely assist him to find an alternative position and had failed to provide him with information about possible vacancies in the other subsidiaries. Mr Cristobal argued that reasonable redeployment efforts meant at least the provision of sufficient knowledge about vacancies in BAA and the other subsidiaries so that he could make a knowledgeable decision about whether or not he was qualified to apply for any of the available roles. Further, Mr Cristobal stated that there were positions available in the 787 program to which he was eligible to be redeployed.
[60] The Commission is required to consider whether it would have been reasonable, in all of the circumstances at the time of Mr Cristobal’s dismissal, for Mr Cristobal to have been redeployed either within BAA or in one of the associated entities. A Full Bench of the Commission in Honeysett made the following observation about what might be considered “reasonable in the circumstances”:
“The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.” 106
[61] The Full Bench said further that:
“…. the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it.” 107
[62] In addition, a Full Bench in Technical and Further Education Commission T/A TAFE NSW v L. Pykett (NSW TAFE) 108 expressed the following view:
“For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority.” 109
[63] This Full Bench went on to say that the evidence to be adduced by the employer in relation to redeployment “….would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.” 110 In relation to the circumstances surrounding redeployment to an associated entity, the Full Bench in Honeysett considered that “[T]he degree of managerial integration between the different entities is likely to be a relevant consideration.”111
[64] The evidence before the Commission indicates that, at the time of Mr Cristobal’s dismissal, the only internal BAA vacancies were engineering graduate positions in 2018. These graduate positions do not seem to have been suitable for Mr Cristobal as he did not have the required qualifications, skills or competence for the role or would have had such within a reasonable period of retraining.
[65] In an email to Mr Cristobal, dated 18 August 2017 from Ms Rossi, it was indicated that there were no internal vacancies at that time but that Mr Cristobal would be updated on any new roles that became available. 112 A link to Careers at Boeing was provided in the email.
[66] The email from Ms Rossi did ask Mr Cristobal to advise if he would be interested in any job opportunities at BDA (another subsidiary company). No list of available job opportunities at BDA was provided in the email nor a link to BDA. The company explained that the intent behind asking Mr Cristobal to advise Ms Rossi if he was interested, rather than providing a list of jobs, was to enable HR to work individually with Mr Cristobal to explore whether there were any potential positions at BDA into which it would be reasonable to redeploy him. There is no evidence before the Commission that Mr Cristobal contacted HR to inquire about the vacancies at BDA.
[67] Even though the information about the BDA vacancies was very limited in Ms Rossi’s email, Mr Cristobal was requested to advise Ms Rossi if he was interested. It is considered reasonable that Mr Cristobal be requested to contact HR if he wished to obtain further information about the BDA opportunities. To do so would have provided Mr Cristobal with additional information which would have allowed him to make an informed decision about whether he wanted to explore any of the vacancies.
[68] The Full Bench in Honeysett discussed the concept of redeployment and stated that “[I]t is an essential part of the concept of redeployment under section 389(2)(a) of the Act that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment.” 113 The Full Bench went on to qualify that by saying, as set out above, that the job must be suitable etc. It is my view that the Honeysett decision is not authority for the proposition, proffered by Mr Cristobal, that an employer is required to offer a redundant employee reasonable redeployment opportunities and that this required BAA to transfer Mr Cristobal rather than assist him find an alternative position. The NSW TAFE decision and also Honeysett require, firstly, that there was a position that it would have been reasonable to deploy the employee into and secondly, that the job must be suitable, taking into account a range of factors.
[69] In this matter, at the time of the dismissal, there were no suitable jobs within BAA, into which it would have been reasonable to redeploy Mr Cristobal. The only vacancies were engineering graduate roles for which Mr Cristobal had neither the required qualification nor experience. With respect to the vacancies in BDA, although there was not a list of these vacancies in Ms Rossi’s email, Mr Cristobal was advised that there were these vacancies and was requested to contact Ms Rossi. The evidence before the Commission was that it was not possible to provide a link to these BDA vacancies as BDA’s and BAA’s HR and recruitment systems were not linked.
[70] Another option in terms of redeployment was the mix-and-match process provided by the BAA Agreement. Although Mr Cristobal was advised of this option, he did not complete an application for a mix-and-match.
[71] In terms of whether there were vacancies in the other subsidiaries (other than the BDA ones) at the time of Mr Cristobal’s redundancy, the evidence before the Commission is that there were two vacancies but that Ms Meldrum was not aware of them prior to Mr Cristobal’s redundancy. The evidence of Ms Meldrum and Mr Gooding regarding the extent of linkages between the subsidiaries and also between BAA and BAH, which is accepted, was that there was very limited managerial integration between the subsidiaries. It appears that each of the subsidiaries has its own human resources teams which report to different business units in the parent company in the USA. It was also Ms Meldrum’s evidence that there was not a shared intranet with all of the subsidiaries’ job vacancies on it. It would therefore seem that the subsidiaries do not share a common human resources policies or systems or recruitment tools and, at the time of Mr Cristobal’s dismissal, except for the job vacancies in BDA, it is accepted that there were no job vacancies in the other subsidiaries that BAA was aware of.
[72] Accordingly, in relation to section 389(2) of the Act, the Commission is satisfied that it would not have been reasonable, in all of the circumstances, for Mr Cristobal to be redeployed within BAA or any of the associated entities.
[73] Therefore, the Commission finds that Mr Cristobal’s dismissal was a case of genuine redundancy. As a result, the Respondent’s jurisdictional objection is upheld and Mr Cristobal’s application is dismissed. An order 114 to this effect will be issued separately.
[74] In light of this decision, there is therefore no neccessity to deal with the merits of Mr Cristobal’s application i.e. whether his dismissal was harsh, unjust or unreasonable.
Appearances:
A Cristobal on his own behalf
M Brunning for the Respondent
Hearing details:
2017.
Melbourne
December 7.
Final written submissions:
Respondent, 29 January 2018
Applicant, 18 February 2018
Respondent, 26 February 2018
Printed by authority of the Commonwealth Government Printer
<PR607469>
1 Applicant's Closing Submissions, dated 18 February 2018, at paragraph 6 and Transcript PN 38 - 39, 42 - 43, 46 - 47, 55, 72 - 75 and 207 - 208
2 Ibid at paragraphs 21, 26 and Transcript PN 76 - 79, 121 - 126, 195 - 196 and 209 - 212
3 Applicant's Closing Submissions, dated 18 February 2018, at paragraph 18 and Transcript PN 94, 98, 188, 193 - 194, 205 - 206 and 1068 - 1069
4 Exhibit R3
5 Exhibit R3 at paragraph 2
6 Transcript PN 424 - 245 and Exhibit R3 at paragraph 3
7 Transcript PN 372 - 375, 528 and 530
8 Transcript PN 376 - 378
9 Transcript PN 379 - 381
10 Transcript PN 383 - 386
11 Transcript PN 388 and Exhibit R3 at paragraphs 5 - 6
12 Transcript PN 372, 408 - 409, 501 - 503 and Exhibit R3 at paragraphs 6 - 7
13 Transcript PN 407
14 Transcript PN 467
15 Transcript PN 468 - 496, 518 and 534 - 535
16 Transcript PN 496 - 497
17 Transcript PN 514
18 Transcript PN 515
19 Transcript PN 537 - 542
20 Transcript PN 544
21 Exhibit R3 at paragraphs 12 - 13
22 Exhibit R8
23 Transcript PN 578
24 Transcript PN 598 and Exhibit R8 at paragraph 9
25 Transcript PN 599 - 604 and Exhibit R8 at paragraphs 2 - 3
26 Exhibit R8 at paragraph 5
27 Transcript PN 625 - 627 and Exhibit R8 at paragraphs 10 - 11
28 Transcript PN 650 - 654 and Exhibit R8 at paragraph 18
29 Exhibit R13
30 Exhibit R13 at paragraph 3
31 Transcript PN 765 - 766 and Exhibit R13 at paragraph 4
32 Transcript PN 768
33 Transcript PN 771 - 772
34 Transcript PN 792 - 806
35 Transcript PN 789, 792 and Exhibit R13 at paragraph 13
36 Exhibit R15
37 Transcript PN 847
38 [2010] FWAFB 3488
39 Respondent's Closing Submissions, dated 29 January 2018, at paragraphs 3 - 6
40 Ibid at paragraph 7 - 9
41 Applicant's Closing Submissions, dated 18 February 2018, at paragraphs 1 - 2
42 Ibid at paragraphs 7 - 8
43 Ibid at paragraph 9, Exhibit A1 at section 4(b) and Exhibit A3 at Documents 6 - 9
44 Exhibit A2 at question 6(a)
45 Applicant's Closing Submissions, dated 18 February 2018, at paragraphs 10 - 11 and 13
46 Ibid at paragraph 12 and Exhibit A3 at Document 10
47 Applicant's Closing Submissions, dated 18 February 2018, at paragraph 14
48 Ibid at paragraph 15
49 Ibid at paragraph 17
50 Exhibit R4
51 [2010] FWAFB 3488 at paragraph 14
52 Ibid at paragraph 20
53 Ibid at paragraph 16
54 Ibid at paragraph 19
55 Applicant's Closing Submissions, dated 18 February 2018, at paragraphs 20 - 25
56 [2012] FWAFB 5241
57 Transcript PN 667 and Exhibit R12
58 Transcript PN 668 and 738
59 Transcript PN 669 and 682
60 Transcript PN 670 - 671 and 722 - 723
61 Transcript PN 674 - 676
62 Transcript PN 686 - 687
63 Transcript PN 688 - 691
64 Transcript PN 692
65 Transcript PN 693 - 706
66 Transcript PN 710 - 712
67 Transcript PN 716 - 719
68 Transcript PN 720
69 Transcript PN 737 - 738
70 Transcript PN 741
71 Transcript PN 742
72 Transcript PN 851
73 Transcript PN 852
74 Transcript PN 853 and 855
75 Transcript PN 858
76 Transcript PN 879 - 887
77 Transcript PN 937 - 938
78 Transcript PN 939 - 940
79 Transcript PN 959 - 960
80 Exhibit R6
81 Transcript PN 1109 - 111
82 Transcript PN 1109 - 1116, 1163, 1168 and 1173
83 Transcript PN 1117
84 Exhibit R14
85 Transcript PN 1154 - 1157 and 1174
86 Transcript PN 1160 - 1167
87 Exhibit A4 at paragraphs 7 and 9 - 10
88 Respondent's Closing Submissions, dated 29 January 2018, at paragraphs 20 - 22
89 Ibid at paragraphs 23 - 24
90 Ibid at paragraphs 25 - 26
91 Ibid at paragraph 27
92 Ibid at paragraphs 18 and 28 - 29
93 Ibid at paragraphs 31 - 32
94 Ibid at paragraphs 33 - 34
95 Ibid at paragraph 35
96 Applicant's Closing Submissions, dated 18 February 2018, at paragraph 26
97 Ibid at paragraph 27 and Exhibit A2 at question 6(d)
98 Applicant's Closing Submissions , dated 18 February 2018, at paragraph 28, Exhibit A1 at question 4(g) and Exhibit A3 at Document 10
99 [2010] FWAFB 7578
100 Applicant's Closing Submissions , dated 18 February 2018, at paragraph 29
101 Ibid
102 Ibid at paragraphs 30 - 33
103 Ibid at paragraph 34
104 Ibid at paragraph 35
105 Ibid at paragraph 36
106 [2010] FWAFB 7578 at paragraph 28
107 [2010] FWAFB 7578 at paragraph 34
108 [2014] FWAFB 714
109 Ibid at paragraph 36
110 Ibid at paragraph 37
111 [2010] FWAFB 7578 at paragraph 27
112 Exhibit R12
113 [2010] FWAFB 7578 at paragraph 34
114 PR607470
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