Australian Cabling Solutions Pty Ltd T/A Australian Cabling Solutions

[2024] FWC 2591

[2024] FWC 2591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Australian Cabling Solutions Pty Ltd T/A Australian Cabling Solutions

(C2024/1575)

DEPUTY PRESIDENT LAKE BRISBANE, 23 SEPTEMBER 2024

Variation of redundancy pay

1. On 14 March 2024, Australian Cabling Solutions Pty Ltd (the Applicant) applied to the Fair Work Commission (the Commission) under s.120(2) of the Fair Work Act 2009 (the Act) to vary the redundancy entitlements of Mr Sylvain Bardelli (the Respondent) to nil or an amount deemed appropriate by the Commission.

1. The Respondents advised my Chambers that they opposed the variation of redundancy. The matters were listed for hearing on 17 May 2024. The Applicant was represented by Mr Michael Waters and Ms Lisa Midson from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) appeared for Mr Bardelli.

Should the Respondent’s redundancy be varied?

1. Section 120 of the Act states as follows:

   “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 specified 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.”

1. Past Fair Work Commission decisions explain ‘other acceptable employment’ as the following:

1. This is assessed objectively. Other acceptable employment does not mean that the role must be acceptable to the employee. 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.[1]

1. Acceptable employment is not identical employment, as no two jobs could be exactly the same. Alternative employment can be acceptable even there may be some inconvenience or some detrimental alteration to the terms and conditions of employment.[2] It is a matter of degree.

1. An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.[3] Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[4]

1. Identifiable comparisons of the redundant role and the alternate role can be considered in determining whether reasonable alternative employment has been offered with considerations including (but not limited to depending on what the Commission deems as appropriate):

a)nature of the work;

b)pay rates;

c)working hours;

d)skills;

e)duties;

f)seniority;

g)fringe benefits

h)workload and speed;

i)job security;

j)travelling time;

k)capacity to perform job;

l)location of work (which would now incorporate a requirement to work from home or in the office);[5]

m)loss of flexibility (such as caring responsibilities).[6]

1. The Applicant operates a company providing electrical and cabling services as a subcontractor to head contract builders on major projects and smaller projects.  At the time of termination of Mr Bardelli, the Applicant was contracted to work on projects located in Queensland and New South Wales.

1. Mr Bardelli was engaged by a head contractor to perform electrical and cabling services in the construction of the Tweed Valley Hospital at Tweed Valley. The contract started in approximately February 2022. It was due to finish in February 2024 however has been extended with some further unscheduled works required to be performed by the Contractor.

1. When the project was about to finish, Mr Bardelli was offered employment at Wacol Correction Facility which was 101km away from his residence compared to Tweed Valley Hospital which was only 13km away from his residence. He has only worked on 2 projects which were Gold Coast Airport and Tweed Valley Hospital.

1. The other projects that the Applicant had were in:

   ·     Wacol, QLD

   ·     Gatton, QLD

   ·     Hervey Bay, QLD

   ·     Rockhampton, QLD

   ·     Woodburn, NSW

   ·     Sunshine Coast, QLD

1. At the time of Hearing, Mr Bardelli had been working on the Cross River Rail Project and catches a train to this job and would not have taken the role if he was required to drive. I accept this reason to be credible.

1. The closest project that Mr Bardelli that the Applicant could offer was a project at Wacol Prison.  I find that this was not other acceptable employment as there is a significant detrimental alteration in travelling time, whether that would be driving or commuting via train. The train commute would approximately be 2 hours and 40 minutes or 1 hour and 16 minutes by driving to Wacol compared to a project in the Cross River Rail which would be located around the Brisbane CBD, where there is more direct transport access from the Gold Coast.

1. Although Australian Cabling Solutions may ask their employees to work in other regions, the practical reality was that Mr Bardelli was working at one location in the course of his employment. His role was not one where he would frequently travel to different locations or projects. By accepting the alternate role, the travel requirements would be more extensive than what he had been doing with the Applicant.

1. Therefore, I am not satisfied that Mr Bardelli was offered other acceptable employment and I do not exercise my discretion to vary his redundancy. As Mr Bardelli commenced his employment on 24 November 2021 and was terminated on 5 February 2024 on the basis that there was no other work available, his length of service would be at least 2 years, but less than 3 years. Therefore, the Applicant would be entitled to 6 weeks of redundancy pay under s.119 of the Act.

1. The redundancy pay of Mr Sylvain Bardelli is not varied. I order accordingly.

DEPUTY PRESIDENT

[1] NUW v Tontine Fibres [2007] AIRCFB 1016 at [23],

[2] Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia[2006] AIRC 737 at [89] (Watson SDP).

[3] Application by Spotless Services Australia Limited (‘Spotless’) [2013] FWC 4484 at 14.

[4] Ibid.

[5] UXC Connect v Moore [2012] FWA 4296.

[6] Heath Family Trust T/A Focus People Pty Ltd [2021] FWC 2779 at [21] (Lee C).

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