[2021] FWC 4995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.122 - Transfer of employment situations that affect the obligation to pay redundancy pay

Blackheath and Thornburgh College
(C2021/3412)

COMMISSIONER SIMPSON

BRISBANE, 13 AUGUST 2021

Transfer of employment situations that affect the obligation to pay redundancy pay – Applicant obtained other employment – Other employment not other acceptable employment – Whether entitlement to redundancy excluded by s.122(3) –Rejection of employment where there would have been a transfer – Section 122(3) not satisfied as offers of employment did not satisfy s.122(3)(i) – In the alternative if s.122(3) applied it would have operated unfairly in accordance with s.122(4)

[1] Blackheath and Thornburgh College (the Applicant/the College) has made an application to have the Fair Work Commission (the Commission) reduce the payment of redundancy to Ms Julieta De Luque, Ms Alma Thomson and Ms Nenita Richter to zero.

BACKGROUND

[2] This matter was filed as a continuation of matter C2021/1641 in which the Applicant filed a Form 45A under s.120 of the Fair Work Act 2009 (the Act). The Independent Education Union of Australia (the IEU) had raised a jurisdictional objection that the subject employees were not entitled to redundancy pay because of section 119 of the Act.

[3] On 28 May 2021 I issued a decision 1 in matter C2021/1641 finding that the application could not proceed in the form submitted as it sought a remedy to order the reduction of redundancy pay amounts under s.119 when the amounts of redundancy pay did not arise from s.119, but rather from the redundancy pay amounts set out in the Blackheath & Thornburgh College Enterprise Agreement 2018 (the Agreement).

[4] Despite that deficiency in the application, I found that the Commission does have power to deal with the dispute regarding the redundancy pay amounts described in the Agreement for reasons set out in that decision, in short that the parties to this Agreement intended for the redundancy pay under the Agreement to apply to the extent of inconsistency with the NES, but the parties also intended under the Agreement for the NES provisions in section 119 to 123 of the Act to otherwise be applied.

[5] The matter was listed for mention on 8 June 2021 to give the parties an opportunity to be heard on how the matter should proceed including whether the application could be amended. The Applicant ultimately filed a new application and I proceeded to determine the matter.

[6] The College submitted that it had sourced acceptable employment for these employees, incorporating their current terms and conditions in accordance with section 120 of the Act, however its primary argument was that section 122(3) applied on the basis that the three Respondents were not entitled to redundancy pay as they had refused employment that was no less favourable as defined in s.122(3)(a).

EVIDENCE

2020 negotiations with Catercare

[7] Ms Tracie Norrie, Finance and Administration Manager at the College provided a witness statement 2 in support of the application. Ms Norrie said that in 2020 the College entered contract negotiations with Catercare to outsource the catering services of the College.

[8] Ms Norrie said that as outlined in the proposal for the provision of catering services 3 the College ensured the continuation of employment for all current staff including all current conditions and entitlements. Ms Norrie said this cost forms part of the contract price to the College.

[9] Ms Norrie relied on a document provided with her statement headed ‘Proposal for the provision of catering services’ from Catercare. The proposal document included the following:

“Should any existing staff transition to Catercare, the Fixed Fee will be adjusted to reflect changes in the payroll impacted by any staff employed on the Blackheath and Thornburgh College EBA. All Blackheath and Thornburgh College EBA staff entitlements (Annual Leave, Long Service Leave, Personal Leave, other leave) are to transition upon successful employment to Catercare.”

Meeting 1 March 2021

[10] Ms Norrie said on 1 March 2021, the College had a meeting with Kitchen Staff advising of the changes that were happening, along with information from Catercare regarding the transition process. Ms Norrie said present were:

• On Behalf of the Applicant - Mr Simon Murphy- Principal, Mr Basil Mabuza – Facilities Manager and Ms Tracey Norrie- Finance and Administration Manager; and

• Ms Julieta DeLuque, Ms Alma Thomson, Ms Kimberley Santo, Ms Nenita Richter, Ms JessmaEdwards.

[11] Ms Norrie provided information discussed and presented at the consultation meeting. 4

[12] Ms Norrie was referred to the letter sent to the employees on 1 March. Ms Norrie accepted the letter stated College employees would be given priority interviews with Catercare. Ms Norrie accepted the letter also states that the College had no say in who would receive a job. Ms Norrie accepted this and said that in such a case the redundancy would come in to play.

[13] Mr Basil Mabuza, Facilities Manager at the College also provided a witness statement. 5 Mr Mabuza said on 1 March 2021 Mr Simon Murphy, Ms Norrie and himself met with the kitchen staff, Ms DeLuque, Ms Thompson, Ms Santo, Ms Richter and Ms Edwards where the kitchen staff were advised of the kitchen being outsourced to Catercare.

[14] Mr Mabuza accepted he was present at this meeting referred to in paragraph 2.2 of his statement and that a document was circulated to affected employees. Mr Mabuza accepted he received a copy of this document and that he was familiar with its contents.

[15] It was put to Mr Mabuza that the document indicated that the Applicant would facilitate priority interviews for the affected employees with the new contractor. Mr Mabuza accepted this. It was put that these interviews could have resulted in the new contractor not accepting one or more of the affected employees. Mr Mabuza accepted this also.

[16] An excerpt from the correspondence to employees included the following:

“Dear Staff Member,

In 2020 key stakeholders within the school board and executive began a review of the colleges catering processes including the eating habits of the students. Throughout this process there has been a clear commitment from the College to improve nutritional quality and variety of meals, including the reduction of processed foods. To proceed with this direction the college must adjust its position in the catering market.

On reviewing the options, the College guided by the Board have decided to engage a catering company to manage future kitchen operations. The introduction of a catering company will provide greater buying power, increased variety and nutritionally proven meals for the students of Blackheath & Thornburgh College. The successful contractor will begin operations to commence service from day 1, Term 2 2021.

We would like to reiterate that this decision is in no way reflective of the performance of any staff member(s) and we would like to take this opportunity to thank each and every member of the kitchen team for their efforts which are sincerely appreciated by the College Community.

What do this mean for you future?
While it will not be business as usual for current employees, the college has negotiated with the successful contractor that all current staff will be given priority to interview for positions with the new catering contractor. While we do not have any say in who the company willemployee, we will endeavor to assist all staff in the process.

From here there are two scenarios for existing college kitchen staff:

1. If you are employed by the incoming contractor.
- You will still be employed by Blackheath and Thornburgh college until the hand over date of the contract. All personal leave and long service leave entitlements will be transferred to the new employer and they will honor all current balance's the new contractor will proceed with consultation and possible training. You will be employed as per the new contractors' procedures and processes including awards. Your current pay rate will stay the same and will be honored but will not increase in the future until this rate aligns with Hospitality Industry (General) Award 2010.

2. If you are unsuccessful in obtaining a position with the Incoming contractor.
- You will still be employed by Blackheath and Thornburgh college until the hand over date of the contract. You will be paid any leave entitlement owing to you as of you last working day. Where eligible you will be paid a redundancy based on the Blackheath and Thornburgh enterprise agreement…….”

[17] Ms Norrie was taken to Attachment 2 to her statement and accepted it was not the version of the letter that was sent to kitchen staff and that this was an oversight. Ms Norrie accepted the correct version was the copy attached to the Respondents’ statements.

[18] Mr Simon Murphy, Principal of the College also provided a witness statement for the Applicant. 6 Mr Murphy said that a meeting was called with the kitchen staff advising of proposed changes to catering services at the College. He said at this time information from Catercare regarding the transition process was presented to and discussed with staff as part of the consultation process. He said Ms Norrie, Mr Mabuza, Ms DeLuque, Ms Thompson, Ms Santo, Ms Richter and Ms Edwards were present.

[19] Ms Julieta DeLuque provided a witness statement in response to the application. 7 Ms DeLuque said she had been employed in the kitchen at Blackheath and Thornburgh College since January 1999. Ms DeLuque said initially she was employed as a Kitchen Hand and after about four years she was employed as a Cook.

[20] Ms DeLuque said she received an email from Mr Mabuza asking her to attend a meeting with Ms Norrie in the kitchen on Monday 1 March 2021. Ms DeLuque provided a copy of this email with her statement. 8

[21] Ms DeLuque said she attended the meeting and that all of the kitchen staff were at the meeting as well as the Facilities Manager, Business Manager and the College Principal, Simon Murphy. Ms DeLuque said all of the kitchen staff at the meeting were handed a letter addressed to "Dear Staff Member" Ms DeLuque provided a copy of this letter with her statement. 9

[22] Ms DeLuque said they were told that if they accepted a position with Catercare that their pay would remain the same, but their conditions would change to the Award.

[23] Ms DeLuque said she was quite shocked to hear this news as she knew nothing about the plan to outsource the kitchen. Ms DeLuque said she had not been consulted about it or advised that it was being considered.

[24] Ms DeLuque said after the meeting, the Business Manager approached her and told her that she was going to recommend Ms DeLuque to take charge of the kitchen. Ms DeLuque said she told Ms Norrie she was not sure that she was able to do this role.

[25] Ms DeLuque said the Principal was listening in to this conversation and said to Ms DeLuque "you don't have to take the position if you don't want it". Ms Deluque said that she replied that she would think about it. Ms DeLuque said the letter she received on 1 March 2021 had errors on the second page and did not show what the redundancy payments were.

[26] Mr Murphy took Ms DeLuque to her statement at paragraph 7 and asked if she was aware the school were reviewing catering hall operations prior to the meeting. Ms DeLuque said her answer was that she was told her employment would change over to a new employer with no explanation.

[27] It was put to Ms DeLuque that ‘Barbara’ came in to do a review of the Kitchen for three days. Ms DeLuque said she was not introduced to anyone.

[28] Ms DeLuque was asked if the contents of the letter dated 1 March at Attachment 2 to her statement was gone through at the time in that meeting in detail with the staff. Ms DeLuque agreed this was the case. Ms DeLuque was asked if the letter outlined the quantum of redundancy that would be available to staff who were unsuccessful obtaining employment to which Ms DeLuque agreed.

[29] Ms Alma Thompson also provided a witness statement 10 for the Respondent. Ms Thompson said she was employed as a Kitchen Hand the College from 23 August 2010 to 1 April 2021. She said her employment with the Applicant ended when an outside contractor took over the operation of the Kitchen in Term 2, 2021.

[30] Ms Thompson said on 26 February 2021 she received an email from Mr Mabuza advising her of a meeting with Mr Murphy and Ms Norrie on 1 March 2021 in the Dining Hall. Ms Thompson said she attended the meeting and also present were all of the College kitchen staff, as well as Mr Murphy, Ms Norrie and Mr Mabuza.

[31] Ms Thompson said a letter was handed to all of the kitchen staff at the meeting that Ms Thompson attached to her statement. 11 Ms Thompson said after the meeting she noticed that the letter contained errors in the table on page 2.

[32] Ms Thompson said Mr Murphy told the kitchen staff that the College had decided to outsource the operation of the kitchen to Catercare. Ms Thompson said Mr Murphy told staff that if they accepted a position with Catercare their pay rate would remain the same, but their conditions would change to the Catercare Award. Ms Thompson said she was surprised and upset when she heard this news because she had no idea this was happening, and it was so sudden. Ms Thompson said no-one had spoken to her and there had been no consultation with staff about this plan.

[33] Ms Thompson said everyone at the meeting remained quiet throughout the meeting. She said she thought this was because the staff were all so upset and shocked at hearing about this decision.

[34] Ms Thompson was taken to point 7 of her statement where she stated she was surprised about the changes being made in the dining hall. Ms Thompson was asked if she recalled a lady called ‘Barbara’ coming in to do a review of the kitchen. Ms Thompson said she did not recall this.

[35] Ms Nenita Richter also provided a witness statement in response to the application. 12 Ms Richter said she received an email from the Facilities & Maintenance Manager dated 26 February 2021 saying that they were having a meeting at the dining hall with the Principal and Finance Manager on 1 March 2021.

[36] Ms Richter said during that meeting they gave the kitchen staff a piece of paper to read that Ms Richter provided a copy of this to her statement. 13

[37] Ms Richter said the letter provided that next term the catering company will be taking over the kitchen and she was surprised and shocked. She said there was no consultation in this matter and that she didn't expect this.

[38] Ms Richter was asked if she could recall ‘Barbara’ coming into the kitchen to review procedures. Ms Richter this was the first time she heard the name Barbara.

Staff Interviews with Catercare 10 and 11 March 2021

[39] Ms Norrie said on 10 and 11 March 2021 all kitchen staff were interviewed by Catercare and the College were advised that all staff members were offered positions within the organisation. Ms Norrie said the terms and conditions of employment by Catercare were the same as offered under the College enterprise bargaining agreement along with a transfer of all leave entitlements.

[40] It was put to Ms Norrie that it was never put to Ms DeLuque that she would receive the higher long service leave accrual rate. Ms Norrie said she was not sure what conversations were had. Ms Norrie accepted she was not in the room for these interviews as they were between employees and Catercare.

[41] Ms Norrie was asked why nobody from Catercare was called to give evidence about these issues. Ms Norrie said Catercare did not wish to participate in an industrial dispute between Blackheath and former employees.

[42] Mr Murphy said on 10 and 11 March 2021 all kitchen staff were interviewed by Catercare and the College was advised that all staff members were offered positions within Catercare. Mr Murphy said the terms and conditions of employment by Catercare were the same as offered under the College enterprise bargaining agreement along with a transfer of all leave entitlements.

[43] Mr Murphy was taken to paragraph 2.4 of his statement where he indicated that on 10 and 11 March, interviews occurred involving Catercare and Applicant employees. Mr Murphy accepted these interviews were facilitated by the Applicant and Catercare for affected employees, however they did not guarantee employment at Catercare if they were deemed unsuitable for further employment. Mr Murphy said there was a slight chance Catercare could decide not to offer a position if they considered, for example previous misconduct.

[44] Mr Murphy’s evidence was to the effect that unless the employee was deemed unsuitable by Catercare, then they would receive an interview which was then a formality, and they would be guaranteed a position. Any employees deemed unsuitable by Catercare would not have an interview and would receive a redundancy.

[45] Ms DeLuque said she attended a meeting with Mr Bob Clarke and Mr Leigh Churchill from Catercare at 10am on Wednesday 10 March 2021 at the College Office. Ms DeLuque said Mr Clarke asked her for her resume and how long she had worked at the College. Ms DeLuque said Mr Clarke also asked her about how the kitchen was run, what food Ms DeLuque cooked and the menus.

[46] Ms DeLuque said Mr Churchill asked her what happened to the previous Kitchen Supervisor at the College. Ms DeLuque said she told him she couldn’t tell him.

[47] Ms DeLuque said Catercare were considering offering her the position as second chef. Ms DeLuque said she asked them how much she would be paid, and Mr Churchill said $25 per hour. Ms DeLuque said he also said that if she accepted the position, she would be employed on their Award.

[48] Ms DeLuque gave further oral evidence that Mr Leigh Churchill asserted that her current rate would carry across but would be frozen until the Award caught up. Ms DeLuque said at the time she was being paid $30.85 per hour by the College.

[49] Ms DeLuque said at the end of the meeting Mr Clarke said they would call her the next week and let her know if she got the job.

[50] Ms Thompson said on Thursday 11 March 2021 she attended a meeting with Mr Clarke and Mr Churchill. Ms Thompson said during the meeting Mr Clarke asked her what she would say was needed to improve the kitchen. Ms Thompson said they needed to add more staff. Ms Thompson said Mr Churchill said no, they needed to restructure the kitchen.

[51] Ms Thompson said Mr Clarke asked her what she does on Sundays. Ms Thompson said she told him that she did baking for later in the week. Ms Thompson said she asked them about Sunday penalty rates, but they did not answer her question. Instead, Ms Thompson said they asked her what day she worked. She told them Sunday, Monday, Tuesday and Wednesday.

[52] Ms Thompson said she asked what her pay rate would be. Ms Thompson said they said it would be the same as she was on now, but it would be frozen until the Award catches up with it. Ms Thompson said at the end of the meeting Mr Clarke said he would call her back to let her know if she got the Job. Ms Thompson said the following week she had a call from Mr Clarke, and he told her she got the job. Ms Thompson said she said thank you and that she would think about it.

[53] Ms Thompson said she never received anything in writing confirming the job offer. Ms Thompson said she did not receive a contract, roster, position description or any other paperwork that she expected would be provided when being offered a job.

[54] Ms Thompson said specifically, she had previously received a penalty rate for working on Sundays with the College, but she received nothing from Catercare to indicate that penalty rates would continue.

[55] Ms Richter said she had an interview with Mr Clarke and Mr Churchill from Catercare on 10 March 2021 at 11am. Ms Richter said during this interview they asked her what the kitchen needs, what job was in the kitchen, and if she served the kids. Ms Richter said she said yes, they need some new utensils, trolleys to move equipment and new ovens. Ms Richter said she also said they needed more staff as usually there are only two of them on shift and they are exhausted at the end of the shift because they often do not get a break.

[56] Ms Richter said she told them she is a Kitchen Hand and did a lot of different tasks, including some preparations, serving meals, cleaning, storing equipment, food and cooking supplies.

[57] Ms Richter said she asked about the roster, but they did not answer her question, and instead they asked her what she was doing at the moment. Ms Richter said she also asked if there are any changes in the kitchen. Ms Richter said they said that there will be big changes in the kitchen.

[58] Ms Richter said after the interview Mr Clarke told her to wait for his call. Ms Richter said he later rang and said that she got the job as a catering assistant.

Request from Catercare for responses to offers and conversation with Ms DeLuque

[59] Ms Norrie said during the week of 18 March 2021 Catercare requested that she contact Ms Thomson and Ms DeLuque to reply to the job offer presented to them by Catercare. Ms Norrie said during this conversation with Ms DeLuque, Ms DeLuque advised that she was seeking to obtain a redundancy and then would try and apply back for a position later.

[60] Ms Norrie was taken to paragraph 2.5 of her statement regarding the conversation with Ms DeLuque. Ms Norrie said she was on a break and asked Ms DeLuque if she had a few seconds to discuss the matter. It was put to Ms Norrie that this occurred while she was clearing up. Ms Norrie said she asked if Ms DeLuque had a few seconds to which Ms DeLuque replied she always had time to talk. Ms Norrie disputed that she asked Ms DeLuque multiple times to have a conversation.

[61] Ms Norrie was asked if Ms DeLuque asked for information to which Ms Norrie replied she did not. She said Ms DeLuque said she would take the redundancy and work for Catercare at a later time. It was put to Ms Norrie that Ms DeLuque had not yet made up her mind at that stage. Ms Norrie disputed this.

[62] Mr Murphy said Catercare advised that Ms DeLuque was offered a leadership position under the new structure at Catercare. Mr Murphy said on the week of the 18 March 2021, he was advised by Ms Norrie that several staff had declined the offers of employment. He said Ms Norrie indicated that staff had discussed declining a position, taking a redundancy and then applying for the position again down the track.

[63] Ms DeLuque said on Monday 15 March 2021 she had a phone call from Mr Clarke at Catercare who said that she got the job and told her she would be required to work Saturdays and she asked him if this would be paid at time and a half to which Mr Clarke replied no, and that this time will be accrued and paid during school holidays. Ms DeLuque asked him to send her the details in writing and she would get back to him.

[64] Ms DeLuque said on 17 March 2021 she received an email from Mr Clarke offering her a position as the second chef/cook at the College. Ms DeLuque provided a copy of that email with her statement. 14 The email read as follows:

“…

As discussed on the phone, we would offer you the position of the second chef/cook at BTC with us.

This would be on the same hourly rate you are presently on.

We are employing a Chef Manager who will run the kitchen, he will do all ordering, rostering, cooking of lunches and dinners shared with you over the week.

Your weekly roster would look something like this –

Mon/Wed/Fri - 6.30am to 2.30pm

Tues/Thurs 10.30am to 6.30pm

Sat 7.30am to 6.30pm this is accrued and paid during holidays

The cooking of the lunch and dinners would be shared with Chef manager and you, the menu will be very different to what you recently have and will change weekly running on a four week rotation.

All meals will be served by all staff including cooks and chefs, this will include morning teas.

Not sure what else I can tell you.

Hope this helps

Speak Friday

Regards

Bob Clarke
Cater Care QLD Operations Manager”

[65] Ms DeLuque said although the email stated that she "would be on the same hourly rate you are presently on", she believed that the award conditions offered by Catercare were significantly less than the conditions that she was employed under at the College. Ms DeLuque said the examples are Long Service Leave; Superannuation; Redundancy; Paid Domestic Violence Leave and Paid Natural Disaster Leave.

[66] Ms DeLuque said the offer had two other parts which were less beneficial. Ms DeLuque said she was employed on a part time basis with the College, but the offer was for full time employment. Ms DeLuque said more importantly she was not previously required to work on Saturdays. Ms DeLuque said the offer seemed to be conditional on her working what she viewed as excessive hours on a Saturday. Ms DeLuque said having Saturday off work was important to her.

[67] Ms DeLuque said she wanted to find out about any redundancy payments that might apply to her, so she asked Ms Norrie on 18 March 2021 as she was talking with her when she came into the kitchen to get her lunch. Ms DeLuque said Ms Norrie asked her several times "Did you get the job?" and she replied not yet. Ms DeLuque said she said to Ms Norrie that she needed to know what her redundancy entitlement was before she decided. Ms DeLuque said Ms Norrie told her that no redundancy was payable and kept urging Ms DeLuque to accept the offer from Catercare.

[68] Ms DeLuque said at the time Ms Norrie approached her she was cooking, and it was not an appropriate time to discuss this. Ms DeLuque was asked if paragraph 22 of her statement was incorrect to which she agreed. She said that she would not be applying for a position at Catercare in the future and just wanted the redundancy. Ms DeLuque was asked whether she was considering taking a position with Catercare whilst going through the interview process to which Ms DeLuque said she wasn’t because she had nothing in writing.

[69] Ms DeLuque said she felt Ms Norrie was pressuring her. Ms DeLuque said she wanted to know what her redundancy entitlements were because she might want to take a redundancy now and might take a job back at the College later on. Ms DeLuque said this was not her plan, but it was an option she was considering.

19 March 2021 Second meeting with staff and explanation to staff

[70] Whilst there appeared to be some inconsistency in the filed statements about the date of the second meeting it was ultimately not in dispute between the parties that the meeting occurred on 19 March 2021.

[71] Ms Norrie said another meeting was arranged with kitchen staff to discuss what was raised by Ms DeLuque during the conversation on the 18 March 2021. Ms Norrie said at this second meeting the College advised that as it sought suitable employment for all staff that a redundancy was not on offer.

[72] Mr Murphy also said another meeting was arranged with kitchen staff to discuss what was raised by Ms DeLuque. Mr Murphy said staff were advised that suitable employment was provided for all staff and for this reason a redundancy was not on offer.

[73] Ms Norrie said that it was communicated accrued entitlements would transfer over to their employment with Catercare. Ms Norrie accepted if an employee had 10 weeks of Long Service Leave (LSL) in their bank, it would transfer over and they would have 10 weeks of LSL in their bank at Catercare. Ms Norrie did not accept that when employees started with Catercare the rate of accrual of their LSL would change. Ms Norrie said it was in the contract with Catercare that employees would accrue LSL at the rate in the Applicant’s Enterprise Agreement.

[74] Ms Norrie was referred to the information from Catercare in her statement. Ms Norrie was asked to show the Commission the part of the document that highlighted the Long Service Leave rate would accrue at the higher rate. Ms Norrie said it stated the entitlement would be the same as the Enterprise Agreement.

[75] It was put to Ms Norrie the highlighted words did not say that the employees would accrue their Long Service Leave at the higher rate. Ms Norrie said the indication of the words would be that the employees would be employed under the same terms and conditions and conditions as the College EBA.

[76] It was put to Ms Norrie that it was not clear that the higher rate of accrual would be paid to the employees. Ms Norrie said she may have had some emails.

[77] Ms Norrie accepted the email from Mr Clarke did not state anything about the accrual rate of Long Service Leave. Ms Norrie said however that Ms DeLuque would have received a contract that stipulated that she would receive the higher accrual rate but that she rejected the job before the contract was created.

[78] Mr Mabuza accepted if an employee had accrued weeks of long service leave it would carry over to the new contractor.

[79] Ms Norrie agreed the College was relying on s.122(3) of the Act in relation to its application. Ms Norrie was asked whether the College was saying if an employee secured a job with Catercare that the College Enterprise Agreement would continue to apply to them even if they were employed by Catercare. Ms Norrie said this was correct. Ms Norrie was asked where this was ever stated to employees. Ms Norrie said she believed it was in the letter.

[80] Ms Norrie was taken to point 1 of the letter dated 1 March 2021, and it was put to her that it clearly provides that the Hospitality Award would apply to transferring employees and not the College Enterprise Agreement. Ms Norrie repeated that it stated the employees would receive the higher rate of pay. It was put to Ms Norrie that it does not say the College Enterprise Agreement will cover them. Ms Norrie said it may not say it, but the employees were under the impression that the Enterprise Agreement would cover them. It was put that contrary to that, the Award would apply. Ms Norrie said it was the procedures under the Award not the terms of the Award.

[81] Ms Norris said that Catercare wanted to refer to the Award because they set up a system to pay employees for 52 weeks a year and the Applicant employs staff for 37 weeks per year

[82] It was put to Ms Norrie that Attachment 1 to her statement says nothing about the Enterprise Agreement continuing to apply to transferring employees. Ms Norrie said she believes it does where it states that any staff employed on the Applicant’s Enterprise Agreement, the Agreement entitlements including annual leave, long service leave, personal leave etc are to transition upon successful employment at Catercare. Ms Norrie said this included the rate of accrual for long service leave.

[83] It was put to Ms Norrie that that relies on an implication. Ms Norrie said she accepted that, but the document shows the rate will carry across. Ms Norrie was asked if at the second meeting she told the employees the Enterprise Agreement would continue to apply to them. Ms Norrie said this was correct.

[84] It was put to Ms Norrie that in another component of the Enterprise Agreement in the case of Ms DeLuque, she currently receives an enhanced superannuation rate. Ms Norrie said she was not aware of this as she is new to the organisation. Ms Norrie accepted that someone with over 10 years’ service receives an additional 3% superannuation contribution. It was put to Ms Norrie that Catercare were not going to continue to pay this additional 3%. Ms Norrie disagreed and said they were as they had agreed. Ms Norrie was asked to point the Commission to a document that states this. Ms Norrie said she could not at present but she could find one and provide it.

[85] Ms Norrie was asked whether it would have been prudent to provide any document that proves that as part of the Applicant’s case. Ms Norrie referred back to the statement in Attachment 1 that says all entitlements under the College Enterprise Agreement will transition over. Ms Norrie said it was also stated in the contract.

[86] Mr Mabuza said Mr Murphy, Ms Norrie and himself again met with the kitchen staff where the kitchen staff were advised that redundancy packages would only be available to staff that failed to secure employment from Catercare.

[87] Mr Mabuza was taken to a section of the document that said “If you are employed by the incoming contractor”. Mr Mabuza was asked whether he would accept they’d be employed on the Award contained in this document and that appeared to be his understanding.

[88] Mr Murphy accepted that the document attached to his statement was not the one received by employees as this was a clerical error. He accepted the one attached to Ms DeLuque’s statement was the one received by employees.

[89] Mr Murphy was asked if he accepted the accuracy of the statement in the third sentence of the document that the employees would have been covered by the Award that covered Catercare. Mr Murphy said if they accepted employment with Catercare, they would be covered by the Award, however it was their responsibility that any entitlements were transferred over to Catercare.

[90] It was put to Mr Murphy that two entitlements more beneficial than the Award, being leave accruals and the current hourly rate of pay moved over, but that the Catercare Award covered the remaining terms of their employment. Mr Murphy accepted this.

[91] Mr Murphy was asked what was said at the second meeting. He said it was to clarify that staff understood the outcomes if they did not accept an offer.

[92] Mr Murphy was asked if he was aware if a person with the length of service of Ms DeLuque would receive an additional 3% superannuation. Mr Murphy said he was. Mr Murphy was asked what his understanding was if this particular entitlement of Ms DeLuque’s employment was transferred over to Catercare. Mr Murphy said he was not fully informed about this.

[93] Mr Murphy was asked if greater clarity could have been given to that question if someone from Catercare was called to give evidence. Mr Murphy said words to the effect he was not really sure and that it was not considered necessary to call someone from Catercare as the dispute was with the Applicant.

[94] Ms DeLuque said the Business Manager came into the kitchen and said that she wanted to meet with all the kitchen staff. Ms DeLuque said all staff present sat down, and the Principal and Facilities Manager also came into the kitchen. Ms DeLuque said the Business Manager read a statement which she said was from Fair Work, and that the kitchen staff were not entitled to any redundancy if they did not accept a job with Catercare. Ms DeLuque said after Ms Norrie finished reading her statement Mr Murphy backed up her statement and then Mr Murphy, Ms Norrie and Mr Mabuza all left.

[95] Ms DeLuque said she received several emails from Mr Clarke around this time asking if she wanted the job. Ms DeLuque said she was very busy at work and not able to respond.

[96] Ms DeLuque was asked to recall what was said at the second meeting. Ms DeLuque said Mr Murphy, Ms Norrie and Mr Mabuza explained they were not entitled to any redundancy if they refused the job at Catercare. She said Ms Norrie had a piece of paper from Fair Work.

[97] Ms DeLuque was asked if there was any mention of the Applicant’s Enterprise Agreement carrying over to employment with Catercare, to which Ms DeLuque answered there was not.

[98] Ms DeLuque was asked to clarify that the meeting she referred to in paragraph 24 of her statement occurred on 19 March and not 22 March. Ms DeLuque said she was not sure of the exact date, but that it was their second meeting.

[99] Ms Thompson said Ms Norrie came to the kitchen and asked to meet with all the kitchen staff. Ms Thompson said they sat down at a table in the Dining Room and Mr Murphy and Mr Mabuza joined them. Ms Thompson said the meeting only lasted for a few minutes and Ms Norrie read from a piece of paper. Ms Thompson said Ms Norrie said that according to Fair Work the kitchen staff were not entitled to a redundancy because they were offered a job with Catercare.

[100] Ms Thompson was asked to advise in her own words what was said in that meeting. Ms Thompson said their work would transfer to Catercare. Ms Thompson was asked if she recalls being spoken to about the terms or conditions of that employment. Ms Thompson said they were not spoken to about terms or conditions from Catercare. Ms Thompson said they didn’t receive any contract from Catercare.

[101] Ms Richter said she was present at a meeting in the dining room where Tracey Norrie spoke to all Kitchen staff. Ms Richter said Mr Murphy and Mr Mabuza were also at this meeting that went for approximately 5 - 10 minutes. Ms Richter said Ms Norrie read from a piece of paper saying the kitchen staff were not entitled to a redundancy because they were offered a job with Catercare. Ms Richter said Ms Norrie did not give them a copy of the paper she was reading from.

[102] Ms Richter said she was left with the impression that she would be worse off if she accepted the employment with Catercare. Ms Richter said her wage rate was to be maintained at the existing level, but she would not receive a wage increase for a long time. Ms Richter said some of her conditions with Catercare would not be as good, for example, Long Service leave, Paid Domestic Violence Leave and Paid Natural Disaster Leave.

19 March 2021 email from IUEA to Ms Norrie

[103] On 19 March Mr Patrick Meikle, an Organiser with the IEUA sent email correspondence to Ms Norrie as follows:

“Dear Tracey,

We represent Julieta De Luque and Alma Thompson who are members of our Union. We are advised that on 18 and 19 March 2021 you had discussions with one or more of our members. We formally request confirmation of the advice provided to our members. Specifically, we are advised that comments were made in relation to eligibility (or otherwise) for redundancy payment. Confirmation of that aspect is sought. The decision to be made by the employees, and our advice to our members will be dependent on the School’s advice to them. Hence, your expeditious response is requested. In the interim, we reserve all of our members, and our, rights. We request that the school not initiate any summative action until this matter is resolved……”

22 March 2021 email from Ms Norrie to IEUA

[104] On 22 March 2021 Ms Norrie responded to the Union as follows:

“Good Morning Patrick,

In relation to this enquiry I refer you the attached documents which was distributed to staff Monday 01 March 2021. This document was distributed to staff the day after BTC signed a letter of intent with Catercare. The original was signed on the 01 March 2021.

I refer to the points 1 and 2 which advises staff of the 2 scenario's going forward and what will happen if they are either successful or unsuccessful gaining employment with the incoming contractor.

I also refer to you Section 122 of the Fair Work Act 2009 (C’th) deals with “Transfer of employment situations that affect the obligation to pay redundancy pay”. Specifically, section 122(3) states that an employee is not entitled to redundancy pay if he/she refuses the new employer’s job offer and:

-its terms and conditions are similar to those of the old job;

-the new employer recognises the employee’s service with the first employer; and

-If the employee accepted the offer with the new employer, there would have been a transfer of employment in relation to the employee.

Catercare and Blackheath and Thornburgh have meet all the conditions stipulated in Section 122(3) of the Fair Work Act 2009 (C'th). In addition to this all employees were offered a position with Catercare.

Catercare honored:

• the employees pay rates under the BTC EB which is considerably higher that the hospitality award, until the award rate is in line with the current employee's pay rate.

• The employees length of service and all leave entitlements.

• The transfer of employment from BTC to Catercare.

If you require any further discussion please contact me on 0418 160 694 or via email.

Thanks and kind regards…”

Communications with Ms DeLuque

[105] On Tuesday 23 March 2021, Mr Clarke sent an email to Ms DeLuque advising that he would need to know by that Friday if she had accepted the offer. On the 24 March 2021 Ms DeLuque, forwarded an email to Catercare advising she was represented by the union and that they should contact the union representative.

[106] Mr Clarke responded that he would not contact the Union as there was no need to, and the offer was available. Ms DeLuque said on 24 March 2021 she emailed Mr Clarke to tell him that that she did not accept the offer. Ms DeLuque stated that she said in the email she was exhausted, which was true, but not the real reason for not accepting the job with Catercare.

[107] Ms DeLuque said she was frustrated that Catercare was not transparent with her. Ms DeLuque said she they were asking her to accept a job offer without giving her a contract. Ms DeLuque said the College had not been transparent with her either as they had given her a letter which had important information missing.

[108] Ms DeLuque said there was no consultation with staff before the decision was made and it was obvious to her that her conditions with Catercare were going to be reduced from the conditions she had when employed by the College. Ms DeLuque said she felt she would be worse off if she accepted the job with Cater Care.

[109] Ms DeLuque said she made a decision based on what Mr Churchill told her that her position was to be a second chef, but there was no other contract or transparency.

[110] Ms DeLuque was asked if she ever received a contract from Catercare. Ms DeLuque said there was no contract, but a phone call and an email. Ms DeLuque was asked in relation to her statement about how she would be paid less superannuation based on conversations, but she didn’t actually have the contract. Ms DeLuque said Catercare failed to give her any evidence stating she would be paid the same in writing and she had the right to refuse it.

[111] Ms DeLuque was taken to point 20 where she stated the terms were less beneficial as she did not work Saturdays and asked if she spoke to Catercare to discuss that this was not suitable. Ms DeLuque said the conversations she had with Catercare were only 10 minutes and there was no time to discuss. She also said words to the effect that at that time she wanted to ensure she had a job.

[112] Ms DeLuque was asked if she said she was considering taking a redundancy and coming back to work for Catercare at a later date. Ms DeLuque said she believed her words were taken out of context.

Communications with Ms Thomson

[113] Ms Norrie said on the 25 March 2021, Catercare received a text from Ms Thomson advising that she did wish to pursue the offered position with Catercare. 15 During cross-examination Ms Norrie accepted this was not correct.

[114] Ms Norrie said that between 25 March and 31 March 2021 Ms Thompson had a conversation with her regarding changing her mind and accepting a position with Catercare. Ms Norrie said she is not sure if Ms Thompson contacted Catercare regarding this.

[115] Mr Murphy said on 25 March 2021, Catercare received a text from Ms Thomson advising that she did wish to pursue the offered position with Catercare.

[116] Ms Thompson said she received some text messages from Mr Clarke about the job offer, and on 25 March she sent a text to Mr Clarke to tell him that she did not want the job. Ms Thompson said she did not feel that Catercare were being open and honest with her. Ms Thompson said she also felt that the College was not being honest with her.

[117] Ms Thompson said she could see that her conditions were going to be reduced and that the job would be different to the one she had with the College. Ms Thompson said she thought that’s she would be worse off if she accepted the employment with Catercare.

[118] Ms Thompson said whilst her wage rate may have been retained at the existing level, she would not receive a wage increase for the foreseeable future. Ms Thompson said many of her conditions would not be as good as those under the College Enterprise Agreement for example long service leave, superannuation, redundancy, paid domestic violence leave or paid natural disaster leave.

[119] Ms Thompson said she did not receive any written document. Ms Thompson was asked why she held the belief her conditions would be worse off, Ms Thompson said she believed it would be worse off because she never received any paperwork.

Communications with Ms Richter

[120] Ms Richter was asked if at any time she received a contract or written conditions of Catercare’s conditions of employment. Ms Richter said she did not. Ms Richter was asked what her statement that her conditions would be worse off was based on, to which she replied to the effect that it was because they did not receive any contract or written terms.

[121] Ms Richter was asked why she held the belief her conditions would be worse off, Ms Richter answered to the effect that she understood terms would be worse as she would not receive a pay rise for some time and would not receive benefits such as paid domestic violence leave or disaster leave.

Exit Interviews

[122] Mr Murphy said on 25 March 2021, Mr Mabuza sent an email to Ms DeLuque, Ms Thomson and Ms Richter who had declined positions inviting them for offboarding/exit interviews on the 30 March 2021. He said Ms Richter accepted the invite.

[123] Mr Murphy said on 29 March 2021, Mr Mabuza received an email from Mr Patrick Meikle, an IEU representative, stating he had been contacted by Ms DeLuque and Ms Thompson to be present as a support person in the offboarding/exit interviews. Mr Murphy said this request also included an intent to move the meetings to Wednesday 31 March 2021 to align with an IEU visit.

[124] Mr Murphy said on 29 March 2021, Mr Mabuza responded to Mr Meikle advising that his request to move the meetings would need to go through the principal.

[125] Mr Mabuza said on 30 March 2021, he and Mr Murphy conducted an exit interview with Ms Richter. Mr Mabuza said that Ms DeLuque and Ms Thomson, through their Union representative, requested that their meetings be postponed to a date when the Union representative could physically attend the meetings with them as his movements were restricted by the prevailing COVID-19 restrictions.

[126] Mr Murphy said on 30 March 2021, Mr Mabuza and Mr Murphy met with Ms Richter to complete an off-boarding interview. Mr Murphy said in this interview Mrs Richter did not raise any concerns and clearly stated that she happily declined the position as her husband had gained a new role in Brisbane.

[127] Mr Murphy said on 30 March 2021, the College received notification that Mr Meikle's workplace visit was cancelled. He said on 31 March 2021 the College received an email requesting the offboarding/exit interviews take place on 13 April 2021 post the Fair Work conference. Mr Murphy said as this was during a College holiday period, Mr Mabuza advised Mr Meikle via email on 1 April 2021 that the College would not be available for the proposed times and that they would be more than happy to receive feedback from Ms DeLuque and Mrs Thompson via email. Mr Murphy said no further correspondence was received.

[128] Mr Mabuza said on 1 April 2021 he and Mr Murphy presented flowers and a gift to Ms Wheeler, Ms Richter, Ms DeLuque and Ms Thompson.

[129] Ms Richter was asked if she recalled the exit interview. Ms Richter said she declined the job because there was no transparency, and she didn’t know what was going on. Ms Richter accepted she recalled that meeting.

[130] Ms Richter was asked in that meeting if she said her husband had a job in Brisbane and they were looking to move. She said her husband did have a job in Brisbane, but she wasn’t sure if she would move.

CONSIDERATION

Obtains other acceptable employment

Obtains

[131] In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia (FBIS) 16 the Full Court of the Federal Court considered what is required by the term “obtains”, within the meaning of s.120(b)(i) of the Act. The Full Court held that:

“20. With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:

To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.

We would not regard the references to “effort”, and to “purpose and effort” in this meaning as implying the existence of some kind, much less a strong kind, of “moving force” in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the “general” connotation of the word – “to acquire, get” – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.”

[132] In Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia 17, the Full Bench of the Commission, in relying on FBIS, stated:

“[9] …[t]he employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.”

[133] The IEU submitted that Catercare had some discretion on whether to employ the kitchen staff or not and that this was outside of the Applicant’s control. It argued therefore that this meant it fell short of the legislation and the meaning of “obtained” and the Applicant only arranged interviews and could not guarantee the employees a position with Catercare.

[134] Mr Murphy’s evidence was that Catercare had discretion to deem that an employee may not be suitable for employment, however that Catercare would make this decision before the interview stage. In that case it was the Applicant’s evidence that such an employee deemed unsuitable for employment with Catercare would receive a redundancy. Mr Murphy’s evidence was that by the time the employee got to the interview stage, the interview was a formality and an employee who got to that stage would be guaranteed a position.

[135] On the basis of the evidence whilst it appeared at least arguable that Catercare retained a level of discretion that could lead to a conclusion that the Applicant had not obtained other employment for the Respondents, it seems like a matter of practical reality that unless there was some specific cause for concern about the former employees of the Applicant, Catercare had agreed to employ them because of its arrangements made with the Applicant. On that basis I accept the Applicant’s submission that it obtained the employment for the purpose of the Act.

Other acceptable employment

[136] In Spotless Services Australia Limited t/as Alliance Catering 18 Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission where he stated:

“[60] The question of what constitutes ‘other acceptable employment’ in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.

This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as “acceptable” merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is “acceptable”.

…

The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.’ (my emphasis)

[61] In Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901 (‘Oscar Oscar’), Commissioner Asbury (as Her Honour then was), said at paras [18]-[19]:

‘[18] The question of whether alternative employment is acceptable, must be assessed on an objective basis. It is relevant to the assessment that redundancy payments are not made solely for the purpose of assisting employees to find alternative employment. Redundancy payments are intended to tide an employee over during the search for alternative employment, and to compensate the employee for loss of credits for sick leave, long service leave and other entitlements based on length of service. The question of whether previous service with the previous employer is recognised as service with the new employer, will also be relevant.

[19] Other considerations will be whether the alternative employment is of a like nature; a reasonable distance from the previous employment; whether pay and conditions are comparable; hours of work and job security in relation to the new position. The fact that an alternative position does not meet the personal preferences of an employee, may place the right to receive full redundancy pay at risk, where the employee refuses a position that is found to be acceptable on an objective basis.’ (my emphasis)

[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:

‘[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.

…

[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.’

[63] In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘Vicstaff’), Bissett C said at paras [29]-[30]:

‘[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.’

[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others [2016] FWC 461, I said at para [183]:

‘[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:

• rate of pay;

• hours of work;

• work location;

• seniority;

• fringe benefits;

• workload;

• job security;

• continuity of service;

• accrual of benefits;

• probationary periods;

• carer’s responsibilities; and

• family circumstances.

This list is not exhaustive. There may be other relevant factors.’

[65] The above decisions have some common features, including:

• The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee.

• ‘Acceptable employment’ is not identical employment, as no two jobs could be exactly the same.

• An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.

• An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’.

• The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.

• There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”

[137] On the basis of the evidence, it seems clear that a transfer of rights and obligations under the Applicant’s Enterprise Agreement would have occurred had the three Respondents accepted the offers of employment from Catercare as they would have been transferring employees within the meaning of s.313.

[138] That is so because there would seem to be little doubt that there was a connection between the Applicant and Catercare on the basis that transferring work was being outsourced to the Catercare.

[139] There is no evidence of an application having been made by anyone under s.318 of the Act, that the Enterprise Agreement that would cover the three Respondents because of s.313(1)(a) of the Act, would not cover them.

[140] In the ordinary course it should have been a simple matter to explain to the employees that the Enterprise Agreement that covered them while they were employed by the Applicant, would continue to cover them if they accepted an offer of employment with Catercare, and their employment was transferred to Catercare.

[141] Unfortunately, on the basis of the evidence this appears not to have occurred and it appears the employees were given ambiguous, and differing messages from the Applicant, and their potential new employer Catercare.

[142] No witnesses were called from Catercare. The Applicant indicated Catercare did not wish to be involved in the proceedings. No written offers of employment from Catercare settling out in detail the terms and conditions of employment made to the three Respondents were tendered in evidence. Besides an email from Mr Clarke with minimal information, the only direct evidence of offers of employment made by Catercare to the three Respondents was from the three Respondents themselves. What emerges from the evidence is that Catercare did not make offers of employment to the three Respondents on the basis that it recognised and understood that the Applicant’s Enterprise Agreement would cover the three Respondent employees.

[143] Instead, the oral offers made by Catercare, appeared to be made on the basis of continuing to pay the three Respondents their existing rate of pay until the Award rate caught up, to recognise entitlements accrued from employment with the Respondent, but to otherwise apply the Award.

[144] There are a range of entitlements under the Agreement that are more generous than the Award, including in relation to redundancy pay, superannuation, accident pay, the rate of accrual of long service leave, and some more generous allowance payments.

[145] Ms Norrie maintained employees were told the Enterprise Agreement would transfer although there was some ambiguity in her evidence about what employees were to understand would be the role of Award. Mr Murphy appeared to accept that while he understood the rate of pay and other accrued entitlements would be carried over, the Applicant would otherwise apply the Award.

[146] I accept that Ms Norrie believed that Catercare had agreed to honour the conditions in the Enterprise Agreement, but the offer document from Catercare does not say it will observe all of the conditions in the Enterprise Agreement. I also accept that Ms Norrie believed she had told the Respondents at the meeting on 19 March that the Enterprise Agreement would transfer across to Catercare. However, I am not inclined to accept this was made clear because it is inconsistent with the evidence from all of the Respondents which was consistent, and it seems implausible given references by all witnesses to the operation of the Award at Catercare. The evidence tends more to indicate that the focus of the advice at the meeting on 19 March was that the Respondents would not be entitled to redundancy pay if they did not accept the offers from Catercare.

[147] It has also been argued for the Applicant that the Hospitality Award was intended to be applied to the transferring employees for process and procedures only, and all entitlements would be transferred over.

[148] However, the evidence does not demonstrate this was what Catercare either offered or intended. For example, the uncontested evidence was that Catercare informed Ms DeLuque that she would be expected to work on Saturdays without penalty rates and to receive time in lieu. This is less favourable than her previous arrangement at the College.

[149] Each of the three Respondent witnesses gave evidence that they believed that they would be worse off if they accepted the offers. Having considered the evidence in its totality, I am satisfied that when viewed objectively the offers made by Catercare to the three Respondents were inferior to existing terms and conditions on several not insignificant matters.

[150] I am also satisfied the three Respondents were not aware that if they accepted the offers, they would have had a lawful right to seek to enforce entitlements under the transferring instrument. The letter provided to employees on 1 March 2021 by the Applicant included advice that “..You will be employed as per the new contractors’ procedures and processes including awards.”

[151] However, even if the employees were aware that the Enterprise Agreement would transfer, that was not the terms and conditions being offered by Catercare. The evidence of both Ms Norrie and Mr Murphy was not at all clear that for example, Catercare had agreed with it that once employees and transferred to its employment, it would continue to accrue long service leave and pay superannuation contributions at the more generous rates under the Enterprise Agreement. It appeared from the evidence of Ms Norrie and Mr Murphy they were not certain on these issues.

[152] The Applicant has also argued that the Respondents rejected the offers before written contracts could be drawn up, however the evidence demonstrates Catercare was seeking an answer from the Respondents to its offers made at the meetings on 10 and 11 March with some urgency as is demonstrated by the messages exchanged between Mr Clarke and Ms DeLuque. There is in fact no evidence that Catercare ever intended to draft more detailed offers.

[153] Another argument put for the Applicant is that the Respondents never intended to accept the offers because of statements they made to Ms Norrie about why they had refused. Whilst I accept that the Respondents may have given various differing explanations to Ms Norrie for their reasons for not accepting the offers from Catercare, I am satisfied having listened to the evidence of each of the Respondents that it was primarily because of their belief that they would be employed on inferior conditions, and that Catercare was seeking an acceptance from them when it had not provided them with written offers including all of their conditions of employment.

[154] Because an objective assessment of the evidence supports a conclusion that the offers made by Catercare were inferior to the Respondents existing entitlements on a number of matters, I am not satisfied the employment offered could be regarded as other acceptable employment. On that basis the Commission does not have power to reduce the redundancy amounts based on the Applicant having obtained other acceptable employment.

[155] The Applicants have also relied on the s.122(3). Section 122 of the Act provides as follows:

“Transfer of employment situations that affect the obligation to pay redundancy pay

Transfer of employment situation in which employer may decide not to recognise employee's service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non‑associated entities in relation to an employee if the second employer decides not to recognise the employee's service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances

(3) An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer ) if:

(a) the employee rejects an offer of employment made by another employer (the second employer ) that:

(i) is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee's terms and conditions of employment with the first employer immediately before the termination; and

(ii) recognises the employee's service with the first employer, for the purpose of this Subdivision; and

(b) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.

(4) If FWA is satisfied that subsection (3) operates unfairly to the employee, FWA may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that FWA considers appropriate. The first employer must pay the employee that amount of redundancy pay.”

[156] I accept the considerations in s.122(3)(a) are made out to the extent that the three Respondents rejected oral offers of employment from Catercare, and that the effect of its contractual arrangement between the Applicant and Catercare was that Catercare would recognise the service of the three Respondents with the Applicant if their employment transferred to Catercare. I also accept that s.122(3)(b) has been made out because if the three Respondents accepted the offers, there would have been a transfer of employment in relation to those three employees.

[157] The evidence supports the conclusion that although the Enterprise Agreement would have applied in accordance with s.313(1)(a), this was not properly explained to the three Respondents at the relevant time, and Catercare did not appear to have understood this and the offers of employment made by Catercare to the three Respondents were not made on that basis.

[158] For similar reasons to those given above for concluding that the employment offered was not other acceptable employment, I am also not satisfied that the requirements of s.122(3)(a)(i) have been made out because the employment offered was not on terms and conditions substantially similar to, and considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination. For that reason, I have concluded that the exclusion to redundancy pay in s.122(3) does not apply in this case.

[159] For the reasons set out above the application is dismissed and the Respondents are entitled to redundancy pay.

[160] It is strictly not necessary to go any further however for completeness I will deal with the submission made by the Union in the alterative if the Commission was persuaded that s.122(3) did apply in this case. The Union submitted that in accordance with s.122(4) the Commission should be satisfied s.122(3) operates unfairly to the three Respondents because the terms of the new employment were not properly communicated to the Respondents before they were required to accept new employment with Catercare.

[161] I agree with this submission and in the particular facts of this case, were it to have been concluded that s.122(3) did apply, this is a case where it would have been appropriate to order the Respondent to pay the three Respondents their redundancy entitlements.

[162] This is so firstly, because it was not made clear to the Respondents that the Enterprise Agreement would transfer to Catercare if they accepted employment with Catercare, and secondly because the offers of employment made to them by Catercare were overall inferior to their employment conditions with the Applicant, and in those circumstances s.122(3) would operate unfairly.

COMMISSIONER

Appearances:

Mr S Murphy and Ms T. Norrie for the Applicant.
Mr J Spriggs of the IEU for the Respondents.

Hearing details:

2021,
Brisbane:
July 26

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 3062.

2 Exhibit 1, Statement of Tracie Norrie dated 24 June 2021.

3 Attachment 1 to Exhibit 1.

4 Attachment 2 to Exhibit 1.

5 Exhibit 2, Statement of Basil Mabuza dated 24 June 2021.

6 Exhibit 3, Statement of Simon Murphy dated 24 June 2021.

7 Exhibit 4, Statement of Julieta DeLuque dated 16 July 2021.

8 Attachment 1 to Exhibit 4.

9 Attachment 2 to Exhibit 4.

10 Exhibit 5, Statement of Alma Thompson dated 16 July 2021.

11 Attachment 1 to Exhibit 5.

12 Exhibit 6, Statement of Nenita Richter dated 17 July 2021.

13 Attachment 1 to Exhibit 6.

14 Attachment 3 to Exhibit 4.

15 Attachment 4 to Exhibit 1.

16 [2015] FCAFC 90.

17 [2016] FWCFB 5467.

18 [2016] FWC 4505.