Catholic Healthcare Limited

[2019] FWC 315

[2019] FWC 315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Catholic Healthcare Limited
(C2018/6298)

COMMISSIONER JOHNS MELBOURNE, 18 JANUARY 2019

Redundancy - entitlement under the NES - application to vary redundancy pay due to other employment - other acceptable employment.

Introduction
[1] Catholic Healthcare Limited (Catholic Healthcare) has made an application to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (Cth) (FW Act) in relation to a redundancy payment otherwise due to its former employee Ruth Scott.

[2] Catholic Healthcare is seeking that the redundancy pay that would otherwise be due to Ms Scott to be reduced to zero on the basis that, it contends, it obtained for her “other acceptable employment”.

[3] Ms Scott opposes the application on the basis that, she contends, the job offered to her is not “other acceptable employment” primarily because, she says, the position offered to her “was [not] a good match for [her] skills qualifications and experience.” Further, Ms Scott contends that the position was “in a different sector – aged care vs disability”. Ms Scott says “the actual roles are substantially different in practise and status.”

[4] The matter was listed for a hearing to occur on 20 December 2018. In the lead up to the hearing the parties filed the following materials:

a) 8 November 2018 – Application,
b) 14 November 2018 – Statement by Ms Scott,
c) 28 November 2018 – Applicant’s Outline of Argument and Witness Statement by Niels Dempster,
d) 13 December 2018 – Ms Scott’s Outline of Argument and Witness Statement, and
e) 17 December 2018 – Reply Statement of Niels Dempster.

[5] By 18 December 2018 the parties consented to the application being determined on the papers. Consequently, the hearing date was vacated.

[6] In coming to this decision the Commission, as presently constituted, has had regard to all of the materials filed in the matter.

Background to the application

[7] The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:

a) The applicant is a not for profit organisation. It provides care services, with a focus on health, aged and community care.

b) From 17 June 2015 to 30 June 2018 Ms Scott was employed as a Coordinator Band 2, Pay Level 2 under terms and conditions contained in the Catholic Community Services NSW/ACT Enterprise Agreement 2013-2016 (Agreement).

c) Ms Scott was employed in the Community Care Support program. It provided services to people with disabilities.

d) Notwithstanding the alleged fixed term nature of Ms Scott’s employment it was “rolled over” or continued while funding was extended.

e) On 10 October 2018 Ms Scott was formally offered a position within the aged care program “Community Home Support”.

f) On 2 November 2018 Ms Scott declined the offer.

g) Ms Scott’s positon was made redundant on 2 November 2018.

h) Ms Scott’s employment was terminated on 6 November 2018.

i) Ms Scott was paid 4 weeks’ pay in lieu of notice.

[8] As outlined above, there is a dispute as to whether Catholic Healthcare obtained “other acceptable employment” for Ms Scott within the meaning of the FW Act and whether there should be any reduction in the amount of redundancy pay due to Ms Scott. There is no dispute that Catholic Healthcare obtained the other employment for Ms Scott. The dispute is about whether that other employment was “acceptable.”

[9] Ms Scott was employed for 3 years and 4 months.
[10] Consequently, as a part of the National Employment Standards (NES), Ms Scott is entitled to a redundancy payment of 7 weeks in accordance with s.119 of the FW Act.

[11] Under the Agreement Ms Scott is entitled to 12.5 weeks redundancy. This entitlement operates in parallel 1 to Ms Scott’s entitlement under the NES. There can be no double benefit under the NES and the Agreement. The Commission can only deal with the entitlement under s.119 of the FW Act. I have no power to deal with the entitlement under the Agreement. Noting that “a person must not contravene a term of an enterprise agreement”2, if Catholic Healthcare have failed to pay in accordance with the Agreement then it is open to Ms Scott to commence proceedings in a court under Part 4-1 of the FW Act. It would be open to a court to come to a different conclusion to me especially noting the difference in the wording of the entitlements as between the NES and the Agreement.

[12] Catholic Healthcare seeks a 100 percent reduction in the level of redundancy payment provided by s.119 of the FW Act.

Statutory framework

[13] Sections 119 and 120 of the Act form part of the National Employment Standards (NES) and prescribe minimum standards in respect of Notice of termination and redundancy pay in Division 11 of Part 2–2 of the Act. Section 119 sets out the amount of redundancy pay to which an employee is entitled, subject to variation under s.121, exclusions in s.120, the effect of transfer of employment situations in s.122 and limits on the scope of Division 11 of Part 2–2 of the Act.

[14] The redundancy pay provided by s.119 is as follows:

“119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

[15] Section 120 of the FW Act provides as follows:

“120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[16] As stated in the Full Bench decision in Maritime Union of Australia v FBIS International Protective Services (Australia) Pty Ltd 3 (FBIS Decision),

“It is clear that the power to reduce an amount of redundancy pay under the NES is only enlivened if, relevantly “an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119”. 4

Authorities – “other acceptable employment”

[17] In Spotless Services Australia Limited t/as Alliance Catering 5 Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission,

[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.

[18] In deciding the present matter I adopt the approach set out by the Deputy President and the authorities referred to by him. It seems to me that the phrase “acceptable alternative employment” should be taken to have the same meaning as the term “other acceptable employment” which is used in section 120 of the FW Act. Hence the case law is directly applicable in this matter. This approach has recently been adopted by Commissioner Williams in Re Electricity Networks Corporation T/A Western Power. 6

Applicant’s submissions and evidence

[19] The Applicant submitted that,

“General Principles

7. Section 120 of the FW Act provides that if an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119 and the employer obtains other acceptable employment for the employee then on application by the employer the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

8. Paragraph 46 of Deputy President Binet's decision in GCo Electrical Pty Ltd [2018] FWC 4342 summarises the principles of interpretation which have been applied in determining what is "acceptable employment" in the context of section 120 as follows,

"[46] The question of what constitutes 'other acceptable employment' in the context of section 120(1)(b) of the FW Act was summarised by Deputy President Sams in Spotless Services Australia Ltd as follows:

• 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'.

[47] The test of acceptability of the alternative employment involves consideration of matters such as pay levels, hours of work, seniority, fringe benefits, work load and job security. The FWC is required to have regard to the totality of the circumstances. No one factor will be determinative for the purposes of the discretionary judgement as to whether or not the alternative employment is acceptable."

Whether the applicant offered acceptable employment

9. In September 2018, the applicant identified that Ms Scott was impacted by organisational change due to program funding for the Community Care Support Program (CCSP) coming to an end, and that therefore her position as a Coordinator in the CCSP would be made redundant. The applicant reviewed its internal vacancies in the Sydney area and determined that there was a vacancy as a Commonwealth Home Support Program (CHSP) Coordinator which it considered to be a reasonable redeployment opportunity. At the time, this was the only vacancy which was at or around the same level as Ms Scott's existing Coordinator role within the CCSP.

10. The role of CHSP Coordinator was first discussed with Ms Scott on Tuesday 11 September. An offer was made at a meeting held on 4 October and Ms Scott declined the offer. On 10 October, a formal offer of ongoing employment in the CHSP Coordinator positions was made to Ms Scott along with a copy of the position description for the CHSP Coordinator role.

Pay and classification

11. In relation to pay and classification level, the position of CHSP Coordinator offered to Ms Scott was the same classification level under the EA (Band 2, Level2), and the same pay rate as her Coordinator position in the CCSP.

Hours of work

12. In relation to hours of work, the hours of work offered to Ms Scott were the same hours of work as her Coordinator position in the CCSP, that is, the applicant offered her the ability to continue to work on a part-time basis for 22.8 hours per week.

Location

13. In relation to location, the CCSP Coordinator position was located at Lewisham. The CHSP Coordinator position offered to Ms Scott is located in Waterloo Sydney which is a 6.5 kilometre distance or a 20 minute drive from Lewisham. The Waterloo office is close to public transport being about a five minute walk from Redfern train station. Additionally, if Ms Scott had expressed an interest in undertaking the CHSP Coordinator role, the applicant believes that an accommodation could have been reached with Ms Scott regarding working from Lewisham, if that had been Ms Scott's wish.

Work load

14. In relation to work load, the amount of work required to be performed by the CHSP Coordinator is substantially similar to that required by the CCSP Coordinator role. There are a higher number of clients in the CHSP program with a CHSP Coordinator ordinarily undertaking about five phone reviews per day with clients discussing their requirements, coordinating services and facilitating reassessment for a Home Care Package based on the changing needs of clients. Given the higher number of clients in CHSP and their different requirements, the case load is managed differently to the CCSP Coordinator and involves less one on one support for clients.

Fringe benefits

15. In relation to fringe benefits, employees of Catholic Healthcare are entitled to salary packaging benefits and these benefits apply equally to the CHSP Coordinator role and the CCSP Coordinator role.

Job security

16. In relation to job security, the CHSP Coordinator role offered to Ms Scott has greater job security as it was offered as permanent employment, whereas the CCSP Coordinator role was as a maximum term role from June 2015 to June 2018 initially, and was then extended until the end of September and then once more until 2 November 2018.

17. As the CHSP Coordinator is within the applicant's business, Ms Scott would have maintained her continuity of service, and her accrued entitlements would have carried over into the new role.

Seniority

18. In relation to seniority, the applicant submits that the CHSP Coordinator position offered to Ms Scott is equivalent in seniority to the Coordinator position in CCSP.

19. The “Qualifications” described in the position description for the CHSP Coordinator are in the same terms as for the CCPS Coordinator role. For both the CCSP Coordinator and for the CHSP Coordinator role, an applicant for employment must have a relevant Certificate IV or other equivalent qualification and a minimum of four years relevant industry experience, or a degree in a relevant qualification such as health, human services, education and a minimum of two years industry experience.

20. The CHSP role involves case management of about 800 aged care clients by 2.5 full-time equivalent Coordinators. The position involved assessing these clients and their suitability for Home Care packages and representing the client's interests in discussions with the Department of Human Services. Most of the work is done over the phone, however the CHSP program will conduct at least one case management review with the client in person per annum. This may be done in person by the CHSP Coordinator or with a Care Advisor.

21. While the CHSP role involves dealing with aged care clients rather than disability clients, the applicant considers that there is a high degree of commonality in terms of the skills required to perform the CCSP and CHSP Coordinator roles, as demonstrated by the respective position descriptions. The applicant also considers that Ms Scott's skills and experience gained in the CCSP Coordinator role, as well as her experience in previous roles, would have been readily transferable to the CHSP Coordinator role.

Submissions

22. As outlined above, the applicant submits that the CHSP Coordinator position offered to Ms Scott was equivalent in pay and classification, hours of work, location, work load, fringe benefits, and had enhanced job security compared to the CCSP Coordinator position.

23. The applicant submits that while the CHSP role offered to Ms Scott was not identical in terms of the responsibilities undertaken, the qualifications required for this role were equivalent to the qualifications · required for the CCSP Coordinator, and the role represented an equivalent level of seniority within the applicant's organisation. Both the CCSP role and the CHSP role report to a Business Manager who in turn reports to a Regional Manager. The CHSP role is equivalent in status with the CCSP Coordinator role in terms of where it sits in the applicant's organisation structure.

24. It is the applicant's submission that considered in totality, the CHSP role was acceptable employment. The applicant also submits that while the CHSP role may not have suited Ms Scott's preferences for work, the CHSP role offered to Ms Scott was, on an objective basis, acceptable employment.

Remedy

25. The applicant submits that its application for a reduction in redundancy to nil weeks should succeed on the basis that the respondent was offered acceptable employment which she declined.

26. If in the alternative the Commission finds that the position offered was not acceptable employment for any reason, the respondent submits that the redundancy payment awarded should be discounted to account for the fact that an alternative position was offered within the applicant's organisation which was at the same classification level under the EA, the same pay level, with the same hours of work, at the same or similar location, equivalent seniority within the applicant's organisation, and with enhanced job security.

Evidence and submissions – Ruth Scott

[20] Ms Scott submitted that,

“4. Refer Paragraph 9

The applicant states in paragraph 9 that it became aware in September 2018 that Ms Scott was 'impacted by organisational change due to program funding for the Community Support Program (CCSP) coming to an end.

The respondent states that these facts have been known and publicly available for several years with the implementation of the National Disability Insurance Scheme (NDIS) and that the respondents lack of action relate more to a lack of clarity of the employment status of Ms Scott.

The applicant states that CHL reviewed internal vacancies and identified a vacancy as a Coordinator in the Commonwealth Home Support Program (CHSP) which it determined to be a reasonable redeployment opportunity. No genuine consultation occurred with the Respondent.

Pay and classification

5. Refer paragraph 11

The respondent accepts that the position of CHSP Coordinator was offered at the same pay and classification as the COPS role in CCSP.

Hours of work

6. Refer paragraph 12

The respondent accepts that the position of CHSP Coordinator was offered for the same hours of work as the COPS role in CCSP.

Location

7. Refer paragraph 13

The respondent accepts that the CHSP role is located at Waterloo although may be accommodated at Lewisham.

The respondent further comments that a similar role in CCSP Basic in Northern Sydney was offered to her in 2016 however Ms Scott elected to travel further from her home in order to perform a role better suited to her.

Workload

8. Refer paragraph 14

The Respondent accepts that the amount of work performed by the CHSP Coordinator is likely to be similar to that performed by COPS Coordinator however the type and methods of working are substantially different.

The COPS coordinator role is entirely one on one support and case management with a significant amount of contact with clients, other agencies, and families.

Fringe Benefits

9. Refer to paragraph 15

The respondent accepts that there is no change in entitlements to employee benefits.

Job Security

10. Refer to paragraph 16

The respondent accepts that the redeployment to CHSP continues job security and ongoing entitlements however was not aware of the extension of the role to 2 November 2018. Email documents in evidence cite extension of the employment contract to 30 September 2018 only, following which it is assumed the respondent is a permanent employee, irrespective of the redeployment offer being deemed acceptable.

As a lay person, the respondent had offered to continue to support CHL in preparation for the audit and did not appreciate that employment would cease on 2 November 2018- which is the date the notification was made. Despite being provided with 4 weeks’ pay in lieu of notice, the respondent continues to seek secure employment.

Seniority

11. Refer to paragraph 18

The respondent accepts that in terms of pay level the position of CCSP Coordinator is equivalent, however in practice, complex cases would be referred to more senior Coordinators working with Home Care Packages suggesting varying levels of seniority.

12. Refer to paragraph 19

Although the 'qualifications' described in position descriptions for the CHSP Coordinator and CCSP Coordinator are the same on paper, in practice this is not the case. In practice degree qualification was required for COPS coordinator positions, and usually for Care Advisors in Home Care packages

It should also be noted that the role as Coordinator for CHSP offered to the respondent has since been taken by a Community Worker, whom I understand has no tertiary qualifications and has been promoted from a role in direct client services provision including domestic assistance and personal care.

Submissions

13. As outlined above, the respondent submits that the CHSP Coordinator position offered as a redeployment offer, whilst acceptable in terms of pay, classification, and fringe benefits, in the workplace, it is not acceptable in terms of seniority, qualifications and status.

Remedy

14. The respondent submits that there is an ongoing obligation for redundancy payment as not all aspects of the redeployment offer are considered acceptable and the respondent has not yet secured alternate employment.”

Consideration

[21] The FBIS Decision must be applied in this matter because the Agreement includes a redundancy clause which is in different terms to the redundancy provisions of the NES. It is to be noted that the FW Act uses the language of “other acceptable employment” whereas the Agreement uses the phrase “another position comparable in status and remuneration to their position”.

Was Ms Scott “entitled to be paid an amount of redundancy” (s.120(1)(a))?

[22] It is common ground between the parties that Ms Scott’s employment with Catholic Healthcare came to an end because her position was made redundant.

[23] Consequently, the Commission, as presently constituted, is satisfied that Ms Scott is entitled to be paid an amount of redundancy pay by Catholic Healthcare because of section 119 of the FW Act. The s.120(1)(a) of the FW Act has been established.

Did Catholic Healthcare “obtain” other employment for Ms Scott (s.120(1)(b)(i))?

[24] It is common ground between the parties that Catholic Healthcare “obtained” for Ms Scott the Coordinator position within Community Home Support Program (CHSP).

[25] Consequently, the Commission, as presently constituted, is satisfied that in so far as s.120(b)(i) requires an employer to “obtain” other employment, Catholic Healthcare did so for Ms Scott. Therefore part of s.120(1)(b) of the FW Act has been established.

Was the employment “acceptable” (s.120(1)(b)(i))?

[26] It is quite clear that the offer of Coordinator, Commonwealth Home Support Program is not acceptable to Ms Scott. She rejected it. However, that is not the test to be applied. It is not relevant whether an employee accepts or rejects other employment for the purpose of deciding if it is “acceptable” under s.120(1)(b)(i) of the FW Act. An objective test must be applied.

[27] Nor is it necessary that the redundant role (Coordinator, Community Care Support Program) and the offered role (Coordinator, Commonwealth Home Support Program) be identical in order for the latter role to “acceptable”.

[28] Having considered the material in this matter I am satisfied that whilst the redundant role (Coordinator, Community Care Support Program) and the offered role (Coordinator, Commonwealth Home Support Program) were not identical there were very many similarities. The table below reflects my findings:

Consideration	Catholic Healthcare submission	Ms Scott’s submission	Finding
Rate of pay	Same	Same	Same
Fringe benefits	Same – salary packaging still available	Same	Same
Classification	Same - Band 2, Level 2	Same	Same
Hours of work	Same – 22.8 hours per week	Same	Same
Work location	Substantially the same	Substantially the same	Substantially the same
Job security	Greater job security. Permanent role.	Accepts that redeployment to CHSP continues job security.	Continuing job security because offered role within the operations of Catholic Healthcare.
Continuity of service	To be maintained	Agreed	To be maintained
Accrued entitlements	Carried over	Agreed	Carried over
Workload	Substantially similar Higher number of clients, but case load managed differently. Less one on one support for clients.	Client load in redundant role = 30 highly complex compared with client load in new position = 200 not complex.	Different because of case load and they manner in which it is managed.
Seniority	Same. Reports to Business Manager who reports to Regional Manager.	Complex cases would be referred to more senior coordinators.	Substantially the same.
Qualifications	Same terms. Relevant Cert IV or other equivalent qualification and minimum of 4 years relevant industry experience or a degree in a relevant qualification.	Same on paper. However, in practice degree qualifications required in redundant role. Ms Scott holds a Bachelor of Social Work from UNSW	Same requirements.
Skills and experience	Aged care rather than disability clients. High degree of commonality. Skills readily transferrable.	Different sector – aged care vs disability. No experience or knowledge of aged care.	Different sector.

[29] Having regard to the above, whilst Ms Scott was entitled to have concerns about the new role and was entitled to exercise her personal preference not to take up the new role that is not determinative of the question as to whether the new role was, objectively, “other acceptable employment”.

[30] It is my decision that the role of Coordinator, Commonwealth Home Support Program was “other acceptable employment’ which had been obtained for Ms Scott by Catholic Healthcare.

Should the amount of redundancy pay be reduced (s.120(2))?

[31] Section 120(2) of the FW Act invests the Commission with discretion to reduce the amount of redundancy pay by a specified amount. It does not automatically follow that a finding that the other employment was “acceptable” will result in the redundancy pay being reduced to zero.

[32] I have identified in the table above that that there are some differences between the:

a) redundant role of Coordinator, Community Care Support Program; and,
b) new role of Coordinator, Commonwealth Home Support Program.

[33] For example the roles are in different sectors and have different caseloads and systems to manage those caseloads. There is some value to be attached to those differences. Not all Coordinator roles are the same. It would be like saying a senior associate in the tax department of a law firm is the same position as a senior associate in the employment law practice of the same firm. No doubt there are similarities in the essential attributes to practice law in each area of the law. Further, it is likely a lawyer in the tax department could, with some additional study and diligence, navigate the Fair Work Act 2009 as well as they can the Income Tax Assessment Act 1997, but there are clearly differences between the two areas of practice. So it is as between disability services and aged care. There are different care needs and different complexity of cases.

[34] Consequently I have decided to exercise my discretion to determine that the amount of redundancy pay to which Ms Scott is entitled to be paid because of section 119 of the Act is reduced to 25% of her redundancy entitlement under s.119 of the FW Act (i.e. it is reduced by 75%).

[35] An order [PR703978] to that effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR703977>

 1 s.55(6) of the Fair Work Act 2009 (Cth).

 2 s.50 of the Fair Work Act 2009 (Cth).

 3   [2014] FWCFB 6737.

 4   [2014] FWCFB 6737, para [20], referring to s.120(1)(a) of the Fair Work Act 2009 (Cth).

 5   [2016] FWC 4505.

 6   [2019] FWC 65.