Bartercard Digital Australia Pty Ltd - [2024] FWC 828

[2024] FWC 828

The attached document replaces the document previously issued with the above code on 2 April 2024.

Changes to paragraph [50], [51], [60] and [61] with correct length of service.

Associate to Deputy President Lake

Dated 3 April 2024

[2024] FWC 828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Bartercard Digital Australia Pty Ltd

(C2023/7573)
(C2023/7576)
(C2023/7586)
(C2023/7588)
(C2023/7592)

DEPUTY PRESIDENT LAKE

BRISBANE, 2 APRIL 2024

Variation of redundancy pay – alternative employment offered – whether alternative employment acceptable – alternative employment acceptable – unfairness – redundancies varied.

On 6 December 2023, Bartercard Digital Australia Pty Ltd (the Applicant/Bartercard) applied to the Fair Work Commission (the Commission) under s.120(2) of the Fair Work Act 2009 (the Act) to vary the redundancy entitlements of Mr Ashar Ahmad, Mr Michael Dean, Ms Jayne Corby, Ms Diana Pavic and Ms Lynette Gooding (the Respondents) to nil or an amount deemed appropriate by the Commission.

The Respondents advised my Chambers that they opposed the variation of redundancy. The matters were listed for hearing on 2 February 2024. The Applicant was represented by Mr Michael Johnston, Director, and Mr Paul Hebbink, Chief Operating Officer. The Respondents each appeared on their own behalf.

Background

The Respondents were engaged as Business Development Managers, working primarily from one of the Applicant’s offices located throughout Australia. As part of their roles, the Respondents managed a portfolio of member accounts, and were required to communicate with and educate clients in relation to Bartercard’s service, promote networking amongst members and promote the overall growth of its enterprise. The role also required the Respondents to conduct face-to-face visits with clients. The Respondents were provided a $5,000 annual vehicle allowance to undertake these visits.

In September 2023, Bartercard restructured their business which meant they no longer required the Business Development Managers to work in an office. On 19 October 2023, the Respondents were advised that some positions were likely to be made redundant. The same day, the Respondents each received a written offer of employment in a new role known as a Trading Specialist. A position description of the role was also provided. The Respondents were informed that if they chose not to accept the new role, their employment would be made redundant.

The Trading Specialist position description outlined that the primary responsibility is to generate revenue, grow the number of clients, educate and support existing clients, and maintain a commitment to high quality in all interactions. Rather than a set client base, a Trading Specialist would deal with a variety of clients and would be responsible for handling telephone client enquiries.

A key difference between the Business Development Manager and Trading Specialist roles was that the Trading Specialist role was to be performed entirely from home due to the closure of the Applicant’s physical offices. Bartercard provided the Respondents with a working from home allowance.

Between 23 and 27 October 2023, Bartercard held consultation meetings with the Respondents regarding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartercard Digital Australia Pty Ltd

Details

AGLC: Bartercard Digital Australia Pty Ltd [2024] FWC 828
Case: [2024] FWC 828
Decision Date: 2 APRIL 2024

CaseChat Overview and Summary

Bartercard Digital Australia Pty Ltd recently appeared before the Fair Work Commission, where the company sought to vary the redundancy payments to its employees. The dispute arose when the company proposed a reduction in redundancy pay due to the offer of alternative employment to its employees. The Fair Work Commission was tasked with determining whether the proposed alternative employment was acceptable, and if the variation in redundancy payments was fair.

The primary legal issues before the Commission were whether the alternative employment offered by Bartercard Digital Australia Pty Ltd met the criteria for acceptable alternative employment under the Fair Work Act 2009, and if the proposed variation in redundancy payments was fair. The Commission needed to assess if the alternative positions offered were comparable in terms of skills, responsibility, duties, working hours, and remuneration to the positions the employees were made redundant from. Additionally, the Commission had to consider whether the variation in redundancy pay was justified and whether the process followed by the employer was fair.

The Fair Work Commission found that the alternative employment offered by Bartercard Digital Australia Pty Ltd was acceptable, as it met the necessary criteria in terms of comparability with the previous positions. The Commission noted that the alternative positions provided were similar in nature, and the employees would not suffer a significant detriment by accepting the new roles. The Commission also determined that the variation in redundancy payments was fair, considering the nature of the alternative employment and the overall circumstances of the redundancies. The Commission emphasised that the process followed by the employer was fair, and the variation in redundancy payments was justified based on the acceptance of suitable alternative employment.

As a result of the Commission's decision, Bartercard Digital Australia Pty Ltd's variation in redundancy payments was upheld, and the employees were required to accept the alternative employment offered. The Commission's decision ensures that the rights of both the employer and the employees are balanced, and that the process for varying redundancy payments is fair and in accordance with the Fair Work Act 2009.

Orders