“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Ford Motor Company of Australia Limited

[2012] FWA 8275

[2012] FWA 8275

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Ford Motor Company of Australia Limited
(C2011/6208)

COMMISSIONER GAY MELBOURNE, 26 SEPTEMBER 2012

Alleged dispute concerning the ongoing employment of an employee.

[1] In this matter Fair Work Australia is required to determine a series of questions agreed between the Vehicle Division of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU, the Union) and the Ford Motor Company of Australia Limited (Ford, the Company) as to a dispute over the application of provisions within the Ford Australia Enterprise Agreement 2009 (Vehicle and General Salary Roll) (AE877377)(the Agreement). The dispute, which it will be seen has some considerable history, involves the ongoing employment of a Ford employee, Mr Sime Parevski.

[2] The questions sought to be addressed are as follows:

(a) What obligations do Parts 4.10 to 4.14 of Ford Australia Enterprise Agreement 2009 (Vehicle and General Salary Roll) (“the EBA”) impose upon Ford Motor Company of Australia in relation to Sime Parevski? Did Ford comply with those obligations? Would Ford be in compliance with those obligations if it terminated Mr Parevski’s employment?

(b) What obligations does Part 9, ‘Continuous Improvement’ of the Agreement, impose on Ford in relation to Mr Parevski? Did Ford comply with those obligations? Would Ford be in compliance with those obligations if it terminated Mr Parevski’s employment?

(c) Did Ford act in compliance with its obligations under the Agreement in relation to Mr Parevski? Would the proposed termination of Mr Parevski’s employment be otherwise contrary to the Agreement?

[3] While it is not proposed to set out the totality of the disputed narrative, a recounting of some of the history of the matter in dispute is necessary. This will hopefully assist in understanding not only what happened in the emergence of the dispute, but why it happened.

[4] The AMWU, by permission, was represented by Mr N Harding, of counsel, with Mr D Smith and Mr A Sachinidis for the AMWU and Ford, by permission, was represented by Mr A McNab, of counsel, with Mr D Smith. After a series of conciliation proceedings at Fair Work Australia in November and December 2011 the parties reduced the matters requiring resolution to the series of questions and arbitration occurred in Melbourne over five days in March and April with decision reserved on 12 April 2012.

[5] Further submissions and material was then provided by the AMWU on 23 April 2012, solicitors for Ford on 26 April, with a further responsive submission from the AMWU filed on 30 April 2012.

Background to the Dispute

[6] Mr Parevski commenced employment at Ford’s Geelong plant as a process operator in April 1998 upon his migration to Australia and continuing, until early 2000 when he was transferred to the role of Robot Operator. Mr Parevski’s employment continued in this function until 28 June 2000 when he suffered an injury to his shoulder and back while working on the Ford assembly line (Exhibit AMWU2, Mr Parevski’s Statement, paragraph 7).

[7] Mr Parevski’s workers’ compensation claim was accepted and this is not a case where any shadow of doubt as to the genuineness of Mr Parevski’s injury clouds the issue. Some three weeks after his injury Mr Parevski resumed full-time work, but upon modified duties. Mr Parevski’s duties were restricted to prohibit bending or twisting, prolonged standing in one position and, over time, lifting weights over two kgs (Exhibit AMWU2, paragraph 10). From early 2003 Mr Parevski took up duties in the role of Co-ordinator in the Ford Geelong Quality Department.

[8] In mid 2003 Mr Parevski was the successful applicant (in a merit driven contest) for an on-going position at Geelong as Ford Production System Facilitator/Co-ordinator (FPS Co-ordinator). Mr Parevski took up his new substantive role in August 2003, located in the Body Sub-Assembly area where robots are engaged in welding and assembling fenders, door hinges and side members of motor vehicles. In Mr Parevski’s area of work, sometimes referred to as the BSA/MSA Area (for Body Sub-Assembly and Miscellaneous Sub-Assembly), there were also located other quality assurance employees engaged in varying elements of quality work, including undertaking quality audits and measuring parts (see Exhibit AMWU2).

[9] It seems that much of this work, both the initial manufacturing and its checking, is performed consonant with the Ford Production Systems (FPS), said to be the ‘bible’ for the production processes undertaken at Geelong. As FPS Coordinator, Mr Parevski produced daily statistical summaries and reports on the BSA/MSA production for the previous day, produced charts and printed labels for application in advancing safety awareness, costs and the production performance of the area. As Mr Parevski put it, “the role was a combination of office-based work and going on the production floor for various duties. It was not a production-based role.” (Exhibit AMWU2, paragraph 22).

[10] This description of Mr Parevski’s working environment obtained until changes of late 2007 and early 2008 which saw a centralised Quality Department consolidate the BSA/MSA and Press Shop areas. From about early 2008 Mr Parevski’s account was that he continued to perform FPS duties in relation to the BSA/MSA area and also performed, for about half his time, ‘quality’ duties including the undertaking of quality audits, producing reports, updating history sheets and filing (Exhibit AMWU2, paragraph 33).

[11] Mr Parevski appeared proud of his employment record at Ford, of having won attendance bonuses (according to a recently introduced scheme) and for having attended on time and for approaching his work conscientiously (Exhibit AMWU2, paragraph 26). Given particular emphasis was Mr Parevski’s capacity to fulfil his FPS Co-ordinator duties without problems arising from his previous medical restrictions, such as to have won the praise of Mr Russell Howard, the Geelong Quality Manager of Manufacturing Operations, “for excellence”, at the 2010 breakup (Exhibit AMWU2, Mr Parevski’s Statement, paragraph 24).

The Down Balance

[12] It was this function that Mr Parevski was performing, with seven other staff within the Quality Department, when the Ford voluntary redundancy occurred in mid 2011. The announcement of a Voluntary Redundancy program followed an announcement by Ford that, owing to market conditions, there was a need to reduce daily production of vehicles from 261 to 209 (the ‘down balance’). Following the necessary consultative dialogue between Ford and the Federation of Vehicle Industry Unions a voluntary separation program was announced.

[13] It is convenient to take up the narrative from Exhibit F9, Ford’s written submissions, when it is said that in May 2011 Mr Howard advised Mr Parevski and his colleagues in the Stamping Plant Quality Department that the existing establishment of eight was to reduce to seven (Exhibit F2, Witness Statement of Mr Howard, paragraph 6).

[14] It followed that the work previously undertaken in Mr Parevski’s department in support of the production of 261 units was re-cast and re-allocated to meet the department’s new needs in providing support for almost 25% less production. Accordingly, Ford’s local officials went about the task of “identifying people for jobs within the new structure ...” (Exhibit F9, paragraph 6).

Mr Howard’s Query

[15] The evidence reflects that having been advised at about this time (June 2011) of Mr Parevski’s medical restriction deriving from the earlier injury, Mr Howard sought to establish Mr Parevski’s current capacity. He did this by obtaining information from the Ford Medical Centre, the Ford WorkCover Office and by seeking for Mr Parevski to sign an authority form permitting Ford to speak with Mr Parevski’s doctor.

[16] Ford’s request for Mr Parevski to sign the medical authority may appear, and should have been, innocuous. However an understanding of this case, in my view, requires appreciation of the following events to provide colour and, at least in part, to explain how issues such as that presently being considered, come about. An understanding of the events which follow requires some detail be given of Ford’s approaches to Mr Parevski.

[17] As Mr Parevski’s account (Exhibit AMWU2) reveals, 22 June 2011 was to be his last working day before taking two months leave to visit relatives in Europe. Mr Parevski’s long leave, specially advised to Ford and approved a year earlier, comprised of long service leave, annual leave and rostered days off (Exhibit AMWU2, paragraph 44). At about lunchtime on 22 June Mr Howard asked Mr Parevski to see him at 2.15 pm, some 15 minutes before Mr Parevski’s shift concluded. In Mr Parevski’s account Mr Howard did not tell him the reason for the meeting.

[18] At 2.15 pm when Mr Parevski arrived, Mr Howard was not in his office and some minutes later Mr Howard called Mr Parevski, by this time approaching knock off, to his office where Mr Craig Brock, Ford’s Employee Relations Associate, Stamping Operations was waiting. Mr Parevski was not given an opportunity to have a delegate or representative present (Exhibit AMWU2, paragraph 47) and was asked to sign a Contact Authority form as Mr Parevski’s last medical certificate had been provided years earlier. Mr Parevski was asked to “authorise Ford to request up to date information from his medical practitioner regarding any current restrictions.” (Exhibit F3, Mr Brock’s Statement, paragraph 7).

[19] The meeting did not go well and it is likely that Mr Parevski became very upset and agitated. Mr Parevski’s evidence was that he was shocked by the Company’s request and, with his shift finishing in five minutes, did not know whether to sign the medical form. Mr Parevski said he needed time to think about what he should do. The evidence taken overall seems clear enough, indicating that Mr Parevski panicked. Mr Parevski’s evidence was “I told them that they had enough time to have this meeting in the previous weeks and that it was not right to be having this meeting in the last five minutes before I go on leave.” (Exhibit AMWU2, paragraph 48c).

[20] There is conflicting evidence about what was put to Mr Parevski as to the consequence, upon his return from leave, of not signing the medical authority form. Mr Parevski’s evidence is that he was told that if he did not sign the form he would not be paid upon his return to duty and, rather, that he would have to ‘use his own entitlements’.

[21] Mr Parevski’s evidence was that he had not been advised that his position of FPS Facilitator was to be made redundant, and was not told that at the 22 June 2011 meeting. While Mr Parevski was aware that redundancies were a possibility he “understood that no definite decision had been made” (Exhibit AMWU2, paragraph 49).

[22] The account of Mr Brock, was that he had not known who Mr Parevski’s union representative was, and that the two senior plant shop stewards were not available. Mr Brock’s evidence, which I have accepted, was that he and Mr Howard had attempted to explain Ford’s need to speak to Mr Parevski’s medical adviser to obtain up-to-date information on his medical restrictions. In Mr Brock’s account (Exhibit F3) Mr Parevski became irate, claiming that Mr Howard and Mr Brock were “downgrading him as a human being” (Exhibit F3, paragraph 10).

[23] The upshot of this entirely avoidable drama was that Mr Parevski attended his long time medical practitioner, Dr A K Sachdev, the next day (the first day of his leave) and then attended the Ford plant to give Mr Brock the up-to-date Certificate of Capacity. The Certificate indicated that from 23 June 2011 Mr Parevski was fit for alternative duties for an indefinite period. As to work restrictions Dr Sachdev recorded “non production duties as in the past - desk job” (Exhibit AMWU2, Attachment SP8). It is very likely that Mr Parevski thought that the provision of a Certificate of Capacity in this form would be satisfactory.

[24] Mr Parevski’s evidence was that when he presented the Certificate Mr Brock advised him that the Certificate was inadequate and further, that if he did not sign the medical authority Mr Parevski would not be paid upon his return and in some way he would have to ‘use his entitlements’. Mr Parevski says he repeated to Mr Brock that he did not think that the Ford position was right and that upon his return the matter could be discussed.

[25] Upon his return on 22 August 2011 Mr Parevski’s account is that he went to his normal work station when, at about 6.01 am, Mr Brock entered the office telling Mr Parevski “... there is no job for you anymore” and requesting Mr Parevski go to the Human Resources office (Exhibit AMWU2, paragraph 55). Mr Parevski asked why there was no job for him, queried why Mr Brock was telling him these things and not his supervisor, pointing out that the Area Notice Board indicated that he was due back that day (Exhibit AMWU2, paragraph 55/6).

[26] Once again there were no workplace representatives present and it appears that Mr Parevski again became upset. Mr Parevski was very reluctant to accept Mr Brock’s directive to leave his station and go to the Human Resources office. When Mr Parevski refused to go with Mr Brock and called for his (Mr Parevski’s) supervisor, Mr Brock indicated that Mr Parevski must follow his direction as Employee Relations Associate and that otherwise, the security guards would be summoned “to escort you out of the premises” (Exhibit AMWU2, paragraph 57).

[27] Ultimately, Mr Parevski complied with Mr Brock’s direction, attending the HR office where, after almost two hours, the local shop steward arrived for duty and called Mr Brendon Sexton the senior plant delegate. On Mr Parevski’s account Mr Brock told him that he no longer had a job and that Dr Sachdev’s certificate of 23 June was incomplete and insufficiently specific.

[28] After discussion with Mr Sexton Mr Parevski signed the medical authority form and was sent home on pay pending production of a new certificate. From this date meetings occurred at various times with Company officials including Mr Sexton and Mr Brock’s senior officer, Human Resources Manager - Geelong Operations, Mr David Potter. In September Mr Parevski was advised that as Ford did not have a job for him he was to remain at home and had been placed on “company policy pay”.

[29] Mr Parevski’s further evidence was that in a meeting on 2 September 2011 Mr Brock (with Mr Sexton and the local area shop steward present) told him that Ford had no job for him, that he was not to use his clock card/ID to access the premises and must in future use the visitors’ entrance.

[30] After further dealings in September 2011 and the provision of a medical report, Mr Parevski was told that given his restrictions it was difficult to find a job for him. At a meeting on 22 September 2011 Mr Sexton asked for the position descriptions of available roles to permit Mr Parevski’s doctor to examine them to assess whether Mr Parevski could perform the roles (Exhibit AMWU2, paragraph 73). The position descriptions were not provided.

[31] It was Mr Parevski’s view that the quality roles he had performed were still required by Ford to be performed - particularly as he was the only person then working on BSA/MSA. Mr Parevski concluded that his duties had been divided between the remaining quality department employees, and that there was “no link between the down balance in production and the Quality and FPS duties” (Exhibit AMWU2, paragraph 79).

[32] Mr Parevski’s assessment was that his job was got rid of as part of ‘continuous improvement’, a term used in the Agreement of which more will be said below, and not because of the downturn in work reflected in the down balance. It was fundamental to Mr Parevski’s position that his medical restrictions played a dominant part in Ford’s decision to make him compulsorily redundant and that Mr Howard and Mr Brock “had continually” told Mr Parevski of their happiness with his work performance.

Friday 14 October 2011

[33] On this Friday at 2.30 pm Messrs Parevski and Sexton met with Messrs Potter and Brock. On Mr Parevski’s account Mr Brock read Mr Parevski a letter of offer for an enhanced redundancy package, headed ‘Without Prejudice’, and he was asked to respond by 9.00 am the following Monday morning (Exhibit AMWU2, paragraph 82). Mr Sexton complained that there was a lack of time given for Mr Parevski to seek advice late on a Friday afternoon with a cut-off of 9.00 am on the following Monday morning.

[34] It was Mr Potter’s evidence that Mr Parevski was told “We were making him genuinely redundant” (TPN 2308) and that he was given “until 9 am on the following Monday the 17th” (TPN 2316) to accept the Company’s offer and sign a Deed. In the event Mr Parevski did not sign the deed he was to be paid pursuant to Part 4.10 which provided a benefit of two weeks’ pay per year of service.

[35] It seems that an email was sent by Mr Potter at 4.45 pm on Friday 14 to an organiser of the Vehicle Division of the AMWU, Mr Ashley Mayne, advising that if Mr Parevski did not accept the Ford offer of that date his employment would be terminated by reason of ‘Genuine Redundancy’ on Monday 17 October 2011 (Exhibit AMWU2, Attachment SP13).

The AMWU Notifications

[36] On Monday 17 October 2011 the AMWU lodged a notification of dispute at Fair Work Australia which has led to the current proceedings and solicitors for the AMWU instituted proceedings in the Federal Court of Australia (the Court) as to the proposed termination of Mr Parevski’s employment. Contact had also been made by solicitors acting for the AMWU with HR Manager Potter as he had attended to some duties on Saturday 15 October.

[37] On Wednesday 19 October 2011 proceedings occurred at the Court and Ford undertook to his Honour Bromberg J to maintain Mr Parevski’s position pending the determination of the dispute raised at Fair Work Australia. That position has continued and both sides have participated fully in an extensive range of activities including conciliation and private conferences with the writer until it became clear that it would be necessary to resolve the dispute by arbitration.

The Onsite Solutions

[38] A great deal of effort and time was expended by the parties on pursuing the existence of positions at Ford Geelong which may have been capable of being taken up by Mr Parevski. Part of the position put for Mr Parevski by the AMWU, and particularly by Mr Sexton, has been that positions existed at Ford into which Mr Parevski might have been deployed. This was said to be so had Ford been willing to deal constructively with other employees prepared to take a voluntary redundancy and into whose position Mr Parevski may have fitted - voluntary redundancy ‘backfilling’. Part of Mr Sexton’s complaint was that opportunities had come and gone where Mr Parevski might have been accommodated within his capacities, had there been a will to do so.

[39] In conferences at Fair Work Australia, and locally, Mr Sexton provided Ford with numerous specific examples of vacancies said to have been suitable for Mr Parevski and within his restricted medical capacity. It will be recalled that Mr Parevski had worked for an extended period in a non-production quality role, entirely unaffected it seems by his disability, with apparently very good performance of his duties and with an attendance record such as to qualify for attendance bonuses. An indication of this position is that Mr Howard was unaware that Mr Parevski had a restricted capacity until so advised at about the time of the down-balance.

[40] It must be acknowledged that some of the scenarios put forward for Mr Parevski have been complex, envisaging several moves from employees such as to create an opening for Mr Parevski. More senior Ford industrial relations management participated in lengthy conciliation proceedings at Fair Work Australia and have, in my view, carefully reviewed the proposals advanced by Mr Sexton. Mr Sexton spoke of Ford’s previous preparedness to ‘jiggle’ the mechanism of voluntary redundancy so that via back-filling, an employee thought hard to place could ultimately be accommodated.

[41] As part of these discussions Dr Sachdev attended at the Geelong plant to undertake a worksite assessment of nine positions to permit his consideration of Mr Parevski’s capacity to safely perform the duties involved. The positions were Cycle Checking, Steel Store Operator and seven roles involving the Quality Auditing role in the Stamping Plant.

Dr Sachdev’s Re-assessment

[42] In mid-December Mr Parevski attended Dr Sachdev to have a further assessment of his capacity. The re-assessment resulting has in my view been misunderstood and, perhaps more importantly is open to mis-characterisation. In extensive conciliation conferences I had commented that Dr Sachdev, having treated Mr Parevski for some twelve years, had long maintained Mr Parevski’s level of restriction as including an inability to lift (with some accompanying detail here omitted) over two kgs. This reflected Mr Parevski’s incapacity in the production environment in which he had been injured and in which his strength and capacity over time had not shown improvement. As Mr Parevski had not performed in such a production role since 2002 and had been performing so well in the decidedly different quasi-clerical environment of the quality department from that time (and since winning the FPS Coordinator’s position in July/August 2003) it was important to ensure that Dr Sachdev’s review of Mr Parevski’s capacity to perform duty at Ford, reflected the fact of his vocational change in the decade since the injury. Certainly it seemed logical to have Dr Sachdev’s December 2011 review conducted from the perspective of Mr Parevski performing solely as a quality system facilitator and not from the perspective of his physical grade line operator vehicle building role, with its constant or very frequent need for agility, strength, bending and lifting.

[43] Dr Sachdev’s 17 January 2012 review of Mr Parevski’s capacity (Attachment SP-14 to Mr Parevski’s statement, Exhibit AMWU12) makes reference to some limitation as to over-the-shoulder elevation of the right upper limb, and, by way of significant variation, recorded that Mr Parevski could lift weights of up to 10 kgs (but not repetitively or frequently) and should not work confined to one position for a prolonged period and, rather, should preferably work in a job which is “self-paced and not repetitive” (Exhibit AMWU2, paragraph 95c).

The Bigger Picture - from the AMWU Perspective

[44] It is helpful in understanding the submissions of the parties in this case, to have regard to Mr Sexton’s evidence. Mr Sexton’s evidence was that:

• Ford had had voluntary redundancy rounds in 2006, 2007 and 2008, during which no Ford employee had been retrenched involuntarily; that is, all those departing Ford’s employment (including those caught up in the 2011 round), estimated by Mr Sexton as numbering between 650 and 750 employees, accepted voluntarily redundancy.



• the Agreement dealt with voluntary redundancy at Parts 4.12 and 4.13 with compulsory redundancy at Part 4.14 and provided however at Part 9.1 that an employee in a position made redundant through Ford’s ‘continuous improvement’ activities could not have their employment terminated by redundancy. Such an employee was required by Part 9.1 to be retained or redeployed in Ford’s operations (Exhibit AMWU3, Statement of Mr Sexton, paragraph 23).



• where compulsory redundancy was to have effect, the obligation imposed on Ford by Part 4.14 required Ford to negotiate an improved redundancy formula consistent with general automotive industry standards. This Part was activated in 2008 when the decision was taken by Ford that it would close the Geelong Powertrain area. Subsequently an enhanced redundancy standard was negotiated by the parties (with the involvement of the Tribunal as constituted), even though it was ultimately determined by Ford that the earlier decision would not be acted upon.



• during the period leading to Ford’s late intervention with Mr Parevski prior to his taking leave on 22 June 2011, Mr Sexton had had discussions with Mr Saric, the Stamping Manager. Mr Saric had told Mr Sexton that he was uncertain what to do with Mr Parevski (Exhibit AMWU3, paragraph 42).



• as the effects of the down-balance (to be completed by 30 June 2011) became clearer he (Mr Sexton) remained unconvinced the employees would be compulsorily retrenched, as, by long standing practice, the method of permitting volunteers to exit Ford and shuffling around the remaining establishment meant that everyone was accommodated (Exhibit AMWU3, paragraphs 37, 44/45 and, for a list of possible positions and transferees see attachments B3 and 4 to Mr Sexton’s Statement, Exhibit AMWU3).



• at the workplace assessment conducted at the Geelong plant on 7 December 2011, the Ford officials emphasised the more strenuous and difficult aspects of the available Steel Store and Quality Auditor positions. Furthermore, Mr Sexton’s evidence was that Mr Parevski was not permitted to participate in the assessment process or to speak with Dr Sachdev (Exhibit AMWU3, paragraph 100).

The Ford Position

[45] On 23 January 2012 Ford wrote to the AMWU advising that in its view there were no roles suitable for Mr Parevski’s redeployment having regard for his then current medical restrictions and seeking for the matter to be relisted for arbitration. Ford had received Dr Sachdev’s 7 December ‘Worksite Assessment’ on 22 December and the determinations reached by the Company were informed by the doctor’s assessment. It will be recalled that the 7 December assessment of Mr Parevski’s capacity was reviewed by Dr Sachdev in his statement of capacity of 16 December 2011.

[46] It can be taken that Ford does not accept the conclusions reached by the AMWU and Mr Parevski at several key points in this case. Ford’s case is that from the time of the mid-May 2011 down balance announcement, it subscribed to the consultative obligations of the Agreement required by virtue of changes at the plant affecting more than 15 employees. As part of the effect of the drop in daily production from 261 units to 209 units, Mr Parevski subsequently was advised, with his fellow Quality Department operatives, of Ford’s decision that the department would shrink from eight employees to seven.

[47] Without repeating the chronology of events it should be noted that Ford’s position was that it had, from the time of the down balance, needed to understand Mr Parevski’s medical capacity and to do so a detailed medical report was necessary before Ford could finalise the placements of the seven ongoing Quality Officers (that term is used here generally) to be accommodated within the new structure post down balance.

[48] It was the Ford position that at the difficult 22 June 2011 meeting, just prior to Mr Parevski departing for his long leave, it was made clear to Mr Parevski that his job had not been removed, but that, as a consequence of the restructure, the seven continuing Quality Department members would be performing different jobs.

[49] From this point the Respondent acknowledges Mr Parevski’s medical certificates and highlights the investigation made within Ford to determine if a suitable position existed. This included Mr Brock sending emails within various Ford divisions. Following these activities “a decision was made to make Mr Parevski redundant as Ford was unable to find a position vacant for his redeployment into suitable duties which took into account his medical restrictions or his work capacity” (Ford’s Outline of Closing Submissions filed 13 March 2012, paragraph 9).

[50] Ford declares its steps taken throughout the period of the dispute have been “extensive and genuine” (Outline of Submissions, paragraph 22). It followed for the Company that it had acted in compliance with its obligations under the Agreement to Mr Parevski and was in breach of neither 4.11 nor 9.1(g) of the Agreement. Because Ford was obliged by law to take reasonable steps to avoid injury to a worker, s.342 (3) of the Act was relevant in providing that an adverse action under the Act did not include an action authorised by a Commonwealth or State Act or law. It followed that there was no breach of the Agreement by Ford.

The Evidence for Ford

[51] Mr Potter’s evidence carefully traced the chronology of events, including that Ford, through Mr Brock, had twice sought by email to discover from within Ford at Geelong, Broadmeadows, Product Development, the Proving Ground and Customer Service whether there were any suitable clerical vacancies (Exhibit F4, Statement of Mr Potter, paragraph 48).

[52] It followed that from 19 September 2011 Mr Parevski was advised that after “further investigation of redeployment opportunities Ford had still been unable to find a position that met Mr Parevski’s medical restrictions and as a consequence he was unable to return to work” (Exhibit F4, Statement of Mr Potter, paragraph 35).

Mr Potter’s Evidence

[53] Mr Potter’s evidence was that when no suitable positions were identified Mr Parevski was advised of his “genuine redundancy” at the Friday 14 October 2011 meeting referred to above, to be effective on Monday 17 October 2011. Such a redundancy qualified Mr Parevski for a payment of two weeks per year of service. Voluntary redundancy qualified a recipient to three weeks per year of service. Ford’s position was it would offer a higher rate of redundancy payment if Mr Parevski signed a Release as to the conclusion of his employment with Ford. At the Friday 14 October meeting Ford gave Mr Parevski until 9.00 am on the following Monday morning to sign a deed releasing Ford.

[54] At the time of the Federal Court proceedings the AMWU had also lodged a notice of Grievance (Attachment DP4 to Mr Potter’s Statement, Exhibit F4) which was then the subject of a series of meetings consistent with the steps of the dispute settlement procedure. An important element of that Grievance related to Mr Parevski being given insufficient time to consider the proposal put to him by Ford on the afternoon of Friday 14 October 2011. It is clear from the Ford material that the discussions which occurred in relation to the Grievance also dealt with the broader issues of the restructure of the Quality function in the stamping department and the nature of Ford’s search for clerical alternatives.

[55] Mr Potter’s statement details the attempts made by the parties, and in proceedings at Fair Work Australia, to come to grips with possible solutions (primarily developed by Mr Sexton) available to accommodate Mr Parevski. Ultimately it was agreed that Dr Sachdev would undertake a review, a workplace assessment of the nine job descriptions which were then the subject of discussion. These positions had been reviewed by Mr Findlay, a physiotherapist/ergonomist, retained by Ford to provide such advice (Exhibit F4, paragraph 69). Ford is Mr Findlay’s only client.

[56] Mr Parevski sought to be granted extra annual leave and to be “permitted to return on 20 January 2012”. Permission was granted to Mr Parevski’s request (Mr Potter’s Statement, Exhibit F4, paragraph 72).

[57] On 16 February 2012 Mr Parevski was advised by Mr Potter of a position available at the Ford Broadmeadows Engineering and Technology Centre and asked whether he wished to be considered for the position. Mr Parevski subsequently advised Mr Potter that for personal reasons he was unable to be a candidate for that position. During the present proceedings it was revealed that Mr Parevski has specific caring responsibilities within his immediate family such as to preclude him travelling every day from Geelong to Broadmeadows. I have not drawn any negative conclusions from Mr Parevski’s inability to seek the Broadmeadows opportunity.

The Applicant’s Final Submissions

[58] Mr Harding, counsel for Mr Parevski, described the questions to be answered as in substance asking whether there would be compliance with Parts 4.10-4.14 and Part 9 if Mr Parevski was now to be terminated on the grounds proposed by Ford, that is by reason of his redundancy (Exhibit AMWU6, Final Submissions, paragraph 2). It was said that Fair Work Australia should answer these questions by finding that Ford would contravene Part 9.1(g), 9.3(b)(v), 9.4(f)(ii) and alternatively Part 4.14 of the Agreement, were it to now terminate Mr Parevski’s employment.

[59] The parties both put submissions as to the relevant principles of agreement interpretation which are to be applied in the present circumstances. I have not considered there to be any substantial disagreement as to the approach to be adopted. One accepts that the terms of an agreement ought be:

• considered in accordance with the provision’s industrial context and purpose;



• fundamentally considered by reference to the text of the agreement under review; and



• applied by giving the words or terms their plain meaning and be given effect consistent with their context (Authorities omitted).

[60] It should be observed that Ford’s submission as to construction also emphasized that a reviewer ought not apply their own view of what is fair or just and, finally, that a construction productive of an absurd or capricious result was to be resisted.

Mr Parevski’s Compulsory Redundancy

[61] It was submitted that, relying on Mr Potter’s evidence (Exhibit F4, Statement of Mr Potter, paragraph 40) it was clear Mr Parevski was to be made compulsorily redundant. The AMWU submitted that the Agreement rendered such a Ford sponsored action conditional upon provisions in the Agreement. More specifically, it was said for Mr Parevski that:

● compulsory redundancy could not be a consequence of ‘continuous improvement’;

● the 2009 Agreement reflects a strong commitment to the aim of job security. This was said to be the plainly discernable mutual intention of the parties. “We provide employees with the highest degree of job security mutually compatible with Ford’s operations” (AMWU First Written Submissions, 28 February 2012, paragraph 14);

● the job security provisions recognized (amongst other things) the importance of minimizing the impact on employees of market fluctuations when the company “continue(d) to take measures which include the re-allocation of work . . .”. (Part 9.1(e));

● “the continuous improvement obligations commence with Part 9.1(f)” (Exhibit AMWU6, Final Submissions, paragraph 7);

● Part 9.1(g), prohibiting compulsory redundancies ‘defined by this agreement’ means “activities referred to in the clauses that follow which explain forms of continuous improvement”. (Exhibit AMWU6, paragraph 7);

● the Agreement re-iterates that employees affected by initiatives of the FPS will not be subject to compulsory redundancy;

● it could not be said that a ‘down-balance’ was beyond the scope of ‘continuous improvement’, and therefore not to be seen as part of the FPS. In support of this contention Ford relied upon the evidence of Mr Godwin Rapinett, Ford’s Broadmeadows Quality Manager, who agreed that one of the first underlying principles of ‘continuous improvement’ was aligning market demand with supply and thereby eliminating waste (Exhibit AMWU6, paragraph 9). It was suggested that addressing overproduction by a down-balance was “an activity perfectly consistent with cl. 9.4(a)” (Exhibit AMWU6, paragraph 9);

● It followed that the down-balance was an FPS change which meant the prohibition on compulsory redundancy was triggered.

The Agreement’s Redundancy Provisions

[62] As an alternative argument it was submitted that Mr Parevski’s termination cannot proceed because the Part 4.14 threshold, that all the alternatives have been examined, has not been satisfied.

[63] This was said to be reinforced by an appreciation of the job security commitments given by Ford and reflected in the parties’ Agreement in Part 9.1(a) to (e). As part of this argument the parties’ self-imposed obligation to negotiate in the event of compulsory redundancy had not occurred.

[64] As to redeployment, the AMWU submission examined Part 4.11 requiring Ford to ‘identify and facilitate’ redeployment opportunities. Because it was clear that Mr Parevski’s quality office work was gone and his functions redistributed to the other continuing quality employees, the question then left was whether Mr Parevski was to be redeployed.

[65] The AMWU’s submissions dealt with the need for affected employees to be able to have considered counter measures they might identify to avert or mitigate. It was acknowledged that as a matter of fact Mr Parevski has a spinal disorder referable to the work which “include constraints on manual handling, notably lifting and prolonged standing” (Exhibit AMWU6, paragraph 18).

[66] As to how far Ford must go in facilitating redeployment, it was submitted that the Agreement at Part 9.1(e) provided a range of remedial measures to ensure job security and which included ‘market fluctuations’ as specified in 9.1(d). Parts 9.1(g) and (h) were also relied upon by the AMWU as providing means of avoiding compulsory terminations through transfers; natural attrition; up-skilling and job re-design - although the AMWU submission did acknowledge that such measures were linked in the Agreement with ‘continuous improvement’.

[67] It was submitted also for Mr Parevski that in a practical sense there was ‘no difference between a displacement of employee due to a reduction in production and a displacement caused by efficiencies, probably because there isn’t any’ (Exhibit AMWU6, paragraph 20). As all such methods of avoiding or mitigating job loss had not been pursued it followed that Ford could not satisfy the Part 4.14 threshold of ‘all other avenues’ having been exhausted.

[68] In relation to job re-design, retraining or the reallocation of work to accommodate Mr Parevski’s disability, it was said that Ford’s redeployment efforts had been poor. Reliance had been placed on Mr Findlay not having considered whether Mr Parevski could do the jobs he had assessed and that Mr Findlay had never examined, or even met Mr Parevski (Exhibit AMWU6, paragraph 23). Particularly stressed in Mr Harding’s final submissions was the lack of attention that had been given to assessing whether Mr Parevski could have undertaken various tasks with the assistance of a lifting device or by occasionally calling on a colleague to assist with a lifting or handling task.

[69] Additional to the limitations of Mr Findlay’s approach (see transcript PN 320-327) Mr Harding pointed to the positive obligation under Federal and State statute to reasonably accommodate Mr Parevski’s disability. An absence of reasonable adjustment was to be considered as unlawful discrimination (Exhibit AMWU 6, paragraph 25).

[70] As an adjunct to and abbreviation of, this argument it was put that the effect of both the Disability Discrimination Act 1995 (Cth) and the Equal Opportunity Act 2010 (Vic) (the EO Act) (upon a slightly different test) was to require that an employer first considers reasonable accommodation. In the present case, it was submitted that Mr Howard’s evidence was that he had made his selection because Mr Parevski was unable to lift 15 kgs, without consideration of ways in which the requirement might be modified or eliminated. It followed in Mr Harding’s submission that Mr Parevski was selected, not on skill grounds, but on disability grounds (Exhibit AMWU 6, paragraph 26).

[71] It also supported the basic submission of the AMWU that the, “all other avenues” test, set out in the Agreement at Part 4.14 had not been met, when it was appreciated that a job search had not been conducted on the basis of the revised certificate provided by Dr Sachdev permitting Mr Parevski to lift up to 10 kgs - with the limitations previously given.

[72] Finally, reliance was placed on the failure of the parties to the Agreement to negotiate an improved formula in the manner foreshadowed in Part 4.14. In the place of such a negotiation, Mr Parevski is said to have been presented with a “take it or leave it” offer over the weekend of 15/16 October 2011 as detailed above earlier. Mr Potter had conceded that Ford had intended to terminate Mr Parevski’s employment. Discussion with Mr Parevski was, in any event, said to be no substitute for the parties (as defined in Part 1.5(d) of the Agreement) conducting the negotiations as required and envisaged in Part 4.14.

Ford’s Final Submissions

[73] Mr McNab submitted that the obligations imposed upon Ford by the Agreement had been met in relation to Ford’s 10 May 2011 announcement of the down balance, because Ford had consulted with the unions as required. As to Mr Parevski, it was Ford’s submission that Mr Howard’s announcement of the effect of the down balance shortly after the general announcement was also in conformity with Ford’s obligations. The staff in the Quality Department were told “that every person’s position would be different”, but no decision, it was submitted, had been made to make Mr Parevski redundant (Ford’s Closing Submissions, Exhibit F9, paragraph 5).

[74] This was the position said to have been the case when Mr Parevski was advised by Mr Brock and Mr Howard on 22 June 2011 of the need for an updated report on his medical capacity.

[75] The decision to make Mr Parevski involuntarily redundant was, Ford submitted, a consequence of it considering:

● Mr Parevski’s medical certificate of 22 August,

● Dr Sachdev’s further medical report,

● Ford’s enquiries into other clerical vacancies, and

● Mr Findlay’s review of various positions into which Mr Parevski may have been deployed.

As to Part 4

[76] Ford maintained it had complied with the relevant steps of Part 4. As to the Quality Department it said, “Mr Parevski was notified of the particular changes within the department that he worked in May 2011. He chose not to take the voluntary redundancy package”. (Exhibit F9, paragraph 17). It was then submitted that redeployment, consistent with Part 4.11(a), was attempted, but redeployment was not “appropriate” because of Mr Parevski’s “quite extensive restrictions”. It was then put that, again further to Part 4.11, a ‘reduction in employment strength’ became unavoidable. This was because there were no other positions available to Mr Parevski other than positions where there was a likelihood of further injury.

[77] It followed from these considerations that Ford was not in breach of its Part 4.12(f) obligations - to notify of major change, its affects, and to consider and respond to matters raised by affected employees which may avert or mitigate the adverse effects of the change. Ford relied on the steps taken from 22 August to redeploy Mr Parevski, to gain a better understanding of his capacity to resume duties and the extensive review of positions which it had undertaken. Ford put several times that the fact that it did not have a suitable position for Mr Parevski did not mean that Part 4.12(f) had not been complied with.

The Part 9 Obligations

[78] Mr McNab argued that Part 9.1 ‘Continuous Improvement’ imposed no obligation in relation to Mr Parevski’s employment because the changes within the workplace which led to the termination of his employment did not arise as a consequence of ‘continuous improvement’. The market conditions leading to the reduction from 261 units per day to 209 were in Ford’s view, not a result of seeking “a better way of performing work through upskilling and job redesign”, in the words of Part 9.2(f).

[79] It was put that the AMWU submissions which would ‘read up’ the term ‘continuous improvement’, should not be accepted, as the effect was said to be that on such an analysis all changes in the workplace would be considered to be affected by ‘continuous improvement’ and that as a consequence, there could not be any compulsory or non voluntary redundancy. For Mr McNab this was said to be an absurd result, where Ford would be required to carry unneeded employees - or should Mr Parevski be employed, it would be to do nothing.

[80] It was acknowledged by Ford that Part 9.1(f) contemplates employees being displaced by continuous improvement being offered “other productive employment . . . which is appropriate and of a similar level” and by retraining. Again, it was Ford’s view that this could not mean that where there is no additional productive employment, Ford was required to maintain that employee’s employment (Exhibit F9, paragraph 31).

[81] Ford stressed that Part 4.11 of the Agreement acknowledged that there could be an elimination of work by (amongst other things) continuous improvement and the Part then dealt at 4.11(b) with forms of voluntary and compulsory redundancy. It could not be concluded that Ford was unable to affect a redundancy - again, without an absurd result being required by the operation of the Agreement so construed.

[82] As to complying with Part 4.14 ‘Compulsory or Large Scale Voluntary Redundancy’, Ford submitted that it had offered an enhanced redundancy package of 4.1 weeks per year of service (plus notice), rather than the redundancy payment of two weeks per year of service provided in the Agreement at Part 4.10.

[83] In relation to the final two questions put to Fair Work Australia, Ford argued that by reason of the reduced numbers in the Quality Department the reorganisation of duties was necessary, as was a need to assess Mr Parevski’s capacity. It was put that Mr Parevski was found to be unable to fulfil the inherent requirements of the job.

[84] The matter of the time available to Mr Parevski on 14 October 2011 to consider the offer of enhanced redundancy was also commented upon by Ford; that matter having been previously raised by me. Ford highlighted that the matter had not been raised by the Union as the “nub” of the matter and that the time available to Mr Parevski was, as events had shown, sufficient for him to seek legal advice through Mr Sexton and that further time had not been sought.

[85] Ford, in outlining the history of this case, made the point that no suggestion has been made since by the Applicant, the AMWU or Fair Work Australia that the 14 October offer be reinstated. It followed in Mr McNab’s submission that the Company should be found to have made all reasonable attempts to accommodate Mr Parevski in seeking alternative positions, including the rejected opportunity presented to Mr Parevski that he might wish to be a candidate for the Broadmeadows position. Ford submitted that it had been amenable to offering a voluntary package for someone occupying a clerical or non production role suitable for Mr Parevski, so that Ford should be considered to have acted consistently with the Agreement.

Consideration

[86] I have set out some, but not all, of the parties’ contentions to reflect that this is a case of some complexity and, in my view, of some difficulty. At a basic level the questions posed require consideration of the extent to which a good employee, successfully rehabilitated after a serious injury and carrying a legacy of some restriction can have various provisions of an agreement, which consciously set out to secure employment in certain circumstances, apply. It is true also that the Agreement is required to operate in a commercially testing time when, demonstrably, employment cannot have, despite the avowed intentions of those agreeing in 2009, the certainty all would wish to see.

[87] I am asked to consider the obligations imposed upon Ford relative to Mr Parevski both by Parts 4.10 to 4.14 and by Part 9, to determine whether Ford acted in compliance with its obligations under the Agreement as to Mr Parevski and comment whether the termination would be otherwise contrary to the Agreement.

[88] It will hopefully be seen that these questions intersect, not only as to subject matter but as the parties dealt in their agreement with the ways various situations, potentially to be encountered in the future, would be dealt with.

Mr Parevski

[89] First, I would say something of Mr Parevski. Mr Parevski presents as a sincere witness, entirely uninterested in redundancy formulae and, rather, ultra-concerned to protect his employment. It is Mr Parevski’s opinion that for a man of his age and skill, who has suffered a serious workplace injury, and who is in the manufacturing/engineering/quality assurance job market in Geelong, it may prove very challenging to secure employment as beneficial and enjoyable as he has averred was offered by Ford.

[90] Ford helpfully introduced into evidence the September 2005 decision of her Honour Judge Hampel in the County Court of Victoria ([2005] VCC 1347 Parevski v Ford Motor Company of Australia Ltd, (The County Court case) (Exhibit F4, attachment DP5). That proceeding dealt with an element of the serious injury suffered at work by Mr Parevski and where a most extensive list of medico/legal reports was tendered before the court, together with surreptitious surveillance videos taken of Mr Parevski by agents for Ford. Judge Hampel chose to record the comment of a muscoskeletal specialist who had examined Mr Parevski and found him to be “anxious but co-operative” and “without any attempt to amplify his symptoms or degree of disability” (The County Court case, paragraph 17). Having also seen the surveillance video recordings of Mr Parevski, intended to traduce his evidence and his credit, her Honour made the following finding:

“. . . I have come to the view the plaintiff was an honest witness, who did not exaggerate his symptoms, and was doing his best to describe his subjective assessment of the effect on him of the injury and resultant impairment. I find that the plaintiff was a credible witness.” (The County Court case, paragraph 10)

[91] While this proceeding is to a different purpose, I was also advantaged by having the benefit of observing Mr Parevski in the witness box over a lengthy period and came to the view that he was a conscientious witness strongly concerned to maintain his non-production job, given his disability. In light of the successful vocational transition he has made into the quality assurance function, one can appreciate the serious qualms he has for the future. It is hard for Mr Parevski to credit that his disability has not been used impermissibly as a factor in his non-selection as one of the seven on-going Quality Department employees in Stamping or, as a reason he has not been offered a “swap”, with a person occupying a non-production clerical role suitable for Mr Parevski, who wishes to exit with a voluntary package.

[92] Recording these comments as to Mr Parevski’s legitimate concerns may go some way to explaining why it was that Mr Parevski became so upset at the last minute, pre long-leave meeting called by Mr Brock and Mr Howard. It is highly regrettable that this and the two following clamorous events occurred in the way they did. At the same time it must be said that Mr Parevski is likely to have seriously over-reacted in the way he did. In understanding Mr Parevski’s alarm at what was for him a sudden reference to his injury of years before, it must be borne in mind that Mr Parevski had no reason to believe his advice to Ford as to his medical state was in any sense inadequate or for any purpose unsatisfactory. This was because it was neither.

[93] In this respect I have accepted Mr Parevski’s account of how, post injury, and during his rehabilitation, he regularly provided certificates, and then, in liaison with the Ford Workers Compensation office (Ford self-insures) provided progressively more general certificates, less frequently until providing a certificate, with the agreement of the Ford officers involved, to operate, on its face, permanently.

[94] The advice that this was required to be now supplemented by a new medical report and that Ford required him to agree “to allow the Company doctor to speak with his treating GP to obtain the required information” called for careful explanation (Exhibit F4, Statement of Mr Potter, paragraph 14).

[95] Although Mr Parevski is able to speak English well enough, it is decidedly not his first language. It is very clear from the evidence that Mr Parevski did not understand how it could be said that at the time “his position within the Stamping Quality Department no longer existed and the Company would seek to place him in another position” (Exhibit F4, paragraph 13).

[96] While Mr Parevski knew the Quality Department was required to shrink by one staff member to seven members, Mr Parevski knew that at the time (22 June 2011) no decision had been made about postings of incumbents i.e., who of the eight were to get the seven jobs. It cannot be thought surprising that Mr Parevski was greatly concerned at this advice. Mr Parevski had every reason to be troubled that his previous injury not be permitted to cloud his performance in the Quality Department or his ability to fulfil one of the new Quality Department positions.There was no reason of which Mr Parevski was then aware to have him think he could not fulfil one of the new Quality Department roles as he had done so well for ten years.

[97] After the first rumpus on 22 June Mr Parevski returned the next day, the first day of his long leave, and presented a new medical certificate from Dr Sachdev, his treating doctor from the time of the accident (and who had given evidence before Hampel J), providing that Mr Parevski remained fit for “non-production duties as in post-desk job”. This certification was rejected by Mr Brock as inadequate. These transactions were not without subtlety and Ford’s request of Mr Parevski required careful explanation. It is regrettable that after the unpleasant discussion of the previous day when Mr Parevski had become very emotional, that a job representative was not then involved (I am appreciative that this was an unscheduled meeting), to explain to Mr Parevski what Ford required, why they wanted it and why Dr Sachdev’s new re-assessment of Mr Parevski was not adequate.

The Questions

[98] I am asked to comment upon the obligations imposed by Parts 4.10 to 4.14. The relevant subclauses are set out in an attachment to this decision. Part 4.10(a) is a straightforward declaration of what is to be considered the Agreement’s meaning of “Redundancy”. The meaning turns on “a reduction in work available” leading to Ford determining that it has an excess of employees. In such circumstances Ford is obliged by the Agreement to apply the definition to all its employees, Mr Parevski included, should it become relevant. As to Ford’s compliance with 4.10(a) in relation to Mr Parevski, it is clear that Ford acted on the belief that consequent upon restructuring the Stamping Department Quality positions, there existed a redundancy. The response to the question “Would Ford be in compliance with those obligations if it terminated Mr Parevski’s employment?” is influenced by other operative parts of the Agreement to which I will come shortly.

[99] Part 4.10(b) provides for a benefit of two weeks wages plus an additional two weeks wages for each year of continuous service, at the ordinary rate, for each year of continuous service, if the employee has at least 12 months continuous service and redundancy causes their termination. It must be noted that the Agreement’s Voluntary Separation benefit is geared at 3.1 weeks wages per years of continuous service (capped at 75 weeks excluding notice) and that Ford’s later ‘weekend offer’ in relation to compulsory redundancy was for 4.1 weeks’ wages per year of service. (I have here not detailed the 4.13(a)(ii) option of an uncapped formula at a lower multiplier.)

[100] Part 4.10(c) sets out the relevant notice payment to apply in redundancy as found at Part 4.4(b). Ford is obliged to apply this provision to Mr Parevski. In Mr Parevski’s circumstances it would call for a notice payment of four week’s pay.

[101] Part 4.11 sets out the Company’s commitment to identifying and facilitating redeployment where there is “an elimination of work”. Such redeployment is occasioned when the elimination of work is the result of “the introduction of continuous improvement situations and other circumstances”. I regard this is a wide open provision. In answering question (a) I have taken it that, properly applied, the Agreement imposes an obligation upon Ford to identify and facilitate the redeployment of Mr Parevski, (and any other Ford employee), whose employment is affected by an elimination of work. Part 4.11 is about what is to happen when at Ford there is an elimination of work. Because the phrase appearing in Part 4.11(a) “and other circumstances” is unqualified, I would construe it to encompass anything other than or in addition to the consequence of “the introduction of ‘continuous improvement’ situations”.

[102] The parties chose in the Agreement to continue in Part 4.11 to acknowledge that “a reduction in employment strength may become unavoidable”. The situations, which in the parties’ minds might lead to such a serious situation were two fold; “where redeployment is not appropriate”, or, where redeployment “cannot be managed”. In such circumstances, when a reduction in employment strength was “unavoidable”, it was foreseen by the parties in 4.11 that there needed to be a process to deal with or “to manage such occasions”. There were said to be two types of separation which might eventuate, these are given at 4.12, Voluntary Separation (with its detailed workings provided at 4.13) and at 4.14, Compulsory or Large Scale Voluntary Redundancy.

[103] Part 4.11 applied to Mr Parevski because he had been affected by an elimination of work. Because there had been an elimination of work, through the shrinkage of the Stamping Quality Department from eight to seven employees, Ford’s commitment to identifying and facilitating redeployment opportunities was activated. It matters not whether the cause was ‘continuous improvement’ because, in my view, subject only to another Agreement provision which bears on the point, the term in 4.11(a) “and other circumstances” is a general catch-all.

[104] I am asked to comment upon the question “did Ford comply with those (the Part 4.11) obligations?”

[105] When Mr Howard was “conducting the process of identifying people for jobs in the restructure” he was advised by the previous Quality Manager, Mr Benyen, that Mr Parevski had some medical restrictions (TPN 1857-58). It followed because of the provision of Dr Sachdev’s certificates and Dr Sachdev’s later personal involvement, the spotlight fell on Mr Parevski and his capacity to do various jobs, first within the Quality Department and later elsewhere in the plant. Over time it seems that Mr Parevski was considered incapable of performing any available jobs.

[106] In addressing the questions posed regard must be had for Ford’s duty under the Agreement. But “applying the Agreement” is not in many case akin to applying a chemical formula. It requires judgement and application of the values with which the Agreement is replete. Ford’s obligation, in my view, was to consider whether, according to fair and objective measures, it wished Mr Parevski to be numbered within the seven ongoing Quality Department staff members as they were selected to perform the new aggregations of tasks which was to comprise the duties of each of the seven. If, on Mr Parevski’s merits, Mr Howard (advised no doubt by others) had preferred Mr Parevski to perform one of the seven roles, it would then be necessary to facilitate his deployment into that newly fashioned role, if that was possible. If a preferred ‘candidate’ for one of the jobs (in Mr Howard’s objective judgement) it would then be necessary to consider the fact of any physical limitations which were a consequence of Mr Parevski’s work-related injury. This might involve some training or re-training.

[107] Part 9 has a role in this obligation. This is because of the operation of Parts 9.1(d) and (e) which deal generally with Ford’s intentions to take ameliorative measures particularly as to the impact of market fluctuations and prior to the continuous improvement obligations commencing at Part 9.1(f). Although it is somewhat disjointed to deal with Parts 4 and 9 separately it is necessary to do so, at least initially.

[108] If an understanding of Mr Parevski’s medical position led to a question as to his ability to perform work in the Quality Department, Part 4.11 obligates Ford to facilitate “redeployment opportunities”. It would become a question of whether with “reasonable adjustments” Ford could have Mr Parevski perform the work required in the area of redeployment. This might mean the work is subject to some re-arrangement or that some assistance is made available. Fairness to Ford would require that such a re-fashioning of the work of a particular job was within the bounds of a “reasonable adjustment” as provided, for example, in s.20 of the Equal Opportunity Act 2010 Part 4 (Vic) (the EO Act), where Part 20 headed, Employer must make reasonable adjustments for person offered employment or employee with a disability sets out an employer’s obligation to make sure reasonable adjustment unless, even after the adjustments are made the person or employee “could not or cannot adequately perform the genuine and reasonable requirements of the employment . . .”.

[109] As will be seen below Mr Howard spoke openly of his need to have his re-fashioned department staffed with a key eye on practicality. For Mr Howard practicality was a ‘key driver’. It may not be synonymous with the obligation to make reasonable adjustment.

[110] In the event that Mr Parevski was not preferred, on objective grounds, to perform any of the ongoing seven Quality Department positions, Ford was obliged, pursuant to Part 4.11 to “facilitate redeployment opportunities”. In each case of any possible redeployment, Ford was obliged under the Agreement to examine opportunities for redeployment, including how (under the general law) Mr Parevski’s disability might be accommodated through reasonable adjustment. (For the factors to be considered in determining the reasonableness of a required adjustment see s.20 (3) of the EO Act).

The Temporal Element

[111] In my view, the Agreement (and fairness to Mr Parevski as an employee since 1998 and injured on the job) required that such an attempt be conducted at an early stage in the Company’s response to applications for voluntary redundancy. For staff with broad administrative experience and skills, timing may matter little as they are likely to be strong candidates for any clerical/administrative position whose incumbent wants to swap to avail of the redundancy payout opportunity. For Mr Parevski, with such limited and specialised white/grey collar expertise, timing mattered a great deal.

The Custom and Practice

[112] I have accepted Mr Sexton’s evidence that there had not occurred at Geelong compulsory redundancies to this point. No evidence was led to the contrary. This reflects the practice of the parties on the previous occasions, no doubt with administrative difficulty and requiring some ingenuity, to implement the offers and acceptance of voluntary redundancies to accommodate those who wished to stay and who then are found positions within their skill-sets. Nothing was put by Ford’s Human Resources officers that there had been strain placed on the operation by the practice of back-filling, the accommodation of employees who would otherwise be displaced, by the effecting of transfers to accommodate an employee keen to continue with Ford. It should be acknowledged that it was to employee’s advantage that Ford had exhibited such flexibility.

[113] While somewhat speculative, it is very likely that this position had changed, but only because the earlier VR rounds had taken up almost all candidates and there were far fewer employees left. Certainly Ford’s stance was that there were no non-Quality Department vacancies into which Mr Parevski could be deployed and a sceptical attitude was evident at the several conferences. Ford nevertheless agreed to review the potential positions advanced by Mr Sexton.

[114] Ford’s position as to transfers and available jobs is subject to any obligation arising from the Agreement. It must also be noted that the quest for a position for Mr Parevski was for an employee with a good performance and attendance record who was not in any sense responsible for the transfer. No cloud hung over Mr Parevski - other than the need for his redeployment to be to a role he could safely perform and perhaps, his emotional over-reactions to Mr Brock.

Redeployment vs Redundancy

[115] In considering whether Ford complied with Part 4.10 to 4.14 it is important to note the construction of Part 4.11. Headed ‘Deployment of Employment Numbers’, the subclause is concerned with the “identifying and facilitating” of redeployment opportunities where in a broad sense an elimination of work arises. The subclause declares Ford’s commitment to identifying and facilitating redeployment opportunities and then acknowledges, where redeployment is inappropriate or unmanageable, that “a reduction in employment strength becomes unavoidable”.

[116] Part 4.11 then posits that two different types of separation might eventuate in the workplace. These are given at 4.12 and 4.13 as they provide for Voluntary Separation where, after consultation, a 3.1 weeks of service formula capped at 75 weeks with 4 weeks’ notice or an uncapped 2 weeks per year of service formula with two weeks’ notice would apply (with other benefits not here recorded). Subclause 4.14 deals with Compulsory or Large Scale Voluntary Redundancy, in which eventuality “the parties will negotiate an improved redundancy formula consistent with general automotive industry standards.”

[117] This is the step said to have been arrived at when Mr Parevski was offered the deed to sign (proposing a 4.1 week per year of service formula) shortly before the close of business on Friday 14 October 2012.

[118] Was Part 4.14, Compulsory Redundancy, properly available to Ford under the Agreement in the circumstances then applying? Subject to what follows from a consideration of Part 9 below, Compulsory Redundancy as an available option did not reflect Ford having complied with the Agreement to that point. This is put in answer to the question posed at (a) “Did Ford comply with their obligations?”

All Other Avenues

[119] As set out above, for compulsory or large scale voluntary redundancy to occur at Ford the Agreement requires that a ‘circumstance’ indicative of that conclusion must have arisen and “all other avenues had been exhausted”. In the circumstances relevant to this case I would apply the Part 14.4 ‘all other avenues’ caveat so that in a realistic, practical sense Part 4.14 was available to Ford. Thus applied the obligation at Part 4.12(c), for example, that alternatives be identified which might avert the need for a separation program, would not compel the finding of alternatives. The steps at 4.12(c), (d), (e) and (f) (which are steps in the “Voluntary Separation” element of the Agreement) could not perpetually confine Ford to voluntarism and thereby rule out the possibility of “Compulsory or Large Scale Voluntary Redundancy”.

[120] Relevant to 4.14 one would take a practical view of the “all other avenues being exhausted” stipulation, so that the relief envisaged at Part 4.14 was, in a realistic sense, open to be applied.

[121] The requirement for all other avenues to have been exhausted does however contain, the meaning that compulsory redundancy would be contemplated only after every reasonable alternative avenue had been thoroughly reviewed and found of no application. Mr Potter described the situation from his perspective in these words, “Mr Parevski refused to provide the required information and he would not sign a release to allow the Company Doctor to speak with his treating GP to obtain the required information.” (Exhibit F4, paragraph 14).

The Failure to Medically Confer

[122] On the evidence before me even when Mr Parevski signed the medical authority form the Ford doctor did not speak with Dr Sachdev. It is not easy to understand why this step would not be taken and I have been troubled by it not occurring. Instead Mr Parevski was, I have concluded, categorised as an employee so unable to continue his Quality work, that on the grounds of an apprehension reached by Ford’s non-medical officials that Ford might not be providing him with a safe working environment, he was sent off the premises. What were these emergent grounds? Mr Parevski had been working entirely without incident for a decade. This decision to send Mr Parevski home on ‘safety grounds’ rather than permit him, even in the short term, to continue working in the Quality Department was not only regrettable, it is likely in my view to have prejudicially coloured the events which followed.

[123] What I regard as precipitate action taken, instead of Ford appraising Mr Parevski’s candidacy on the basis of such criteria as his skills, aptitude, breadth of experience and compatibility within a team environment, as against the other seven candidates, meant that Mr Parevski, as outsider, was first required to prove his medical capacity to work at all and then, to be a candidate.

[124] The position was that there was a spill of the eight Quality jobs. Mr Parevski was a candidate. While Ford had a justifiable need to establish Mr Parevski’s medical capacity to perform any of the seven positions it must be remembered Mr Parevski had been working most satisfactorily in his non-production environment. It has not been explained why the medical form ‘need’ could not have been discussed with Mr Parevski during normal working time in the days before his long leave.

[125] The effect of Mr Parevski being advised of a last minute meeting, prior to his two months leave was to so alarm Mr Parevski that ultimately Mr Parevski was converted from being a valued member of the Quality Team in the Stamping plant to being warned off.

[126] After the initial unsuccessful dealing of 22 June when Mr Parevski over-reacted, the position should have been capable of careful explanation to Mr Parevski.

[127] Certainly after the encounters between Mr Brock and Mr Parevski on 22 and 23 June 2011 and the decision taken prior to his return that he was not to commence work at his station, the benefit of having a shop steward present as Mr Parevski resumed duty on 22 August should have been plainly apparent. Instead, the position was permitted to again arise upon Mr Parevski’s return to duty when there was further regrettable drama at the workplace with a distraught Mr Parevski, after declining to accept direction from other than his own manager, threatened with physical ejection from the site. Although a significant part of the onus for these ructions should attach to Mr Parevski, one must also be conscious that Mr Parevski feared for his job and, mindful of his chances in the Geelong job market as an injured retrenchee, can be extended some understanding in explanation of his otherwise entirely uncharacteristic behaviour.

[128] Against the background of Mr Parevski having passed from a valued administrative/clerical officer to being sent home, I have not concluded that Part 4.14 was being applied constructively and thoughtfully in both his and Ford’s interests. One upshot was that Mr Parevski’s candidacy for the job in the Quality Department which most resembled his original job was, as an opportunity for employment, lost to him. It was replaced by the encounters between Mr Brock and Mr Parevski, the excessive behaviour and later, the restrictive weekend deadline and what can be discerned to be a change in status or treatment of Mr Parevski by Ford. All of these happenings combine, in my mind, to mean that the mutuality (the positive commitment) as envisaged by Parts 4.11(a) and 4.14, was displaced by misunderstanding, unnecessary and readily avoidable controversy, possibly lost placement opportunities and a less positive attitude toward Mr Parevski than would have been evident had the parties been fully engaged in exhausting their Part 4.14 task as required by the Agreement.

[129] As an indice of low level hostility I have noted that as Mr Parevski came to Ford on several occasions to attend meetings arranged with Human Resources discuss various job possibilities, Mr Parevski was asked how he had gained entry to the site. When Mr Parevski advised that he had come through the normal staff entrance, he was advised to no longer use that entrance. Mr Parevski was told to use the Visitor’s entrance. The Part 4.11(a) potential to manage Mr Parevski’s redeployment prior to the separation alternatives of either 4.12 or 4.14 had been greatly reduced.

[130] Ford’s compliance with the Agreement were it to terminate Mr Parevski, will be considered below with these considerations in mind.

Continuous Improvement

[131] While Parts 9 and 4 stand alone and each has work to do, they closely interact.

[132] Part 9 deals with the concept of ‘Continuous Improvement’ and how such ongoing improvement, likely to be considered on a short term view as naturally inimical to job security, will still be supported and how its effects will be managed. Central to the application of ‘Continuous Improvement’ is its application in various guises - most particularly as Ford corporate method.

[133] Much has been written about the decentralisation of autonomy and authority in the vehicle industry to small line cells (Natural Work Groups in Ford parlance) from the early 1990s. At Ford, acceptance of change, of training for all employees and of working flexibly and co-operatively without demarcation, accompanied a devolution of employee involvement in the work’s performance so that the elimination of waste, inefficiency and any impediment to the most economic production method became the business of all. Part 9 sets out many of these ideals two decades on.

[134] Part 9 is concerned with the achievement of Continuous Improvement by means of applying Ford’s corporate production methods. The corollary of continuous improvement is said to be Job Security - “long term stable employment and income security to its employees” (Part 9.1(a)). However even the unequivocal statements found within Part 9 are subject to qualification within the Agreement. So, where Part 9 introduces the ‘Ford Production System’ (FPS) and its close ally, ‘Ford Total Productive Maintenance’ (FTPM) and deals with the consequences when those methods go into effect, the Agreement provides for exceptions at Part 4 to the assurances given in Part 9.

[135] For example, Part 9 at 9.1(g) provides:

“No compulsory redundancies will result from continuous improvement activities as defined in this Agreement, and any excess labour that may occur will be handled by transfers and/or natural attrition”.

[136] Similar strong sentiment and commitment is to be found in those subparts of ‘Continuous Improvement’ which deal with the closely related Ford production methods:

● Part 9.2 Ford Manufacturing Process Studies (FMPS)

● Part 9.3/4 Ford Production System (FPS)

● Part 9.5 Ford Total Production Maintenance (FTPM)

[137] FMPS, at Part 9.2(g) in discussing how improvements will apply, provides:

“. . . if any employees are displaced by improvements they will be retained and/or offered reallocation to other productive employment within the Company’s operation, which is appropriate and at a similar level, in consultation with the appropriate shop stewards.”

[138] Similarly, Part 9.2(h) declares:

“No compulsory redundancies will directly result from FMPS as defined in this Agreement and any excess labour that may occur will be handled by transfers and natural attrition.”

[139] As to FPS, Part 9.4 sets up or refers to consultative bodies and then sets out that the parties have agreed at 9.4(f)(ii) that: “. . . no compulsory redundancies as a consequence of the initiatives associated with FPS.”.

[140] It should also be recorded that at 9.3(b)(v) it is provided that: “No compulsory redundancies will result as a consequence of these initiatives.”.

[141] As to FTPM, it is provided at 9.5.1 FTMP Basic Principles, that one outcome will be ‘greater job security’.

[142] The AMWU has sought that in answering the questions posed, the answer that should be given is that Part 9 would be contravened if Ford were to terminate Mr Parevski’s employment “on the ground it has proposed, namely redundancy” (Exhibit AMWU6, paragraph 2) and in particular 9.1(g), 9.3(b)(v) and 9.4(f)(ii).

[143] It is said that because Ford’s rights under the Agreement to compulsorily terminate on the grounds of redundancy are prohibited in the circumstances of Continuous Improvement, it is necessary to find that Mr Parevski’s termination would not be in compliance with the terms of the Agreement. While I will now deal with the down balance and its consequence as a result of or part of Continuous Improvement, it is necessary to note that Part 4.11 Deployment of Employment Numbers sets out how when redeployment flowing from Continuous Improvement is inappropriate or unmanageable that redundancy applies.

Was the Quality Department Reconstitution of Functions a Result of Continuous Improvement?

[144] I turn to consider whether the premise of the AMWU submission is sound, that is, that Mr Parevski was caught up in an exercise properly described as Continuous Improvement, as it is understood in the Agreement.

[145] Essentially the question is whether the ‘down balance’ which caused the shrinkage of work and restructuring of the Quality Department from eight to seven staff is, as claimed, ‘a species of continuous improvement’ as defined by or described in the Agreement?

[146] In my view it is not. Continuous Improvement has a normal meaning deriving from the Agreement. It refers to an industrial willingness to work in changing circumstances, where new approaches to the work are commonplace, where employees are flexible, not resistant in the face of such change and ‘buy into’ a process where all seek to improve the on-going performance of the work. While there is no doubt the drafting latitude engaged in by Ford and the AMWU in composing their agreement provides, by the scope and generalised language found within Part 9, an arguable basis for Mr Harding’s contentions, ultimately the argument cannot be accepted. There are several reasons for arriving at this view.

[147] First, it must be seen that in specified instances the trade-off, the consideration for acceptance of ‘Continuous Improvement’ was Job Security. But Job Security is not accorded to all employees in all circumstances and, rather, 9.1(f) commits Ford to re-train and/or re-allocate employees to similar level work if displaced by continuous improvement. The very firm no compulsory redundancy commitment at 9(g) is more rigorously constrained by the term “continuous improvements activities as defined in this Agreement...”. Upon enquiry there is no close definition.

[148] Part 9.1(b) provides that continuous improvement “will not be used in a narrow, job shedding way” but as a means of involving employees “through upskilling and job re-design”. Part 9.2 then sets out the FMPS workings, including repeating the job security/transfer statement and that no compulsory redundancies “will directly result from FMPS as defined in this Agreement” (emphasis mine). Similarly Part 9.3 setting out the FPS workings, including consultative committees provides at 9.3(f)(ii)(b)(v), “No compulsory redundancies as a consequence of these initiatives”.

[149] In my view the down balance was a response from Ford to the market conditions it faced at the time. It was a commercial decision to better align its production with its sales. Nothing was put to me which indicated that an initiative or proposed change to working procedures or approaches was the cause of the down balance. In no meaningful way, without stretching the meaning of ‘continuous improvement’, could the down balance be linked with continuous improvement or derive from FMPs or FPS. Nothing was put about FMPS or FPS.

[150] Unsurprisingly, Continuous Improvement is not closely described in the Agreement. It means, one concludes, accepting that work is not performed in a static way and instead, as outlined above, that work is performed as efficiently as possible and with frequent change accepted.

[151] In introducing the Agreement’s treatment of Continuous Improvement the parties included at 9.1 a statement regarding aspects allied to vehicle manufacture, including disruption of supplier deliveries and “...minimising the potential impact on employees created by market fluctuations...”. In my view the parties’ provision at 9.1(d) and (e) of commentary as to such issues, and that, “where practicable”, there will be “specific purpose training and retraining to minimise the loss of employee income”, does not bring such events within the more confined scope of 9.1(g), the no compulsory redundancy commitment stemming from ‘defined’ Continuous Improvement.

[152] It seems to be the case and it is relied upon by the AMWU, that waste reduction is a tenet of the FPS and therefore, in Mr Harding’s developed argument, waste reduction came within the purview of Continuous Improvement mechanisms, because to produce more vehicles than needed would be wasteful. This is, in my view, to significantly overstate the waste-minimisation element of the FPS and would have the affect of all negative market related adjustments to Ford’s production being held to be a consequence of Continuous Improvement.

[153] It follows in my view that Part 9 does not impose upon Ford a prohibition from considering Mr Parevski redundant or subject to redundancy. Part 9 does however impose obligations upon Ford as to re-allocation of work and retraining. It does this at 9.1(d), in Ford’s assurance that it will continue to minimise the impact on employees of market fluctuations by taking the steps set out at 9.1(e).

[154] In my view Ford has to a limited degree complied with its obligations in this regard as will be further commented upon below.

Part 4.10 to 4.14

[155] I turn now to the questions posed relative to Part 4.10 to 4.14.

[156] The AMWU relies in large part for the prohibition of Mr Parevski’s termination on the grounds of redundancy, on what it describes as ‘the threshold’ required to be met by Part 4.14. Part 4.14, it will be recalled, sets out the parties’ agreement, “that if a circumstance arose that indicated compulsory or large scale voluntary redundancy may be possible, and all other avenues had been exhausted, the parties will negotiate an improved redundancy formula consistent with general automotive industry standards”.

[157] It should be seen that other provision of Part 4 have work to do before one would consider 4.14 activated. Part 4.11, “Deployment of Employment Numbers” refers, consistent with Part 9, to Ford’s commitment to identifying and facilitating redeployment opportunities where ‘other circumstances’ result in an elimination of work. Unhelpfully little is then said about the nature and extent of the Company’s commitment or obligation to such redeployment activities.

[158] Mr McNab urged that it be found that Ford’s efforts, for example the sending of emails from Geelong to other Ford locations asking about clerical vacancies, and participating in many meetings discussing the possibility of Mr Parevski taking up the duties involved in various jobs, have amply satisfied its obligations. One can accept that these were redeployment activities.

[159] In large part Ford’s defence to the criticism that it had not fully complied with its obligations to re-train or re-deploy Mr Parevski was that Mr Howard could not identify a position into which Mr Parevski might be safely deployed. Prior to determining to make Mr Parevski redundant Ford relies on its search for suitable internal vacancies, discussion with Mr Sexton and officials of the AMWU, the workplace visit of Dr Sachdev and a review of possible positions conducted by Mr Findlay, a physiotherapist engaged by Ford as a consultant. Ford is Mr Findlay’s only client.

[160] My knowledge of the case, the evidence led and my involvement in several earnest efforts to resolve this dispute in conciliation leads me to make several observations.

[161] The Agreement is not easy of interpretation in several respects relevant to this case. It seems clear enough however that Continuous Improvement is portrayed as in the parties best interests and holding no peril for employees as the provision is replete with commitments to retrain, redeploy and utilise “specific purpose training”.

[162] I am of the view that Ford did participate genuinely, although with greatly diminishing enthusiasm, in the many discussions with officials and Mr Sexton and before Fair Work Australia. In large part the problem was that no suitable job could be found. This lack of opportunity included after Ford indicated to Mr Sexton that it would favourably consider permitting someone in a clerical administrative position to go via voluntary redundancy and post Mr Parevski into that vacant position.

[163] The dilemma was that no such position could be identified and one must conclude that at that time, prior to April 2012 there were no more volunteers to be had.

[164] I am satisfied that Ford had been urged, possibly consistent with past practice, to ‘carry’ Mr Parevski until a suitable vacancy arose. Ford declined to do this, indicating that irrespective of what had occurred in the past, it was not able to delay or ‘carry’ employees in the present circumstances.

[165] For good reason the AMWU did not ask that Fair Work Australia make an order requiring Mr Parevski to be employed in a supernumerary position.

[166] In my view Ford’s principle Part 9 obligation to Mr Parevski was to deal with the result of market fluctuations as referred to in 9.1(d) by taking the measures given at 9.1(e) which include re-allocation of work, specific purpose training and re-training. However the subclause qualifies this obligation/s by adding “...where practicable that may be available...”. I would take this as recognition that the provision has to operate in the real world.

[167] Nothing of substance was said during proceedings of any job for which Mr Parevski may have been eligible had he undergone ‘specific purpose training’ or re-training - other than the forklift function. No detailed attention was given to training opportunities. Given the extent of the possible jobs canvassed before me in conciliation it is very likely this is because no such jobs were ‘available’. Ultimately solutions lie in the realm of the possible. With jobs being lost in many areas of the Geelong operation, Ford’s submission was that no such position arose. Had Mr Sexton identified a position open (or able to be opened by a volunteer opting for VR) and able to be performed by Mr Parevski with specific purpose training, I am of the view that Ford would have been compliant. This is a relevant conclusion as to Part 9.1(e) ie. ‘practicability’ and ‘availability’.

[168] I have expressed my reservations that had Mr Parevski’s need to supply a certificate been sought and then accomplished in a less controversial way, Mr Parevski’s chances of appointment to one of the quality department positions may have been improved. Of course I am required to answer questions as to compliance with the Agreement, not speculate as Mr McNab cautioned, or form a view based on what I consider fair.

[169] Mr Harding sheets home a critique based on Mr Findlay’s remove from Mr Parevski (having never met him or been familiar with his case), that he was not asked to assess whether Mr Parevski could do any of the jobs and ultimately, Mr Howard’s conclusion that Mr Parevski was unable to perform the full duties of various of the jobs reviewed.

[170] Mr Harding emphasised that Mr Howard’s conclusion was reached without assessing the availability of alternative aids to the performance of the work, for example that hoists or other lifting devices are at hand or can be made available.

[171] In answering the questions as to Part 4 it is clear that Part 4.11 requires Ford’s involvement in identifying and facilitating redeployment activities in Mr Parevski’s case. I accept that a range of positions were raised and discussed. Later, when the dispute was before me and probably for the reasons given above, I considered that Ford’s participation was reactive. Nevertheless Ford complied with its obligations under Part 4.11. Ford complied with 4.12 in that Voluntary Separation was an option made available to Mr Parevski and not taken up by Mr Parevski. No odium attaches, or should attach, to Mr Parevski determining not to apply for voluntary redundancy. Part 4.13 ‘Voluntary Separation Package’ is of no relevance.

[172] I have found Part 9.1(f), (g) and (h) largely irrelevant to Mr Parevski’s position by virtue of my conclusion that the down balance be found not to be associated with Continuous Improvement. The relevance of Part 9.1 ‘Job Security’ is limited in my view to the provisions 9.1(a) to (e). It is those steps, particularly “specific purpose training and re-training where practicable that may be available to minimise the loss of employee income” (9.1(e)) and to “minimise the potential impact on employees created by market fluctuations” (9.1(d). It is disquieting that specific purpose training or re-training appears to have not arisen as part of the parties’ approach.

[173] I have found the transfer obligation for employees who are displaced by Continuous Improvement and the accompanying no compulsory redundancy commitment - to derive from Part 9.1(f), (g) and (h) and to have no application to Mr Parevski. This is because the Quality restructure was not a result of ‘Continuous Improvement’. Should this conclusion be wrong Part 4.11(a) deals with the consequence when Continuous Improvement redeployments are not possible “and a reduction in employment strength becomes unavoidable”. The parties’ agreed process is for voluntary separation (Part 4.12) and then compulsory redundancy as detailed in Part 4.14. Ultimately, in my view, the Agreement permits Ford to retrench.

[174] I have found that the Part 9.1(d) and (e) undertakings have as implicit terms the notion of transfer in the context of ‘re-allocation of work .. specific purpose training or retraining”. Part 4.11 sets out unambiguously the Ford commitment to identify and facilitate redeployment opportunities “where the introduction of continuous improvement situations and other circumstances result in an elimination of work” (emphasis mine). A prime, practical measure to minimise the potential impact on employees caused by market fluctuations is transfer, so to the extent necessary I would hold Ford obliged to effect a transfer if the capacity existed to do so. I am concerned that Mr Howard’s decisions as to redeployment were made in light of Mr Parevski’s disability, but without determining whether, with reasonable adjustment and possibly with the assistance of mechanical or other aids/means, even in the practical world of a diminishing Geelong Stamping Quality operation, Mr Parevski could have been so deployed. I do not consider myself in a position to make a finding as to possible breach (of the Acts discussed above) by Mr Howard’s alleged failure to consider reasonable accommodation for lifting and other movements of Mr Parevski. The Quality Department positions are long-filled and I am unsure of the practical affect of such a finding as to compliance. I was not assisted by any submission as to the affect of an answer in this regard.

[175] I am aware of Mr Brock’s evidence that the basis of the decision to select Mr Parevski was the restrictions caused by his impairment (TPN 1974) and that Mr Brock had not considered modifying the work to suit Mr Parevski’s limitation (TPN 2013), or to reallocate work to Mr Parevski (TPN 2032). As to the provision of aids Mr Brock’s evidence was “You can’t provide aids in all circumstances though” (TPN 2011).

[176] Mr Howard’s evidence made clear that the decision taken in respect of Mr Parevski was informed by Dr Sachdev’s Certificate of Capacity of 22 August 2011 and Dr Sachdev’s report of 26 August 2011. Mr Parevski was, at that time, restricted in Dr Sachdev’s opinion to lifting not more than two kgs. Each of the seven ongoing positions required its occupants, in the performance of their duties, to lift up to 15 kilos. Mr Howard averred that, “the assessment was made that within the seven jobs that there was - by a duty of care, it wasn’t - it wasn’t practical that we could put Sime into one of those roles because of the lifting component, the manual handling component” (TPN 1752, and see, 1753 and 1755).

[177] When questioned closely as to the lack of review by Ford as to Mr Parevski’s capacity to perform a function in one of the new positions, assisted should it be necessary by the use of a lifting aid, Mr Howard gave further evidence as to practicality, saying, “We need to do - we need to do what’s practical and the - I guess, the - which makes business sense, in a practical way of performing the job functions as required (TPN 1808). As to the use of lifting aids Mr Howard’s evidence was, “...all those potential possibilities, they will utilise additional resources, it will take additional time, as opposed to - and will push you potentially back into requiring an extra job function” (TPN 1813).

Dr Sachdev’s December Reassessment

[178] Mr McNab emphasised that Mr Howard and his colleagues were faced with Mr Parevski’s recently re-confirmed two kgs limitation in a shrunken department - where flexibility was to be required in the seven ongoing Quality employees. The Ford officers were obliged to consider efficiency and practicality but required to do so within the bounds of cooperation and amity set out in the Agreement as it lays such emphasis upon job security, and the laws relating to discrimination and disability.

[179] The Ford officers were also required to have regard for Dr Sachdev’s reassessment of Mr Parevski conducted on 16 December 2012. It was Dr Sachdev’s medical opinion that Mr Parevski’s restrictions could be altered to provide (with some commentary) for a lifting capacity of 10 kgs. This was, of course, a significant alteration to the two kgs restriction so frequently emphasised by Ford. Dr Sachdev’s reassessment followed Mr Potter’s letter to him of 2 December 2011 (Annexure DP8 to Mr Potter’s Statement, Exhibit F4).

[180] Mr Potter’s letter summarises Mr Parevski’s employment, particularising, from his very detailed medical history, ‘degeneration’ of 2001, ‘worsening’ of 2002 and other negative aspects. Mr Potter goes on to say, in the context of asking Dr Sachdev to review a number of positions, in situ, that Ford “will be relying on your opinion as to whether any of the nine positions are suitable for Mr Parevski...”.

[181] Mr Potter’s evidence acknowledged that the change in Mr Parevski’s medical restrictions was very significant (TPN 2285). Mr Potter was then asked whether he agreed with Mr Brock’s similar evidence (TPN 2136) relating to the change in restrictions. It may be preferable to set out the question.

“Mr Brock’s today was that there - Ford had not looked for work consistent with those medical - with those updated medical restrictions since that report was received. Do you agree with that?...Correct.”(TPN 2286)

[182] This does not represent compliance with the Part 4.11 obligations. Part 4.11(a) commences, “The Company is committed to identifying and facilitating redeployment opportunities in instances where the introduction of continuous improvement situations and other circumstances result in an elimination of work”. This obligation is allied at Part 9.1(d) and (e) with the sentiment expressed as to the result of market fluctuations.

[183] The final question is whether Ford would, in the event of termination, be in compliance with the obligations imposed by Parts 4 and 9 or, otherwise contrary to the Agreement? I am conscious that time has passed since the case was heard and that circumstances are likely to have altered. For convenience I have combined my answer.

[184] I am mindful of Ford’s frequently affirmed preparedness to have an administrative/clerical employee depart via a voluntary package and to post Mr Parevski to such a position. It is not Ford’s fault that no such arrangement can be contrived. Should such a potential exist presently I am confident that Ford would take that action.

[185] If, after the handing down of these answers to the questions posed, there is in Ford’s understanding, no present position into which Mr Parevski can be deployed with reasonable accommodation of his disability (in the sense used by the disability and discrimination legislation discussed above); and

● in the light of available aids relevant to his 10 kgs capacity as per the 2011 re-assessment by Dr Sachdev; and

● including, as is likely to be contemporary handling practice, by calling on a colleague for assistance in some unusual or infrequently arising situation); and where

● there is no available position of that sort, even were specific purpose training or re-training to be given; then

● Ford would be in compliance with its obligations in relation to termination of Mr Parevski’s employment on the grounds of redundancy only by applying to Mr Parevski a redundancy formula pursuant to Part 4.4, that is, negotiated by the parties to the Agreement.

BY THE COMMISSION:

COMMISSIONER

Appearances:

M Harding of counsel with D Smith and A Sachinidis for the "Automotive, Food, Metals,

Engineering, Printing and Kindred Industries Union" known as the Australian

Manufacturing Workers' Union (AMWU).

A McNab of counsel with D Smith for the Ford Motor Company of Australia Limited.

Hearing details:

2011.

Melbourne:

October 17, 26;

November 16.

2012.

February 13;

April 2, 3, 4, 12.

Final written submissions:

2012.

April 23, 26, 27, 30.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR529559>