“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Spotless Services Australia Limited
[2011] FWA 854
•8 FEBRUARY 2011
[2011] FWA 854 |
|
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
Spotless Services Australia Limited
(C2010/4183)
COMMISSIONER RYAN | MELBOURNE, 8 FEBRUARY 2011 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] .
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made application pursuant to s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with a dispute in accordance with the terms of the dispute settlement procedure in the Spotless P&F Pty Ltd (Maintenance) Victorian Enterprise Agreement 2009. The respondent is Spotless Services Australia Limited (Spotless).
[2] The dispute concerns the continuing employment or redundancy of an employee of Spotless. The remedy sought by the AMWU was that “The respondent to offer a permanent role (as per current terms and conditions) or provide redundancy as per notice letter and EBA provision”.
[3] The dispute arose as follows.
[4] Mr Lydster has been employed by Spotless as an air conditioning mechanic for the past 11 years. In that time he has worked on a number of different commercial contracts that Spotless has with its clients. Each of these specific allocations of work for Mr Lydster was for periods of 2-3 years each. In his most recent allocation Mr Lydster was working at the Melbourne City Council. In April 2010 Spotless lost the contract for the MCC work. Spotless wrote to Mr Lydster on 16 April 2010 informing him of the loss of the MCC contract. The letter advised Mr Lydster of a number of options including relocation within the Spotless group, resignation, alternative employment, etc.
[5] On 24 May 2010 Spotless wrote to Mr Lydster in the following terms:
“This letter is to confirm that due to the loss of the Melbourne City Council contract, your position is no longer required. As a consequence and in the absence of a suitable alternative position being available, your employment with Spotless will cease.
Notice of Termination
We are committed to supporting you to find alternative employment within our Company or with the incoming contractor wherever possible prior to this date. As such, you may be asked to attend an interview for alternative employment opportunities and you are required to attend when requested.
If we are unable to find you a suitable alternative role, or if you do not wish to pursue any of the options available, your employment with us will cease on 30 June 2010 ("the notice period'). However, if a suitable alternative position is identified for you then your employment will not end on that day and you will be transferred to the alternative position.
From the receipt of this notice to the date of termination you will be required to continue to perform the duties and responsibilities of your position.
During this period you will continue to receive the payments and benefits to which you are normally entitled under your Employment Agreement.
If for any reason the company does not require you to perform work during the notice period, you will be paid an amount equivalent to the remainder of your notice period in lieu of that notice.
Confidentiality
In accordance with obligation of confidentiality upon you under any statute (including the Corporation Act) and the terms of Spotless policies, you may not divulge to any person or use any trade secrets or confidential information concerning the business or financial arrangements of Spotless or any other confidential information belonging to the Spotless, except with the written authority of the undersigned. Confidential information includes any information (written or verbal) of a commercial, technical or financial type, which Is not publicly available. Your obligations under this clause continue after the date of cessation of employment.
We recognise your commitment and effort in your role in this contract and thank you for your support to date. We also believe it is important that we maintain high standards for the remaining period of the contract and continue to work safely.
Further information will be provided to you no later than 16 June 2010.
If you have any queries please contact Lola North, HR Advisor Vic/Tas on 03 9269 7595.
Michael Ferrier
Contract Manager”
[6] On 7 June Spotless advised Mr Lydster in writing of temporary relocation to the Essential Services Team commencing on 1 July 2010. The letter was in the following terms:
“Temporary Relocation to Essential Services Team
In our letters dated 16 April 2010 and 24 May 2010 we confirmed that the contract between Spotless and the Melbourne City Council will cease on 30 June 2010.
However, we are pleased to advise you that we have been able to identify an ongoing work requirement as part of the Essential Services Team whilst we await the outcome of several tenders for new work.
In accordance with the terms and conditions set out in clause 2.3.3 of the Spotless P&F Pty Ltd (Maintenance) Victorian Enterprise Agreement 2009 you will report to Kevin McAlister at the Kensington Depot at 7.30am on the 1 July 2010.
Your rate of pay and the terms of your employment will remain unchanged and will continue to be governed by the Spotless P&F Pty Ltd (Maintenance) Victorian Enterprise Agreement 2009. The hours of work are 9 days per fortnight made up of 8 days at 8.30 hours & 1 day at 8.00 hours and one non-payed ROO per fortnight.
If there is no other suitable alternative work available for you across the Spotless contracts by the end of September this temporary relocation will be reviewed and a decision made about your ongoing employment.
You are required to keep the terms of this transfer confidential unless expressly permitted otherwise by Human Resources until such time as the company has had time to explore redeployment options for all employees.
If you have any queries regarding this relocation please contact me directly to discuss.”
[7] Mr Lydster contacted his union to initiate the dispute resolution process in relation to Mr Lydster disputing the right of Spotless to withdraw the redundancy and to require him to transfer his place of work. The AMWU contacted Spotless by telephone on 10 June 2010 and followed this with a letter on 15 June 2010. Several communications between Spotless and the AMWU occurred thereafter.
[8] On 1 July Mr Lydster attended for work at the Essential Services Team as directed by Spotless but he did so under protest. As Mr Lydster made clear in his evidence he considered that he had been terminated by the letter dated 24 May 2010 with the termination for redundancy taking effect on 30 June 2010 but that he did not want to jeopardise his entitlement to a redundancy payment by not attending work on 1 July 2010 and thereafter.
[9] When Mr Lydster received the letter dated 24 May 2010 he started to look for a new job and was quickly offered work by a new employer. Mr Lydster was to start work for his prospective employer on 1 July 2010. Mr Lydster forewent the opportunity to start a new job by staying at Spotless whilst his dispute was being resolved.
[10] Spotless deserves to be strongly criticised for its repugnant conduct in this matter.
[11] The letter of the 24 May 2010 was intended to give Mr Lydster notice that his employment could and would (subject to one very important qualification) terminate on 30 June 2010. The qualification was that termination would not occur if at any time up to close of business on 30 June 2010 Spotless found alternative employment for Mr Lydster.
[12] Whilst it is clear from both the letters dated 16 April 2010 and 24 May 2010 that Spotless’s preference was to redeploy Mr Lydster into alternative employment, Spotless nevertheless wanted to keep open the option of terminating Mr Lydster on 30 June 2010.
[13] Quite clearly if there had been no alternative employment available for Mr Lydster Spotless would have terminated him on 30 June and done so on the basis that he had been given over 5 weeks’ notice of the termination.
[14] In the proceedings in this matter Spotless argued that the letter of 24 May could not be an effective letter of termination and that Mr Lydster could not rely on it to assert that he had been given notice of termination 1. Yet at the very same time Spotless conceded that it had intended to rely upon the letter2. The apparent inconsistency was simply explained away by Mr Trindade, appearing as counsel for Spotless, with the remark:
“The client is not a lawyer, they are not aware of the authorities of the courts and tribunals and it may have been that the notice that they gave was ineffective.”
[15] Whilst I accept that Spotless is not a lawyer it stretches credulity to suggest that Spotless is not aware of the authorities of courts and tribunals in relation to letters of termination of employment. The Spotless group of companies constitutes a major employer in Australia and the Spotless group of companies is a major industrial relations player and has been for a long time. Ms North who dealt with this dispute was not an employee of Spotless but was employed as the advisor for the Spotless Group.
[16] I am of the view that Spotless would have relied on the letter of 24 May 2010 to either terminate or redeploy Mr Lydster depending on what suited Spotless. In this matter it simply suited Spotless to disown the letter as giving notice of termination and rely upon the letter to redeploy Mr Lydster.
[17] It was callous and cruel for Spotless to have acted in the way it did towards Mr Lydster. Mr Lydster had in his 11 years of employment with Spotless been subject to changes in his workplace due to Spotless losing or gaining contracts. None of the previous changes in workplace caused by a loss of contract had ever been accompanied by a letter to Mr Lydster in similar terms to that of the 24 May 2010 3. The very first time that a change in Spotless’s clients led to a direct threat of termination of Mr Lydster’s employment was in May 2010.
[18] The conduct of Mr Lydster during the period of the dispute has significantly benefited Spotless. Mr Lydster both followed the disputes settlement procedure of the Agreement and remained in his employment while the dispute was being dealt with. I note also that the AMWU has acted properly throughout this dispute in following the disputes settlement procedure.
[19] Fortunately for Spotless it matters not a whit whether I am of the view that Spotless’s conduct was repugnant nor whether I consider that Spotless was acting in a callous and cruel manner towards Mr Lydster.
[20] I have carefully considered the evidence in this matter and the written and oral submissions of both parties.
[21] The evidence of Ms North makes very clear that Mr Lydster was employed as a permanent full time air conditioning mechanic and that at all times he has remained a permanent full time air conditioning mechanic. The temporary transfer to the Essential Services Team did not alter his status as a permanent full time air conditioning mechanic.
[22] I adopt the submissions of Mr Trindade in relation to the legal effect of the letter dated 24 May 2010.
[23] Mr Lydster was not given an effective notice of termination at any time. Mr Lydster was given a qualified notice of termination and the qualification was subsequently satisfied by Spotless. Mr Lydster’s employment and his status and classification have not changed as a result of anything done by Spotless since 24 May 2010. Had Mr Lydster left his employment in the period from 24 May 2010 to 30 June 2010 on the basis that he had been offered a new job with a new employer Spotless would have been entitled to treat it either as an abandonment of employment or as a resignation
[24] The terms of the Agreement permit Spotless to transfer employees. I adopt the interpretation and application of clauses 2.3.1, 2.3.3 and 2.10.5 as advanced by Mr Trindade.
[25] Mr Lydster was transferred from where he was working prior to the 30 June 2010 to another location as from 1 July 2010. The transfer was within the authority of Spotless acting within the terms of the Agreement.
[26] The first remedy sought by the applicant in this matter has already been achieved. My findings above make clear that Mr Lydster continues to be employed in his current role (permanent full time air conditioning mechanic) as per current terms and conditions (those terms and conditions specified by the Agreement). On that basis there is nothing further that needs be done in relation to this matter.
COMMISSIONER
Appearances:
E. McGrath for the applicant
D. Trindade for the respondent
Hearing details:
2010
Melbourne
11 August
1 Transcript of proceedings at PN410
2 Ibid at PN411 and PN412
3 Ibid at PN163-166
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