CMP Manufacturing Pty Ltd v Barbieri

Case [2018] FCA 622

FEDERAL COURT OF AUSTRALIA

CMP Manufacturing Pty Ltd v Barbieri [2018] FCA 622

Appeal from: Barbieri v CMP Controls Pty Ltd [2017] FCCA 784
File number: VID 515 of 2017
Judge: BROMBERG  J
Date of judgment: 8 May 2018
Catchwords: 

INDUSTRIAL LAW – appeal from decision of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the respondent was entitled to a redundancy payment under the terms of the employment contract – whether the respondent’s position was no longer required to be performed and the respondent was entitled to a redundancy payment under the terms of the employment contract – whether the entitlement to a redundancy payment was excluded because the respondent was offered an “alternative position” under the terms of the employment contract – whether in the alternative, if the respondent was not entitled to a redundancy payment under the terms of the employment contract, whether the respondent was entitled to payment in lieu of notice pursuant to s 117 of the Fair Work Act 2009 (Cth) - appeal dismissed

Legislation: Fair Work Act 2009 (Cth) ss 117, 123(1)(b)
Cases cited:

Amcor Ltd v Construction Forestry Mining and Energy Union (2005) 222 CLR 241

Amcor Ltd v Construction Forestry Mining and Energy Union (2005) 222 CLR 241

Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189

Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325

Fox v Percy (2003) 214 CLR 118

Jones v Department of Energy and Minerals (1995) 60 IR 304

R v Industrial Commission of SA; ex parte Adelaide Milk Cooperative Ltd (1977) 16 SASR 6

R v Industrial Commission of SA; ex parte Adelaide Milk Cooperative Ltd (1977) 16 SASR 6

Singh v Minister for Immigration and Border Protection [2018] FCAFC 52

Termination Change and Redundancy Case (1984) 8 IR 34
Date of hearing: 24 November 2017
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 52
Counsel for the Appellant: Mr T Donaghey with Ms K Jones
Solicitor for the Appellant: PCC Lawyers
Counsel for the Respondent: Ms S Fitzgerald
Solicitor for the Respondent: McDonald Murholme Solicitors

ORDERS

VID 515 of 2017
BETWEEN:

CMP MANUFACTURING PTY LTD

Appellant
AND:

JOHN BARBIERI

Respondent

JUDGE:

BROMBERG  J

DATE OF ORDER:

8 MAY 2018

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMBERG J:

  1. The respondent to this appeal, Mr Barbieri, is a former employee of the appellant CMP Manufacturing Pty Ltd (“CMP”). Mr Barbieri issued proceedings in the Federal Circuit Court of Australia in which various claims were made including that CMP had dismissed him from his employment in contravention of ss 340 and 352 of the Fair Work Act 2009 (Cth) (“FW Act”). He was unsuccessful in relation to those claims, but succeeded on a contractual claim that he was entitled to a…

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AGLC
CMP Manufacturing Pty Ltd v Barbieri [2018] FCA 622
Case
[2018] FCA 622
Decision Date

CaseChat Overview and Summary

CMP Manufacturing Pty Ltd v Barbieri is an appeal against the decision of the Federal Circuit Court of Australia. The appeal concerns the entitlement of Mr Barbieri to a redundancy payment under the terms of his employment contract with CMP. Mr Barbieri, previously employed as a Senior Buyer, was dismissed when he refused to take on additional duties. CMP argued that the dismissal was not a redundancy but rather a resignation, and that Mr Barbieri was not entitled to a redundancy payment as he was offered an "alternative position." The appeal raised three issues for the court to decide: whether Mr Barbieri's position was redundant, whether he was entitled to retrenchment pay under the employment contract, and if not, whether he was entitled to payment in lieu of notice under the Fair Work Act 2009 (Cth).

The court held that the primary judge did not err in his findings. Firstly, the court upheld the primary judge's decision that Mr Barbieri's position as a Senior Buyer was redundant. It was determined that the position was no longer required to be performed, and therefore, Mr Barbieri was entitled to retrenchment pay under clause 11 of his employment contract. The court also rejected CMP's argument that Mr Barbieri's entitlement to retrenchment pay was excluded because he was offered an "alternative position." The court found that the offer did not constitute an alternative position within the meaning of the contract. Lastly, the court found that even if Mr Barbieri was not entitled to retrenchment pay under the contract, he would still be entitled to payment in lieu of notice under section 117 of the Fair Work Act.

The appeal was dismissed, and the decision of the primary judge was upheld. The court found no error in the primary judge's judgment and rejected CMP's grounds of appeal. The court made no order for costs, likely due to the operation of section 570 of the Fair Work Act.

ORDERS:
1. The appeal is dismissed.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Broadly speaking, there are three challenges to the primary judge’s judgment raised by the appeal. They are whether the primary judge erred in holding that:(i)Mr Barbieri’s position as a Senior Buyer was redundant and pursuant to clause 11 of his contract of employment he was entitled to retrenchment pay;(ii)Mr Barbieri’s entitlement to retrenchment pay was not excluded because he was not offered an “alternative position” within the meaning of clause 11; and (iii)if he had not been entitled to retrenchment pay in accordance with clause 11, Mr Barbieri would have been entitled to be paid moneys in lieu of notice pursuant to s 117 of the FW Act. Background facts and the primary judge’s judgment Before I set out how the primary judge addressed each of those issues and why CMP asserts that the primary judge erred, it is necessary that I provide a broad outline of the factual background by reference to the findings made by the primary judge. In so far as those findings were challenged on the appeal I shall address that later. The nature of CMP’s business operations was not dealt with in any detail by the primary judge, nor was it addressed on appeal. What is apparent is that CMP’s operations involved employing employees who performed clerical or administrative functions, or what was described by the primary judge as “office” or “white collar” duties, and also employees performing manual work on the factory floor, or what was described by the primary judge as “blue collar” duties. CMP is the successor of various corporate entities who have, since at least 14 November 1994, operated the same business. On 14 November 1994, Mr Barbieri was first employed in that business by one of CMP’s corporate predecessors. At the time that he was first employed and subsequently, Mr Barbieri was employed in a number of what the primary judge described as “white collar positions”. In about 2009 he was promoted to the position of “Senior Buyer” and a new contract of employment relating to that position was entered into. On 1 October 2013, a further contract of employment was made between Mr Barbieri and CMP’s immediate corporate predecessor in the business. In November 2013 Mr Barbieri’s employment was “transferred” to CMP (at [8]). By that, I take his Honour to mean that Mr Barbieri and CMP agreed that the terms of the contract of 1 October 2013 be the terms of Mr Barbieri’s employment with CMP (“contract of employment”). As at February 2014 Mr Barbieri was underutilised in his role as a Senior Buyer and it was agreed that he would take on “dispatch duties in the warehouse”. The primary judge categorised those duties as “office or white collar duties” (at [8]). In about November 2015, Mr Barbieri was offered either extra duties or a position in New Zealand but declined that offer (at [9] and [95]). By about March 2016, CMP began to explore changing Mr Barbieri’s duties (at [96]). Meetings were held on 18 and 19 April 2016 followed by the exchange of email communications. In broad terms, what occurred was that CMP required Mr Barbieri to take on a range of duties to be shared with another employee, a Mr Petrovski (“the additional duties”). As a consequence of Mr Barbieri’s refusal to accept the additional duties, he was dismissed from his employment. The primary judge rejected (at [101]) CMP’s attempt to portray the dismissal as a resignation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For those reasons, grounds 1C and 1D are rejected.Conclusion It follows that the appeal must be dismissed. No order for costs has been sought and I assume that to be so because of the operation of s 570 of the FW Act. In the circumstances, no order for costs should be made.

Ratio Decidendi

Legal Principle Established

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