Baraklilis v Futuris Automotive Interiors (Australia) Pty Ltd
[2016] FCCA 3221
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARAKLILIS & ANOR v FUTURIS AUTOMOTIVE INTERIORS (AUSTRALIA) PTY LTD | [2016] FCCA 3221 |
| Catchwords: INDUSTRIAL LAW – Certified agreement – redundancy – whether definite decision employees’ “job” no longer to be done by anyone – redundancy payments – whether employees entitled to redundancy when terminated. |
| Legislation: Fair Work Act 2009 (Cth) ss.545, 570 Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 |
| Cases cited: Kucks v CSR Limited (1996) 66 IR 182 Fosters Group Limited v David Kou Tien Wing [2005] VSCA 32 FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 Termination, Change and Redundancy Case (1984) 8 IR 34 Bampton v Viterra Limited [2015] SASCFC 86 Byrne v Australian Airlines (1995) 185 CLR 410 |
| First Applicant: | JOHN BARAKLILIS |
| Second Applicant: | SIMON CECOVSKI |
| Respondent: | FUTURIS AUTOMOTIVE INTERIORS (AUSTRALIA) PTY LTD |
| File Number: | MLG 1350 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 7 & 8 November 2016 |
| Date of Last Submission: | 8 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr Champion |
| Solicitors for the Applicants: | Pentana Stanton Lawyers |
| Counsel for the Respondent: | Ms Dowsett |
| Solicitors for the Respondent: | You Legal |
ORDERS
THE COURT ORDERS THAT:
The application filed 16 June 2015 be dismissed.
Any application for costs along with brief written submissions (no more than 4 pages) be filed and served within 14 days of this order.
Any response to an application for costs along with brief written submissions (no more than 4 pages) be filed and served 14 days thereafter.
AND THE COURT NOTES:
(A)Any application for costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1350 of 2015
| JOHN BARAKLILIS |
First Applicant
| SIMON CECOVSKI |
Second Applicant
And
| FUTURIS AUTOMOTIVE INTERIORS (AUSTRALIA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By application and statement of claim filed on 16 June 2015 John Baraklilis (“the first applicant”) and Simon Cecovski (“the second applicant”) commenced proceedings in the Fair Work Division of the Court against Futuris Automotive Interiors (Australia) Pty Ltd (“the respondent”).
The first and second applicants make claims of contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) by the respondent because of inter alia breaches of the Plexicor Australia & National Union of Workers Certified Agreement 2005 (“the Agreement”).
By its response and defence filed 20 July 2015[1] the respondent denied those allegations and said that the application should be dismissed.
[1] The respondent filed an amended defence in Court on 7 November 2016 without objection. In the amended defence the respondent maintained its position
The Court had made orders referring the matter to mediation and adjourning the matter to 13 November 2015. After an unsuccessful mediation orders were made listing the matter for trial and setting out a timeframe for the filing of material. On 18 February 2016 orders were made adjusting the timetable for the filing of material.
The applicants each filed an affidavit on 8 March 2016 and an affidavit in reply on 3 May 2016 upon which they relied. The respondent filed affidavits on 8 April 2016, from Neil Alan Langley, Karen Lee Dawson, Sefton Charles Williams, Jennifer Gloria Lee and Jaimie Robert Miller upon which it relied. The respondent also relied on the affidavit of Karen Lee Dawson filed 27 October 2016.
Each of the parties filed written submissions prior to the trial upon which they relied and those were supplemented by submissions at the close of the evidence.
Background
Before turning to the issues in dispute, the terms of the Agreement, the submissions of the parties and the evidence, it is timely to set out the background facts[2]. Where in these reasons there is a statement of fact, those are, unless otherwise specified, findings of fact.
[2] Each of the parties prepared a chronology upon which they relied and these have been taken into account along with all the evidence .
Mr Cecovski started employment with Plexicor (the previous owner of the business operated by the respondent) in 1991 at its site in Barry Road Broadmeadows. Mr Baraklilis also started employment with Plexicor in 1993. In 2000 each of the applicants were promoted to the position, that is now classified as Level 3 Technical employee under the Agreement.
In 2005 the Agreement commenced operation. At that time the applicants were working on what the parties described as a flat sheet extruder (albeit on different shifts). In 2008 the Agreement was varied and extended. The Agreement contained an “in house” classification structure and had as an appendix a statements of tasks, duties and functions that could be required of employees (such as the applicants) who were classified as Level 3 Technical employees.
There was what the parties described as a Ewood extruder purchased by Plexicor. In 2009 the respondent acquired a 50% interest in Plexicor, Mr Baraklilis suffered a workplace injury and was on restricted duties. The applicants were also undertaking duties in Materials Planning and Logistics (MP&L).
In 2010 Mr Baraklilis underwent a shoulder operation, was absent from work and then returned on modified duties and then went off work for another operation. Also in 2010 the flat sheet extruder was dismantled.
Over the course of 2010/2011 the respondent pursued a joint venture producing product called “Ewood” via an extrusion process for the automotive industry. In early 2011 Mr Baraklilis returned to work, the flat sheet extruder was recommissioned and he worked on the reinstallation of that machine as did Mr Cecovski.
Also in 2011 each of the applicants transferred employment from Plexicor to the respondent who (at or around the same time) announced it would consolidate its operations to one site at the Hume Highway site (some 10 minutes away also in Broadmeadows) over a period of 12 months. Also at or around this time the flat sheet extruder was again decommissioned and was subsequently (all quite some time later) sold.
Towards the last quarter of 2011 each of the applicants applied for a voluntary redundancy package. There was a meeting between the respondent and the National Union of Workers (who represented those covered by the Agreement) where the respondent advised “extruders are moving and a new extruder is coming. The extruder operators have regularly worked in other areas and are not exclusively hired to work on those machines…”
Following this meeting in November 2011 the applicants were advised their applications for voluntary redundancy were unsuccessful. In late 2011 Mr Baraklilis in a conversation with Ms Dawson made clear he was aware the respondent required extruder operators for the Hume Highway site and he would be required to work there.
In early 2012 the applicants each advised the respondent they were not prepared to move to the Hume Highway site. The applicants took the stance that they worked on the flat sheet extruder and that their “jobs” as flat sheet extruder operators had become redundant.
During February 2012 the applicants were advised on a number of occasions the respondent required them to transfer to the Hume Highway site. Mr Cecovski wrote to the respondent saying if he was to remain working for the respondent he wanted “any redundancy in the future to be given to “him” as first priority”.
Later that month the applicants were advised in writing that they would “continue to be employed in [their] current role” and report to the production team leader at the Hume Highway site. On 20 March 2012 and following a further direction to move to the Hume Highway site (which wasn’t complied with) the respondent terminated the applicants’ employment.
Each of the applicants received a letter in the similar terms which so far as presently relevant said:
“On 1 February 2012 we informed you that the company was consolidating its Barry Road and Hume Highway operations. As part of that consolidation, you were required to relocate from the Barry Road site and continue performing your duties at the company’s Hume Highway site.
…
Despite the company’s repeated requests for your cooperation, you have refused to confirm that you will relocate to work out of and continue performing your duties from the Hume Highway site. The company is, in the circumstances, entitled to terminate your employment, and has made the decision that your employment is to end. The termination of your employment will be effective today…”
The Agreement, which was made under the Workplace Relations Act 1996 (Cth), (“WR Act”) commenced operation in October 2005 and was subsequently extended and varied under the WR Act. The FW Act commenced on 1 July 2009 and by virtue of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the Agreement at all relevant times remained in operation.
Applicants’ case
In their submissions filed 1 July 2016 the applicants’ summarised their case as follows:
“6.The Applicants’ case is that they held jobs under the Enterprise Agreement as Technical Employees, Level 3 and the operators of a flat sheet extrusion machine. It was skilled and technical work: they operated the extruder in all its facets to produce various plastic products (including spoilers, laminated sheets, and cheap boxes). Towards the end of their employment extrusion ceased. Their ad hoc allocation to other duties, particularly forklift driving and general stores duties, did not detract from the fact that their “jobs” were as extruder operators. It was not open to the employer unilaterally to alter their jobs. Further, the parties could not by private agreement detract from the applicant’s rights under the Enterprise Agreement. The employer decommissioned and sold the extruder. As a result, as at 20 March 2012 (the date of the end of the employment) the Applicants’ jobs were redundant and they are entitled to severance pay. They never rejected an offer of suitable alternative employment.”
The applicants sought:
·in the case of the first applicant $99,754.20 by way of compensation under s.545(2)(b) of the FW Act;
·in the case of the second applicant $107,982.04 by way of compensation under s.545(2)(b) of the FW Act;
·the imposition of a penalty, payable to each of the applicants; and
·interest and costs.
In the submissions filed 1 July 2016 the applicants said there were:
“Four primary issues for decision:
(a)what was the Applicants’ “job” (clause 19.1.1);
(b)had Futuris made a “definite decision” that is no longer wished that job to be done by anyone (clause 19.1.1);
(c)what were the “reasons” for the termination of the Applicants’ employment at that date (clause 19.1.1); and
(d)if the Applicants are otherwise entitled to severance pay, are the severance pay entitlements “not applicable” because they rejected an offer of “suitable alternative employment” (clause 19.1.6).”
Respondent’s case
The respondent’s position in submissions filed 2 August 2016 was:
“7.The issues in dispute in the present matter arise from clause 19.1.1 of the Enterprise Agreement. Those issues are:
(a)what was “the job the [Applicants] had been doing”;
(b)had the Respondent made a “definite decision” that it did not require that job to be done by anyone; and
(c)if yes to (b), did that decision lead to the termination of the Applicants’ employment?”[3]
[3] Respondent’s submissions filed 2 August 2016 at paragraph [7].
The Agreement
The Agreement contained inter alia the following:
“…
8.RELATIONSHIP WITH PARENT AWARDS
This agreement shall be read and interpreted in conjunction with the Rubber, Plastic and Cable Making Industry - General - Award provided that where there is any inconsistency between this Award and the Agreement, this Agreement, shall take precedence to the extent of the inconsistency.
This agreement as varied replaces in full all prior agreements. Accordingly, from the date of variation of this agreement all previous agreements cease to have effect.
…
14.EMPLOYEE DUTIES
14.1.To become entitled to payment of a weekly wage, an employee must perform such work as the employer shall from time to time require on the days and during the hours usually worked by the class of employee affected and in accordance with the terms of this agreement.
14.1.1.An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with the classification structure of this agreement, provided that such duties are not designed to promote deskilling;
…
19. REDUNDANCY
19.1. Discussions before terminations
19.1.1. Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their Union.
…
19.1.5. Severance Pay
In addition to the period of notice prescribed for ordinary termination in clause 20, an employee whose employment is terminated for reasons set out in clause 19.1.1 shall be entitled to the following minimum amount of severance pay in respect of a continuous period of service:
* four (4) weeks notice to be given, with a further one (1) week provided for those over 45 years of age with a minimum of two (2) years service;
* four (4) weeks severance pay will be paid on termination, except in the case where an employee has less than twelve (12) completed months of service, in which case a pro-rata formula of 2.923 hours for each completed week will apply;
* four (4) weeks pay at the agreement rate for each continuous completed year of service or part thereof;
* all long Service Leave to be paid out on a pro-rata basis with no qualifying period.
* accrued annual leave and annual leave pro-rata will attract 17.5% leave loading;
payment of all accrued sick leave at the "ordinary time rate".
19.1.5A Severance Pay
Effective from the date of variation of the agreement, the following clause shall replace 19.1.5
An employee whose employment is terminated for reasons set out in clause 19.1.1 shall be entitled to the following minimum amount of severance pay in respect of a continuous period of service:
* four (4) weeks notice to be given, with a further one (1) week provided for those over 45 years of age with a minimum of two (2) years service;
* four (4) weeks severance pay will be paid on termination, except in the case where an employee has less than twelve (12) completed months of service, in which case a pro-rata formula of 2.923 hours for each completed week will apply;
* four (4) weeks pay at the agreement rate (excluding shift loadings, overtime and disability allowances) for each continuous completed year of service or part thereof;
* all long Service Leave to be paid out on a pro-rata basis with no qualifying period.
* accrued annual leave and annual leave pro-rata will attract 17.5% leave loading;
* payment of all accrued sick leave at the "ordinary time rate"
…
21 WAGES AND RELATED MATTERS
21.1. Wage Rates
An employee shall be paid not less then the rates of pay set out in the tables below for their classification:
…
Classification Technical
EmployeeCurrent
AgreementRate (38 hrs)
5% 1/10/05
4% 1/10/06
4% 1/10/07
Level 1
$759.38
$797.35
$829.24
$862.41
Level 2
$825.89
$867.19
$901.88
$937.95
Level 3
$928.18
$974.59
$1013.57
$1054.12
...
22. MIXED FUNCTIONS
…
22AEffective from the date of variation of the agreement, clause 22 shall be replaced with the following.
22A.1 Any employee engaged in any one day or shift during ordinary working hours for more than two hours at work in a higher class than he/she is employed to perform shall be paid for the full day or shift at the highest rate payable for any such work under this agreement; but if he/she is so engaged for two hours or less he/she shall only be paid at the rates fixed by this Agreement for the work actually performed.
….”
Submissions
On 1 July 2016 the applicants filed an outline of submissions which were as follows:
“A. The claim
1.Mr. John Baraklilis (The “First Applicant” and/or “Mr Baraklilis”) and Mr. Simon Cecovski (the “Second Applicant” and/or “Mr Cecovski”) claim severance pay entitlements against Futuris Automotive Interiors (Australia) Pty Ltd. (“Futuris”, “FAI” and/or the “Respondent”) (a manufacturer and supplier of automotive parts) pursuant to the Plexicor Australia & National Union of Workers Certified Agreement 2004 (the “Enterprise Agreement”).
2.An entitlement to severance pay depends on their “job” being redundant within the meaning of the Enterprise Agreement.
3.Pursuant to the Enterprise Agreement severance pay formula:
(a) Mr Baraklilis claims $99,754.20;[4] and
[4] SOC, [36]
(b) Mr Cecovski claims $107,982.04.[5]
[5] SOC, [40].
…
C. Summary
5.In summary, although particular issues as to the chronology of events will need to be properly detailed, the dispute may be summarised as follows.
Applicants’ case
6.The Applicants’ case is that they held jobs under the Enterprise Agreement as Technical Employees, Level 3 and the operators of a flat sheet extrusion machine. It was skilled and technical work: they operated the extruder in all its facets to produce various plastic products (including spoilers, laminated sheets, and cheap boxes). Towards the end of their employment extrusion ceased. Their ad hoc allocation to other duties, particularly forklift driving and general stores duties, did not detract from the fact that their “jobs” were as extruder operators. It was not open to the employer unilaterally to alter their jobs. Further, the parties could not by private agreement detract from the applicant’s rights under the Enterprise Agreement. The employer decommissioned and sold the extruder. As a result, as at 20 March 2012 (the date of the end of the employment) the Applicants’ jobs were redundant and they are entitled to severance pay. They never rejected an offer of suitable alternative employment.
Respondent’s case
7.In contrast, the Respondent’s case is that “operation of the flat sheet extruder was not the sole duty” [6] of the Applicants and that each Applicant “undertook a range of other duties consistent with their respective skill, competence, training and classification”[7]. Accordingly, as a range of other duties was available as at 20 March 2012, the Applicants’ jobs were not redundant and no entitlement to severance pay under the Enterprise Agreement was triggered.
[6] Defence, 15.3.1.
[7] Defence, 15.3.2.
D.Issues for decision
8.It is common ground that the Enterprise Agreement applied to the parties and the employment.[8] Any entitlement to severance pay hinges on its provisions.
[8] On 10 December 2008 the AIRC (Blair C) extended the nominal expiry date of the Enterprise Agreement: AG843335; PR984899. There were variations to certain terms. Schedule 3 of the of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 operates so that the Enterprise Agreement, an agreement made under the provisions of the Workplace Relations Act 1996 (the “WR Act”), remains in operation notwithstanding the repeal of the WR Act. Further, although MCK Pacific Pty Ltd. was the employer at the time the agreement was first made (2005) and then varied and extended (10 December 2008) the Enterprise Agreement applies to Futuris as a successor employer as to the applicants who were transferring employees: FW Act, section 313.
9.Clauses 19.1.1 and 19.1.5A of the Enterprise Agreement provide that an employee is entitled to severance pay if his/her employment is terminated for the reasons set out in clause 19.1.1. Clause 19.1.1 and 19.1.5A are as follows:
19. REDUNDANCY
19.1Discussions before terminations
19.1.1. Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their Union.
…
19.1.5A Severance Pay
An employee whose employment is terminated for reasons set out in clause 19.1.1 shall be entitled to the following minimum amount of severance pay in respect of a continuous period of service….”[9]
[9] On 10 December 2008was (sic) varied and extended in its operation by the decision of Commissioner Blair (then of the AIRC). One of the variations (item 18) was to insert a new clause 19.1.5A as set out above.
10.The Applicants’ employment ended on 20 March 2012. Four primary issues arise for decision:
(a)what was the Applicants’ “job” (clause 19.1.1);
(b)had Futuris made a “definite decision” that it no longer wished that job to be done by anyone (clause 19.1.1);;
(c)what were the “reasons” for the termination of the Applicants’ employment at that date (clause 19.1.1); and
(d)if the Applicants are otherwise entitled to severance pay, are the severance pay entitlements “not applicable” because they rejected an offer of “suitable alternative employment” (clause 19.1.6).
E.History and enforcement of the Enterprise Agreement
11.Because the Enterprise Agreement was made under the WR Act, extended and varied under the WR Act, continued in operation after the commencement of the FW Act and then there was a new employer, its relevant history and issues as to its enforcement are set out below.
History and continued operation
12.The Enterprise Agreement commenced operation on 1 October 2005 (clause 4) and was to remain in force until a nominal expiry date of 30 September 2008.
13.On 10 December 2008 “pursuant to clause 2A(1)(a) of Schedule 7 to the Workplace Relations Act 1996” (as then in force) the AIRC (Blair C.) extended the nominal expiry date of the Enterprise Agreement to 30 September 2011. Certain provisions were also varied. On 1 July 2009 the FW Act commenced operation.Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the “FW (TPCA) Act”) operates so that the Enterprise Agreement, an agreement made under the provisions of the WR Act, remains in operation notwithstanding the repeal of the WR Act. Further, an Enterprise Agreement continues to operate after its nominal expiry date unless a later agreement is made.[10] Further, an enterprise agreement binds a successor employer (Futuris was a successor employer to Plexicor) as to transferring employees. As a result of these matters, as at 20 March 2012, the date of the cessation of the Applicants’ employment, the Enterprise Agreement continued to apply to the parties.
[10] See FW Act, section 58(2); A. Stewart, Employment Law, (Second Edition) (Federation Press) [8.32].
Enforcement under the FW Act
14.Item 2(2) of Schedule 16 to the FW (TPCA) Act provides that “a person must not contravene a term of an agreement-based transitional instrument that applies to the person.” The Enterprise Agreement is an “agreement-based transitional instrument”: FW (TPCA) Act, Schedule 3, item 2(5).
15.Item 16(1)(a) of Schedule 16 to the FW (TPCA) Act provides that “Part 4.1 of the FW Act applies as if items 2 to 8 and 10 to 15 of this Schedule were provisions of the FW Act.”
16.The result is that the Applicants may bring an enforcement action under Part 4.1 of the FW Act for any breach of the Enterprise Agreement which remained binding upon the Respondent as at 20 March 2012.
F.Relevant provisions of the Enterprise Agreement
17.The Enterprise Agreement must be interpreted as a whole. Clauses 19.1.1 and 19.1.5A which are directly relevant as to redundancy are set out above. Other relevant provisions are as follows.
…
Classification
23.Clause 21.1A (as varied on 10 December 2008) governed “Classifications and Wage Rates”. There were two classification streams: “manufacturing/production employees” (Level 1 -5) and “technical employees” (level 1 –level 3).
24.It is common ground[11] that the Applicants were classified in the technical stream as Technical Employee, Level 3.
[11] See SOC, 12; defence, 12.1, admitted
Wage rates
25.From 1 October 2010 (the date of a 3.5% pay increase under the Enterprise Agreement) a Level 3 Technical Employee was paid a weekly rate (38 hours) of $1,185.72. By reference to pay records[12], this was the pay rate for the Applicants at 20 March 2012. Futuris at all material times paid the Applicants as Level 3, Technical Employees.
[12] See discovered pay records for Mr Baraklilis and Mr Cecovski.
Attachment B - Operator Classification Structure
26.Attachment B to the Enterprise Agreement is titled: “Operator Classification Structure” Attachment B is not referenced elsewhere in Parts 1 -11 (clauses 1 to 54) of the Enterprise Agreement. In that sense, it stands alone. The stated “Purpose” of Attachment B is “to define the basic requirements for each level of the classification structure”. In the narrative under the heading “Promotional Criteria” it is recorded:
“The following attachments with regards to classifications, tasks and all common duties are indicative only and may change with the introduction of new technology and business. The parties shall consult over these changes and post any changes on notice boards.”
27.The attached table which forms part of Attachment B (and is best read in landscape rather than portrait page orientation) has tasks for the manufacturing/production stream and the technical stream.
28.A Technical Employee, Level 1, will hold a forklift license. All the indicative tasks set out in Attachment B for a Technical Employee, Level 3 are the tasks of an extruder operator, operating the extrusion machine in all its facets. It reads as follows:
“ALL LEVEL I & 2 TASKS PLUS:
Identify material Type
….
Control material thickness/weight variance by monitoring and measuring material as it comes off the Extruder using various thickness gauges,
i.e. Dial calipers, micrometers
….
Set up lip changes, dies, die strip, set up dams
….
COMMON DUTIES
…..
Enterprise agreement is to be read in conjunction with the Award
29.Clause 8 of the Enterprise Agreement provided that it was to be “read and interpreted in conjunction with the Rubber, Plastic and Cable Making Industry – General – Award” (the “Award”) (the Enterprise Agreement to prevail “where there is any inconsistency”). At least in terms, there is no direct analogue technical stream of classifications in the Award. Rather, Clause 21.2 of the Award delineates between warehousing and manufacturing/production streams. In the Enterprise Agreement and the Award there is a manufacturing/production stream of employees. Under the Award, manufacturing /production employees at level 3 [clause 21.3(c)(vii)]; level 4 [clause 21.1.4(c)(viii)] and level 5 [clause 21.1.5(c)(x)] operate forklifts at progressively higher levels.
Clause 19.1.5A (as varied) - the severance pay formula
30.The Enterprise Agreement set a severance pay formula: see clause 19.1.5A (as varied). If his employment was terminated for reasons set out in clause 19.1.1 of the Enterprise Agreement, each Applicant was entitled to the aggregate of:
(a) 4 weeks’ notice;
(b) 4 weeks’ severance pay;
(c) 4 weeks’ severance pay for each continuous completed year of service; and
(d) accrued sick leave.
31.Mr Baraklilis says on the application of the formula he is entitled to $99,754.20.[13] It is common ground that Mr Baraklilis had 19 years continuous service[14]
[13] SOC, [37]
[14] SOC, [34]; Defence, [34.1]
32.Mr Cecovski says on the application of the formula he is entitled to $107,982.84.[15] Mr Cecovski pleads that he had 20 years continuous service.[16] The Respondent says that he in fact had 22 years continuous service.[17]
[15] SOC, [40].
[16] SOC, [38].
[17] Defence, [38.1]
G.Chronology
33.The next part of these submissions sets out the relevant chronology of events to give the proper context for the resolution of the issues in dispute.
34.Each Applicant had a long period of employment with MCK Pacific Pty Ltd. (trading as Plexicor) which service was formally recognised by Futuris.
35.On 12 June 1991 Mr Cecovski started permanent employment with Killara Plastics (which service Futuris recognised) and was thereafter continuously employed by Plexicor and then Futuris. [18]
[18] Mr Cecovski, Affidavit, [5].
36.On 21 March 1993 Mr Baraklilis started with Plexicor and was thereafter continuously employed by Plexicor and then Futuris.[19]
[19] Mr Baraklilis, Affidavit, [5].
37.On 3 May 2000, both Applicants received notification from Ms Wendy Doggett, Human Resources Manager at Plexicor, that they had “successfully completed the criteria to be promoted to level 3”. [20]
[20] Mr Baraklilis Affidavit, [13]; "JB-3”; Mr Cecovksi, Affidavit, [12]; “SC-5”.
38.From that time, for many years, both men worked exclusively on a flat sheet extruder: sometimes referred to as the Welex flat sheet extruder[21] Mr Baraklilis worked the morning shift; Mr Cecovksi worked the afternoon shift.[22] The Barry Road site was divided into Plants 1, 2 and 3. Both Applicants worked in Plant 1.[23] Both men worked on all aspects of the flat sheet extruder.[24] In 2005, as at the commencement of the operation of the Enterprise Agreement both men worked exclusively on the flat sheet extruder. That was also true as at the date of the extension and variation of the Enterprise Agreement on 10 December 2008.
[21] Mr Baraklilis Affidavit, [27]; Mr Cecovksi, Affidavit, [11]; “SC-4”.
[22] Mr Baraklilis Affidavit, [15]; Ms Lee, Affidavit, [23].
[23] Mr Baraklilis Affidavit, [17]; Mr Cecovksi, Affidavit, [15].
[24] Mr Baraklilis Affidavit, [18] – [22]; Mr Cecovksi, Affidavit, [17] – [18]
39.In about 2008, Plexicor bought another extruder - the eWood extruder - from a company called “Close the Loop.”[25] New operators tasked to work on the eWood extruder commenced work at Plexicor. They worked separately from the Applicants. Mr Baraklilis’ evidence will be that he worked “only once” on the eWood extruder.[26] Mr Cecovski’s evidence will be that he never worked on the eWood extruder.[27]
[25] Mr Baraklilis Affidavit, [28].
[26] Mr Baraklilis Affidavit, [30].
[27] Mr Cecovksi, Affidavit, [19].
40.In about 2009, Futuris acquired approximately 50% of the shares in Plexicor.[28]
[28] Ms Lee, Affidavit, [4].
41.In July 2009, until which time he had worked exclusively on the Welex flat sheet extruder, Mr Baraklilis suffered a work place injury.[29]
[29] Mr Baraklilis Affidavit, [23]; Ms Lee, Affidavit, [29], “JL-6”.
42.From July 2009 until 1 August 2011, Mr Baraklilis was on restricted duties by reason of his workplace injury.[30]
[30] Mr Baraklilis Affidavit, [32].
43.In April 2010, Mr Baraklilis underwent a shoulder operation and was absent from work from 6 April 2010 until 1 August 2010.[31]
[31] Mr Baraklilis Affidavit, [32].
44.In about 2010, Plexicor decommissioned the flat sheet extruder.[32] As at that date, the identification of the duties of the Applicants (and, relatedly, the “job” of the Applicants – “job” being the relevant concept in the Enterprise Agreement) becomes a matter of greater contention between the parties. In its Defence, the Respondent alleges that from “at least 2010 the First and Second Applicants undertook duties in MCK’s [Plexicor’s] Stores Department”. [33] Mr Baraklilis agrees that he was allocated duties in the stores department and says that his work was “light duties because of my injury”.[34] “During mid 2010” Mr Cecovski’s evidence will be that he was instructed to dismantle the extruder machine. “The dismantling of the extruder took a number of months.”[35] Mr Cecovski’s evidence will be that: “When the machine was not running I was asked to help out with ad hoc duties. Whilst the extruder was still bolted to the ground I believed that my job had not changed.” [36]
[32] Mr Baraklilis Affidavit, [34].
[33] Defence, 15.3.3.
[34] Mr Baraklilis Affidavit, [35].
[35] Mr Cecovksi, Affidavit, [22].
[36] Mr Cecovski, Affidavit, [21].
45.On 6 July 2010, Ms Lee’s evidence will be that management completed an “employee status change form” for each of the Applicants which recorded a shift from production to stores.[37] Each of the Applicants will give evidence that he had never seen this form until it was annexed to Ms Lee’s affidavit. On 6 July 2010, Mr Baraklilis was absent from work (and had been absent from work since 6 April 2010 because of a work place injury).[38] He returned to work on 1 August 2010. Mr Cecovski’s evidence will be that no one spoke to him about this form.[39] It is not open to an employer unilaterally to alter a contract of employment.
[37] Ms Lee, affidavit, [23] – 24; “JL-1” and “JL-2”.
[38] Mr Baraklilis, reply Affidavit, [7(e)].
[39] Mr Cecovski, Reply Affidavit, [8(a)].
46.On 1 December 2010, Mr Baraklilis had a second left shoulder operation. He was absent from work for six weeks. On 13 January 2011 Mr Baraklilis returned to work. He had medical restrictions on the duties he was allowed to perform mid-January 2011 until 31 July 2011.[40]
[40] Mr Baraklilis, Affidavit, [36].
47.In early January 2011, Plexicor recommissioned the Welex flat sheet extruder. Mr Baraklilis was allocated duties advising, assisting and guiding the reinstallation of the flat sheet extrusion machine. The return to work offer of suitable employment dated 13 January 2011 (Plan #4) and 9 February 2011 (Plan #5) lists “alternative advisory duties” as: “provide advice, assistance and guidance in relation to the reinstallation of the extrusion machine.” [41] Mr Cecovski also worked on the reassembly of the machine.[42]
[41] Mr Baraklilis, Affidavit, [37]; “JB-6”.
[42] Mr Cecovski, Affidavit, [24].
48.In about March 2011 after the reassembly was completed. Mr Baraklilis and Mr Cecovksi operated the reassembled extruder for trials for a couple of days.[43]
[43] Mr Baraklilis, Affidavit, [45]’ Mr Cecovksi, Affidavit [24] – [25].
49.In about April 2011 the extruder was again decommissioned and sold to a third party.[44]
[44] Mr Baraklilis, Affidavit, [46].
50.On 27 July 2011 each Applicant transferred in his employment from Plexicor to Futuris when Futuris assumed 100% ownership of the Plexicor business. Futuris formally recognised the Applicants’ prior Plexicor service. In the transfer letters, Ms Jennifer Lee, Human Resources Manager of Plexicor, wrote[45]:
[45] See Mr Baraklilis, Affidavit, [6]; “JB-2”; Mr Cecovksi, Affidavit, [7]; “SC-3”; Ms Lee Affidavit, [25].
“For all intents and purposes nothing will change in your employment with the transfer. Your terms and conditions of employment will remain as they are now (including continued observance of the current applicable industrial instruments) and continuous service will be recognised by FAI.
….
3.FAI will recognise your entire period of service with MCK as continuous service with FAI for the purposes of any current and future service related entitlements (including redundancy).”
51.By July 2011 Futuris was engaged in the process of relocating its workforce at Barry Road Campbellfield to nearby Futuris operations at Sydney Road Campbellfield. This is not a relocation case - the distance between the two sites was only about 10 minutes. The effect of the relocation was that the Barry Road Campbellfield site would close. Mr Baraklilis’ evidence will be that there were approximately 100 employees at Barry Road: of those employees, about 20 had their positions made redundant and about 80 employees transferred to the Hume Highway site.[46]
[46] Mr Baraklilis, Affidavit, [49].
52.On 1 August 2011 Mr Baraklilis received a medical clearance that he was fit to resume full time duties.[47]
[47] Mr Baraklilis, Affidavit, [38]; “JB-7”.
53.The flat sheet extruder having been again decommissioned, on 29 August 2011, Mr Baraklilis applied for a voluntary redundancy package.[48] Mr Cecovksi will also give evidence that he applied for a redundancy package.[49] By reason of the ongoing relocation the worksite was unsettled and Mr Baraklilis was allocated ad hoc duties including: “cleaning the area near the canteen, driving forklifts and general work.” [50] Mr Cecovski’s evidence will be that he “did bits and pieces as I was asked.” [51]
[48] Mr Baraklilis, Affidavit, [50]; “JB-8”.
[49] Mr Cecovksi, Affidavit, [30].
[50] Mr Baraklilis, Affidavit, [51].
[51] Mr Cecovksi, Affidavit, [28].
54.In November 2011, Ms Lee told Mr Baraklilis that his application for a voluntary redundancy was unsuccessful.[52]
[52] Mr Baraklilis, Affidavit, [53].
55.In this period, in the second half of 2011, as Mr Baraklilis and Mr Cecovski were allocated ad hoc duties, they were paid as Level 3 Technical Employees and there was no written transfer to them of any other duties. They were in limbo. Mr Baraklilis’ evidence will be: “no one ever said to me that these duties [the ad hoc duties] were a permanent new job for me”. His evidence will be that “a transfer to general labouring process worker duties would not have been acceptable” to him.[53] To similar effect, Mr Cecovski’s evidence will be: “nobody told me what my job was now that the extruder had been sold.”[54] Also, “nobody told me that these bits and pieces were my permanent job. If someone had told me that these bits and pieces were my permanent job I would have said no because it was not skilled and technical work.” [55]
[53] Mr Baraklilis, Affidavit, [51].
[54] Mr Cecovksi, Affidavit, [27].
[55] Mr Cecovksi, Affidavit, [28].
56.Just before Christmas 2011, Futuris managers (Mr Gurarigia, Production Manager; Mr Neerat, Supervisor; and Ms Karen Dawson, Stores Supervisor) told Mr Baraklilis that he was going to be put into the stores to work. He protested that this was deskilling him. Mr Baraklilis took the matter up with his union.[56]
[56] Mr Baraklilis, Affidavit, [54].
57.By December 2011, most employees had moved across to the Hume Highway site.[57] Ms Lee’s evidence will be that between December 2011 and March 2012 the Barry Road site in the Hume Highway sites were consolidated.[58]
[57] Mr Baraklilis, Affidavit, [56].
[58] Ms Lee, Affidavit, [38].
58.By New Year 2012, each of Mr Barakliis and Mr Cecovksi told Futuris that they were not prepared to move across to the Hume Highway site because their jobs as flat sheet extruder operators had become redundant.[59]
[59] Mr Baraklilis, Affidavit, [57].
59.On 1 February 2012 Ms. Lee, Human Resources Manager, of the Respondent wrote to the First Applicant and the Second Applicant and expressly directed each of them to relocate in their employment from Barry Road to the Hume Highway site of the Respondent.[60] The pro forma letters do not identify what job the Applicants will perform after the relocation.
[60] Mr Baraklilis, Affidavit,[59]; “JB-9”; Mr Cecovksi Affidavit, [33], “SC-7”; SOC, [19]; Defence, [19]
60.On 6 February 2012 Ms Lee wrote a further letter to Mr Cecovksi asking him to confirm that he would meet the company’s requirements for the transfer to the Hume Highway site.[61] The letter is silent as to the job to be performed.
[61] Mr Cecovski Affidavit, [61]; “SC-8”.
61.On 23 February 2012 Mr John Vlahopoulos, HR Business Partner, Australian Operations of the Respondent wrote to each of the Applicants that[62]:
[62] Mr Baraklilis, Affidavit, [62], “JB-11”; Mr Cecovksi, Affidavit, [37], “SC-10”.
“The purpose of this letter is to confirm what those arrangements are and to request you to confirm that you will in fact transfer to the Hume Highway site
….
you will continue to be employed in your current role
….”
62.On 16 March 2012 Mr Vlahopoulos again wrote to both Applicants that the Respondent required the Applicants to relocate to the Hume Highway site and that[63]:
[63] Mr Baraklilis, Affidavit, [64], “JB-12”; Mr Cecovksi, Affidavit, [39], “SC-11”. SOC, [21]; Defence, [21].
“you will continue to be employed either in:
a)your current role; or
b)another role which requires you to utilise your specialist skills.”
No further particulars were provided either of the current role or “another role”.
63.On 20 March 2012 Mr Vlahopoulos wrote a third letter to the Applicants titled: “Termination of employment”[64]. Among other matters, Mr Vlahopoulos wrote:
[64] Mr Baraklilis, Affidavit, [66]; “JB-13”; Mr Cecovksi, Affidavit, [44]; “SC-12”.
“Despite the company’s repeated requests for your cooperation, you have refused to confirm that you will relocate to work out of and continue performing your duties from the Hume Highway site. The company is, in the circumstances, entitled to terminate employment, and has made the decision that your employment is to end. The termination of your employment will be effective today.….”
64.The evidence of each of the Applicants will be that they were ready to relocate to the Hume Highway site if there was a job available to them as a flat sheet extruder operator or exercising their technical skills. They were not prepared to relocate to stores work.[65]
[65] Mr Baraklilis, Affidavit, [70]; Mr Cecovksi, Affidavit, [44].
65.As at 20 March 2012, it is apparent that none of the Respondent’s witnesses propose to give evidence that there was a job as a flat sheet extruder operator available at the Hume Highway site.
H.Argument
66.As set out above, at least 4 issues arise for decision:
(a)what was “the job” which the Applicants were performing;
(b)had Futuris made a “definite decision” that it no longer wished that job to be done by anyone;
(c)what were the “reasons” for the termination of the Applicants’ employment at that date; and
(d)whether the Applicants rejected an offer of “suitable alternative employment”.
Legal principles
The relationship between the contract and the Enterprise Agreement
67.In Visscher v. Giudice[66] at [70] – [71] a plurality of the High Court said the following of the relationship between an Enterprise Agreement and a contract of employment:
[66] (2009) 239 CLR 371 (Heydon, Crennan, Kiefel and Bell JJ).
[70] The Full Court held that, regardless of the contractual position, Mr Visscher's interests were subordinated to the superior legal force of the Certified Agreement It is therefore necessary to turn to the legislative provisions respecting certified agreements and to the terms of the Certified Agreement in this case.
[71] Buchanan J referred to the Certified Agreement as having that superior legal force, because of the provisions of the WRA. So much may be accepted. An agreement which is certified by the AIRC prevails over terms and conditions specified in a State law, award or employment agreement and displaces conditions of employment specified in certain Commonwealth laws, to the extent of any inconsistency. Moreover an agreement made under Div 2 of Pt VIB, as this agreement was, binds the employer and all persons whose employment is, at any time when the agreement is in operation, subject to the agreement. The terms of the Certified Agreement confirmed that to be so. In Amalgamated Collieries of WA Ltd v True Latham CJ pointed out that where there was an award the legal relations between employer and employee are determined partly by the award and partly by the contract between them, but "[t]he award governs their relations as to all matters with which it deals." And in Byrne it was said that the contract of employment cannot derogate from the terms and conditions of an award, which operates with statutory force ….(footnotes omitted).
The “Job”
68.The Applicants’ entitlement to severance payments depends on proof, among other matters, that” “the employer no longer wishes the job the employee has been doing to be done by anyone.” Authorities as to the relevant concept of a “job” include Qantas Airways Ltd v Christie (“Christie”) [67] and Cosma v Qantas Airways Ltd (“Cosma”). [68]
[67] (1998) 193 CLR 280 at 304 – 305 at [72]
[68] [2002] FCAFC 425; (2002) 124 FCR 504 at [20]
69. In Christie McHugh J held at [72] – [73]:
[72] …. The term "a particular job" in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean "a specific and definable job, function or task" and its "inherent requirements" those "required by the characteristics of the particular job"[66]. A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term "job" is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform.
70.In Cosma a Federal Court (FC) held at [20] considered the meaning of the phrase “particular employment” as it appeared in the Disability Discrimination Act 1992 (Cth). An employee’s “job” is synonymous with a person’s “particular employment”. The Full Court held:
The expression describes the actual employment which the relevant employee was required to perform pursuant to his contract of employment. Some employees may be employed to perform specific duties. Others may be employed to perform unspecified general duties, depending upon what needs to be done at a particular point in time. There will also be cases in which a person, who was originally employed to perform particular duties, will come to perform quite different duties as the result of an express or implied variation to the contract of service. In each case the actual duties of the employee at the relevant time must be determined as a matter of fact, by reference to the original contract of service and any such variations. When an employee has been employed to perform specific duties, there may be little difference between, on the one hand, his or her specific employment, described by reference to those duties and, on the other, the inherent requirements of that employment. Both specific employment and inherent requirements of that employment are primarily questions of fact.
Application of principles to the current case
71.Proposition 1: the identification of the Applicants’ jobs requires the identification of the actual employment the Applicants were required to perform under the Enterprise Agreement. In this case, the Applicants’ jobs were determined by reference to the terms of the Enterprise Agreement rather than under any individual employment contract. In contrast to Cosma, a collective statutory instrument defined the job the employees were employed to perform.
72.As with all employment relationships, an employment contract underpinned the relationship between the Applicants and the Respondent. However, in this case the legal boundaries of the Applicants’ jobs were set by the Enterprise Agreement (not by any individual contract).
73.Clause 7A of the Enterprise Agreement specifically subordinated any “individual contract” to the terms of the Enterprise Agreement. That subordination reflected the superior statutory force of the Enterprise Agreement (see Visscher above). Further, the Enterprise Agreement governed all relevant matters: in particular, classification (clause 21 and Attachment B) and duties (clause 14.1.1). In that sense, the Enterprise Agreement governs relations as to all matters with which it deals and to the extent of any inconsistency between it and the individual contract of employment it must prevail: (see True as cited in Visscher above). Finally, at a practical level, the Applicants did not have written contracts of employment. It is not possible in any event to identify express terms of employment contracts separate and distinct from the Enterprise Agreement. Any implied terms of an individual contract were subordinated to the provisions of the Enterprise Agreement as to classification and/or the duties the employer was entitled to require these employees to perform. Finally, an Enterprise Agreement (which as a collective agreement is voted on by all employees with the majority-will prevailing) is not susceptible to variation in the same way as an individual contract: individual employees cannot “opt out”.
74.Proposition 2: under the Enterprise Agreement the Applicants were employed to perform specific duties (see: Cosma above) of Level 3, Technical Employees and the duties that pertained to that classification.
75.The classification structure for Level 3 Technical Employees under the Enterprise Agreement was highly prescriptive. The indicative tasks appeared to relate solely to the operation of an extrusion machine in all its facets. As a result, the Applicants jobs under the classification structure were as flat sheet extrusion operators in all its facets. Possibly, because the tasks were indicative there was a flexibility to direct the Applicants to perform other technical and skilled work. The classification structure also served to define what the Applicants’ jobs were not. For example, their jobs were not solely as forklift drivers or in stores: those jobs were at less skilled levels of the classification structure as prescribed by the Enterprise Agreement.
76.Proposition 3: clause 14.1.1 of the Enterprise Agreement (“Employee Duties”) set the boundaries of the duties Futuris (as the employer) was permitted lawfully to direct the employees to carry out. In summary, any direction had to be “consistent with the classification structure of this agreement”. It would not be a lawful direction to direct the Applicants to perform duties which were not “consistent with” Level 3, technical employee duties.
The alleged transferred from flat sheet extrusion work to another job, forklift driving?
77.Proposition 4: even though the Applicants performed other duties (they will say on an ad hoc basis) there was no reclassification of the Applicants. Their jobs remained as Level 3 Technical Employees with the duties that pertained to that classification. Any purported transfer of the Applicants to stores duties or forklift driving (without the necessary exercise of their technical skills) was contrary to clause 14.1.1. By directing the Applicants to perform duties inconsistent with the classification structure the Respondent was acting contrary to the Enterprise Agreement. More importantly, notwithstanding the direction, the jobs of the Applicants remained as defined by the Enterprise Agreement. Because of the superior statutory legal force of the Enterprise Agreement, the employees’ rights could not be reduced by an individual variation to their contracts of employment. The Respondent is in effect saying that the Applicants agreed to vary their contracts of employment by conduct and accepted forklift or stores jobs. They were, however, by reason of the superior legal force of the enterprise agreement at all times entitled to jobs (and their jobs remained) were as set out in the Enterprise Agreement.
78.The evidence the Respondent has filed is to the effect that, at some point in time (perhaps 2010) the Applicants had ceased to be flat sheet extruder operators and by conduct or implicit agreement agreed to vary their employment contracts and become forklift drivers or more generally stores employees. The Respondent’s evidence includes the following. Ms Lee will give evidence that they “drove forklifts.” [69] Mr Omdara will give evidence that Mr Baraklilis was “doing work as a forklift driver.”[70] Mr Miller will give evidence that: “both John and Simon worked as forklift operators and did a range of duties which include picking stock and delivering it to Production, loading and unloading trucks, unloading containers and general forklift work.”[71]
[69] Ms Lee Affidavit, [23].
[70] Mr Omdara, Affidavit, [6]
[71] Mr Miller, Affidavit, [9].
79.Under clause 14.1.1, the employer was entitled to direct the employees only “to carry out such duties as are within the limits of the employee’s skill competence and training consistent with the classification structure of this agreement.” If the job the Respondent now wished the Applicants to perform was solely forklift driving or stores work it lacked the requisite technical element to be a Level 3, Technical Employee job consistent with the classification structure.
80.Because of a combination of factors (dislocation caused by site relocation, Mr Baraklilis’ workplace injury and the decommissioning and recommissioning of the extruder) the actual duties of the Applicants were quite unsettled over an extended period. The Applicants’ evidence will be that to the extent that their duties changed they changed on an ad hoc basis. There was never an express variation: a clear offer of a new job as a forklift driver made by Futuris and accepted by the Applicants. Indeed the Applicants were implicitly told their jobs were unchanged: they continued to be Level 3 Technical Employees and they continued to be paid as such.
81.Even if (for the sake of the argument) as a matter of individual contract the Applicants agreed by conduct to vary their individual employment contracts and become forklift drivers they could not by individual agreement change their job under the Enterprise Agreement. Notions of waiver and estoppel are not applicable. For Futuris to direct the Applicants to perform exclusively forklift driving duties (or forklift driving plus stores) was contrary to clause 14.1.1, because it was not consistent with the classification structure in the agreement. Forklift driving was work to be performed at less skilled classification levels: Level 1 in the technical stream or Levels 3, 4 or 5 in the manufacturing/production employee stream (by reference to the incorporated Award classification provisions).
82.Although in contract will there is a notion of a party consenting to a variation of contract implicitly by conduct[72] the parties cannot vary mutual obligations under the enterprise agreement by conduct. The majority approved character of an enterprise agreement makes its variation more difficult than the variation of an individual contract. The Applicants jobs remained as Level 3, Technical Employees.
[72] See I. Neil and D. Chin, The Modern Contract of Employment (Thomson Reuters) 2012, [4.40], page 75.
83.As at 20 March 2012, the Applicants’ jobs (their duties consistent with the classification structure) had ceased. Because the employer had decommissioned and sold the flat sheet extruder it no longer wished the job the Applicants had performed to be done by anyone. There was no job which required duties of the required technical skill available. The Respondent had available a different job (forklift driving and general stores duties) but that was not the Applicants’ job the scope of which was defined by the Enterprise Agreement.
Had Futuris made a “definite decision” that it no longer wished that job to be done by anyone?
84.The job of each of the Applicants was as a flat sheet extruder operator.
85.Futuris had made a “definite decision” that it no longer wished that job to be done by anyone because it had decommissioned the flat sheet extruder. Further, it had sold the extruder to a third party. The fact that it was “contemplated that John and Simon may still need to use the extrusion skills in the future” [73] did not detract from the fact that a definite decision was made. Because a definite decision had been made, the Applicants had been directed to perform different ad hoc duties which constituted a different job (a job other than their job under the Enterprise Agreement). Relocation would change nothing: there was no flat sheet extruder at the Hume Highway site. After relocation, it appears likely that it was proposed they would perform forklift driving and general store duties.
[73] Ms Lee affidavit, [23]
What were the “reasons” for the termination of the Applicants’ employment as at 20 March 2012?
86.On 20 March 2012 the Respondent dismissed the Applicants from employment. The issue for decision is why it took that action
87.Although the letter of dismissal states that the reason for the dismissal was the refusal to relocate to the Hume Road site, it is submitted that that cannot be taken to be a comprehensive statement of the reasons. The consolidation of the two sites was the occasion of (rather than the reason for) the termination. The relocation-deadline crystallised the dispute: the Applicants were no longer prepared to tolerate a situation in which they were in limbo where they had been in effect directed to do duties which were not their job; a job inconsistent with their classification. (and deskilling??)
Suitable alternative employment
88.By letter dated 16 March 2012 Mr Vlahopoulos had written:
“you will continue to be employed either in:
(a)your current role; or
(b)another role which requires you to utilise your specialist skills.”
89.Those statements need to be deconstructed. The apparent “current role” was operating a forklift and general stores work. That was not the Applicants’ job because it was inconsistent with the classification structure and lacked the required technical element.
90.“Another role which requires you to utilise your specialist skills” might be suitable alternative employment. The Applicants’ evidence will be that they did not accept this statement at face value because they were not provided with “actual job details”[74]. It is submitted that in the particular circumstances of this case suitable alternative employment required the employer to disclose in actuality what the job was. “Another role which requires you to utilise your specialist skills” does not satisfy the test of “suitable alternative employment” set out in clause 19.6 of the Enterprise Agreement because the necessary details as to the other role was never provided to the Applicants. After the filing of the Respondent’s evidence the nature of the proposed role remains unclear.
[74] Mr Baraklilis, Affidavit [40]
91.Australian Commercial Catering v Fair Work Commission [75] is a recent Federal Court Full Court authority which considered the analogue concept of “other acceptable employment for the employee” in section 120(1)(b)(i) of the FW Act. The Full Court held at [52] and [54] as follows:
[75] [2015] FCAFC 189 (Tracey, Barker & Katzmann JJ)
52ACC argued that in determining whether the alternative employment is “acceptable” the decision-maker must consider such factors as:
whether the work is of a like nature;
whether the location of the employment being offered is “not unreasonably distant”;
whether the pay arrangements comply with award requirements;
the hours of work;
seniority;
fringe benefits;
workload and speed; and
job security.
….
54We accept that ordinarily factors such as these will be relevant to the determination of whether employment is “acceptable”.
92.Further, having regard to clause 19.1.6, “suitable alternative employment” has to involve: work or duties that the employee is able to perform which does not promote deskilling.
93.The offer of “another role which requires you to utilise your specialist skills” was not “suitable alternative employment” because Futuris had not identified what job (in reality) the Applicants were to perform. They were being offered a concept and, over many months, Futuris had not been able to reduce that concept to an actual job other than a job which promoted deskilling, namely forklift driving or general store duties, which were jobs at a less skilled or less specialised level of the classification scale.
I. Conclusion
94.For the reasons set out above, the Applicants are entitled to severance pay calculated in accordance with clause 19.1.5 of the Enterprise Agreement.”
On 2 August 2016 the respondent filed an outline of submissions which were as follows:
“1.Prior to 27 July 2011, the Applicants were employed by MCK Pacific Pty Ltd, trading as Plexicor. They worked at 235 Barry Road, Campbellfield in Victoria (the Barry Road Site). On 27 July 2011 the Applicants’ employment transferred to the Respondent. The Applicants continued to work at the Barry Road Site.
2. In late 2011 the Respondent commenced consolidating its Victorian operations; operations at the Barry Road Site were relocated to 1733 Sydney Road, Campbellfield (the Hume Highway Site).
3.The Applicants refused to relocate to the Hume Highway Site. Their employment was terminated with effect from
20 March 2012.4.The Applicants claim that they are entitled to severance pay in accordance with the Plexicor Australia & National Union of Workers Certified Agreement 2005 (the Enterprise Agreement). By an Application and Statement of Claim filed on 16 June 2015 the Applicants seek an order pursuant to section 545(2)(b) of the Fair Work Act 2009 (Cth) (the FW Act) for compensation in the amount of the severance pay they assert was payable under the Enterprise Agreement, the imposition of a pecuniary penalty against the Respondent under the FW Act and other orders.
5.The Respondent denies the Applicants’ claims.
ISSUES IN DISPUTE
6.The Respondent agrees that it is common ground that the Enterprise Agreement applies to the parties, and to the Applicants’ employment. The Respondent also agrees with paragraphs [12] to [16] of the Applicant’s submissions dated 1 July 2016 (the Applicant’s submissions) regarding the history and continued operation of the Enterprise Agreement.
7.The issues in dispute in the present matter arise from clause 19.1.1 of the Enterprise Agreement. Those issues are:
(a)what was “the job the [Applicants] had been doing”;
(b)had the Respondent made a “definite decision” that it did not require that job to be done by anyone; and
(c)if yes to (b), did that decision lead to the termination of the Applicants’ employment?
What was “the job the [applicants] had been doing”?
8.This question is at the heart of the dispute in this matter.
9.In the context of redundancy provisions, a reference to an employee’s “job” is a reference to “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”: Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308.
10.For the purposes of clause 19.1.1, the job the Applicants had been doing is a question of fact, to be determined having regard to all the circumstances.
11.The Applicants’ claim that their job was “Technical employees, Level 3 and the operators of a flat sheet extrusion machine” (see paragraph [6] of the Applicant’s submissions). The Respondent agrees that the each of the Applicants was classified Technical Employee Level 3.
12.However, the Respondent says, and the evidence will show, that while the functions, duties and responsibilities entrusted to the Applicants included operation of the flat sheet extruder, this was not the sole duty of either of them by the Respondent. Accordingly, operation of that machine does not constitute “the job that the [applicants] had been doing” for the purposes of clause 19.1.1.
13.The Applicants submit that they were employed to perform specific duties. Their identification of those duties appears to be based upon a misunderstanding of the purpose and scope of Attachment B to the Enterprise Agreement.
14.The starting point for identifying the job the Applicants had been doing is clause 14 of the Enterprise Agreement, which concerns “Employee Duties”. Clause 14 relevantly provides (emphasis added):
14.1To become entitled to payment of a weekly wage, an employee must perform such work as the employer shall from time to time require on the days and during the hours usually worked by the class of employee affected and in accordance with the terms of this agreement.
14.1.1An employer may direct an employee to carry out such duties as are within the limits of the employee’s skills, competence and training consistent with the classification structure of this agreement, provided that such duties are not designed to promote deskilling.
15.The Applicants were obliged under the Enterprise Agreement to perform such work as they were directed to do. That work could, in accordance with the terms of the Enterprise Agreement, include work at a different, including lower, classification than that at which they were employed (see clause 22A.2).
16.Attachment B to the Enterprise Agreement is a Human Resources Procedure regarding “Operator Classification Structure”. Its stated purpose is “To define the basic requirements for each level of the classification structure”, and it provides:
COMPETENCY STANDARDS
Each employee will be assessed using the competency standards written for their job classification. Every employee will be assessed in their ability to sustain the competency of each task including reaching production targets.
These competency standards have been specifically written for Plexicor Australia, based on competency standards in the plastics and metal industries.
PROMOTIONAL CRITERIA
Promotion from level 1, 2 & 3 will be based on competency and will not have a time restriction, …
The following attachments with regard to classification, tasks and all common duties are indicative only and may change with the introduction of new technology and business. The parties shall consult over these changes and post any changes on notice boards …
17.The reference to “following attachments” is a reference to two forms which set out tasks and common duties for Level 1, 2 and 3 employees in Plant 1 (in which the Applicants worked) and Plant 2. The forms indicate the number of tasks and duties required to demonstrate competency. The forms include provision for signatures against each element.
18.The forms included in Attachment B are not, and do not purport to be, a comprehensive list of duties required of the Respondent’s employees in Plant 1 and Plant 2. There is nothing in Attachment B, or the balance of the Enterprise Agreement, which supports a conclusion that the competency standards set out in the forms supersede clause 14.1 of the Enterprise Agreement.
19.In her affidavit sworn on 7 April 2016 Jennifer Lee, Human Resources Manager, stated that from 2009 the Applicants reported to Materials Planning and Logistics (MP + L)[76]. MP + L is also referred to as warehouse or stores.[77]
[76] See paragraph [23], see also paragraphs [4] and [9] of the affidavit of Jaimie Miller, Material Planner/Cycle Counter, sworn 5 April 2016 and paragraph [6] of the affidavit of Dalom Omdara, Robot Programmer, sworn on 5 April 2016.
[77]See paragraph [5] of the affidavit of Karen Dawson sworn 7 April 2016.
20.The Applicants do not appear to dispute the Respondent’s evidence that there was a decline in the extent of extrusion work undertaken in 2009/2010, prior to the flat extrusion machine being decommissioned in 2010. For example, Mr Cecovski stated that after Mr Baraklilis’ workplace injury in 2009, he (Mr Cecovski) operated the flat sheet extruder and it did not operate every day.[78] The Respondent says that in addition to operating the flat sheet extruder when required, Mr Cecovski undertook a range of duties in MP + L.
[78] See paragraphs [20] and [21] of Mr Cecovski’s affidavit sworn on 7 March 2016.
21.Mr Baraklilis stated that prior to his workplace injury on 23 July 2009 he worked exclusively on the flat sheet extruder.[79] However, the machine was not being run regularly at that time.[80] When not required to operate the flat sheet extruder, Mr Baraklilis undertook duties in MP + L.
[79] See paragraph [31] of Mr Baraklilis’ affidavit sworn 7 March 2016.
[80] See paragraphs [23] and [32] of Ms Dawson’s affidavit sworn 7 April 2016.
22.Following his workplace injury, Mr Baraklilis performed restricted duties in the period from 23 July 2009 to 31 July 2011 (except for the periods 6 April 2010 at 1 August 2010 and 1 December 2010 to 12 January 2011 when he was certified unfit for work). He was cleared to return to normal duties on 1 August 2011. The Respondent does not understand it to be disputed that from 1 August 2011, Mr Baraklilis undertook, and was paid for, a range of duties as directed by the Respondent. At that time, his duties did not include operation of the flat sheet extruder.
23.Mr Baraklilis has stated that he was told at a meeting “just before Christmas 2011” that he was “going to be put into the stores to work”, and that he protested this move.[81] However, contrary to that statement, and consistent with annexure JL-1 to Ms Lee’s affidavit, the “VOLUNTARY REDUNDANCY PACKAGE – Expression of Interest” document completed by Mr Baraklilis on 29 August 2011 gave his then current work area as “MP + L - Plant 3, forklift”.
[81] See paragraph [54] paragraph [54] of his affidavit sworn 7 March 2016.
24.On the evidence before it, it is open to the Court to be satisfied that the job that the Applicants had been undertaken from at least 2010 (while employed by Plexicor), including from 27 July 2011 when their employment transferred to the Respondent, was comprised of mixed duties which included operation of the flat sheet extruder when required and general warehouse duties in MP + L.
The Respondent had not made a “definite decision” that the job was not required to be done by anyone
25.At paragraph [30] of the Statement of Claim, the Applicants plead that the Respondent had made a definite decision that it no longer wanted the job that the Applicants had been doing to be done by anyone. They do not plead when that decision was alleged to have been made.
26.Paragraphs [83] and [84] of the Applicants’ submissions address the “definite decision” issue on the premise that the job the Applicants had been doing was limited to flat sheet extruder operator. For the reasons outlined above, this narrow construction of the Applicants’ job is not supported by either the terms of the Enterprise Agreement or the evidence as to the duties the Applicants actually performed and for which they were paid.
27.It is not alleged that the Respondent had made a definite decision that it did not require the mixed duties role the Applicants had been performing to be performed by anyone.
28.Even on the narrow construction of the job the Applicants were performing, the evidence does not support the decision that the Respondent had made a definite decision that the job was no longer required to be done by anyone.
29.The Applicants have said that the flat sheet extruder was sold in 2011,[82] and link the alleged “definite decision” to this sale.[83] Contrary to the Applicants’ assertion, Neil Langley, General Manager, stated that the flat sheet extruder machine was sold in March 2012.[84]
[82] See paragraph [46] of Mr Baraklilis’ affidavit sworn 7 March 2016 and paragraph [16.6] of Mr Cecovski’s affidavit sworn 7 March 2016.
[83] See paragraph [85] of the Applicants’ submissions.
[84] See paragraph [16] of Mr Langley’s affidavit sworn 4 April 2016.
30.The sale of the flat sheet extruder is not, in any event, determinative of the issue.
31.Applying the Applicants’ construction of Attachment B, they were required to perform tasks on the “Extruder”. But there is nothing in Attachment B, or the balance of the Enterprise Agreement, that identifies the particular extruder. Specifically, the task descriptions in Attachment B do not refer to the Welex flat sheet extruder referred to in the Applicants’ respective affidavits.
32.The evidence before the Court demonstrates that the Respondent was investigating different options for extruder work. The Applicants were aware that the Respondent was exploring options. In his own evidence, Mr Baraklilis stated that he was told by Ms Lee in November 2011 that he had been unsuccessful in an application for a voluntary redundancy because his skills were still required.[85]
[85] See paragraph [53] of Mr Baraklilis’ affidavit sworn 7 March 2016.
33.Options for extrusion work explored by the Respondent included:
(a)the manufacture of Ethylene Vinyl Acetate (the EVA project);[86] and
[86](b)the eWood project.[87]
[87] See paragraphs [14] and [15] of Mr Langley’s affidavit; paragraphs [14] to [19] of Mr Williams’ affidavit; paragraphs [26] and [27] of Ms Dawson’s affidavit; paragraph [19 of Mr Cecovski’s affidavit sworn 7 March 2016; and paragraphs [28] and [29] of Mr Baraklilis’ affidavit sworn 7 March 2016.
34.The EVA project was not ultimately pursued by the Respondent.
35.The Applicants have sought to discount the eWood project on the basis that the eWood extrusion machine purchased by a joint venture came with its own operators.[88] Their attempt to discount this project should be rejected.
[88] See for example [28] and [29] of Mr Baraklilis’ affidavit sworn 7 March, paragraph [22] of Mr Baraklilis’ affidavit sworn 3 May 2016 and paragraph [20] of Mr Cecovski’s affidavit sworn 3 May 2016.
36.Ms Dawson stated that she told Mr Baraklilis that he would probably work on the eWood extruder at the Hume Highway Site.[89] Further, Mr Williams stated that a second eWood extruder was purchased in July 2012[90]. The purchase of the second eWood extruder is clear evidence that the Respondent was continuing to explore and develop options in its extrusion business. It follows from the purchase of the second eWood that additional operators (beyond those referred to in paragraph 34 above) were required.
[89] See paragraph [36] of Ms Dawson’s affidavit.
[90] See paragraph [18] of Mr William’s affidavit.
37.The continued exploration and development of options in the extrusion business is inconsistent with the claim that the Respondent had made a definite decision that it did not require the job that the Applicants had been undertaking (assuming that job was extruder machine operator) to be done by anyone.
The reason for the termination of the Applicants’ employment
38.Because there was no “definite decision” as required by clause 19.1.1 of the Enterprise Agreement, the issue referred to at paragraph 7(c) above does not arise.
39.However, the Court can be satisfied from the evidence, in particular the correspondence annexed to the Applicants’ affidavits, that the reason for the termination of the Applicants’ employment was their refusal to relocate from the Barry Road Site to the Hume Highway Site.
40.By letters dated 6 February 2012[91] the Applicants were warned that if they did not relocate, their employment would be terminated. They did not relocate. Their employment was terminated when operations at the Barry Road Site ceased and the Site was closed.
CONCLUSION
41.For the reasons set out above, it is open to the Court to be satisfied on the balance of probabilities that the Applicants were not entitled to a severance payment under the Enterprise Agreement. It follows that the Respondent did not contravene clause 19.1 of the Enterprise Agreement in respect of the Applicants and did not contravene section 50 of the FW Act.
...”
[91] See annexure JB-9 to Mr Baraklilis’ affidavit sworn on 7 March 2016 and annexure SC-8 to Mr Cecovski’s affidavit sworn 7 March 2016.
Evidence
There were numerous facts and matters raised by the parties in these proceedings. The affidavit material is lengthy and covers a significant period of time. I do not intend to recite all of the evidence at trial, however all of that evidence, and the submissions made by the parties, has been considered and taken into account so far as they are relevant to deciding the questions the parties agreed were before the Court.
Before turning to the evidence of each of the witnesses for both the applicants and the respondent, it is timely to say something about their evidence generally. I did not form the view that the witnesses in this case were lying or that they deliberately set out to mislead the Court to the extent that the whole of their evidence was unreliable.
Each of the applicants presented as witnesses who whilst doing their best to assist the Court, did so using a subjective reconstruction of events looked at through the rear view mirror of unsatisfied expectations that they should have got a redundancy payment. The Court was not asked to make any credibility findings in relation to the respondents’ witnesses who all gave consistent and corroborative accounts of relevant events. I accept their evidence was in some respects contested by the applicants but I was given no reason to reject the evidence given by the respondent’s witnesses and I accept that evidence.
Applicant’s evidence
Mr Baraklilis
Mr John Baraklilis gave evidence and was cross examined.
Mr Baraklilis adopted his affidavits filed 8 March 2016 and 3 May 2016.[92] In his evidence before the Court Mr Baraklilis agreed that as he was classified as a Level 3 Technical employee under the Agreement he could do all of the tasks of Level 1 and Level 2, he could be directed to do so as there was nothing in the Agreement that meant he could only do Level 3 duties, and he had been told his application for voluntary redundancy was unsuccessful as his skills were required.
[92] See exhibits A10 and A11.
Mr Baraklilis also agreed he had received letters from the respondent[93] and his “role” at that time was working in MP & L his skills as an extruder operator were transferrable and he had said he would only have agreed to relocate to Hume Highway site if he got a “guaranteed redundancy” package.
[93] At court book page 115, 117 and 119.
Mr Cecovski
Mr Simon Cecovski gave evidence and was cross examined. Mr Cecovski adopted his affidavits filed 8 March 2016 and 3 May 2016.[94] In his evidence before the Court Ms Cecovski agreed he was classified as a Level 3 Technical employee under the Agreement and could work across all levels as directed. Mr Cecovski agreed he had been told his skills were needed and that was why his voluntary redundancy applications had been rejected. Mr Cecovski also agreed there had “probably” been more than one aspect to his job. Like Mr Baraklilis Mr Cecovski agreed he had been told by the respondent he was required, what would happen if he refused to move to the Hume Highway site and that he would only agree to do so if he got a guaranteed redundancy.
Respondents’ evidence
[94] See exhibits A12 and A13.
Ms Lee
Ms Jennifer Gloria Lee gave evidence and was cross examined.
Ms Lee who is employed by the respondent as Human Resources Manager adopted her affidavit filed 8 April 2016.[95]
[95] Exhibit R1.
Ms Lee gave evidence before the Court about inter alia the classification structure in the Agreement, how and where the applicants worked, that they worked where needed provided it fell within their skills, and that the respondent had intended to move both extruders to the Hume Highway site. Ms Lee also gave evidence that the applicants had a mixed role, that “no one was hired on just one” machine, the respondent wanted to increase the extruder business, she had told the applicants the respondent wanted them to move across and keep the skills of extruder operators. It was Ms Lee’s evidence that the applicants knew that their extruder operator skills were required and it was “common knowledge” the respondent planned to build the Ewood extruder part of the business. Ms Lee gave evidence by reference to floor plans and payroll records to corroborate this.[96]
[96] See exhibits R3, R4 and R5.
Mr Williams
Mr Sefton Williams gave evidence and was cross examined. Mr Williams who worked as a Commercial Manager for the respondent before his retirement adopted his affidavit.[97]
[97] Exhibit R6.
Mr Langley
Mr Neil Langley’s affidavit filed 8 April 2016 was read by the respondent and he was not required for cross examination.[98]
Mr Langley who is employed by the respondent as a General Manager deposed to his involvement with the consolidation of the Barry Road and Hume Highway sites.
[98] Exhibit R7.
Mr Miller
Mr Jaimie Robert Miller gave evidence and was cross examined.
Mr Miller had been employed by the respondent as a Team Leader.
Mr Miller adopted his affidavit.[99]
[99] Exhibit R8.
Ms Dawson
Ms Karen Lee Dawson gave evidence and was cross examined.
Ms Dawson who had worked as a Supervisor for the respondent adopted her affidavits.[100] In her evidence before the Court Ms Dawson said the applicants didn’t “exclusively” run the flat sheet extruder. Importantly it was Ms Dawson’s evidence that the applicants knew if they moved to the Hume Highway site they would work on the Ewood extruder. Ms Dawson told the Court that Mr Baraklilis had told her he understood he would be working on the Ewood extruder.
[100] Exhibits R9 and R10.
Whilst Mr Baraklilis had denied and then said he couldn’t recall the statements attributed to him by Ms Dawson I accept her evidence and there was no reason offered for why I should not do so.
Final submissions by the applicants
Counsel for the applicants relied on an outline of final submissions.[101] Those submissions were inter alia:
[101] Exhibit A14.
“… C. The Applicants’ Jobs
7.A “job” refers to the “collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation to a particular employee”: Jones v. Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J).
8.For most of their employment the Applicants’ “jobs” had been exclusively as extruder operators. It was technical and specialised work. They were performing those jobs at the commencement of the EA. As a result, they were classified as Technical Level 3 employees in the EA’s classification structure. As a result of extruding winding down, they were directed to perform general warehousing duties and forklift driving. In the second half of 2010, they did that warehousing work exclusively. For the first months of 2011 (at least from 17 January 2011 -11 April 2011 by reference to the return to work records of Mr Baraklilis) the Applicants reassembled the flat sheet extruder. Then, they operated the flat sheet extruder for the E.V.A. trials. After the machine was again dismantled in mid-2011, they were reallocated general warehousing duties and forklift driving. It may be noted that shortly after the flat sheet extruder was dismantled, in August 2011 both applicants applied for voluntary redundancy. Before 20 March 2012, the flat sheet extruder was sold. There was no flat sheet extruder at the Hume Highway site.
9.That narrative has led the Respondent to describe the Applicants jobs as comprising “mixed duties”. That may be accepted. It is the Applicants’ position that an essential ingredient in the mix (or an integral part of the job) was their performance of skilled and technical duties. Their jobs were warehousing, plus forklift driving, plus the technical operation of the extruder. If an integral element of the job was no longer available (and extruding was an integral element of the job) the employer no longer wished the mixed duties job the Applicants had been doing to be done by anyone. A job reduced to forklifting and warehousing was fundamentally different from a job which also had as integral element the technical aspect of the operation of a flat sheet extruder.
…
28.The Respondent was entitled to direct the Applicants to perform forklift driving or general store duties subject to the limitation in clause 14.1.1: namely, that an inherent part of the Applicants’ jobs was that the Applicants were able to utilise their specialist or technical skills. Provided that the Applicants were able to exercise their specialist or technical skills they had to follow directions in accordance with clause 14.1.1.
29.If, however, over time their duties had no technical or specialist element, that was not their job contrary to clause 14.1.1. Because they were classified as Technical Employees, Level 3 (at the top of classification scale) their jobs had to be forklift driving/ stores plus. If the duties they were directed to carry out reduced only to forklift driving or general stores that was contrary to the classification structure and “designed to promote deskilling”.
30.The demotion to duties which did not permit the employees to exercise their specialist skills was “designed to promote deskilling”. It is submitted that a direction to perform solely general warehousing and forklift driving duties meets the description of “designed to promote deskilling”. It was “designed” in the sense of planned to do so. The exclusive assignment of those duties can be “designed to promote deskilling” even if the employer assigned such duties only because of the business reality they had no specialised duties to allocate. The Applicants do not have to prove that the de-skilled duties were imposed by their employer out of ill will.
31.If the Applicants drove forklifts for a week or even a month or two that may be within reasonable give or take. However, they could not be deprived specialist or technical element to the job on an indeterminate and ongoing basis because they were thereby not being directed to do duties consistent with the classification structure.
Conclusion
32.An integral part of the Applicants’ job was the performance of skilled and technical machine operation work. In point of fact, skilled and technical machine operation work they had done for many years was flat sheet extrusion. If that integral part of their duties was removed, they were in effect being offered a different job.
…
42.In this case, up until late 2011 and early 2012 the situation was fluid. On the employer’s own evidence in the second half of 2010 a resumption of extrusion work was “contemplated”: Lee, Affidavit, [23]. A pay increment applicable to Level 3 technical employees was paid. In the first half of 2011 technical and specialised duties were directed and performed. Only on the extruder again being decommissioned in mid-2011 was it clear that the specialised and technical jobs of the Applicants were no longer available. The Applicants did not make a tacit agreement consensually to vary their employment. Their application for voluntary redundancy must be seen as a statement that jobs without technical or specialist skills were not acceptable them.
…
45.In mid-2011, the extruder was decommissioned and dismantled. The Applicants were not trained to perform or directed to perform any other technical and specialised work. That triggered the applicability clause 19.1.1 because the employer no longer wished the jobs the Applicants had been doing had been doing to be done by anyone.
46.In August 2011 the Applicants applied for voluntary redundancy. It was natural that they should do so. The EA anticipated that “volunteers be called for the first instance.” clause 19.1.4 (CB, page 359). They should not be criticised for their patience in that they were not told that their applications had been rejected until November 2011. Doubtless the dislocation caused by the ongoing process of the consolidation of the two sites (Barry Road and Hume Highway) caused some delay.
47.By the end of 2011, in circumstances in which they had not been allocated technical or specialised work which was a necessary ingredient (or integral part) of their jobs, their positions were redundant.
…
50.The decommissioning and sale of the flat sheet extruder leads inexorably to a conclusion that the Respondent had made a definite decision. A definite decision had been taken was no that no extrusion flat sheet work (the Applicants’ technical work) was required. The employer subjectively protested that it did not wish to retrench the Applicants but objectively it no longer wished the job they had been doing to be done by anyone.
…
52.It is common ground that the applicants did not work on the eWood extruder. In the context of clause 19.1.1, the “definite decision” concerns the job the employee “has been doing”. The job that the employees had been doing had been flat sheet extruding.
…
E. The reasons for termination
55.The consolidation of the 2 sites served to bring matters to a head. Had the Applicants relocated without protest, it may have been said against them that they had acquiesced to some form of consensual variation of their jobs. The consolidation of the 2 sites provided the occasion for the employees to communicate to the Respondent that they were no longer prepared to continue to perform duties other than the duties of the job.
56.On 16 March 2012 Mr John Vlahopoulos, HR Business Partner, Australian Operations writes to Mr Baraklilis and Mr Cecovski:
“you will continue to be employed either in:
a)your current role; or
b)another role which requires you to utilise your specialist skills.”
57.If the Applicants went to the Hume Highway site, the Respondent was confirming that the available role was the “current role”: that is the reduced position of forklift driving and general store duties which the Applicants had performed the end of the EVA trials.
58.That was not the Applicant’s job because it was stripped of an integral part: its specialised or skilled part. It was an unequivocal communication that their jobs were gone. It was confirmation, if any were needed, in the context of the dismantling and sale of the flat sheet extruder, that the ongoing employment was only of their “current role” where no special and technical duties form part of the job.
59.The Applicants were entitled to treat employment as terminated at the initiative of the employer as their jobs were no longer available. The employer had repudiated its obligations.”
In final submissions before the Court Counsel for the applicants appeared to narrow his clients’ argument regarding “the job” they had performed. Counsel for the applicants submitted the “job may have been mixed duties” but an “integral” part of it was work on the flat sheet extruder.
Counsel for the applicants submitted the respondent had engaged in ongoing repudiatory conduct, (in breach of the Agreement) which his clients accepted by refusing to relocate.
However Counsel for the applicants conceded that if his clients’ position on what their jobs had been was not established then the whole “edifice” of their case collapsed.
Counsel for the applicants submitted that in many ways this matter was “sad” and his clients had never understood what their role required and the consolidation of the respondents operations to the Hume Highway “brought the matter to a head”.
Final submissions by the respondent
In final submissions Counsel for the respondent told the Court there was broad agreement on the issues raised for decision at the trial. Counsel for the respondent submitted the applicants’ jobs were on the evidence classified as Level 3 Technical employees under the Agreement who carried out mixed duties. Counsel, for the respondent submitted this was consistent with both the classification structure and the competency standards at Attachment B to the Agreement.
Counsel for the respondent submitted the evidence was the applicants’ duties were an accumulation of those required and whilst they included work as “extruder operators” the evidence was they did “regularly” undertake other duties. Counsel, for the respondent pointed to the evidence of each of the applicants, that given by each of its witnesses and contemporaneous documentation such as exhibit A3.
Counsel for the respondent submitted the evidence was employees of the respondent went where they were directed, did not work on a particular machine and this was consistent with clause 14.1.1 of the Agreement.
Counsel for the respondent referred to a decision of the Fair Work Commission in support of the submission that given the terms of the Agreement (including the provisions of clause 14.1.1) the applicants’ “job” was comprised of mixed duties which included operation of the flat sheet extruder when required and general warehouse duties in MP & L.[102]
[102] see Fair Work Commission in Transport Workers Union of Australia v Q Catering Limited T/A Q Catering [2016] FWC 3051 at [41].
Counsel for the respondent pointed to the evidence of the applicants that they were classified as Level 3 Technical employees under the Agreement, their skills were transferable and submitted that the “fatal flaw” in the applicants’ case was that where the Agreement applied and contained clause 14.1.1 it simply could not be the case that their “job” was as a flat sheet extruder operator.
Counsel for the respondent submitted that on all the evidence the Court should find the applicants’ “job” was mixed duties which included working as extruder operators not just as a flat sheet extruder operator. Counsel for the respondent submitted the evidence showed the respondent had not made a definite decision the “job”[s] of the applicants were no longer required to be done. It was submitted the weight of the evidence was the respondent required employees with competency skills such as the applicants as it looked to continue and expand extruder operations through the Ewood extruder at the consolidated site. Counsel for the respondent submitted on the evidence there was no suggestion the applicants would be demoted, or lose their wages, accrued entitlements, service or competencies and the evidence was at the relevant time the respondent needed extruder operators.
Counsel for the respondent referred to a decision of the then Australian Industrial Relations Commission in support of its submissions that no definite decision had been made, for the purpose of clause 19.1.1 of the Agreement, that the applicants’ “job(s)” were not required to be done by anyone.[103]
[103] see Tristar Steering and Suspension Australia Limited Certified Agreement 2003 [2007] AIRC 2.
Counsel for the respondent noted it was not disputed that the union that had represented the applicants had been told the applicants were required and the respondent needed extruder operators and the applicants’ evidence was they refused to go to the consolidated site unless they got a “guaranteed” redundancy.
Interpretation of the Agreement
The principles to be applied in construing the Agreement were not put in issue.
In Kucks v CSR Limited (1996) 66 IR 182 (“Kucks”), a matter relating to the interpretation of an industrial award, Madgwick J held that that a narrow pedantic approach to interpretation of awards should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”[104]
[104] Kucks v CSR Limited (1996) 66 IR 182 at [184].
In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (“Amcor”) similar observations were made in respect of a certified agreement under the WR Act (like the Agreement in this case):
“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” [105]
[105] Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [253] per Gummow, Hayne and Heydon JJ
In Amcor (supra) Kirby J said at [270] to [271]:
“However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.
…
The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J inKucks v CSR Ltd, where his Honour observed:
‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. ...’ ”
In Amcor (supra) Callinan J also supported the observations of Madgwick J in Kucks (supra) stating:
“An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.”[106]
[106] Kucks v CSR Limited (1996) 66 IR 182 at [283].
Tracey J in National Tertiary Education Union v La Trobe University [2014] FCA 1330 said:
“20.The canons of construction which are applied to industrial awards and agreements are well known and were accepted by the parties in the present proceeding. The starting point is necessarily the text of the provision. It will not be read pedantically and due allowance will be made for the likelihood that the authors are industrial relations practitioners without legal training who have been striving to find a practical solution to disputed issues. Due allowance will also be made for the fact that the parties may choose to use terminology which has a well understood meaning in the industrial relations arena but might otherwise be regarded as lacking precision: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J) which was quoted with approval by two members of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). The provision falls to be construed in the context of the agreement as a whole or other relevant provisions of it and having regard to the legislative background against which the agreement was made and in which it operates: Amcor at 253 (Gummow, Hayne and Heydon JJ).”
Redundancy
The object and purpose of redundancy provisions generally was not put in issue. The “classic definition” of redundancy was given by Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 at 8:
“…the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desire to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.”
It is trite to observe that the meaning of the term “redundancy” may vary, depending on the particular industrial context and/or the text of an applicable industrial instrument. The word “redundancy … is not a concept of clearly defined and inflexible meaning” (see Amcor (supra) at 249 (per Gleeson CJ and McHugh J)). Nonetheless, it is clear enough, in an industrial context that “the emphasis [is] upon a ‘job’ becoming redundant rather a worker becoming redundant” (see Amcor (supra) at 259 (per Gummow, Hayne and Heydon JJ)). If a workers’ job becomes redundant the consequence may be that the worker will be “retrenched” in the sense that his or her contract of service will be terminated.
The concept of redundancy is that “…a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone”: R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6 at 8 per Bray J. Applied in Short v F W Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 521 per Burchett J; Dibb v Commissioner of Taxation [2004] FCAFC 126 at [33], 136 FCR 288 at 401-402 per Spender, Dowsett and Allsop JJ; Encyclopaedia Britannica Australia Ltd v David Campbell [2009] NSWCA 286 at [68] per Sackville AJA (Giles and Macfarlan JJA agreeing); Whittaker v Unisys Australia Pty Ltd [2010] VSC 9 at [92], 26 VR 668 at 685 per Ross J. For a redundancy to arise it may not be “necessary for the work to have disappeared altogether”: Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332-333 per Beazley J. Whatever is the exact reach of the phrase “redundancy”, it does not extend to the termination of an employee for cause.[107]
[107] see Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [27]
Not surprisingly both parties referred to the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304. In that case Ryan J observed a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In those circumstances, it was said that (at 308):
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Cooperative case…(at 308)”
In Dibb v Commissioner of Taxation [2004] FCAFC 126, the appellant had been employed by AVCO as a District Manager. AVCO acquired other businesses which resulted in having staff in excess of its requirements and decided to rationalise its workforce as a consequence. AVCO re-distributed the duties previously performed by its District Managers and added further duties. Mr Dibb was then surplus to AVCO’s requirements and it had no other position available for him. AVCO terminated his employment and paid him certain monies some of which were contended to be a bona fide redundancy payment.
The Full Court held that Mr Dibb had been made redundant within the meaning of sections 27A and 27F of the Income Tax Assessment Act 1936 (Cth). Spender, Dowsett and Allsop JJ referred to R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-Operative Ltd (supra), Short v FW Hercus Pty Limited (supra), Jones v Department of Energy and Minerals (supra), Quality Bakers of Australia Ltd v Golding (supra) and the dictionary definitions of “redundant”.
In Commonwealth Bank v Finance Sector Union of Australia [2002] FCAFC 193; (2002) 125 FCR 9 the Full Federal Court considered termination of employment in a redundancy situation where there was a quite different definition of redundancy in the relevant award. This definition referred specifically to "position redundancy". Nevertheless, the Court stated:
“27One is that redundancy within cl 42 means a position redundancy, not an employee redundancy. The usual meaning of “redundancy” in an employment context is “denoting or relating to an employee who is or becomes superfluous to the needs of the employer” (Macquarie Dictionary, 3rd ed). There are numerous indications, both within cl 42 and in other parts of the Award, which indicate that an officer of the Bank is appointed to an actual nominated position with nominated duties. The primary application of cl 42 is where, as a result of reorganisation, the nominated position becomes redundant and is abolished. That was the case in Hawkins. There is no finding that that occurred here, and the evidence indicates to the contrary. We accept that there may be circumstances where leaving the nominal position in place, but substantially altering the duties, could amount to making a position redundant. To hold otherwise would be to prefer form over substance. There is no room for application of that principle where the duties remain, in substance, the same. Indeed, it follows from Hawkins (No 2) that the formal abolition of a position will not amount to a position redundancy unless the change in duties is substantial enough to amount to a change of position. The test for position redundancy which cl 42 chooses is that the work to be done by the holder of the position is no longer required to be done, and it is common ground that that means no longer required by the Bank. We do not agree that (leaving aside any question of sham) the requirement by the Bank can be second-guessed. “Require” is used in the sense of demanded or called upon or enjoined. The agreed facts make it clear that the Bank did continue to require that the work be performed.”
The relevant provisions of the Agreement are similar to long standing provisions in industrial instruments, emanating from the Termination, Change and Redundancy test case (see Termination, Change and Redundancy case (1984) 8 IR 34; (1984) 9 IR 115) in the early 1980s and from time to time have been reflected in legislation.
In Amcor (supra) it was said that:
“... in the Termination, Change and Redundancy Case ... the emphasis was upon a “job” becoming redundant rather than a worker becoming redundant. As the Commission pointed out, the definition of “redundancy” which it adopted from the Adelaide Milk Supply Co-operative Case recognised that “redundancy situations may not necessarily involve dismissals”[108].
[108] at 259 [54] per Gummow, Hayne and Heydon JJ
The Full Court of the Federal Court in FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 (“FBIS”) considered the issue of ss.119 and 120 of the FW Act which deal with the statutory right to redundancy pay. At paragraphs [9] to [13] the Full Court considered the “origins” of the provisions that were under consideration in that case.
As the Full Court in FBIS (supra) explained the provisions now in the FW Act dealing with redundancy were first introduced for federal awards through the decision of the then Australian Conciliation and Arbitration Commission in Termination, Change and Redundancy Case (1984) 8 IR 34 and the supplementary decision in Termination, Change and Redundancy Case (1984) 9 IR 115. Both of those decisions referred to Bray CJ’s decision in R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6.
In Bampton v Viterra Limited [2015] SASCFC 86 a Full Court of the Supreme Court of South Australia considered the “historical origin”[109] of the text in the policy at issue in that case and then reviewed the case law on the meaning of redundancy at [196] to [208].[110]
[109] see para [189] – [195]
[110] see R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6; Short v F W Hercus Pty Limited [1993] FCA 51; Dibb v Commissioner of Taxation [2004] FCAFC 126; Encyclopaedia Britannica Australia Ltd v David Campbell [2009] NSWCA 286; Whittaker v Unisys Australia Pty Ltd [2010] VSC 9; Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327; Jones v Department of Energy and Minerals (1995) 60 IR 304; Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193; (2002) 125 FCR 9; Fosters Group Limited v David Kou Tien Wing [2005] VSCA 32; Hodgson v Amcor Ltd [2012] VSC 94 and
Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSC 377
The Full Court noted “construction of a contractual or statutory provision involves consideration of the text, context, evident purpose and fairness of the provision.” and “[C]aution is required in having regard to the construction of the word “redundant” in other cases addressing other agreements in other circumstances…”[111]
[111] see para [206]
Finally, Jessup J in Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 said:
“160.In its strict connotation in an industrial context, “redundancy” is a situation in which the employer no longer wants the work hitherto performed by a particular employee to be done by anyone: Termination, Change and Redundancy Case (1984) 9 IR 115 at 128; Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; (2001) 111 IR 241 at 271 citing Bray CJ in R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 at 8. In that sense, it may be said that the job or position, rather than its incumbent, is “redundant”.”
Consideration
The applicants’ case was effectively put on the basis that they held a “job” as the operators of a flat sheet extrusion machine. They claimed when the respondent “ceased” using the flat sheet extrusion machine, their “job”(s) were redundant, they are entitled to severance pay under the Agreement and they never rejected an offer of suitable alternative employment.
There was no argument made by or on behalf of the applicants that the relocation of the work that was done in the course of their employment to the new site, as such led to a determination that the respondent no longer wished the “job” to be done.
The applicants acknowledge they would only be entitled to severance pay if their employment was terminated for the reasons set out in clause 19.1.1 of the Agreement.
As the Full Court in Dibb (supra) made clear the meaning of the clause must be construed in the context in which it appears. In considering the provisions of the Agreement I have applied the normal principles of interpretation with primary emphasis on the plain words of the Agreement.
The terms of the Agreement make clear it applies to the respondent and employees covered by it (and this included the applicants) and was not limited to the Barry Road site. The Agreement, on its own terms, is read and interpreted in conjunction with the relevant award but where there is any inconsistency the Agreement takes precedence. The position of the parties before the Court was that the issues in dispute between them should be resolved on the evidence and by resort to the terms of the Agreement.
There was no evidence that either of the applicants were appointed to the “job” as operator of the flat sheet extruder on the basis of a documented employment contract. The evidence was the applicants were classified as Level 3 Technical employees under the Agreement and had been so classified for some time.
Clause 21 of the Agreement set out the classification structure. Attachment B to the Agreement which was a Human Resources Procedure said inter alia “the following attachments with regards to classification, tasks and all common duties are indicative only…”. The table at Attachment B set out at Level 3 what competencies were required and provided inter alia that all Level 1 and Level 2 tasks were required in addition to those of Level 3 as well as common duties.
Nowhere in the table which forms part of Attachment B to the Agreement is there a delineation between particular types of extruders or particular types of extruder operators such as to provide some basis in the Agreement to the applicants’ argument.
Given the terms of the Agreement the classification structure and competency standards I can find no basis on the evidence (in the absence of a specific written contract) that would override the provisions of the Agreement. Under the provisions of clause 14 of the Agreement the applicants were able to be directed by the respondent to undertake any duties within their skill, competence and training provided that those duties were not designed to promote de-skilling. Counsel for the applicants referred to a number of decisions in submissions in support of an argument that the duties the respondent provided did that. I reject that submission. The evidence was the respondent wanted to keep the skill base of its employees and there was extruder work available and duties for the applicants at the Hume Highway site.
The applicants appear to have the impression that the most important function they performed was associated with the operation of the flat sheet extruder. However the evidence of the respondent was that the applicants were engaged in a mixed duties role and (in accordance with the Agreement) could and were required to carry out such duties as were within the limits of their skill, competence and training.
As was made clear in the evidence before the Court the provisions in the Agreement with respect to the classifications and duties are indicative of a substantial degree of flexibility and scope for change. The provisions of the Agreement do not place restrictions on the work which the applicants might have been asked to do with the exception that those duties were not to have been designed to promote de-skilling.
In relation to the argument made on behalf of the applicant in submissions that the respondent had engaged in repudiatory conduct (putting to one side for present purposes the absence of any evidence of a contractual right to insist on employment in the position of flat sheet extruder operator) the evidence does not suggest the “changes” to the work done or the duties the applicants did were non-consensual,[112] nor that the changes amounted to a serious intrusion upon the status and responsibility of the applicants or that there was any impact on the applicants’ remuneration. The applicants were not demoted in any sense under the Agreement. The applicants maintained their classification and remuneration and on the evidence I accept the respondent wanted to keep their skills.
[112] Even if it was the lengthy ongoing period of employment was consistent with the applicants accepting the conduct
Counsel for the applicants referred to the decision in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 in support of the argument that the “job” the applicants did was as operators of the flat sheet extruder and the changes to their duties amounted to a repudiation of their contracts of employment. The other authorities referred to by the applicants in submissions on the issue of what was their “job” were both decisions in the context of anti-discrimination legislation.
A person’s position as distinct from their job is primarily concerned with the level or rank from which that person performs their job or tasks. What is required of a person’s position however will usually require an examination of the tasks performed from that position.[113]
[113] Qantas Airways Ltd v Christie (1988) 193 CLR 28 at [72].
In Dibb (supra) at [41] the Full Court referred to the decision of Ryan J in Jones v Department of Energy and Minerals (supra) which was that a job involves a collection of functions, duties and responsibilities entrusted as part of the scheme of the employer’s organisation to a particular employee. The focus is on the “work undertaken” by the employee[114] or the “mental and physical tasks carried out for the employer”.
[114] Amcor (supra) at [52].
The “changes” that occurred in 2009, 2010 and 2011 were within the scope of the Agreement which by statutory force governed the terms and conditions of the applicants’ employment.[115] On the evidence before the Court, and given the terms of the Agreement, there was no substantial or significant alteration to the scope of the applicants’ employment responsibilities or their contracts of employment.
[115] Byrne v Australian Airlines (1995) 185 CLR 410.
There was no suggestion the directions by the respondent were not lawful and reasonable. The authority to do so was provided for in the Agreement. The directions must also be taken to have been reasonable as they were consistent with inter alia the terms of clause 14 and the objectives of the Agreement.
There was no argument in this case that the respondent no longer required extruder operators or Level 3 Technical employees. Given the terms of the Agreement I am unable to conclude that the changes as a matter of “fact and degree” in the functions performed by the applicants were of such significance that they represented a repudiation of the applicants’ contracts of employment or that they were duties the respondent was unable to request of the applicants.
There was no written contract of employment or other document providing the applicants were employed in the job of flat sheet extruder operator. As the respondent contended in submissions:
“12.… while the functions, duties and responsibilities entrusted to the Applicants included operation of the flat sheet extruder, this was not the sole duty of either of them by the Respondent. Accordingly, operation of that machine does not constitute “the job that the [applicants] had been doing” for the purposes of clause 19.1.1.”
Turning to the definition of redundancy in the Agreement, this is not a case where there was, on the evidence, “no longer any function of duty to be performed” by the applicants. In late 2011 and early 2012 the evidence before the Court established that the respondent still required extruder operators (such as the applicants) and had work available for the applicants to do. The proposition that the respondent couldn’t allocate and require the applicants to perform other functions and duties at the Hume Highway site appears fundamentally inconsistent with the objectives and provisions of the Agreement.
Applying the approach referred to in the authorities, considering the facts of the case and the terms of the Agreement, I am not satisfied “the job” the applicants had been doing can properly be described as the operator of a flat sheet extruder. The applicants’ “job”[s] comprised the job title and the duties which were attached to it. In the present matter, these continued to exist. Having regard to the text of the Agreement and its operation as a whole the positions of the applicants continued, the duties that they had been doing were still required and had not been made redundant. The evidence of the respondent, which I accept, was that it required skilled extruder operators and the applicants (classified as Level 3 Technical Employees under the Agreement) were told the respondent had work for them and the applicants were directed to move to the Hume Highway site.
On the evidence before the Court and given the terms of the Agreement there was no repudiation of the applicants’ employment contracts, the respondent had not made a definite decision that “the job” or the duties the applicants had been doing was no longer to be done by anyone and accordingly there was no entitlement to redundancy under the Agreement. Finally, in light of those conclusions it is necessary to note, that I accept the respondent’s submission, that the evidence is the reason for the termination of the applicants’ employment was their refusal to relocate from the Barry road site to the Hume Highway site.
Conclusion
For the reasons set out above the application filed 16 June 2015 should be dismissed. Given s.570 of the FW Act any application for costs is to be filed within 14 days and any response 14 days thereafter. Any application for costs will be determined on the papers unless the parties request otherwise.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 16 December 2016
See [10] to [12] of Mr Langley’s affdavit; paragraphs [9] to [12] of the affidavit of Sefton Williams, Commercial Manager, sworn 6 April 2016; paragraph [25] of Mr Cecovski’s affidavit sworn
7 March 2016; and paragraphs [44] and [45] of Mr Baraklilis’ affidavit sworn 7 March 2016
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